Philadelphia Criminal Defense Blog

Zak Goldstein 8/24/21 Zak Goldstein 8/24/21

PA Superior Court: Consecutive Probation May Not Be Revoked While Defendant Still on Parole

The Pennsylvania Superior Court has decided the case of Commonwealth v. Simmons, holding that a trial court may not anticipatorily revoke a defendant’s probation sentence. This decision is a huge win for defendants. As a practical matter, if a defendant receives a jail sentence, they often receive a probation sentence that runs consecutive to their jail sentence. When they are released from prison, they are technically on parole, but have not yet begun serving their probation sentence. Simmons holds that if a defendant violates his or her parole, they cannot also be punished for violating their probation at the same time because they have not yet begun serving the probation sentence. Consequently, the worst-case scenario for a defendant is to receive the balance of their back time for their violation. This is significant because as a practical matter this means a defendant can usually only receive a county sentence for their violation, instead of a state sentence.

Commonwealth v. Simmons

In 2017, the defendant pleaded guilty to firearms not to be carried without a license and carrying firearms on the public streets of Philadelphia. The defendant was subsequently sentenced to a term of six to 23 months in jail, followed by three years’ probation. At some point, the trial court amended his sentence to have the probation sentence run concurrently to this jail sentence. It is unclear when this occurred, but it occurred more than 30 days after his sentencing hearing.

A few months after his sentencing, the defendant was arrested again and charged with firearms not to be carried without a license and possession of a controlled substance. The arrest occurred while the defendant was on parole, but before the term of the probation of his case had begun. On his new case, the defendant pleaded guilty to firearms not to be accrued without a license and possession of a controlled substance. The defendant was sentenced to six to 23 months’ incarceration, followed by three years’ probation. As a result of these new convictions, the judge on his original case anticipatorily revoked his probation and sentenced him to a term of two and one-half to five years in prison.

The Defendant’s Appeal

The defendant filed a timely appeal. The defendant argued that the trial court erred when it found that he had violated a condition of his probation because it had not yet begun. In other words, the defendant argued that he could not have violated his probation when his probation had not officially started. Additionally, the defendant argued that the trial court illegally modified his sentence, as the trial court did not have jurisdiction to modify his sentence more than 30 days after its imposition.

Initially, the defendant was unsuccessful and the Pennsylvania Superior Court denied his appeal. Undeterred, the defendant filed for an application for re-argument en banc and the Pennsylvania Superior Court agreed to rehear his appeal.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court reversed the trial court’s decision. In making its decision, the Superior Court reviewed the relevant sentencing statutes governing the imposition and revocation of an order of probation. It also reviewed prior appellate decisions concerning these issues. In its analysis, the Superior Court determined that a trial court is permitted to enter an order of probation and that it can impose this order consecutively or concurrently. Additionally, a trial court is permitted to terminate a defendant’s supervision at any time, but it can only revoke an order of probation when there is proof that the defendant violated the specified conditions of his probation. Finally, the Superior Court also found that prior precedent permitted trial courts to anticipatorily revoke a defendant’s probationary sentence.

As a preliminary matter, the Superior Court found that the trial court improperly changed the probation tail on the defendant’s sentence to run concurrently to his incarceration sentence from consecutively. Next, after reviewing the statutes and the relevant case, the Superior Court held that the case law that allowed anticipatory revocations of probation was “incorrect” and that they “contravene[d] the plain language of the relevant statutes.” The Superior Court stated that “under the Sentencing Code, a sentence of total confinement and a consecutive order of probation may not be aggregated and viewed as one.” Therefore, a defendant cannot be found to violate the terms of his probation before his probation begins.

So what does this all mean? The easiest way to explain it is to use the defendant’s case. Remember, on his first case, the defendant received a sentence of six to 23 months’ incarceration, followed by three years’ reporting probation. When the defendant picked up his new case, he was on parole and had not begun his probation sentence. Consequently, because of the Superior Court’s decision, the worst punishment he can now receive is the balance of his back time (i.e. the 23 months minus how much time he has served in jail). In the instant case, because the defendant was illegally sentenced (and because he received a sentence that exceeded his original sentence), he will get a new sentencing hearing. Had he been found in violation once the probation started, he would have been facing the maximum on the charge for which he was on probation. For an F3, that would be up to seven years in state prison.

Facing Criminal Charges? We Can Help.

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.

Criminal Defense Lawyer Demetra Mehta and Zak Goldstein — Criminal Defense Lawyers Demetra Mehta and Zak Goldstein

Zak Goldstein 6/6/21 Zak Goldstein 6/6/21

PA Superior Court: Probationer Must Be Advised of Rules of Probation at Time of Sentencing

Criminal Defense Lawyer.jpg — 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.jpg — 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.

Zak Goldstein 6/30/20 Zak Goldstein 6/30/20

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.

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.

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