Award-Winning Philadelphia Probation Violation Lawyers & Detainer Motion Attorneys

Probation Cases in Pennsylvania

Probation and parole come with many conditions, and it can be difficult to keep track of the different requirements. But with one slip up, you could be facing serious consequences. If you have been accused of violating the terms of your probation in Philadelphia, you do have rights. With additional incarceration and so much more at risk, do not face the justice system without the guidance of knowledgeable probation violation attorneys.

Our experienced Philadelphia criminal lawyers have successfully handled thousands of probation violation hearings ("VOP hearings") and motions to lift detainers. If you need representation for probation violations in Philadelphia or are seeking detainer lawyers to help you get a detainer lifted, call us at 267-225-2545 to discuss your case and how we can fight for you. The stakes are extremely high for a defendant who is facing a potential probation revocation hearing as these hearings often have the potential to result in significant jail sentences. In many cases, however, it may be possible to avoid a jail sentence or even a finding of a violation.

Our probation violation attorneys have the experience to handle the most complicated parole and probation circumstances, and we are here to help you. We offer a complimentary 15-minute criminal defense strategy session with one of our Philadelphia probation violation lawyers or detainer attorneys to any potential client with questions about a probation violation or motion to lift a detainer. By getting involved in a case before the violation of probation hearing, we are often able to help minimize the consequences of a potential violation and come up with alternatives to incarceration.

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Types of Probation Violations

Technical Violations

There are two types of probation violations in Philadelphia. The first type is a technical violation of probation, which occurs when the defendant fails to comply with the terms of probation. For example, a technical violation could occur if the defendant regularly tests positive for drugs, fails to report to the probation officer, or fails to enroll in classes or obtain a job as required by the judge at sentencing. Probation officers have a great deal of discretion in terms of whether to charge a defendant with a technical VOP, and they often will give the probationer some leeway if the officer has had a good relationship with the probationer and believes the probationer is trying to comply.

Once the probation officer makes the decision to charge the defendant with a technical violation of probation, the consequences can be quite severe. The probationer may be arrested and taken before the sentencing judge for a violation hearing. At the hearing, the judge must decide whether the probationer violated the probation, and if so, what consequences to impose. In terms of punishments, the judge has a tremendous amount of discretion. The sentencing judge could continue probation, re-sentence the defendant to additional probation with modified conditions, impose a short jail sentence as a sanction under Pennsylvania’s new law, or depending on the nature of the violation and whether there have been prior violations, sentence the defendant to any period of incarceration up to the maximum for the charges for which the defendant was on probation.

Given the enormous amount of discretion afforded to the judge, technical probation violations in Philadelphia can be very serious, and having the right probation violations attorneys can mean the difference between jail time and parole. The probation judge's sentence can also be difficult to appeal; therefore, it is critically important that you retain a team of experienced probation lawyers if you are facing a potential technical violation. The stakes are high, and it is crucial that you have skilled and experienced probation violation lawyers who can provide the best possible defense at the VOP sentencing hearing.

Direct Violations

Although technical violations of probation can result in serious consequences, direct probation violations are generally considered more serious. A direct violation occurs when the defendant is convicted of a new offense. For example, if the defendant is on probation in Philadelphia for Possession with the Intent to Deliver (a felony drug charge) and the police arrest the defendant for a second drug case, the defendant will likely be charged with a direct violation of probation should the defendant be convicted on the new charges. Again, the defendant's probation judge, commonly referred to as the back judge, has a tremendous amount of discretion in deciding what penalty to impose for incurring a direct violation of probation. Even with a direct violation of probation in Philadelphia, it may be possible to avoid additional jail time with the right legal representation.

Types of Hearings in Probation Cases

There are two types of hearings in a VOP case: a Gagnon I hearing and a Gagnon II hearing. The probation officer and Commonwealth must show different things at each hearing in order to legally detain the defendant for a potential direct or technical probation violation.

Gagnon I Hearing

If you are accused of a VOP, the first hearing that you will receive is called a Gagnon I hearing. The Gagnon I hearing typically must take place within 7-10 days, and the Gagnon I hearing will be held before a commissioner or magistrate instead of the judge. In most cases, the Gagnon I hearing is relatively informal and the defendant will not have advance notice of the hearing. For this reason, counsel is usually not present, and most defendants will end up with a detainer lodged against them. This does not mean that the detainer will be permanent, however, as the defendant may retain detainer lawyers and file a motion to lift the detainer with the probation judge. At the Gagnon I hearing, a trial commissioner or magistrate will review a Gagnon Summary from the defendant's probation officer and make a finding as to whether there is probable cause that the defendant has committed a violation. If the magistrate finds probable cause, then the matter will be continued for a Gagnon II hearing before the judge.

In cases of probation violations in Philadelphia, almost all defendants who are detained by the probation department will be represented by the public defender's office for a detainer hearing within a few days of arrest. The defendant will typically not know that the hearing took place, but a handful of lucky defendants who are charged with less serious violations may have their detainers lifted by a trial commissioner. If the probationer retains the help of detainer attorneys immediately upon being taken into custody or prior to turning him or herself in, then it may be possible to have counsel present for the Gagnon I hearing, and the defense counsel may be able to convince the trial commissioner to lift the detainer pending the Gagnon II hearing. In some cases, the commissioner does have the authority to release the defendant pending the Gagnon II hearing even if the commissioner finds probable cause that a VOP has occurred. This is true even for a direct violation.

Gagnon II Hearing

The Gagnon II hearing is the formal violation of probation hearing which takes place before the defendant's back judge. Prior to the hearing, the defendant or his or her probation violation attorneys must receive notice of the allegations against the defendant, and the defendant must have the opportunity to be heard and respond to the allegations. Additionally, the Gagnon II hearing must always be separate from the Gagnon I hearing. The courts have made it clear that the defendant is always entitled to two separate hearings.

As a general rule, the Gagnon II hearing must be held within thirty days of the Gagnon I hearing. However, in cases where the defendant is being detained due to a potential direct violation, the Gagnon II hearing will often be continued until the defendant's open case is resolved. If the defendant wins the open case, then there will often not be any violation of probation, whereas if the defendant loses the open case, then there will typically be a probation violation hearing.

The Gagnon II hearing presents the defendant's back judge with two separate questions. First, the judge must determine whether the defendant violated the conditions of his or her probation, either by incurring a technical violation or conviction for a new offense. Second, if the judge determines that a violation did occur, then the judge must determine what the consequences should be. Both of these issues are extremely important, and it is vital that you have the guidance of probation violation lawyers who know how to balance the defense of your probation in Philadelphia with the defense of the new charges against you.

In deciding whether the defendant has violated his or her probation, the sentencing judge will conduct the Gagnon II hearing by hearing from the probation officer, the prosecutor, the defense, and any potential witnesses. The judge must also give the defendant the opportunity to be heard and testify. Once both sides have been afforded the opportunity to speak, the judge will decide whether to find the defendant in violation of his or her probation and what the consequences should be. Even where the judge finds that the defendant has violated the terms of probation, the consequences may range from terminating probation, continuing probation, imposing additional probation or restrictions, or sentencing the defendant to jail time. Recently, the Pennsylvania Sentencing Commission created new sentencing guidelines which will apply for a violation of probation in Philadelphia. These guidelines, however, are not binding on the trial court. Instead, the court must simply consider them. Given the wide range of consequences and a great deal of discretion afforded to the sentencing judge, if you are facing a potential violation of probation in Philadelphia, you should speak with our experienced probation violation lawyers to obtain the best outcome possible for your case.

Detainers - How can I get a Detainer lifted?

Direct violations of probation in Philadelphia are particularly serious because they typically lead to a detainer. When a defendant is on probation and picks up a new case or the probation officer locks the defendant up for a technical violation of probation, it is likely that the back judge (the judge who placed the defendant on probation) will lodge a detainer. The detainer order directs the police and prison not to release the defendant until the detainer has been lifted. This means that even if the defendant can pay bail on the new case, the detainer will keep the defendant in custody until the new case is over. Once a detainer has been lodged, the defendant's probation officer typically cannot lift the detainer without the supervising judge's consent.

The detainer order creates a significant hardship because most cases will not be resolved for months. In some instances, particularly in cases involving serious felony charges, the case may drag on for years as the defendant waits for a jury trial. This makes it very difficult for a defendant with a detainer to exercise the right to a jury trial. Unless the defendant's back judge agrees to lift the detainer, the defendant will remain in custody until the case is resolved. We know this creates a lot of pressure on the defendant to plead guilty (often in front of the back judge through the 701 consolidation process) or to agree to a bench trial as bench trials do not require as long of a wait as a jury trial. As a result, we frequently receive the question, "How can I lift a detainer?" Fortunately, there are motions which can be filed with the help of your detainer attorneys which may result in the judge agreeing to lift the detainer.

Defenses to Violations of Probation and the Motion to Lift the Detainer

Given the high stakes for a defendant facing either a direct or technical violation of probation in Philadelphia, it is extremely important to retain an experienced criminal defense lawyer who regularly represents clients in the jurisdiction in which the defendant is on probation. Most importantly, it is critical that you retain probation violation and detainer lawyers who are compassionate and will work tirelessly to do everything possible to avoid or mitigate the consequences of a violation.

Our experienced Philadelphia criminal defense attorneys are well-versed in probation violation cases and will gather any possible mitigation evidence - or evidence showing why the back judge should lift the detainer - and any potential options for challenging the violation. After meeting with you and thoroughly investigating the case and locate mitigation evidence and witnesses, our detainer attorneys may be able to file a successful motion to lift the detainer with the probation judge by presenting that evidence and asking the judge to lift the probation detainer until the new case is resolved. This may allow the defendant to fight the case from home with the ability to wait for a jury trial if necessary. Likewise, if a defendant has already been found in violation of probation, we will present the mitigation evidence at the sentencing hearing for the violation in order to get the lowest possible sentence. Depending on the circumstances of your probation, that may result in an additional probationary sentence or a sentence of time served instead of a lengthy jail sentence for the probation violation or parole violation.

Rule 701 Consolidation

Finally, defendants who are on probation in Philadelphia often have the right to plead guilty on the new case in front of the back judge. This process is commonly called a 701 consolidation because it is named after Rule 701 of the Pennsylvania Rules of Criminal Procedure. In many cases, depending on the judge, the acceptance of responsibility and willingness to plead guilty in front of the back judge may make it possible to obtain a substantially reduced sentence even on a direct violation for new felony charges. 

The New Pennsylvania Probation Reforms

The Pennsylvania legislature recently passed a probation reform bill which improves the conditions of probation and provides some protections to defendants under many circumstances. The bill did not go as far as advocates wanted, but it does implement some meaningful changes to probation in Pennsylvania. The governor signed Senate Bill 838 into law at the end of December 2023, and it is important to be familiar with the changes created by the new law.

Changes to Technical Violations

First, the law changes the handling of technical probation violations in Pennsylvania. Perhaps the most important change is that there is now a presumption against imposing a prison sentence for a technical violation. Previously, judges had almost unlimited discretion to impose even a state prison sentence for a minor technical violation, and some judges would routinely do so. Now, the law requires the probation judge to presume that a jail sentence is inappropriate for a first technical violation. In order to impose a prison sentence for a violation, the judge must find one of the following:

1. The defendant committed a new crime,

2. There is clear and convincing evidence that the defendant committed a technical violation that involves an identifiable threat to public safety and less restrictive means other than a prison sentence cannot protect the community,

3. The defendant committeed a technical violation and the violation was sexual in nature,

4. The defendant committed a technical violation and the violation was essentially for violent behavior or credible threats to assault someone else,

5. The defendant committed a technical violation and the violation involved a firearm or dangerous weapon,

6. The technical violation involved the possession with the intent to deliver of drugs,

7. The defendant stopped reporting to probation and cannot be safely diverted from prison through less restrictive means,

8. The defendant failed to participate in required programming on three or more occasions and cannot be safely diverted from prison through less restrictive conditions.

The bill specifically directs judges to consider the employment status of the defendant. It also provides that a defendant should not receive a sentence longer than 14 days for a first technical violation or 30 days for a second technical violation. There is no limit on a third technical violation. The judge can also extend the above limits by thirty days if necessary for the defendant to be evaluated for a treatment program or complete a necessary class.

Judges still retain tremendous discretion to find a defendant in technical violation and impose prison sentences following such a finding, but the bill provides meaningful reforms. The presumption against incarceration is particularly important.

Probation Review Conferences and the Early Termination of Probation

Second, the law eliminates any restriction on the ability of a judge to terminate probation early. Judges may now terminate probation early even when the probation sentence was the product of a negotiated plea deal with the prosecution. Further, the law requires mandatory probation review conferences. For a defendant on felony probation, the court must hold a probation review conference after four years or 50% of the probation sentence has expired, whichever is shorter. For a misdemeanor, the court must hold a probation review conference after two years or 50% of the sentence has expired, whichever is shorter. If the court fails to schedule the required probation review conference on its own, the defendant or their attorney may file a motion demanding a review hearing within five business days. Further, the probation review conference may be required to take place even sooner for a defendant who spent time in state custody or on state parole. A defendant may also be entitled to a probation review conference sooner if the defendant graduates from high school, college, or trade school.

Prior to the conference, the probation officer must put together a report for the lawyers and the judge. The report should indicate whether there have been any probation violations, how the defendant has been doing on probation, and whether the defendant completed the other requirements of probation such as paying restitution or completing any required programs. The probation officer must also provide a recommendation as to whether the probation should be terminated early, should continue, or should be modified. Both the Commonwealth, defendant, and any victim shall be entitled to object to the report and recommendation. If anyone objects, the court must then hold a hearing. If no one objects, the court does not have to hold a hearing and should follow the recommendation contained in the report. Further, the statutes strongly encourage the court to actually terminate probation early unless the defendant has not complied with one or more conditions of probation or has committed a new offense.

There are numerous exceptions, however. For example, defendants who committed violations while on probation or who are on probation for crimes of violence, sex offenses, and homicide are generally not entitled to the probation review conferences or early termination. Those defendants may still retain counsel to file a motion for early termination as judges always had the ability to terminate probation early and nothing in the statute limits that discretion.

The new reform bill contains some other important modifications to probation in Pennsylvania, but the new limits on technical violations and the probation review conferences are likely the most important. If you are facing a probation violation or interested in having your probation terminated early, our Philadelphia criminal defense lawyers can help you understand these important changes and help you obtain the best possible outcome in your case.

Philadelphia Violation of Probation Lawyers and Attorneys for a Motion to Lift a Detainer

It is important to remember that every criminal case is different and that each criminal judge is different. Most importantly, our Philadelphia criminal defense lawyers have practiced in front of all of the criminal judges in Philadelphia and many of the judges of the surrounding counties. Our detainer lawyers can give you an honest assessment of the prospect of success based on our knowledge of the judges' regular practices and procedures, and depending on the circumstances, some judges will genuinely consider granting a motion lifting a detainer and allowing a defendant to fight the case from the street.

Some judges take probation violations extremely seriously and personally, and others take potential violations less so, which is why you need detainer attorneys with extensive experience in the local courts to understand what you are up against and how to develop the best defense possible for your case.

Based on our experience in the justice system, our probation violation attorneys also can provide our clients with the best possible advice in terms of how to resolve the open case in such a way as to minimize the impact of the probation violation. In some cases, that may mean filing a motion to lift the detainer. Or it could also mean that our detainer attorneys need to take the open case to trial because we know that a victory in the courtroom on the new case is the only way to avoid significant jail time on the violation of probation.

In other cases, it may mean negotiating a 701 consolidation for a reduced sentence which will get the defendant out of jail more quickly. Probation violations are complicated matters which need to be handled by criminal lawyers who fully understand the benefits and consequences of each option presented to you. The failure to handle these matters properly due to a lack of experience or knowledge from your detainer lawyers can have severe consequences and result in devastating jail sentences for you that could have been avoided.

You should never assume that you have to sit in jail until trial or that you are going up state on a VOP. Depending on the circumstances of your probation in Philadelphia, our detainer attorneys may be able to get you out and help you minimize the damage.

Call 267-225-2545 for a complimentary 15-minute criminal defense strategy session with our experienced detainer attorneys and probation violation lawyers today to discuss a motion to lift the detainer or representation at a violation of probation hearing.

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