Com. v. Dudley, D. (memorandum)
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J.S61032/13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. DANIEL DUDLEY, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 381 EDA 2013 Appeal from the Judgment of Sentence January 15, 2013 In the Court of Common Pleas of Delaware County Criminal Division No(s).: CP-23-CR-0000878-2008 CP-23-CR-0000880-2008 CP-23-CR-0001760-2008 CP-23-CR-0004554-2008 BEFORE: ALLEN, MUNDY and FITZGERALD,* JJ. MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 03, 2013 Pro se Appellant, Daniel Dudley, appeals from the judgment of sentence entered in the Delaware County Court of Common Pleas after the court concluded he violated his probation. This matter returns to this Court after remand for a Grazier1 hearing. He contends, inter alia, that the trial court erred in revoking his probation and that his constitutional due process rights were violated. We affirm. * Former Justice specially assigned to the Superior Court. 1 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). J. S61032/13 We adopt the facts and procedural history set forth in the trial court s opinion. See Trial Ct. Op., 5/15/13, at 1-4. Appellant, then represented by counsel, timely appealed on January 29, 2013. On March 1, 2013, the court served an order on Appellant but did not serve his then-counsel instructing him to comply with Pa.R.A.P. 1925(b) within twenty-one days. Appellant, however, did not file a Rule 1925(b) statement within twenty-one days. On May 2, 2013, Appellant filed a pro se petition with this Court asking this Court to permit his counsel to withdraw. On May 14, 2013, Appellant s counsel filed with this Court a petition to withdraw. This Court, on May 24, 2013, remanded to the trial court to conduct a Grazier hearing. On June 12, 2013, the trial court docketed Appellant s pro se Rule 1925(b) statement, which was putatively untimely. The trial court held a Grazier hearing on June 27, 2013. At the hearing, the trial court permitted counsel to withdraw and Appellant to proceed pro se. The court also held that it would accept Appellant s pro se Rule 1925(b) statement nunc pro tunc.2 N.T. Grazier H rg, 6/27/13, at 13. The case now returns to this Court, and Appellant has filed a pro se brief. Appellant raises the following issues: The trial court erred in revoking [his] parole and probation and re-sentencing him to his full back-time of 471 days, and concurrent 2 to 4 years, in violation of [his] 2 We therefore consider Appellant s Rule 1925(b) statement timely filed. -2- J. S61032/13 constitutional right to due process, and his right to a speedy revocation hearing pursuant to [Pa.R.Crim.P.] 708. The trial court erred in revoking [his] probation, and resentencing him without first providing him written notice of the alleged violation. The trial court erred in revoking [his] probation, and resentencing him without providing him with a preliminary probable cause hearing Gagnon I. [sic] Ineffective assistance of counsel. Appellant s Brief at 1. For his first issue, Appellant claims the Commonwealth should not have been able to vacate his probation because his probation had expired prior to his revocation hearing. He suggests his due process rights were violated because the Commonwealth failed to hold a prompt revocation hearing. Appellant claims that he was prejudiced by the delay because he would have been paroled but for the delay. We hold Appellant is not entitled to relief. The standard of review is an error of law. Commonwealth v. Heilman, 876 A.2d 1021, 1026 (Pa. Super. 2005). Pennsylvania Rule of Criminal Procedure 708(B) addresses when a probation revocation hearing should be held: (B) Whenever a defendant has been sentenced to probation or intermediate punishment, or placed on parole, the judge shall not revoke such probation, intermediate punishment, or parole as allowed by law unless there has been: -3- J. S61032/13 (1) a hearing held as speedily as possible at which the defendant is present and represented by counsel; and (2) a finding of record that the defendant violated a condition of probation, intermediate punishment, or parole. Pa.R.Crim.P. 708(B)(1)-(2). The language speedily as possible has been interpreted to require a hearing within a reasonable time. Rule 708 does not establish a presumptive period in which the Commonwealth must revoke probation; but instead, the question is whether the delay was reasonable under the circumstances of the specific case and whether the appellant was prejudiced by the delay. The relevant period of delay is calculated from the date of conviction or entry of guilty plea to the date of the violation hearing. In evaluating the reasonableness of a delay, the court examines three factors: the length of the delay; the reasons for the delay; and the prejudice resulting to the defendant from the delay. The court must analyze the circumstances surrounding the delay to determine if the Commonwealth acted with diligence in scheduling the revocation hearing. Prejudice in this context compromises the loss of essential witnesses or evidence, the absence of which would obfuscate the determination of whether probation was violated, or unnecessary restraint of personal liberty. Commonwealth v. Clark, 847 A.2d 122, 123-24 (Pa. Super. 2004) (citations omitted). If a defendant is already incarcerated on the charges that triggered the probation revocation, he cannot claim the delay in holding his revocation hearing caused him any loss of personal liberty. Commonwealth v. Christmas, 995 A.2d 1259, 1263 (Pa. Super. 2010) (citations omitted). -4- J. S61032/13 In this case, Appellant was arrested on March 20, March 22, March 25, and March 26, 2011, for multiple charges triggering the instant probation revocation and has remained in custody on those charges. Gagnon II Report, 11/20/12, at 2. Appellant s As the Christmas Court observed, Appellant cannot claim any prejudice from the delay because he was incarcerated. See Christmas, 995 A.2d at 1263. Because Appellant cannot establish prejudice, he has not demonstrated the delay before holding his revocation hearing was unreasonable. See Clark, 847 A.2d at 123-24. We summarize Appellant s arguments for his second and third claims. Appellant contends his due process rights were violated when he did not receive written notice of the alleged violations of his probation. Similarly, he contends the trial court erred by not holding a Gagnon I hearing. We hold Appellant is not entitled to relief. In Commonwealth v. Ferguson, 761 A.2d 613 (Pa. Super. 2000), this Court summarized the probation revocation process as follows: When a parolee or probationer is detained pending a revocation hearing, due process requires a determination at a pre-revocation hearing, a Gagnon I hearing, that probable cause exists to believe that a violation has been committed. Where a finding of probable cause is made, a second, more comprehensive hearing, a Gagnon II hearing, is required before a final revocation decision can be made. * * * At the preliminary [Gagnon I] hearing, a probationer or parolee is entitled to notice of the alleged violations of probation or parole, an opportunity to appear and to -5- J. S61032/13 present evidence in his own behalf, a conditional right to confront adverse witnesses, an independent decisionmaker, and a written report of the hearing. Thus, the Gagnon I hearing is similar to the preliminary hearing afforded all offenders before a Common Pleas Court trial: the Commonwealth must show probable cause that the violation was committed. The Gagnon II hearing entails, or may entail, two decisions: first, a consideration of whether the facts determined warrant revocation. The first step in a Gagnon II revocation decision . . . involves a wholly retrospective factual question: whether the parolee [or probationer] has in fact acted in violation of one or more conditions of his parole [or probation]. It is this fact that must be demonstrated by evidence containing probative value. Only if it is determined that the parolee [or probationer] did violate the conditions does the second question arise: should the parolee [or probationer] be recommitted to prison or should other steps be taken to protect society and improve chances of rehabilitation? Thus, the Gagnon II hearing is more complete than the Gagnon I hearing in affording the probationer additional due process safeguards, specifically: (a) written notice of the claimed violations of [probation or] parole; (b) disclosure to the [probationer or] parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a neutral and detached hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by *618 the factfinders as to the evidence relied on and reasons for revoking [probation or] parole. Id. at 617-18 (quotation marks and citations omitted). A Gagnon I hearing is not required when the defendant has had a preliminary hearing on the crimes that led to a request to have the -6- J. S61032/13 defendant s parole or probation revoked. See generally Commonwealth v. Davis, 336 A.2d 616, 622 (Pa. Super. 1975). A Gagnon I hearing is also not required if, prior to the probation revocation hearing, the probationer has been arrested, tried, and convicted. See id. at 622 (holding, The purpose of that hearing to show probable cause whether probation has been violated will have been served by the trial. ). If a defendant agreed to waive the preliminary hearing, then the defendant is generally barred from challenging the sufficiency of the Commonwealth s prima facie case. Pa.R.Crim.P. 541(A)(1). Instantly, Appellant s Gagnon II hearing was held on January 15, 2013. Prior to the hearing, Appellant pleaded guilty on November 7, 2011, April 16, 2012, and May 15, 2012 to multiple crimes prior to Appellant s Gagnon II hearing. Appellant s Gagnon II Report at 2 (referencing cases: CP-15-CR-4838-2011; CP-15-CR-2280-2011; CP-46-CR-8331-2011; CP-46CR-8325-2011; CP-46-CR-7631-2011). Appellant also waived his preliminary hearing for the following Delaware County cases: CP-23-CR1827-2012, CP-23-CR-1832-2012, and CP-23-CR-1890-2012. Pet. to Appoint Counsel, 12/31/12, at ΒΆ 6. Appellant s Because Appellant waived his preliminary hearing for those Delaware County cases, he cannot challenge the sufficiency of the Commonwealth s prima facie case. See Pa.R.Crim.P. 541(A)(1); Ferguson, 761 A.2d at 617-18. Similarly, because Appellant pleaded guilty to the remaining crimes at issue that led to the instant -7- J. S61032/13 probation violations, he cannot suggest that his right to a Gagnon I hearing was violated. Cf. Davis, 336 A.2d at 622. Accordingly, because Appellant either pleaded guilty to or waived his preliminary hearing for the crimes constituting the instant probation violations, he cannot contend error. Finally, with respect to Appellant s claims of ineffective assistance of counsel, it is well-settled that such claims will generally not be entertained on direct appeal. See Commonwealth v. Holmes, ___ A.3d ___, 2013 WL 5827027, at *1 (Pa. 2013). Accordingly, having discerned no error of law, we affirm the judgment of sentence. See Heilman, 876 A.2d at 1026. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/3/2013 -8-
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