Com. v. Eckhart, R. (memorandum)

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J-S36017-18 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA v. RYAN M. ECKHART, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 3900 EDA 2017 Appeal from the Judgment of Sentence November 14, 2017 In the Court of Common Pleas of Carbon County Criminal Division at No.: CP-13-CR-0000898-2011 BEFORE: GANTMAN, P.J., DUBOW, J., and KUNSELMAN, J. MEMORANDUM BY DUBOW, J.: FILED DECEMBER 11, 2018 Appellant, Ryan M. Eckhart, appeals from the November 14, 2017 Judgment of Sentence entered in the Court of Common Pleas of Carbon County following the revocation of his parole. We affirm on the basis of the trial court’s January 22, 2018 Opinion. In its Pa.R.A.P. 1925(a) Opinion, the trial court set forth the underlying facts. See Trial Court Opinion, filed 1/22/18, at 1-5. Briefly, on January 19, 2012, Appellant entered a guilty plea to one count of Driving Under the Influence of a Controlled Substance.1 The trial court imposed a term of ninety days to five years’ imprisonment. ____________________________________________ 1 75 Pa.C.S. § 3802(d)(1)(i). J-S36017-18 Over the next several years, the court revoked Appellant’s parole several times for his failure to comply with a zero-tolerance policy for drug use and possession, as well as missed drug tests. On October 31, 2016, Carbon County Adult Probation Officer Kimberly Cooper filed a Petition to Revoke Appellant’s parole, alleging that Appellant (1) tested positive for amphetamines on September 14, 2016; (2) failed to submit a scheduled urine screen on October 5, 2016; and (3) “was unsuccessfully discharged” from drug and alcohol treatment on October 18, 2016. Petition to Revoke, 10/31/16. Officer Cooper also requested that the court issue an arrest warrant for Appellant. Due to a breakdown in the court’s operation, the court did not properly process and file the Petition or issue an arrest warrant. On August 4, 2017, the Clerk of Courts issued the arrest warrant for Appellant.2 Officers arrested Appellant on August 8, 2017, and served him with the revocation Petition. On October 27, 2017, the trial court, sitting as the parole violation (“VOP”) court, conducted a VOP hearing at which Officer Cooper and Appellant testified. Appellant stipulated to the violations, but challenged the timeliness of the delayed revocation hearing and the Commonwealth’s diligence pursuant ____________________________________________ Officer Cooper testified that she discovered the error, notified the court, and submitted an expedited request for the issuance of the arrest warrant. N.T. VOP, 10/27/17, at 18-19. 2 -2- J-S36017-18 to Pennsylvania Rule of Criminal Procedure 708. See N.T. VOP, 10/27/17, at 4, 9, 44-45. After consideration of the foregoing and additional briefing by the parties, the VOP court found that Appellant had violated his parole. On November 14, 2017, the VOP court recommitted Appellant for 202 days’ incarceration with credit for time served. Appellant filed a timely Notice of Appeal. Both Appellant and the VOP court complied with Pa.R.A.P. 1925. Appellant presents one issue for our review: Whether the [t]rial [c]ourt erred when it found the one year delay in resolving the Commonwealth’s petition to revoke [Appellant’s] parole reasonable under Pa.R.Crim.P. 708? Appellant’s Brief at 4. Appellant avers that the VOP court violated his right to a speedy revocation hearing under Pa.R.Crim.P. 708. Appellant’s Brief at 10-20. Rule 708 provides, in part, that a parole revocation hearing must be “held as speedily as possible at which the defendant is present and represented by counsel.” Pa.R.Crim.P. 708(B)(1) (emphasis added). “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.” Commonwealth v. Clark, 847 A.2d 122, 124 (Pa. Super. 2004). “When examining the reasons for the delay, the court looks at the circumstances surrounding the delay -3- to determine whether the J-S36017-18 Commonwealth acted with due diligence in scheduling the revocation hearing.” Commonwealth v. Christmas, 995 A.2d 1259, 1263 (Pa. Super. 2010) (citing Clark, 847 A.2d at 124). After a thorough review of the certified record, the briefs of the parties, the applicable law, and the trial court Opinion, we conclude that there is no merit to Appellant’s challenge. The Honorable Roger N. Nanovic, sitting as the VOP court, has authored a comprehensive, thorough, and well-reasoned Opinion, citing the record and relevant case law in addressing Appellant’s claim. See Trial Court Opinion, filed 1/22/18, at 5-12 (concluding that there is no merit to Appellant’s claim because the one-year delay did not prejudice Appellant insofar as (1) his purported loss of a mitigation argument is speculative and does not qualify as “the loss of essential witnesses or evidence” as contemplated by the rule and case law, particularly where Appellant stipulated to his violations; and (2) Appellant’s contention that he would have been released from prison upon reaching his “maximum date” had he been arrested earlier is speculative). We, thus, affirm on the basis of the trial court’s January 22, 2018 Opinion. The parties are instructed to attach a copy of the trial court’s January 22, 2018 Opinion to all future filings. Judgment of Sentence affirmed. -4- J-S36017-18 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/11/18 -5- Circulated 11/20/2018 02:38 PM IN THE COURT OF COMMON PLEAS OF CARBON COUNTY, PENNSYLVANIA CRIMINAL DIVISION - LAW COMMONWEALTH OF PENNSYLVANIA v. No. CR-898-2011 • ........1 RYAN ECKHART, ' Defendant Brian B. Gazo, Esquire Assistant District Attorney Counsel for the Commonwea I tfi) Matthew Mottola, Esquire Assistant Public Defender Counsel for the Defendant ----..-. · -· .:., MEMORANDUM OPINION Nanovic, P.J. - January 22, 2018 Under Pa.R.Crim.P. 708 parole (B) (1), and probation revocation hearings must be held within a reasonable time. this does delay, the not and the defendant is prejudiced the underlying petition should be dismissed. Defendant parole occur filed in by opposing the the Carbon petition to County Adult When by the So argues revoke Defendant's Probation Office on October 31, 2016. FACTUAL AND PROCEDURAL BACKG OUND On January 19, Ryan Eckert, less the 2012, Senior Judge Richard W. Webb sentenced defendant than ninety days in these nor more than proceedings, five years to serve no in the Carbon County Correctional Facility for his conviction of driving under the influence of a schedule one controlled substance, heroin, as a second offense. The sentence [FN-2-18) 1 contained a zero-tolerance provision for Defendant's use or possession of controlled substances and for missed urine screens. granted for fifty-one days, illegal With credit the sentence was set to expire on November 30, 2016 (the "max date"). Unfio r t una t e Ly , Defendant was zero-tolerance provision and, revoked three revocation times. occurred recommitted to serve 10, balance 2013, of the his parole has been p. 10/27/17, October the able to comply with as a result, (N.T., on not 10). when his The first Defendant sentence and was made eligible for re-parole after serving a minimum six-month period of imprisonment. 2015. his Again, Defendant was recommitted to serve the balance of sentence, eligibility admission The second revocation occurred on October 1, with for the parole a into on and proceedings, the began or after long-term rehabilitation facility. revocation, court May 1, inpatient (N.T., revocation conditioning which is 2016, drug 10/27/17, p. the Defendant's and 13).1 subject his upon alcohol The third of these with the filing by the Carbon County Adult Probation Office of a revocation petition on October 31, 2016. In Defendant 1 its petition, tested the positive for Probation Office amphetamines on alleged September that 14, Defendant was paroled on May 12, 2016, to an inpatient program at Conewego Snyder, which he successfully completed on July 29, 2016. On Defendant's discharge from this facility, it was recommended that he attend one individual and two group counseling sessions every week beginning September 6, 2016. Between September 6, 2016, and October 8, 2016, Defendant attended a total of one individual and two group sessions, resulting in his unsuccessful discharge from outpatient counseling on October 18, 2016, due to his failure to keep scheduled appointments. (N.T., 10/27/17, pp. 14, 2324, 35-36) . [FN-2-18] 2 2016, failed to submit to a scheduled urine screen on October 5, 2016, and was. unsuccessfully discharged treatment on October 18, 2016. from drug and alcohol These violations were not disputed by Defendant at the time of his revocation hearing held on October 27, 201 . Defendant argued (N.T., that the 10/27/17, pp. 4, 44-45). one-year delay in Instead, resolving the Commonwealth's petition was unreasonable and required dismissal, with prejudice, of the violations. In its petition filed on October 31, Office requested that an arrest 2016, warrant the Probation be issued for Defendant's apprehension and stated that service of the petition would be made on Defendant at the time of apprehension. (N. T., 10/27/17, p. 16). On the same date this petition was filed, the court order entered warrant, however, Office, no 10/27/17, warrant an was the due to an oversight warrant pp. directing was 17-18). issued until issuance of an arrest in the Clerk of Courts August 4, 2017. (N. T., This breakdown in processing the arrest discovered when the probation officer responsible for filing the petition for revocation - Kimberly Cooper - first learned that same day that Defendant was not in prison, but had been visiting the prison to deposit monies in a female inmate's account, and immediately requested the Clerk's Office to process Defendant's 10/27/17, pp. arrest 18-19, warrant 28-29). on an expedited basis. (N. T., Upon the issuance of the arrest [FN-2-18] 3 warrant, 2017. Defendant was (N . T. , At arrested four days later, on August 8, 10 I 2 7 I 1 7 , pp . 1 7 , 2 O) • the revocation held hearing on October 2017, 27, Defendant claimed "the petition should be dismissed because the hearing was untimely under Pa. R. Crim. P. 708 (B) (1)." (Defendant's Brief in Support of Dismissal of Petition to Revoke Parole, 1). p. Defendant argued the Commonweal th did not act diligently to monitor and ensure that the Clerk of Courts Office timely processed the petition and issued an arrest warrant, and that the resulting delay in holding the revocation hearing was prejudicial. At the conclusion of the revocation hearing, we requested counsel to brief Defendant's claim that the delay between when the petition for revocation was filed and the hearing was held was unreasonable Defendant's brief and required was filed dismissal on October of 30, the petition. 2017, and Commonwealth's brief was filed on November· 3, dated November 14, we granted the Commonwealth's request 2017, 2017. the By Order for revocation and recommitted the Defendant to prison for 202 days, less credit for Defendant's confinement in the Carbon County Correctional Facility since his arrest on August 8, 2017, and an additional seventy-eight days for Defendant's successful completion period of inpatient from May 12, treatment 2016, through [FN-2-18) 4 at Conewego July 29, Snyder 2016. for The the order contained an extensive annotation explaining the reasons for our decision. On November 22, 2017, Defendant Pennsylvania Superior Court ' granting revocation. Whether "[t] he in delay Trial reso.lving (Defendant's] parole filed his from the November appeal 14, to the 2017, order In his appeal, Defend.ant raises one issue: Court the erred when it Commonwealth's reasonable under found the petition one-year to Pa. R. Crim. P. revoke 708." See Defendant's Concise Statement of Errors Complained of on Appeal filed on December 11, 2017. further states that In his concise statement, Defendant "[d]espite finding that this delay was intrinsically unreasonable and that the Commonwealth did not act in diligently when it resolving this petition, the Trial Court. erred found this delay reasonable because it concluded that [Defendant] was not prejudiced by this delay". DISCUSSION A time" grounds 1262 revocation from is when hearing a petition be 2010) held seeking Commonweal th filed. (Pa.Super. must v. within a revocation Christmas, (interpreting "reasonable on 995 A. 2d 1259, 708's Rule technical language requiring a hearing to be held "as speedily as possible" to mean within 2012) .2 a reasonable time), appeal denied, 53 A.3d 756 (Pa. The primary purpose of this prompt hearing requirement 2 Pennsylvania Rule of Civil Procedure 708(8) provides, in relevant part: [FN-2-18] 5 is to prevent the loss of essential witnesses or evidence that would adversely af feet the fairness of the revocation process and to prevent unnecessary detention or other limitations on the offender's personal liberty. Commonwealth v. Marchesano, 544 A.2d 1333, 1336 (Pa. 1988). "[T] he reasonableness of the delay in the holding of a revocation hearing is to be determined by an inquiry into the circumstances of the individual circumstances into which the court the delay, whether the the Commonwealth reasons which Defendant v. do was Marchesano, case. Three the inquires are the length of or do not prejudiced 544 of A.2d at justify by 1336. it, the and delay." There is no presumptive or per se rule finding prejudice to exist after a certain defined period of time or "whenever a revocation hearing is held after expired." Id. the period at 1336. that Rather, probation [or parole] has courts must consider whether the delay was reasonable under the circumstances of the specific case and whether Rule 708. actual prejudice Violation of Probation, Hearing and Disposition to the defendant Intermediate Punishment, resulted. or Parole: (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: (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(8). [FN-2-18] 6 Marchesano, 54 4 A. 2d at prove prejudice. 1336-37. Lt is Defendant's burden to Commonwealth v. Christmas, 995 A.2d at 1263. With respect · to the three f act or s identified in Marchesano for evaluating the reasonableness of a delay, delay in the case October until 31, 2016 October held). (the date the 27, The breakdown sub j udice was 2017 reason (the for approximately one year: revocation petition was date this the length of the the revocation was delay from filed) hearing primarily due was to a in the Clerk of Courts Office in issuing the arrest warrant (from October 31, 2016 until thereafter due to delay inherent Gagnon I 4, 2017) in revocation proceedings. hearing was held on August 28, Defendant's arrest, August 2017, and A one month after and a Gagnon II hearing was held on October 27, 2017, two months later. Here, both the period of the delay and reason for the delay (i.e., favor dismissal of the petition. Bischof, 616 A.2d 6, of 22 12, Commonwealth scheduling and not the 9 to (Pa.Super. months have revocation twelve months) the delay in issuing the arrest warrant) 8-10 (i.e., 1992) as (citing delay periods unreasonable; proceeded hearing See Commonwealth v. with where due the finding the diligence in reason given for fifteen months of the delay was the need to obtain a certified copy of defendant's revocation), which conviction the (the parole underlying department [FN-2-18) 7 took basis no for the affirmative steps · to track during this fifteen-month period, and an additional seven months thereafter until the hearing was held, the which Commonwealth took no steps expedite). to Notwithstanding this predisposition, the period of delay here is significantly less than the twenty-two month delay in Bischof, and while we have concluded that the Parole Off ice failed to exercise due diligence in making inquiry of the Clerk's office during the nine-month period it took for the arrest warrant to be issued, we find no fault with the Commonweal th as ensuing three month delay before the hearing was held, which we consider to process. (N.T., 408 U.S. 471, be 10/27/17, intrinsic pp. in 32-33). the two-step to the much of revocation See Morrissey v. Brewer, 488, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (finding that a period of two months between the preliminary hearing and the final revocation hearing was "not unreasonable"). Moreover, the period and cause of the delay are not dispositi ve factors in and of themselves and do not entitle an offender pr judice. to dismissal of the petition absent a finding See Commonwealth v. Bischof, 616 A.2d at 9. Prejudice in this context has been interpreted as being something which would detract from the probative value and of the facts considered, reliability One vitiating the reliability of the outcome itself. specific purpose of our rule in requiring a prompt revocation hearing is to avoid such prejudice by the loss of essential witnesses or preventing evidence, the absence of which would contribute Another is to prevent adversely to the determination. restraint of personal liberty. unnecessary [FN-2-18) 8 of Commonwealth v. Dickens, 327 Pa.Super. 141 (1984); Corrunonwealth v. Ballard, 129, 436 A.2d 1039 (1981). 147, 475 A.2d 292 Pa.Super. Conunonwealth v. Marchesano, 544 A.2d at 1336. Defendant claims prejudice in two respects. First, that had the hearing been held shortly after the revocation petition was filed, he would have had a viable argument for mitigation given his recent .successful completion of inpatient treatment at Conewego Snyder and second, date, he would have been had he been arrested before the max released from prison on this date, pending resolution of the petition, a necessarily shorter period of time than the eighty-one days he spent in prison prior to the October 27, 2017, revocation hearing. (N.T., 10/27/17, p. 30). Both, we conclude, are unavailing to Defendant. As to the first, Supreme Pennsylvania attributable the such is not prejudice as defined by the to absence "the of determination" Court. loss which because stipulated to and, Defendant of essential would of witnesses contribute the therefore, suffered not in to violations dispute. harm or evidence, adversely The delay. no All the were indicated that notwithstanding Defendant's discharge from Conewego Snyder on July complying 29, 2016, with the he was still using zero-tolerance illegal provision of drugs his and not sentence. That this was further confirmed by his subsequent possession and use of illegal drugs after November 30, 2016, was conduct within [FN-2-18] 9 Defendant's control bears the risk, prejudiced. and constituted new evidence for which he not a loss of evidence by which Defendant was (N.T. 10/27/17, pp. 19-20, 43, 49-50, 52). As to Defendant's second claim of prejudice, that he was unnecessarily imprisoned for longer than he would have' been if he had been speculative parole was arrested before November and unlikely. filed thirty 30, 2016, this The petition to revoke days before Defendant's is both Defendant's max date. Whether it can fairly be said that had the warrant been issued immediately, Defendant would have been located within this thirty-day period is uncertain. were the case, arrested But even if this Officer Cooper testified that given Defendant's past history of drug use, current and violations, the his prior two revocations, Probation Office's and the recommendation to revoke Defendant's parole and recommit him for 202 days would have been unchanged. (N.T., 10/27/17, pp. 21-24, 33-34) .3 3 This period of 202 days represents the pEriod between May 12, 2016, when Defendant was previously released on parole and admitted into the inpatient program at Conewego Snyder, and Defendant's max date of November 30, 2016. (N.T., 10/27/17, pp. 21, 31). While we accepted this time span for recommitting Defendant to prison in our November 14, 2017, order revoking Defendant's parole, we also gave Defendant full credit for the seventy-eight days he spent in inpatient treatment at Conewego Snyder. Taking into account this seventy-eight day period Defendant was in inpatient treatment at Conewego Snyder, and considering Defendant was arrested and incarcerated on August 8, 2017, Defendant will have fully served the 202 days for which he was recommitted as of December 10, 2017. This notwithstanding, and although Defendant has not challenged his conviction or the legality of his sentence, the case is not moot since the fact of Defendant's revocations from parole could have future consequences for any future convictions for which Defendant may be sentenced: Defendant's revocations from parole signal Defendant is a poor candidate for parole or probation, and would likely appear in a presentence report and be given consideration in sentencing Defendant for any new offenses. See Commonwealth v. Carter, 523 A.2d 779, 781 (Pa.Super. 1987). [FN-2-18) 10 In add i t i on , the test Parole, "[iJn evaluating we must bear in mind as well as probation, rehabilitation and life. a It is defendant has at presented the whether to absolute a court Commonwealth ( citations omitted) . sentence. the individual right. Thus, is hearing probative of to v. to the useful which a controlling whether and a the reliable facts and not procedure have been strictly Marchesano, 544 A.2d at Further, probation revocation, the proceeding. penological measure are rules nature of component of primarily concerned with the of revocation traditional observed." is discretionary consideration the restoration no [the prejudice} a parole revocation, 1336 unlike a "does not involve the imposition of a new Indeed, there is no authority for a parole-revocation court to impose a new penalty. Rather, the only option for a court that decides to revoke parole is to recommit the Defendant to serve the already-imposed, v. Kalichak, Here, revocation time whether Commonwealth 943 A.2d 285, 290 (Pa.Super 2008). Defendant's violations and his past record justified of parole and recommi tment sentence effective May 12, good original sentence." to be Defendant's here, on August 2017, when the 8, in 2016. prison period 201 7, revocation of for the balance his While we suspect there is no from a defendant's incarceration began, when he was arrested; hearing was [E'N-2-18) 11 of held; perspective, as it did on October 27, or on some later date appears to be of no consequence und r the circumstances of this case. Defendant argues that he was prejudiced by being in {N.T., prison,· not by when he was in prison. 9) . Given that Defendant has not 10/27/17, pp. challenged the 8- violations which form the basis of his revocation or the Court's exercise of discretion in revoking parole and recommitting the Defendant to serve the balance of his sentence, Defendant has not been prejudiced by an "unnecessary restraint of personal liberty" due to the delay. CONCLUSION The value probative reliability and of the facts surrounding and underlying the revocation of Defendant's parole are not occurred in dispute. were fairly Nor has Defendant, his sentence pending his and The facts and the context in which they and accurately presented to the court. who was recommitted to serve the balance of given revocation credit for hearing, unnecessary restraint of his all time been freedom. spent in prejudiced prison by Consequently, any Defendant is entitled to no relief based upon a claimed viola ,on of his . .. ., c..·. _,, .:-- ' { -: : . :;..>::'.'::: right to a speedy hearing. -) -;:i: (:) BY THE COURT: - c;,:: C')- 1 c-, ::..,cicJ --.. ;.._ , ;-...) r-o ?::- . u - -· 8 0 fP•::..1- --:.. P-:-J. [FN-2-18) 12 . ;. --7 ... ....,..... . r--- .., ;. r--4 '--J

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