Philadelphia Criminal Lawyer Zak Goldstein

Is Getting Arrested a Probation Violation?

The Superior Court has just decided the case of Commonwealth v. Moriarty, finding that violation of probation counsel was ineffective in failing to challenge the trial court’s finding that the defendant violated his probation solely by incurring an arrest on new charges. Moriarty involved the appeal of a Post-Conviction Relief Act (“PCRA”) Petition.

Commonwealth v. Moriarty

In Moriarty, the defendant first pleaded guilty to Recklessly Endangering Another Person and Resisting Arrest. Pursuant to the negotiations, the trial court sentenced the defendant to one to twenty-three months and twenty nine days of incarceration on the REAP charge and one year of consecutive probation on the Resisting Arrest charge. The court then immediately paroled the defendant, thereby releasing him from custody. The terms of the probation and parole provided that he would commit a violation thereof by committing any other crimes.

Daisy Kates Motions

The defendant was subsequently arrested on a new case and charged with Aggravated Assault and Terroristic Threats. The defendant’s back judge immediately lodged a probation detainer and appointed a defense attorney to represent the defendant. The Commonwealth, likely fearing it would not be able to prove its case beyond a reasonable doubt, filed a motion to revoke probation prior to the resolution of the defendant’s new Aggravated Assault case. This type of motion is called a “Daisy Kates” motion. A Daisy Kates motion asks the back judge to find the defendant in violation even though the defendant has not yet been convicted in the new case.

The constitutionality of these motions is currently debatable in light of the recent Pennsylvania Supreme Court case of Commonwealth v. Arter, but the defense failed to raise that issue in this case. The burden of proof in these types of probation hearings is lower than the beyond a reasonable doubt standard of a criminal trial. Instead, the Commonwealth must show that the defendant committed the crimes charged only by a preponderance of the evidence, which is a much lower standard. It is not uncommon for prosecutors to proceed in this manner when they have concerns that they may not be able to obtain a conviction at trial. These hearings are outrageously unfair both because the burden of proof is lower and the judge who will rule on the defendant’s guilt knows that the defendant has committed crimes previously and is on probation. Thus, the judge is already prejudiced against the defendant prior to hearing the evidence because the defendant was on the judge’s probation at the time that the defendant picked up the new case.

The probation court scheduled a Daisy Kates hearing while the new charges were still pending against the defendant. At the hearing, the defendant’s back judge asked defense counsel if he wished to say anything on behalf of the defendant. Counsel responded that he had consulted with his client and the probation department and that he agreed with the actions that would be taken. In other words, counsel agreed that the defendant should be found in violation of his probation and parole. The judge asked the defendant if he acknowledged the violations of his probation or parole, and defense counsel interjected that the violations were that he had been arrested on new charges. The defendant agreed, so the court found him in violation of his probation and parole and sentenced him to his back time followed by an additional year of probation on the Resisting Arrest charge.

Ineffective Assistance of Counsel

Of course, the defendant was eventually acquitted in the new Aggravated Assault and Terroristic Threats case which served as the basis for the supposed probation violation. The defendant promptly filed motions seeking immediate parole, reconsideration of his sentence, and a Post-Conviction Relief Act Petition alleging that probation counsel had been ineffective in failing to challenge the alleged probation violation. The court granted the motion for immediate parole but denied the other motions, including the PCRA Petition. The defendant appealed.

The Appeal

On appeal, the Superior Court found that probation counsel had in fact provided ineffective assistance of counsel in failing to challenge the alleged probation violation. Counsel was ineffective because the Commonwealth proved only that the defendant had been arrested on new charges and waived the preliminary hearing on those charges.

In order to win a PCRA based on the ineffective assistance of counsel, a petitioner must show that counsel was ineffective, counsel lacked a reasonable, strategic basis for the actions taken in the representation, and that the petitioner was prejudiced due to the counsel’s failures. Here, the Superior Court concluded that counsel was ineffective in failing to challenge the probation violation.

An Arrest Is Not a Probation Violation

First, the Superior Court noted that an arrest, standing alone, does not constitute a probation or parole violation under Pennsylvania law. This is true even where a defendant waives the preliminary hearing as a preliminary hearing does not end in a finding of guilt. Instead, the Commonwealth must introduce at least some evidence beyond the mere arrest and waiver of a preliminary hearing to show that a violation of probation occurred. Typically, the Commonwealth must call at least some live witnesses to show that the defendant committed a crime. Here, the Commonwealth did not introduce any other evidence, so counsel was ineffective in conceding a probation violation based on an arrest alone.

Second, the Court held that the defense lawyer had no reasonable, strategic basis for failing to challenge the violation. Although defense counsel testified that he had recommended conceding the violation so that the defendant would be sentenced and thereby become eligible for work release, it actually turned out that the defendant was not eligible for work release under the general terms of work release enacted by the County Prison. Thus, the defendant gained nothing other than a 23 month jail sentence by failing to fight the alleged probation violation.

Third, the Court held that the defendant was prejudiced because he was sentenced to jail. Had the defendant asked the trial court to defer the probation violation hearing until the new case was resolved or challenged the Commonwealth’s ability to prove that he committed a crime, the defendant may have been released without any additional sentence. Notably, the Court suggested that it is preferable that probation violation hearings not take place until new charges are resolved because of the possibility that a defendant could be found in violation at a Daisy Kates hearing for committing a crime for which the defendant will later be acquitted at trial.

Given that the defendant established all three prongs of the test, the Superior Court granted the PCRA and vacated the trial court’s order revoking probation and re-sentencing him. The Superior Court went further and found that the defendant did not violate his probation. Therefore, it ordered the trial court to re-instate the original sentence and provide the defendant with time credit towards that sentence for the time spent in custody.

Award-Winning Philadelphia Probation Violation Lawyers

If you or a loved one are facing a potential probation violation or probation detainer, we can help. In many cases, it may be possible to have the detainer lifted pending the resolution of a new case or to seek alternatives to incarceration for established violations of probation. Our Philadelphia criminal defense attorneys have successfully helped thousands of clients navigate Gagnon I and Gagnon II probation hearings. We are also able to provide sueprior We offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding advocate today.

Getting Arrested Is Not a Probation Violation in PA