Com. v. Ferguson

• Decision Date: 19 October 2000
• Citation: 2000 PA Super 312,761 A.2d 613
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Clyde FERGUSON, Jr., Appellant.
• Court: Pennsylvania Superior Court

761 A.2d 613

2000 PA Super 312

COMMONWEALTH of Pennsylvania, Appellee, v. Clyde FERGUSON, Jr., Appellant.

Superior Court of Pennsylvania.

Submitted July 17, 2000.

Filed October 19, 2000.

Scott A. Stein, Lebanon, for appellant.

David J. Arnold, Asst. Dist. Atty., Lebanon, for Com., appellee.

BEFORE: JOYCE, LALLY-GREEN, and HESTER, JJ.

LALLY-GREEN, J.:

¶ 1 Appellant, Clyde Ferguson, Jr., appeals an Order of the Court of Common Pleas of Lebanon County revoking Appellant's parole and re-sentencing him to serve the balance of his remaining sentence, with no credit for street time, at the Lebanon County Correctional Facility. We affirm.

¶ 2 On August 19, 1998, Appellant plead guilty to one count of Criminal Attempt to Possess Cocaine.¹ Docket Entry 11. On October 21, 1998, he was sentenced to probation of twelve (12) months. Docket Entry 17.

¶ 3 On December 8, 1998, a Petition was filed alleging Ferguson had violated his probation conditions. Trial Court Opinion at 2. The trial court held a hearing on December 23, 1998, found Appellant in violation of his probation conditions, and revoked his probation. Id. Appellant was re-sentenced with the minimum sentence being time already served and the maximum set at twelve months imprisonment. Id. Appellant was paroled into a treatment program at the Lebanon Veterans Medical Center with a condition that he successfully complete the program. Id.

¶ 4 On July 19, 1999, Appellant was arrested in Dauphin County for failure to pay fines and costs on a charge of driving without a license. Trial Court Opinion at 3. A detainer was lodged against Appellant and the Lebanon County Adult Probation Department was advised of the action. Id. The Dauphin County charges were disposed of on July 29, 1999, giving effect to the detainer. Id. Appellant was transported to the Lebanon County Correctional Facility (LCCF) on August 4, 1999. Id.

¶ 5 When Appellant entered LCCF, Appellant indicated he would waive his Gagnon I hearing. Id. On Tuesday, August 10, 1999, Appellant refused to sign the written waiver of the Gagnon I hearing. Id. On that same date, he was provided with a written copy of the alleged violations and a hearing was scheduled before a District Justice. Id.

¶ 6 On Thursday, August 19, 1999, Appellant's Gagnon I hearing was held before District Justice John F. Arnold who determined that probable cause existed to believe Appellant had violated his parole conditions. Id. On September 28, 1999, a formal petition was filed alleging that Appellant violated his parole conditions by: (1) testing positive for cocaine on July 13, 1999; (2) failing to pay fines and costs; and (3) receiving a charge in Dauphin County for driving without a license. Id.

¶ 7 A Gagnon II hearing was held on October 6, 1999. Id. During the Gagnon II hearing, Appellant asserted that his Due Process rights had been violated because: (1) his Gagnon I hearing was not timely; (2) he was not afforded the advice of counsel at said hearing; and (3) he had not received written notice of the alleged parole condition violations. N.T., 10/06/99, at 3. The court found that Appellant had violated his parole conditions and sentenced him to serve the balance of his unexpired term without credit for street time. Id. This timely appeal followed.

¶ 8 Appellant presents the following issue for our review A. Did the lower court error when it refused to find that Appellant's due process rights were violated when this Gagnon I hearing was held without the assistance of counsel held more than fourteen days after he was detained and he was not given written notice of the alleged violations?

Appellant's Brief at 2.²

¶ 9 We note that appellate counsel has contemporaneously filed a petition for leave to withdraw as counsel as well as an Anders brief. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). When considering an Anders brief, this Court may not review the merits of the underlying issues without first passing on the request to withdraw. Commonwealth v. Fischetti, 447 Pa.Super. 381, 669 A.2d 399, 400 (1995). Thus, we begin by addressing counsel's request to withdraw.

¶ 10 In order for counsel to withdraw from an appeal pursuant to Anders and its Pennsylvania equivalent, Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981), certain requirements must be met:

(1) counsel must petition the court for leave to withdraw stating that after making a conscientious examination of the record it has been determined that the appeal would be frivolous;

(2) counsel must file a brief referring to anything that might arguably support the appeal, but which does not resemble a "no merit" letter or amicus curiae brief; and

(3) counsel must furnish a copy of the brief to defendant and advise him of his right to retain new counsel, proceed pro se or raise any additional points that he deems worthy of the court's attention.

See, Commonwealth v. Heron, 449 Pa.Super. 684, 674 A.2d 1138, 1139 (1996)

. Once counsel has satisfied all of the requirements attendant to the request for withdrawal, it is then this Court's duty to conduct its own review of the lower court proceedings and render an independent judgment as to whether the appeal is in fact "wholly frivolous." Commonwealth v. Townsend, 693 A.2d 980, 982 (Pa.Super.1997) (citation omitted).

¶ 11 The record indicates that on May 24, 2000, appellate counsel filed a petition for leave to withdraw. The petition states that counsel thoroughly reviewed the record and concluded that the appeal would be wholly frivolous. In addition, counsel has filed a brief raising all issues that might possibly support an appeal. Finally, the petition states that counsel has supplied Appellant with copies of the brief and petition, and also explained to Appellant, through an attached letter, that he can proceed pro se or hire private counsel in order to raise any issues that he may believe hold merit. Thus, based on our review of the record, counsel has met the requirements imposed by Anders.

¶ 12 It now remains for this Court to determine whether Appellant's claim is wholly frivolous. The Anders brief filed by counsel raises three issues of arguable merit. Our independent review of the record does not disclose any additional issues of arguable merit for appeal. We now address the issues raised in counsel's Anders brief.

¶ 13 Appellant first argues that his Due Process rights were violated because his Gagnon I hearing was untimely. Appellant's Brief at 4-5. Specifically, Appellant asserts that under 37 Pa.Code § 71.2, his Gagnon I hearing was required to be held within fourteen (14) days of being incarcerated. Id. Appellant contends that since his Gagnon I hearing was held fifteen (15) days after he was incarcerated at the LCCF, the Gagnon I hearing was untimely and violated his right to Due Process. Id. ¶ 14 The United States Supreme Court held in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), that a parolee is entitled to minimum due process protections because of the possible deprivation of liberty inherent in parole revocation proceedings. Id. at 482, 92 S.Ct. 2593; see also, Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973)

(extending the Morrissey holding to probation revocation proceedings); Commonwealth ex rel. Rambeau v. Rundle, 455 Pa. 8, 314 A.2d 842 (1973) (implementing the Morrissey two step revocation procedure in Pennsylvania); Commonwealth v. Davis, 234 Pa.Super. 31, 336 A.2d 616 (1975) (implementing the two step revocation procedure of Gagnon and Morrissey). When a parolee or probationer is detained pending a revocation hearing, due process requires a determination at a pre-revocation hearing, a Gagnon I hearing, that probable cause exists to believe that a violation has been committed. Commonwealth v. Holmes, 248 Pa.Super. 552, 375 A.2d 379, 381, n. 4 (1977). Where a finding of probable cause is made, a second, more comprehensive hearing, a Gagnon II hearing, is required before a final revocation decision can be made. Commonwealth v. DeLuca, 275 Pa.Super. 176, 418 A.2d 669, 672 (1980).

¶ 15 This Court described this parole and probation revocation process in Commonwealth v. Davis, 234 Pa.Super. 31, 336 A.2d 616 (1975), stating:

"At the preliminary [Gagnon I] hearing, a probationer or parolee is entitled to notice of the alleged violations of probation or parole, an opportunity to appear and to present evidence in his own behalf, a conditional right to confront adverse witnesses, an independent decisionmaker, and a written report of the hearing." Gagnon v. Scarpelli, supra, at 786, 93 S.Ct. at 1761, citing Morrissey v. Brewer, supra, 408 U.S. at 487, 92 S.Ct. 2593

. Thus, the Gagnon I hearing is similar to the preliminary hearing afforded all offenders before a Common Pleas Court trial: the Commonwealth must show probable cause that the violation was committed.

The Gagnon II hearing entails, or may entail, two decisions: first, a "consideration of whether the facts determined warrant revocation." Morrissey v. Brewer, supra at 488, 92 S.Ct. at 2603. "The first step in a Gagnon II revocation decision ... involves a wholly retrospective factual question: whether the parolee [or probationer] has in fact acted in violation of one or more conditions of his parole [or probation]." Gagnon v. Scarpelli, supra 411 U.S. at 784, 93 S.Ct. at 1761, citing Morrissey v. Brewer, supra, 408 U.S. at 479-80, 92 S.Ct. 2593

. It is this fact that must be demonstrated by evidence containing "probative value." Commonwealth v. Kates, supra, 452 Pa. at 118-19, 305 A.2d at 710. "Only if it is determined that the parolee [or probationer] did violate the conditions does the second question arise: should the parolee [or probationer] be recommitted to prison or should other steps be taken to protect society and improve chances of rehabilitation?" Gagnon v. Scarpelli, supra, 411 U.S. at 784, 93 S.Ct. at 1761,

citing Morrissey v. Brewer, supr...