Philadelphia Criminal Defense Blog

Zak Goldstein 9/24/23 Zak Goldstein 9/24/23

How to Get Your Bail Reduced in Philadelphia, PA

Award-Winning Philadelphia Criminal Defense Lawyers for Bail Motions and Bail Reductions

The Philadelphia criminal defense lawyers of Goldstein Mehta LLC have successfully defended thousands of clients at trial and on appeal. In many cases, the first thing we are able to do for a client is file a bail reduction motion in order to get the client out of jail. Once the client's bail is reduced and the client gets out of jail, the client is in a much better position to fight the case. We offer a free 15 minute criminal defense strategy session to any potential client. Call 267-225-2545 to speak with one of our defense attorneys about a bail motion today.

What is Bail?

If you have been arrested or are facing criminal charges, one of the first issues that you will face is the setting of bail. Bail is the amount of money that you are required to pay in order to be released prior to trial. If you cannot pay that amount, you will be held in custody until the case is resolved, so fighting for a low bond amount can be one of the most important issues in a criminal case. Unlike New Jersey and the Federal system, Pennsylvania requires defendants to pay cash in exchange for release. This means that most defendants must pay money in order to be released from custody pending trial.

Bail is extremely important for a number of reasons. A defendant who makes bail will be released pending trial and have a number of significant benefits. For example, the defendant will be able to be a much more active participant in defending the case as the defendant will be able to review the discovery, help locate evidence and witnesses, and prepare for trial. Further, a defendant who is not in custody will be able to continue working and living a normal life while waiting for the case to be resolved.

Demetra Mehta, Esq. - Philadelphia Criminal Defense Lawyer

On the other hand, a defendant who cannot afford the required amount could spend months or even years in the county prison awaiting trial. The defendant could lose his or her job, home, and contact with friends and family. It will also be much more difficult for the defendant to review all of the discovery, particularly if the discovery is lengthy or the Commonwealth has video evidence. Additionally, the fact that the defendant is in custody makes it much harder to reject a plea deal that would get the defendant out of jail even if the defendant is innocent. In many cases, completely innocent people plead guilty to crimes they did not commit because they simply cannot afford to wait any longer for a trial while they are in jail.

If you have been arrested and are facing criminal charges, it is extremely important that you retain a criminal defense lawyer who will aggressively challenge any efforts by the prosecution to have bail set at a level that you cannot afford. It is also important to retain a lawyer who will continue to fight for bail reductions at each court date in the event that you are unable to pay the initial amount.

When is bail first set?

The amount that the defendant must pay is initially set at the preliminary arraignment. The preliminary arraignment is the first step in every criminal case in Pennsylvania. In Philadelphia, preliminary arraignment occurs after a defendant has been arrested. The defendant will typically be held at the police station and processed for 10-20 hours, and the defendant will then be brought before a commissioner for a video hearing. If the defendant has already retained counsel, then the defense lawyer may be present in person or by phone for the preliminary arraignment. If the defendant has not retained counsel, then the defendant will be represented by a paralegal or legal intern from the public defender’s office. The Commonwealth is represented at preliminary arraignment by a paralegal, as well. Both sides may make recommendations and arguments as to what the bond should be, and the commissioner will then determine how much the defendant must pay to get out of jail.

If the defendant can post 10% of that amount, then the defendant will be released. If not, the defendant will be held in custody pending the next court date or until the defendant can pay. With the exception of of the Special Victims Unit, the Philadelphia Police almost always initiate cases by making arrests; they rarely notify a defendant of charges and give the defendant a chance to turn themselves in. If you did retain an attorney who contacted the police while an investigation was still underway, then the police may give your attorney the courtesy of notifying them of the warrant and allowing you to turn yourself in. In the suburban counties, however, a detective may initiate a case with a phone call informing the defendant of an arrest warrant or a summons. The defendant may then retain a criminal defense lawyer, go to the police station, spend a couple of hours getting processed, and then appear before the local Magisterial District Justice for the preliminary arraignment.

Is arraignment court open on the weekend and holidays?

The preliminary arraignment can take place at any time. Arraignment court is open 24 hours a day and 365 days per year. This includes weekends and holidays, so even if someone is arrested on a Friday night, they will not necessarily be held until Monday before they see a judge and have bail set. Instead, they would likely see a magistrate sometime within 24 hours of the arrest. The court typically hears a list of cases and sets bail for those who have been arrested every three or four hours. It is possible for supporters to be there in person for the proceedings, but the hearings often occur without much notice, and family members do not always know a defendant has been arrested before the hearing takes place. Retaining a criminal defense attorney as soon as your loved one is arrested or before they turn themselves in may allow you to get some advance notice as to when the hearing will take place.

How is the initial bail determined?

The initial bail is determined by the commissioner or magistrate after hearing argument from defense counsel and the prosecution. The magistrate will typically consider a number of factors, including:

The seriousness of the charges,
The bail guidelines (although they have not been updated in years and are often disregarded)
The strength of the evidence,
The defendant’s criminal record or lack thereof,
The defendant’s employment status,
Whether the defendant voluntarily turned themselves in or was arrested,
The defendant’s ties to the community and whether the Court was able to verify the defendant’s address, and
Whether the defendant has retained counsel.

In general, felonies, crimes involving weapons such as firearms, and violent crimes like Robbery and Aggravated Assault are far more likely to result in higher bail. Misdemeanors and less serious, non-violent felonies may result in low bails or even ROR or SOB. Gun charges, in particular, result in particularly high amounts in Philadelphia. For example, even defendants with strong ties to the community, jobs, and no prior record often face the prospect of bail being set at $50,000 or more for a weapons offense. Fortunately, an experienced criminal defense attorney will often be able to have it reduced below that amount.

ROR stands for Released on Recognizance, which means the defendant does not have to pay anything to be released.

SOB means Sign On Bond, which means that the defendant could owe money if the defendant fails to appear for court, but the defendant does not have to pay anything to be released. For example, if bail is set at $50,000 Sign On Bond, the defendant would be required to sign an agreement to pay $50,000 if the defendant flees and does not appear for court, but the defendant would not be required to pay anything. If the defendant cannot afford the amount set by the magistrate, then the issue may be appealed to a higher ranking judge or a motion may be made at a subsequent court date.

How can I get my bail reduced?

Zak T. Goldstein, Esq. - Philadelphia Criminal Defense Attorney

If the defendant cannot pay the initial amount, then bail can be addressed at almost every court hearing. In Philadelphia, the first listing of the preliminary hearing will typically take place within two or three weeks of preliminary arraignment. Motions for bail reductions may be made orally at every listing of the preliminary hearing. This means that if the case is continued or even if the defendant is held for court at the preliminary hearing, then the defense may make a motion and ask the Municipal Court judge, who ranks higher than the commissioner, to reduce bond to something the defendant can afford.

If the Municipal Court judge denies the motion, then the defense attorney may make the motion again at the next listing assuming that there has been some change in circumstances. The passage of time will often be considered a change in circumstances. This is particularly true if the prosecution is not ready to proceed.

While a case is in the Municipal Court for the preliminary hearing or if a Municipal Court judge denies a motion, the defense may file a written Motion for a Bail Reduction in the Court of Common Pleas. Once a written motion has been filed, the Court of Common Pleas will typically hold a hearing on the motion within five business days. The Common Pleas Motions Judge has the power to overrule the Municipal Court Judge or commissioner and reduce the amount required for bond.

The bail motion will often sound much the same as the arguments made at preliminary arraignment. However, because the defendant will have advance notice of the bail hearing, it is usually possible to be more prepared for it and have friends and family present so that the judge can see that the defendant has ties to the community. The presence of friends and family can be very helpful in terms of getting a defendant's bail reduced. The defense will also have time to obtain helpful documentation such as proof of employment, education, and community ties.

What is early bail review in Philadelphia?

Recently, the Philadelphia courts began providing a hearing called early bail review in between the preliminary arraignment and the preliminary hearing. Currently, early bail review hearings will take place within about a week of arrest for defendants who are unable to post bail but who do not have any probation detainers and for whom bail was set at $250,000 or less. That means if someone is arrested, has no probation or parole detainer, and cannot post a bail of $100,000 (10%), they would typically see a Municipal Court judge within about a week for a bail hearing. The public defender or private defense attorney would then be able to advocate for reduced bail, and the judges are often receptive to these arguments as the purpose of these hearings is to try to reduce the prison population. The benefit of this hearing is that it takes place earlier than the preliminary hearing. There is a downside, however, which is that the denial of a bail reduction at the early bail review may be something the preliminary hearing judge considers in reviewing a subsequent bail motion. In other words, if the early bail review judge denies a bail motion, the preliminary hearing judge may be less willing to overrule their colleague and reduce bail even if the Commonwealth is not ready at the preliminary hearing. Therefore, it is very important to be prepared to make the best possible argument at an early bail review hearing.

Are there crimes for which there is no bail?

Goldstein Mehta LLC Criminal Defense Attorneys

The Pennsylvania Constitution provides that all defendants are entitled to bail with the exception of defendants who are charged with homicide. Because homicide may be a capital offense or carry a mandatory life sentence, defendants who are charged with homicide are not entitled to bail.

Additionally, a court may deny bail or later revoke it if the prosecution can prove that “no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community when the proof is evident or presumption great.” If bail is revoked or denied, then the defendant cannot be released until the case has been resolved or a judge reconsiders the ruling no matter how much the defendant can afford to pay. However, in some instances, it may be possible to ask a judge to reconsider a decision to revoke or deny bond.

How much of the bail do I have to pay?

In most cases, the defendant is required to pay 10% of the bail amount. For example, if the defendant’s bail is set at $50,000, then the defendant would usually be required to pay $5,000. If the bail is set at $50,000 SOB, then the defendant would not have to pay anything. If the defendant has some money but cannot quite come up with 10%, then it may be possible to hire a bail bondsman. The bondsman will usually charge something less than 10% up front to post bond, but the bondsman will keep a larger percentage in the long run. The bondsman could also require more than 10% but allow for monthly payments in order to make it more affordable. In Philadelphia, the court will return almost all of the money 35 days after the case is resolved.

What is a 600(B) motion or a Speedy Trial motion? How long can a defendant be held before trial if the defendant cannot afford bail?

If the Municipal Court and Common Pleas judges all deny the regular bail motions, there is one more motion which can be filed after the defendant has been held for 180 days of time which is not due to defense continuance requests. If the defendant has been held for 180 days, then the defense may file a motion under Pennsylvania Rule of Criminal Procedure 600(B). Rule 600(B) provides:

(B) PRETRIAL INCARCERATION

Except in cases in which the defendant is not entitled to release on bail as provided by law, no defendant shall be held in pretrial incarceration in excess of

(1) 180 days from the date on which the complaint is filed; or

(2) 180 days from the date on which the order is filed transferring a court case from the juvenile court to the trial or criminal division; or

(3) 180 days from the date on which the order is filed terminating a defendant’s participation in the ARD program pursuant to Rule 318; or

(4) 120 days from the date on which the order of the trial court is filed granting a new trial when no appeal has been perfected; or

(5) 120 days from the date of the written notice from the appellate court to the parties that the record was remanded.

This means that the Court is required to set nominal bail and release the defendant if the defendant is unable to make bail after 180 days. The Court may attach various conditions such as house arrest with electronic monitoring and reporting to a Pre-Trial Court Officer, but the Court is supposed to let the defendant out of jail pending trial after six months.

In cases where the Court grants the 600(B) motion, it is very common for the prosecution to then move to revoke bail and argue that the defendant is such a danger to the community or such a flight risk that bail should be revoked. In that case, the judge will have to decide based on the nature of the allegations and the defendant’s background whether the defendant should be released on nominal bail or whether the defendant’s bail should be revoked. Unless the allegations are particularly horrific or the defendant has an extremely lengthy criminal record, most judges will grant the 600(B) motion and release the defendant on house arrest. In the recent case of Commonwealth v. Talley, the Pennsylvania Supreme Court instructed trial judges to take this rule very seriously and held that the Commonwealth must meet a heavy burden and introduce real evidence at a hearing on a motion to revoke bail in order to properly have a defendant’s bail revoked. Therefore, it is extremely important to file the 600(B) motion at the earliest possible date as every day after that date is time which the defendant may not have to spend in custody.

Can I appeal a bail ruling?

Yes, a judge’s ruling on a motion to reduce bail can be appealed. First, the bail magistrate’s ruling from the preliminary arraignment can be appealed to the on-call emergency Municipal Court judge. Even if preliminary arraignment takes place in the middle of the night, the defense attorney (or the prosecutor if the Commonwealth thinks the bail is too low) may ask for a bail appeal and have the bail ruling reviewed by a Municipal Court judge on an emergency basis. The court would set up a conference call between the parties for both sides to make argument on what the bail should be.

Second, the ruling of a Municipal Court judge can be appealed to a Common Pleas judge by filing a bail motion. It then typically takes about a week or two to get a hearing before a Common Pleas judge.

Finally, if the defendant is still unhappy with a bail ruling after it has been reviewed by a Common Pleas judge, it is possible to file a petition for specialized review with the Pennsylvania Superior Court. The Superior Court would then review the trial court’s decision on a bail motion or a Commonwealth motion to revoke bail. Accordingly, it is usually possible to have a bail decision reviewed by a higher court, particularly where a defendant has been held without bail or at an extremely high bail.

We Can Help With Bail Motions in Philadelphia and the Surrounding Counties

Goldstein Mehta LLC Criminal Defense Lawyers

If you are facing criminal charges, we can help. We recognize the importance of being home with your friends and family while you are fighting a case, and we will aggressively fight to have the lowest possible bail set. If necessary, we will fight for bond reductions at every opportunity. We have won countless motions to reduce bail as well as numerous Speedy Trial/Rule 600(B) motions for nominal bail. Call 267-225-2545 today for a free criminal defense strategy session with one of our award-winning Philadelphia criminal defense lawyers.

Zak Goldstein 9/22/23 Zak Goldstein 9/22/23

Bail Pending Appeal After a Criminal Conviction in Pennsylvania

Criminal Defense Lawyer Zak T. Goldstein, Esquire

Many criminal defendants who go to trial and are convicted or who plead guilty and receive a harsher sentence than expected opt to appeal their convictions and sentences to the Pennsylvania Superior Court. In general, it is usually possible to challenge both the underlying conviction as well as the resulting sentence that the judge imposed. There may be all sorts of reasons to appeal - the judge may have committed an error of law or imposed an excessive sentence, or the evidence may have been insufficient and the jury got it wrong. But criminal appeals in Pennsylvania can take time. Post-sentence motions may be decided quickly, but a full appeal to the Superior Court or beyond can take a year or two. Accordingly, we often receive questions from clients as to whether they may be eligible for bail pending sentencing or bail pending appeal.

Bail Pending Sentencing

The Pennsylvania Rules of Criminal Procedure govern bail pending appeal. Specifically, Pa.R.Crim.P. 521 deals with Bail After Finding of Guilt.

In general, the rule provides that before sentencing, a defendant who has been found guilty of an offense which is punishable by a life sentence or the death penalty shall not be released on bail.

In other cases, whether a defendant is entitled to bail pending sentencing depends on the length of the potential sentence. Prior to sentencing, where the maximum possible sentence cannot exceed three years, the defendant should presumptively remain on bail.

Where the maximum possible sentence could exceed three years, a defendant who was on bail pending trial should generally remain on bail pending sentencing unless the judges finds:

(i) that no one or more conditions of bail will reasonably ensure that the defendant will appear and comply with the conditions of the bail bond; or
(ii) that the defendant poses a danger to any other person or to the community or to himself or herself.

If the judge finds that either of these factors exist, the judge may revoke or deny bail. Such a ruling can be appealed to the Superior Court, but bail appeals can take a few months.

Bail Pending Appeal

After sentencing, the rules change, and the defendant’s right to bail pending appeal depends on the length of the actual sentence imposed. For a defendant who has received a county jail sentence (meaning a sentence with a maximum of less than two years), the defendant has the same right to bail pending appeal as before the trial. Again, the judge may revoke bail for the same reasons that would justify revoking bail pending sentence.

For a defendant who received a state prison sentence (meaning a sentence with a maximum longer than two years), there is no longer a right to bail pending appeal. A judge, however, retains the discretion to allow such a defendant to remain on bail pending appeal where the judge thinks it’s appropriate.

For both groups of defendants, the judge can obviously require the defendant to actually file post-sentence motions and/or the actual appeal in order to remain on bail.

Finally, the rules require the judge to state the reasons for the denial or revocation of bail on the record so that the defendant may seek review in the Superior Court by filing a petition for specialized review should the defendant wish to appeal the bail ruling. The petition for specialized review is a separate appeal to the Superior Court which will usually be resolved more quickly than the full appeal.

Changes in Bail Conditions

It is important to note that in either case, a defendant who receives bail pending appeal may not receive the exact same bail. The judge could change the conditions or increase the bail.

Additionally, this rule does not typically apply to defendants who have appealed from a judgment of the Philadelphia Municipal Court. The Municipal Court has its own unique appeal procedures in which the defendant may seek a trial de novo. Filling a notice of appeal for a trial de novo actually vacates the original conviction, so the defendant then remains on the same pre-trial bail that existed prior to trial.

The rules for bail pending sentencing and bail pending appeal depend on the potential sentence and the actual sentence imposed. Short sentences for less serious offenses will typically allow for bail pending appeal, while judges are much less likely to grant bail pending appeal in serious cases or for cases involving lengthy sentences.

Bail Pending PCRA

Finally, the rules are silent on whether a defendant may be entitled to bail while a Post-Conviction Relief Act Petition is pending. In general, most defendants will not receive bail during PCRA litigation. The case law, however, does provide judges the authority to release a defendant on bail pending PCRA litigation when the judge believes the petition has strong merit. This is much less common than bail pending appeal, but it is not out of the question should the petitioner have a particularly strong PCRA issue.

Facing criminal charges or appealing a conviction? We can help.

Criminal Defense Lawyer Zak Goldstein — Philadelphia Criminal Defense Attorney Zak T. Goldstein, Esquire

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also won criminal appeals and PCRAs in state and federal court. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 9/5/23 Zak Goldstein 9/5/23

United States Sentencing Commission Votes to Eliminate Status Points

The United States Sentencing Commission has voted both to eliminate status points for most federal criminal defendants under the federal sentencing guidelines as well as to make that change retroactive. Until recently, the Sentencing Commission had not had a quorum of commissioners since 2018, so the Commission had been unable to propose changes to the federal sentencing guidelines. Now that a quorum of commissioners has been appointed by the President and confirmed by the Senate, the Sentencing Commission is once again able to enact changes to the guidelines. Generally, the changes which receive a majority vote from the commissioners go into effect unless overturned by Congress within a 180 day review period.

What are status points?

Under the current federal sentencing guidelines, each defendant that is found guilty by a judge or jury or who pleads guilty receives an Offense Level and a Criminal History Score. The offense level is based on the seriousness of the offense. Offenses typically have a base offense level for the offense of conviction, and then there are all sorts of potential enhancements that may apply depending on the way in which the offense was committed.

For example, a wire fraud conviction would have a certain base offense level, but then the offense level would increase based on the amount of money lost by the victims of the fraud as well as other potential factors such as whether the defendant used sophisticated means to commit the fraud or had a leadership role in the scheme. Other enhancements may potentially apply in any given case.

During the pre-sentence report process, each defendant will also then be assigned a criminal history category based on their criminal history points by the United States Probation Officer who prepares the pre-sentence report. The criminal history category is generally based on the number and type of convictions that the defendant has previously received as well as the length of any sentences served for those convictions.

The sentencing guidelines, which provide a recommended sentence in months that the judge must consider imposing, are then calculated based on where the offense level and criminal history category meet. This chart shows the recommended sentencing range for each offense level and criminal history category.

The judge is not required to impose a guideline sentence, but judges take the guidelines extremely seriously.

Under current law, most offenders who are under probation, parole, or federal supervised release supervision at the time of the commission of the new offense receive two additional points towards their criminal history category for being under supervision at the time of the offense. Two points can often be the difference between specific criminal history categories, resulting in much higher guidelines for a defendant who is under supervision than one who is not. This can have a big impact on the recommended sentencing range.

For example, a defendant with an offense level of 34 and a criminal history category of II would be facing sentencing guidelines of 168 - 210 months’ incarceration. If the individual was under supervision at the time of the offense, the criminal history category could be increased to category III, and then the defendant would instead be facing 188 - 235 months’ incarceration. This means the defendant could receive an additional two years at the high end of the guidelines, so the difference can be significant.

Now, the federal Sentencing Commission has voted to eliminate status points for most defendants. Specifically, the Sentencing Commission abolished all status points for people who had fewer than seven accumulated criminal history points driving their criminal history category. For those with seven or more points, only one status point would be added rather than two. In making this change, the commission determined that status points had little to no relevance in the accurate determination of a criminal history profile.

Will the change to status points under the federal sentencing guidelines be retroactive?

On August 24, 2023, the Sentencing Commission also voted to make the change retroactive and to allow inmates who would be affected by the change to file motions to reduce their sentences starting in February 1, 2024. Defendants may not file motions to reduce their sentences before that date, but if a defendant received status points that affected their guideline range, the they may petition the district court for a reduction in sentence based on the retroactive change in the sentencing guidelines. This change also assumes that Congress does not vote to overturn the proposed amendment to the guidelines.

Ultimately, the Sentencing Commission determined that status points do very little to predict whether a particular defendant is likely to re-offend. Therefore, whether or not someone was under supervision at the time of the offense should no longer be factored into the guideline calculation going forward.

Facing criminal charges? We can help.

Zak Goldstein 6/14/23 Zak Goldstein 6/14/23

PA Supreme Court: Trial Court May Not Revoke Probation Before It Begins

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Rosario, holding that a trial court may not revoke a probationary sentence before it begins. This decision is extremely important as it provides a great deal of protection to individuals who are still serving the incarceration or parole portions of sentences that have a probationary tail. Previously, a judge could revoke a consecutive probationary tail and sentence a defendant up to the maximum possible sentence for the offense. With parole, however, the maximum possible sentence is the portion of the jail sentence that has not yet been served. This case upholds the Superior Court’s ruling in Commonwealth v. Simmons which prohibited a longstanding practice of judge’s finding a defendant in violation of probation which has not yet started.

The Facts of Rosario

In Rosario, the defendant pleaded guilty to carrying a firearm without a license and drug charges. He received a sentence of 2.5 - 5 years’ incarceration followed by five years’ probation. He made parole before the maximum prison sentence expired, and while on parole, he was arrested and charged with kidnapping and then shooting a man. The Commonwealth prosecuted him for attempted murder and related charges in the new case. The trial court also revoked Rosario’s parole and probation in the original gun and drug case. The trial court sentenced him to the remaining unserved sentence of his five year prison term (improperly in this case as the parole board had jurisdiction) as well as an additional 5 - 10 years’ incarceration and five years’ probation for the violation of the probation on the drug charges. Rosario’s probation, however, had not yet started at the time of the new offense. The court had run the probation consecutively to the prison sentence, so he was still on the parole portion of the sentence.

Rosario appealed to the Pennsylvania Superior Court. While his appeal was pending, the Superior Court decided the case of Commonwealth v. Simmons. In Simmons, the Superior Court held that a trial court may not find someone in violation of probation which has not yet started. In other words, the law does not allow anticipatory probation violations. Accordingly, the Superior Court applied the new rule of Simmons to Rosario’s case, vacated the prison sentences on the drug charges because the probation had not started when he committed the new crime, and remanded the case to the trial court for re-sentencing. The Commonwealth appealed to the Pennsylvania Supreme Court, and the Supreme Court accepted the case.

The Supreme Court’s Ruling

The Supreme Court affirmed and held that anticipatory probation violations are illegal. Examining the language of the statute, the Court found that a trial court may only revoke a probationary sentence which has already begun. For example, one portion of the statute specifically provides that the court may “revoke an order of probation upon proof of the violation of specified conditions of the probation.” 42 Pa.C.S. §9771(b). In other words, only a violation of the probation itself may trigger revocation, not a violation of a probation order before the probation term has started. A different section requires the court resentencing a defendant following a revocation to give “due consideration . . . to the time spent serving the order of probation.” 42 Pa.C.S. §9771(b). Obviously, if the probation had not yet started at the time of the violation or revocation, then the court could not consider how the defendant had done on probation or for how long the defendant had been on probation. Likewise, another section provides: “[t]here shall be no revocation” of probation “except after a hearing at which the court shall consider . . . evidence of the conduct of the defendant while on probation.” 42 Pa.C.S. §9771(d).

Ultimately, numerous sections of the statute direct the resentencing court to consider how the defendant did while on probation, how long the defendant was on probation, and whether the probation itself was violated. None of these things can be evaluated for someone who has not yet started their probation, suggesting that the legislature intended that only probation which has begun can be violated. The court therefore found that the statute is unambiguous and the plain language prohibits an anticipatory violation. Even if the statute were ambiguous, however, the rule of lenity would apply. The rule of lenity requires that any ambiguity in a criminal statute be construed in favor of the defendant. Therefore, the Supreme Court affirmed. A trial court may not find a defendant in violation of a consecutive period of probation when the defendant is still in custody or on parole.

There are ways around this ruling for pending and future cases, however. Previously, trial judges would often sentence a defendant to a prison sentenced followed by a period of probation on the lead charge and no further penalty on the remaining counts. For example, a defendant charged with carrying a firearm without a license and carrying a firearm on the streets of Philadelphia might receive a sentence of 11.5 - 23 months in jail followed by two years’ probation on the carrying without a license offense and no further penalty on the carrying on the streets of Philadelphia count. Now, a judge can impose 11.5 - 23 months’ incarceration on one offense and concurrent probation on the other so that the probation will start immediately. This limits the overall potential maximum penalty for a violation in that the probation is only on one offense, but it does still limit the effects of this ruling. For many defendants who are currently serving sentences of incarceration or parole, however, it provides a tremendous amount of protection against a probation violation for a probation sentence that has not started yet.