Philadelphia Criminal Defense Blog

Zak Goldstein 6/4/20 Zak Goldstein 6/4/20

PA Superior Court: Acquittal on New Charges Voids Prior Probation Violation for Same Alleged Conduct

Philadelphia Criminal Lawyer Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Giliam, holding that where a defendant has been found in violation of probation for a new arrest and is subsequently acquitted in that case, the violation of probation must be vacated as a result of the acquittal. This is a great case as it limits the ability of courts to find defendants in violation of probation for alleged criminal conduct of which they are ultimately acquitted.

The Facts of Gilliam

In Gilliam, the defendant pleaded guilty to terroristic threats and received a sentence of three years’ probation along with other conditions. Shortly after his sentencing, he was arrested and charged with aggravated assault, simple assault, and resisting arrest. The court lodged a probation detainer pending the outcome of the new case. A probation detainer holds a defendant in custody until the new charges are resolved unless the defense files a motion to lift the detainer and the court agrees to do so.

Before the new case could be resolved, the Commonwealth filed a motion to proceed with a probation violation hearing prior to trial. This procedure is called a “Daisy Kates” hearing as those were the names of the defendants in two appellate cases where the courts held that prosecutors could essentially conduct mini trials on the new charges at a probation hearing in order to convince the judge that a violation had occurred and the defendant should be sentenced for new criminal conduct.

Prosecutors like this procedure because violation of probation hearings are less formal, defendants have fewer protections than in a real trial, and the prosecutor must only convince a judge by a preponderance of the evidence instead of a jury beyond a reasonable doubt. These proceedings also may take place before the preliminary hearing, the exchange of discovery, and before the defense has had time to fully investigate the case. Accordingly, the odds are stacked against the defendant at a Daisy Kates hearing. Because Pennsylvania law allows judges almost unlimited discretion in imposing long sentences of incarceration following a probation violation, prosecutors can seek even longer sentences than they often would in the new case.

The Daisy Kates Hearing

The trial court agreed to hold the Daisy Kates hearing. At the hearing, one of the arresting officers and the defendant testified as to what happened. The court found the officer credible and that the defendant had lied. The court then found the defendant in violation of his probation and sentenced him to 2.5 – 5 years’ incarceration. This all took place despite the fact that the defendant was still presumed innocent on the new charges.

The Criminal Appeal to the Pennsylvania Superior Court

The defendant appealed the probation violation sentence to the Pennsylvania Superior Court. Appeals often move slowly, and while the appeal was pending, the defendant was found not guilty at his actual trial on the new charges. The defendant then argued to the Superior Court that the violation of probation sentence could not stand because he had been acquitted of the conduct for which the court found him in violation.

The Superior Court’s Ruling

The Superior Court agreed. The court noted that a defendant’s probation can be revoked in two circumstances: 1) the defendant violated a specific condition of his or probation (a technical violation), or 2) the defendant committed a new crime. A violation of probation does not occur simply when the probation court believes that probation is not working or that the defendant has engaged in antisocial conduct. Instead, there must actually be a new crime or a violation of a specific condition of probation.

Once a court finds a violation of probation, the court may only sentence a defendant to incarceration if: 1) the defendant has been convicted of a new crime, 2) the defendant’s conduct makes it likely that he or she will commit a new crime if not incarcerated, or 3) incarceration is essential to vindicate the authority of the court.

Here, the trial court found the defendant in violation of his probation solely because he had been arrested and charged with new crimes. He did not violate any other condition of his probation. Given that the new charges were the entire basis of the probation violation and that the defendant was subsequently acquitted of those charges, the probation violation could not stand. The court therefore found that the probation revocation sentence was void. The court further suggested that trial courts wait until after disputed criminal charges have been resolved before proceeding with probation violation hearings in order to avoid this perverse outcome of a defendant serving time for a probation violation which never actually happened.

Recent decisions such as this one have made it extremely difficult for the Commonwealth to proceed with probation violation hearings under the Daisy Kates doctrine. In a recent Pennsylvania Supreme Court case, the Court held that illegally seized evidence could no longer be used at such a hearing. Now, the courts have clarified that an acquittal will undo a prior violation of probation finding. Therefore, if you are facing a violation of probation due to an arrest on new charges, you should speak with one of our award-winning criminal lawyers about your options today.

Do you need a criminal lawyer in Philadelphia, PA? We can help.

Philadelphia Criminal Lawyers - Goldstein Mehta LLC

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. 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 3/20/20 Zak Goldstein 3/20/20

Philadelphia Courts Shut Down But Still Hearing Bail Motions and Detainer Motions During Coronavirus Pandemic

Are the Philadelphia Criminal Courts open for business?

Although some courts announced that they would be closing last week, the Philadelphia criminal courts remained open until Monday March 16, 2020. At that point, the courts announced that they would be shutting down all non-essential operations and delaying court dates for all types of criminal cases, including preliminary hearings, arraignments, bench trials, and jury trials.

Initially, the Court of Common Pleas announced that it planned to re-open on April 1, 2020. However, the Pennsylvania Supreme Court subsequently declared a statewide judicial emergency and ordered that courts remain closed until at least April 3, 2020. The Supreme Court, however, directed that courts remain at least partially open for essential functions such as bail hearings, detainer hearings, bench warrant hearings, preliminary arraignments, and potentially preliminary hearings for defendants who are incarcerated. At the moment, the Philadelphia courts have not been conducting preliminary hearings. It is still possible to file motions to reduce bail, lift detainers, and to lift bench warrants.

Are courts open in the rest of Pennsylvania during the Coronavirus pandemic?

No. Although the courts initially responded by letting each President Judge determine what should happen in each Pennsylvania district, the Pennsylvania Supreme Court issued an order generally closing all courts with the exception of certain essential hearings as mentioned above. The counties are still sorting out how they will proceed with essential hearings during the shut down, but jury and bench trials are currently not occurring anywhere in Pennsylvania. New Jersey has also suspended most court operations.

Is it possible to get bail reduced due to the disease?

Yes, Philadelphia and the surrounding counties are still processing and ruling on bail motions, and it is possible that the lack of adequate health care in the prison system could be a reason why a prosecutor and/or judge may look more favorably on a bail motion than they normally would. Even with the general shut down of the courts, it is possible to file an emergency bail motion. In Philadelphia, it appears that the judges may rule on bail motions on the paperwork without holding actual hearings, but the District Attorney’s Office and the courts are hoping to reduce the prison population to the extent possible in the hopes of avoiding the spread of the Coronavirus. Therefore, if your loved one is being held on high bail for a case which has been postponed due to the shut down, contact us immediately to discuss the prospects of getting that bail reduced.

Can I get a probation detainer lifted while the courts are closed?

Yes, like bail motions, the Philadelphia courts continue to accept emergency motions to lift probation detainers. All probation detainer motions and bail motions are being heard by the President Judge or a designee for either the Court of Common Pleas or the Municipal Court. This means that it remains possible to file a motion to lift a probation detainer despite the general shut down caused by the virus. Further, if you or your loved one has been detained due to a technical violation or an arrest for a relatively less serious crime, the odds may be good for getting a probation detainer lifted.

What happens to criminal cases while the courts are closed?

That is a good question. At the moment, everything except emergency petitions for bail motions, detainer motions, and bench warrant hearings are currently on hold. Defendants who have been arrested on new charges are still entitled to a prompt preliminary arraignment at which bail will be set, and the Supreme Court has allowed the Municipal Court to proceed with preliminary hearings for incarcerated defendants. However, the Municipal Court has not yet been holding preliminary hearings in those cases as the judges are still working through what the procedures will be and evaluating how long the shut down is likely to be in effect. It is clear that trials will not happen for some time, and that fact may be helpful in getting a detainer lifted or bail reduced. The courts have also suspended the function of Rule 600, which is the speedy trial rule for trials.

The bottom line is that if you or your loved one have recently been arrested or are being held on high bail or a probation detainer, we may be able to help. Call 267-225-2545 to speak with a Philadelphia Criminal Defense attorney today. Our award-winning criminal lawyers stand ready to help you navigate this difficult time.

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Philadelphia Courts

Zak Goldstein 1/7/20 Zak Goldstein 1/7/20

PA Issues New Sentencing Guidelines for Probation Violations

The Pennsylvania Sentencing Commission recently issued new guidelines concerning violation of probation hearings (“VOP hearings”). The Sentencing Commission’s decision could dramatically change the way in which probation violations in Philadelphia and throughout the state are handled because the court no longer has unlimited discretion in fashioning a sentence. Further, the Sentencing Commission has created the guidelines in such a way that they recommend significant prison sentences for most probation violations no matter how minor. It will take some time to see how seriously judges take the guidelines, and there has also been a recent push in the legislature to limit the unlimited discretion of judges to impose extreme prison sentences for probation violations which could lead to future changes. For now, however, the creation of these guidelines, which typically recommend jail time, appear to be a step in the wrong direction.

What is a Violation of Probation Hearing in Philadelphia?

A VOP hearing occurs when a defendant violates a judge’s probation. There are two types of potential violations: technical violations and direct violations. Technical violations occur when the defendant does not comply with some condition of his or her probation. For example, let’s assume that a condition of a defendant’s probation is that the defendant attend anger management classes. If the defendant does not go to the anger management classes, then the probation officer could recommend that the judge find the defendant in violation of his or her sentence. The judge, after holding a hearing, could then decide to revoke the defendant’s probation, impose a new period of probation, or even impose a period of incarceration on the defendant. This is just one example. Judges are given broad discretion in fashioning their sentences and thus can impose a variety of conditions on a defendant. This means that a defendant can be found in violation of probation and sentenced to prison without committing any new crimes.

Direct violations are usually more serious than technical violations. A direct violation occurs when a defendant is convicted of a new crime while on probation for another crime. Judges will often impose harsher sentences on defendants who have committed direct violations than on defendants who have committed technical violations, and potential direct violations often lead to probation detainers which prevent the defendant from being released until the new case has been resolved. Additionally, a defendant’s back judge can impose a sentence that is consecutive to the sentence the defendant received on his new case. Therefore, direct violations can cause great harm to a defendant.

What Are the New Sentencing Guidelines?

The new sentencing guidelines affect both technical and direct violation hearings. If a defendant is found to be in technical violation, then the court is to consider the defendant’s original guidelines from the time of sentencing on the offense when deciding on a new sentence. For example, let’s assume that a defendant was serving a sentence on an Aggravated Assault that is graded as a felony of the first degree. Let’s also assume that when he was sentenced, he had a prior record score (“PRS”) of 1. As such, his guidelines were 42-60 months of incarceration, with the judge given the discretion to add or subtract 12 months to or from the sentence. Now let’s assume that this defendant was ordered to attend anger management classes, but he did not do so. At his VOP hearing, per the new sentencing guidelines, the court could sentence him to anywhere from 30-72 months for this technical violation. As such, a defendant can receive a worse sentence than what he originally received based on these new guidelines.

Things get worse if you are in direct violation on your probation based on the new sentencing guidelines. If you receive a direct violation, your new guidelines are most likely higher than they would be if you only had a technical violation. Instead of being sentenced to the original guidelines, if a defendant is found to be in direct violation, then the defendant will be resentenced on an increased PRS (the courts add one point for defendants with a prior PRS of 0-4, if a defendant is a 5, REVOC, or RFEL then no points are added).

To help explain this, let’s use our defendant from the previous example. Instead of not attending his anger management classes, he picks up a simple assault case which results in a conviction. At his Gagnon II hearing at which he is re-sentenced, the judge must now add a point to his PRS. So instead of being a 1, he is now a 2. Now his guidelines for resentencing are 48-66 months of incarceration plus or minus twelve months for aggravating or mitigating circumstances. Therefore, because of his new direct violation, his guidelines on his VOP range from 36-78 months. As one can see, these new guidelines are significant and can result in defendants spending more time incarcerated than they previously would have been. In many ways, this is actually worse than simply leaving it to the discretion of the judge as the rules require that the judge consider these guidelines when imposing a sentence and place any reasons for departing from them on the record.

The problem with these guidelines is that the sentencing guidelines call for jail in almost all cases. It can be almost draconian to impose a significant jail sentence on someone for not complying with a condition of their probation or even being convicted of a minor crime such as a misdemeanor. If fully implemented, these guidelines have the potential to worsen the mass incarceration problem instead of alleviating it.

Are The New Sentencing Guidelines Mandatory at a Probation Violation Hearing?

No. Just like the sentencing guidelines for the original conviction, courts are not required to impose guideline sentences. If a court imposes a sentence outside of the guidelines, then the judge must state in open court the reasons for the revocation and the sentence imposed. If a court imposes a sentence outside the guidelines, then the court must document the reasons why on the “Guideline Sentence Form” which then will be electronically submitted to the Pennsylvania Commission on Sentencing. This means that the guidelines are not binding on the court. But judges do tend to consider the guidelines and take them seriously when imposing sentence.

Facing Criminal Charges? We Can Help.

Zak Goldstein 12/11/19 Zak Goldstein 12/11/19

Can My Probation Officer Search My House Without a Warrant?

Can A Probation Officer Search My House While I Am On Probation or Parole?

An issue that frequently comes up when litigating motions to suppress in drug and weapons cases is whether the police or probation department need a search warrant to search the house of a someone who is on probation or parole. In general, both the United States and Pennsylvania Constitutions require law enforcement officers to get a search warrant before conducting a search of a private residence. However, there are a few limited exceptions to this rule, and two of those exceptions apply to people who are on probation or parole.

Probation Officers May Conduct Limited Home Visits

First, a probation or parole officer may conduct a limited home visit of a probationer’s home without a warrant as part of the conditions of probation or parole. The probationer may be lawfully compelled to show the probation officer around the house, and if the officer sees anything incriminating in plain view, these items can be used against the probationer. Evidence such as drugs, guns, or other contraband may be used to establish violations of the terms of the supervision or to bring new criminal charges.

Probation Officers Do Not Need A Search Warrant - But They Do Need Reasonable Suspicion

Second, the probation officer may conduct a full search of a probationer’s house where the officer has reasonable suspicion to believe that there may be contraband in the house. Reasonable suspicion is a lower standard than probable cause, and the officer is not first required to obtain a warrant before conducting the search. Instead, the officer must simply get authorization from a supervisor. Although probation officers may use these exceptions either to conduct a home visit or search based on reasonable suspicion, they are not allowed to act as a “stalking horse” for or at the direction of the police department or other law enforcement agencies who wish to use the probation as a pretext to conduct a warrantless search.

For both types of searches, probation officers may typically search the entire house. The search is not limited to the room in which the probationer stays. This is because the owner of the house will generally sign a release prior to the probationer or parolee being allowed to stay in the house. In some cases, however, it may be possible to challenge the scope of an overly broad search with respect to a defendant other than the probationer.

Recent Caselaw on Probation and Parole Searches in Pennsylvania

The Pennsylvania Superior Court recently considered these exceptions in the case of Commonwealth v. Parker, 2016 Pa Super 280 (Pa. Super. Ct. 2016). In Parker, the Superior Court upheld the ability for probation officers to search a probationer’s home without any prior allegation of wrongdoing by the probationer, reversing the trial court’s order granting a motion to suppress crack cocaine which was allegedly found in Mr. Parker’s home.

When Parker was released from custody on a prior case, he agreed to the standard terms and conditions of probation to which many defendants must agree in counties through Pennsylvania. Specifically, he agreed to allow his probation officer to visit his home at any time to confirm compliance with the conditions of supervision. He also agreed that he would not possess any contraband and that he would permit the officer to search his home and vehicle based upon reasonable suspicion that contraband could be found.

The case began when probation officers arrived at Parker’s home to conduct a home visit. Upon entering the house, they noticed, “apparently in plain view, clear, empty, corner-cut baggies; cigar packages, which were opened and discarded on the floor; and small rubber bands.” The officers believed from past experiences that such items are commonly used for drug distribution, and they also observed a shotgun in an open closet in the kitchen. The officers then went up to Parker’s room, where they found bullets, knives, and a bong all in plain view. The probation officers contacted police officers. The police officers came to the scene, but they opted not to obtain a warrant and left. The probation officers then contacted a supervisor, who authorized a search of the home, and the probation officers proceeded to find cocaine in the refrigerator. At that point, the officers called the police back to Parker’s home, and the police arrested Parker.

Grounds for the Motion to Suppress the Results of the Probation Search

Parker moved to suppress all the items, arguing that the probation officers conducted an illegal search by entering his home without reasonable suspicion and that they should have obtained a warrant before searching the refrigerator. Parker also alleged that the probation officers had used their authority to evade the warrant requirement and act as a “stalking horse” for the local police department. Parker’s attorneys suggested that the police wanted to conduct a search but did not have the probable cause necessary for a warrant.

The trial court rejected the argument that the probation officers could not enter the home to conduct a basic tour and observe any contraband in plain view, but the trial court ruled that the officers should have obtained a search warrant before searching the refrigerator. Because the officers had already called the police to the scene, they did, in effect, act as agents of the police department, and therefore, they should have obtained a warrant before finding the cocaine in the refrigerator.

Standards for Probation Searches

The Superior Court reversed the suppression of the cocaine and reaffirmed the prior decisions which set these standards. The Superior Court concluded that first, under existing caselaw, probation officers may lawfully conduct a home visit, tour the house, and seize any evidence of contraband which is in plain view. Second, once the probation officers find drug packaging, weapons, and bullets which have been left out in the open, the officers do not have to obtain a warrant to search the rest of the house because they have reasonable suspicion that other contraband might be found. Third, the court rejected the trial court’s conclusion that the probation department had acted as a stalking horse for the police department because there was no evidence at the motion to suppress that the police had in any way directed the search. Accordingly, the court ruled that the full search of the house was permitted despite the absence of a warrant.

There Are Limits on Probation and Parole Officers

Although the Superior Court ultimately ruled against Mr. Parker, the decision does show that even though defendants who are on probation at the time of a search have fewer rights than people who are not on probation, there are still real limits on the ability of a probation officer to search a house. First, the probation officer is limited to walking through the house and viewing only items which are in plain view. The officer cannot show up for a home visit and begin tearing the house apart. Second, the officer must have reasonable suspicion in order to conduct a full search without a warrant. This standard requires the officer to point to specific and articulable facts for why the officer believed contraband might be found. The officer cannot conduct a search for drugs simply because the defendant was under supervision for drugs.

Can the Police Search My House If I Am On Probation?

Although probation officers do not need a warrant to search the house of a probationer or parolee, the police cannot use the probation department to evade the warrant requirement and engage in a warrantless search. Unless the evidence is first uncovered by probation officers because it was in plain view during a home visit or because the officers had legitimate reasonable suspicion, police officers must still obtain a search warrant prior to searching the home of someone who is on probation. When the police or probation department violate these rules, the evidence could be excluded following a successful motion to suppress. This rule is called the “stalking horse doctrine.”

Our Philadelphia Probation Lawyers Can Help With Probation Violation Hearings

Zak T. Goldstein, Esq. - Philadelphia Probation Violation Lawyer

Different standards apply to probationers, but law enforcement must still follow the law. If you or someone you know are facing narcotics or weapons charges for drugs or other contraband found in your house, car, or on or near your person, you need the advice of a skilled criminal defense lawyer immediately. Critical exculpatory evidence and witnesses could be lost due to delay, and there may very well be defenses ranging from a motion to suppress due to an illegal search to a lack of evidence of constructive or actual possession. We have even won motions to suppress significant quantities of drugs and guns due to illegal parole searches. Contact the Philadelphia criminal defense lawyers of Goldstein Mehta LLC at 267-225-2545 for a free, confidential, and honest case evaluation.