Commonwealth v. Wright

• Decision Date: 08 May 2015
• Docket Number: No. 85 EDA 2014,85 EDA 2014
• Citation: 2015 PA Super 116,116 A.3d 133
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Michelle WRIGHT, Appellant.
• Court: Pennsylvania Superior Court

116 A.3d 133

2015 PA Super 116

COMMONWEALTH of Pennsylvania, Appellee

v.Michelle WRIGHT, Appellant.

No. 85 EDA 2014

Superior Court of Pennsylvania.

Submitted Feb. 2, 2015.

Filed May 8, 2015.

Karl Baker, Public Defender, Philadelphia, for appellant.

Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: BOWES, SHOGAN and FITZGERALD,^* JJ.

Opinion

OPINION BY BOWES, J.:

Michelle Wright appeals from the judgment of sentence of eleven and one-half to twenty-three months imprisonment followed by five years probation that the trial court imposed after she was found to be in violation of the terms of her probation. We find that Appellant had concluded serving her probationary term when the probation was revoked and that her violation of probation (“VOP”) proceeding was not held within a reasonable period after her probation violations. We therefore vacate the judgment of sentence.

On November 14, 2005, Appellant entered a negotiated guilty plea to one count of welfare fraud in return for a sentence of three years of reporting probation and restitution in the amount of $13,967. No petition to revoke the probation appears in the record nor does the docket indicate that one was filed. A violation of probation (“VOP”) hearing was conducted on December 2, 2013. At that time, the following occurred. Appellant objected to the court's jurisdiction to conduct a VOP hearing and claimed that her probationary period expired years before the hearing was conducted. The Commonwealth countered that Appellant absconded from probation during the probationary period so that Appellant remained subject to probation.

To establish Appellant's status as absconder, Probation Officer Brian Brown testified as follows. According to Appellant's probation records, Appellant reported to her probation officer until June 25, 2007, and paid $22.50 in restitution. Mr. Brown then testified that Appellant re-initiated contact with the probation office on December 2, 2009. N.T. VOP, 12/2/13, at 8 (“THE PROBATION OFFICER: It was noted that there was contact June 25, 2007, and then not until December 2, 2009.”); Id. at 18 (“I wrote down that she had contact on June 25, 2007, and didn't have contact again until December 2, 2009.”). Officer Brown could not testify personally as to these events, his testimony being premised upon notations in Appellant's probation records by her previous probation officer. Officer Brown testified that, “According to the last probation officer's notes, from 6/25/07 she absconded until December 2, 2009.” Id. at 7–8.

The Commonwealth also reported to the trial court that Appellant had a direct violation of the terms of her probation in the form of 2013 federal convictions for bank fraud and conspiracy. Appellant objected to the Commonwealth's characterization of those convictions as probation violations and maintained that her probationary period had expired by 2013. The Commonwealth responded that Appellant was a probation absconder and that her probationary period had not expired. Based upon the 2013 federal convictions, the Commonwealth sought a term of incarceration.

Appellant then objected to the timeliness of the revocation proceedings. She also claimed that she could not be found to be a probation absconder because such a finding would be premised solely upon hearsay in her probation records consisting of the notations that she did not report from June 25, 2007, to December 2, 2009. The trial court concluded that Appellant violated her probation based upon technical violations as well as a direct violation, the federal convictions. It imposed “11 and a half to 23 months incarceration with immediate parole to be followed by five years of reporting probation.” Id. at 26.

Appellant filed a motion for reconsideration of the revocation decision and the sentence, that motion was promptly denied, and this timely appeal followed. She raises the following issues for our review:

1. Did not the trial court lack jurisdiction or authority to revoke appellant's probation, where that probation had naturally expired approximately five years prior to the revocation hearing and where the court's conclusion that appellant had absconded from supervision was not justified by the evidence?

2. Did not the trial court violate appellant's right to a speedy revocation hearing, where no allegations of technical violations were brought and no hearing was held until five years after the natural expiration of her supervision?

Appellant's brief at 3.

Initially, we note that, in an appeal from a sentence imposed after the court has revoked probation, we can review the validity of the revocation proceedings, the legality of the sentence imposed following revocation, and any challenge to the discretionary aspects of the sentence imposed. Commonwealth v. Cartrette, 83 A.3d 1030, 1033 (Pa.Super.2013) (en banc ). In this case, Appellant's position pertains to the validity of the proceedings. Commonwealth v. Ortega, 995 A.2d 879 (Pa.Super.2010). “In a revocation hearing the Commonwealth has the obligation of establishing its case by a preponderance of the evidence.” Commonwealth v. Brown, 503 Pa. 514, 469 A.2d 1371, 1374 n. 2 (1983).

We also observe that the hearing was extremely disjointed, with the Commonwealth maintaining that Appellant was an absconder and thus still subject to probation, that she violated probation by failing to report, and that she violated probation by committing the 2013 federal offenses. Appellant continually interjected that she was no longer on probation, that the VOP hearing was not held in a timely manner, and that the Commonwealth did not prove that she was an absconder since that finding could not be premised upon the hearsay proof submitted being the notations made by the prior probation officer.

We first discuss the issue of whether Appellant was a probation absconder since that finding impacts the remaining issues. Appellant maintains that it was impermissible for the trial court to determine that she was a probation absconder based upon inadmissible hearsay consisting of the notations made by the prior probation officer, who failed to testify. We conclude that we need not address the hearsay issue since, even if the notations were improper hearsay admitted to establish that Appellant was an absconder, those same hearsay notations likewise proved that Appellant had finished serving her probationary term when the direct violations occurred and that the VOP hearing was not conducted within a reasonable period after the 2007–2009 reporting violations.

In Ortega, supra, at 885, we held that a defendant's probation will be “extended by his ongoing delinquency.” Herein, the notations in Appellant's file indicated that she was on probation from November 14, 2005 to June 25, 2007, nineteen months, and that she re-initiated contact with her probation officer on December 2, 2009. Officer Brown stated unequivocally that Appellant was no longer an absconder as of December 2, 2009. N.T. VOP Hearing, 12/2/13 at 7–8 (emphasis added) (“According to the last probation officer's notes, from 6/25/07 she absconded until December 2, 2009. ”)¹ As of December 2, 2009, Appellant had to serve an additional seventeen months probation. Thus, Appellant's probationary term, according to the Commonwealth's own proof, expired on May 2, 2011, seventeen months after she reinstituted contact with her probation officer.

In rendering this finding, we observe the following. The Commonwealth, as noted, has the burden of proof in a probation revocation setting. Thus, it had to establish that Appellant was a probation absconder. Under Ortega, the probationary term is extended only by the period of delinquency. Although the Commonwealth presented evidence that Appellant resumed contact with her probation officer on December 2, 2009, it presented not a scintilla of evidence that Appellant was an absconder after that date. Instead, her probation officer admitted that she was no longer considered an absconder on December 2, 2009. Thus, Appellant's absconder status ceased at that time.

Assuming, arguendo, that Appellant's delinquency began on June 25, 2007, and expired on December 2, 2009, her probation, as extended by Appellant's period of delinquency, ended on May 2, 2011. Her probation was not revoked until December 2, 2013, which was thirty-one months after expiration of her probationary period, and four years after she committed the 2007–2009 probation violations consisting of the failure to report and pay restitution.

We are aware that a sentence for a violation of the terms of probation can be imposed after the expiration of the probationary period if the revocation is based on a violation which occurred within the probationary period. Commonwealth v. Lipton, 52 A.2d 521 (Pa.Super.1975). However, in that circumstance, the probation must be revoked and the sentence must be imposed within a reasonable time after the expiration of the probationary period. Id. at 522 (“When a sentence is imposed after the expiration of a probationary period, based upon a violation which occurred within the period (the situation in the case before us), the probation must be revoked and the sentence imposed within a reasonable time after the expiration of that period.”).

Similarly, Pa.R.Crim.P. 708, which pertains, inter alia, to a violation of probation, provides, in relevant part:

(B) Whenever a defendant has been sentenced to probation or intermediate punishment, or placed on parole, the judge shall not revoke such probation, intermediate punishment, or parole as allowed by law unless there has been:

(1) a hearing held as speedily as possible at which the defendant is present and represented by counsel; and

(2) a finding of record that the defendant violated a condition of probation, intermediate punishment, or parole.

Pa.R.Crim.P. 708(B) (emphasis added).

The bolded language has been interpreted as requiring a probation violation hearing within a reasonable time....