Award-Winning Philadelphia Probation Violation Lawyer and Detainer Motion Attorney
Probation Cases in Pennsylvania
Our experienced Philadelphia criminal lawyers have successfully handled thousands of violation of probation hearings ("VOP hearings") and motions to lift detainers. If you need representation for a probation violation or a lawyer to lift a detainer, call us at 267-225-2545 to discuss your case and how we can help. The stakes are extremely high for a defendant who is facing a potential probation hearing because violations often result in jail sentences. In many cases, however, it may be possible to avoid a jail sentence or finding of a violation. Therefore, we offer a complimentary 15-minute criminal defense strategy session with a Philadelphia probation lawyer 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.
Types of Probation Violations
There are two types of probation violations. The first type is a technical violation of probation. A technical probation violation occurs when the defendant fails to comply with the terms of probation. For example, 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 probationer violated the probation and if so, what consequences to impose. In terms of punishments, the judge has a tremendous deal of discretion. The sentencing judge could continue probation, re-sentence the defendant to additional probation with modified conditions, or 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 can be very serious. The probation judge's sentence can also be difficult to appeal; therefore, it is critically important that you retain an experienced probation lawyer if you are facing a potential technical violation. The stakes are high, and it is important that you have a violation of probation lawyer who can provide the best possible defense at the VOP sentencing hearing.
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 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, 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. The first hearing is called a Gagnon I hearing, and the second hearing is called 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 counsel 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 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 counsel 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 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.
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 attorney 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, 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 judge with two separate questions. First, the judge must determine whether the defendant violated the conditions of the defendant's probation either by incurring a technical violation or conviction for a new offense. Second, if the judge determines that there has been a violation of probation, then the judge must determine what the consequences should be. Both issues are extremely important.
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 he opportunity to speak, the 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. Give the wide range of consequences and great deal of discretion afforded to the sentencing judge, it is critical that if you are facing a potential violation of probation, you speak with one of our experienced defense lawyers today.
Detainers - How can I get a Detainer lifted?
Direct violations of probation 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. 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. Therefore, we frequently receive the question, "How can I lift a detainer?" Fortunately, there are motions which can be filed 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, 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 a lawyer who cares enough and will work hard enough to do everything possible to avoid or mitigate the consequences of a violation.
Our experienced Philadelphia criminal defense attorneys will meet with each client and gather any possible mitigation evidence, which is evidence showing why the back judge should lift the detainer, and any potential options for challenging the violation. After we investigate the case and locate mitigation evidence and witnesses, we may be able to file a successful motion to lift the detainer with the probation judge 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, thereby giving the defendant 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, 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 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 and 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.
Philadelphia Violation of Probation Lawyers and Attorneys for a Motion to Lift a Detainer
It is important to remember that each criminal case is different and that each criminal judge is different. Most importantly, our Philadelphia criminal defense lawyers have practiced in front of the majority of criminal judges in Philadelphia and many of the surrounding counties. We can give you an honest assessment of the prospect of success based on our knowledge of the judges' regular practices and procedures. 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.
Based on our experience in the justice system, we 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. It could also mean that we need to take the open case to trial because we know that a victory in the court room 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 pros and cons of each option. The failure to handle these matters properly due to a lack of experience or knowledge can have severe consequences and result in devastating jail sentences 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, we may be able to get you out, and we can help you minimize the damage. Call 267-225-2545 for a complimentary 15-minute criminal defense strategy session and to discuss a motion to lift the detainer or representation at a violation of probation hearing.