Philadelphia Criminal Defense Blog
PA Superior Court: Probationer Must Be Advised of Rules of Probation at Time of Sentencing
Philadelphia Criminal Defense Lawyer Zak Goldstein
The Pennsylvania Superior Court has decided the case of Commonwealth v. Koger, holding that a defendant must be advised of the rules and conditions of probation at the time of sentencing or else the defendant cannot be charged with a technical violation of probation for violating those rules.
The Superior Court specifically held that the sentencing court must actually specify the probation rules and include them in the sentencing order. It is not sufficient for a probation officer to simply explain the rules and conditions to the probationer at some point after the sentencing.
This opinion protects defendants from being found in technical violation for violations of conditions for about which they have not been informed. It further prevents probation officers from creating their own arbitrary conditions. It also gives defense counsel a better opportunity to challenge any rules or conditions of probation which may not be appropriate for the specific client.
In many counties, probation offices often attempt to impose restrictions which may be more punitive than necessary, and so now defense counsel may challenge those restrictions at the time of sentencing. Defense counsel may also challenge a potential violation of probation if the Commonwealth has no evidence that the defendant was advised of the rules at time time of the sentencing.
The Facts of Koger
The defendant was on probation in Washington County, PA for possession of child pornography. In 2019, he was charged with a second violation of his probation. The Commonwealth alleged that he violated Condition 7 (related to refraining from any assaultive, threatening, or harassing behavior), Condition 1 (failing to permit a probation officer to visit him at his residence and submit to a warrantless search of his belongings), and Condition 2 (relating to violations of criminal laws and ordinances).
The trial court held a revocation hearing and heard from the defendant’s probation officer. The probation officer testified that he searched the defendant’s phone and found that he had been communicating with a minor and receiving potentially pornographic images from that person via text messages. The officer testified that the defendant had received a copy of the rules of probation, and those rules prohibited that conduct. The officer testified that after he searched the phone, the defendant became agitated and was placed in custody. The defendant threatened another officer once at the jail. There was also a prior incident where the defendant was removed from a community service office for poor behavior. Based on this testimony, the trial court revoked the defendant’s probation and sentenced him to a lengthy period of incarceration.
The defendant appealed. On appeal, he argued that he had never actually been sentenced to follow any specific rules and conditions of probation. The evidence seemed to support this argument as the trial court informed the Superior Court that “it did not advise the defendant of the general conditions of his probation or parole at the time of sentencing.” Instead, pursuant to the court’s local procedures, the probation and parole conditions were explained to the defendant after sentencing by a probation officer.
The Superior Court’s Ruling
The Superior Court reversed the conviction. It found that there was no evidence that the defendant committed a technical violation of his probation because the court had never informed him of the requirements of probation at the time of sentencing. It is not sufficient for a defendant to be informed of the rules of probation by a probation officer after sentencing. Instead, a court must actually inform the defendant of the rules that he or she is required to follow while on probation at the time of sentencing, and those rules must be part of the sentencing order. This protects defendants by ensuring that they know exactly what they will have to do while on probation and cannot be found in violation arbitrarily, and it also gives the defense attorney an opportunity to challenge any unnecessary rules or conditions. As the court did not actually sentence the defendant to follow any specific rules, the defendant could not be found in violation for violating them. Accordingly, the Court reversed the judgment of sentence.
Facing Criminal Charges in Philadelphia? We can help.
Criminal Defense Attorneys Demetra Mehta and Zak Goldstein
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 successfully handled many violation of probation hearings. 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.
PA Supreme Court Finds Use of Medical Marijuana Not a Probation Violation
Philadelphia Criminal Defense Lawyer Zak Goldstein
The Pennsylvania Supreme Court has decided the case of Gas v. 52nd Judicial District, Lebanon County, holding that judges and probation officers in Pennsylvania cannot issue blanket orders prohibiting probationers from using lawfully obtained medical marijuana. This is decision is a huge win for probationers because more and more people are being prescribed medical marijuana to treat their underlying physical and mental health conditions. There is a wide body of research that shows that medical marijuana can be very therapeutic. However, many conservative counties had moved to prohibit probationers from using marijuana even when the treatment has been provided by a doctor. This decision will allow probationers to receive the treatment that they need without fear from retribution by their probation officers or back judges.
Gass v. 52nd Judicial District, Lebanon County
In 2016, the Pennsylvania General Assembly enacted the Medical Marijuana Act. In a declaration of policy, it recognized that scientific evidence suggests that medical marijuana is one potential therapy that may mitigate suffering in some patients and also enhance their quality of life. The Medical Marijuana Act specifically stated that possession of medical marijuana is legal in Pennsylvania. It also stated that a person cannot be subjected to arrest, prosecution, or penalty in any manner on the basis of medical marijuana.
Three years after the passage of the Medical Marijuana Act, the 52nd Judicial District (Lebanon County) announced its “Medical Marijuana Policy” which prohibits the active use of medical marijuana while a defendant is under supervision by the Lebanon County Probation Services Department. In the instant case, the defendant was a probationer who was being supervised by Lebanon County’s probation department. She claimed that she suffered from a serious and debilitating medical condition. The defendant attempted other therapies, but they were not successful in treating her underlying condition. She then secured lawful authorization to use medical marijuana. However, because of Lebanon County’s Policy, she was not allowed to use it. The defendant subsequently filed a petition in the Commonwealth Court to challenge the validity of Lebanon County’s Policy.
The Commonwealth Court found that it lacked jurisdiction to hear the case, so it transferred jurisdiction to the Pennsylvania Supreme Court. In response to the defendant’s petition, the 52nd Judicial District argued that the General Assembly did not intend for the Marijuana Medical Act to override the court’s ability to supervise probationers and parolees. Further, the 52nd Judicial District argued that its probation services office has experienced disruptions and persistent difficulties when supervising probationers and parolees using medical marijuana. Finally, the 52nd Judicial District argued that it should prevail because its probationers must comply with all state and federal criminal laws and that probationers must refrain from using alcohol or “any legal or illegal mind/mood altering chemical/substance.”
Can you use medical marijuana while on probation in PA?
The Pennsylvania Supreme Court found that Lebanon County’s Policy violated the Medical Marijuana Act and held that Lebanon County probationers are allowed to use medical marijuana so long as it was lawfully obtained. In making its decision, the Pennsylvania Supreme Court reviewed the language of the Act. The Court found that although people with criminal records may be prohibited from delivering medical marijuana to patients, they can still qualify as patients under the Medical Marijuana Act. Further, the Legislature specifically prohibits individuals who are in custody at a correctional institution to be permitted to use medical marijuana.
This is significant because the Medical Marijuana Act omits any reference to individuals on supervision (i.e. probation). Therefore, the Legislature could have specifically prohibited probationers from using medical marijuana, but it chose not to. Additionally, the fact that they specifically addressed individuals in custody shows that the Legislature considered individuals involved in the criminal justice system and chose not to exclude probationers from using medical marijuana. Therefore, the policy violates the act, as did a revised policy which put the burden on the probationer to prove in a court hearing that the marijuana was medically necessary despite a doctor having already so determined. Because its policy violates the Medical Marijuana Act, Lebanon County can no longer enforce its policy and the defendant will be permitted to use medical marijuana while on supervision.
Facing Criminal Charges? We Can Help.
Criminal Lawyer Zak Goldstein
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.
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.
Philadelphia Courts Shut Down But Still Hearing Bail Motions and Detainer Motions During Coronavirus Pandemic
Are the Philadelphia Criminal Courts open for business?
Philadelphia Criminal Lawyer Zak Goldstein
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?
Philadelphia Criminal Defense Lawyers
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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