Opinion
J-A20008-15 No. 2275 EDA 2013
08-04-2015
COMMONWEALTH OF PENNSYLVANIA, Appellee v. LARON PHILLIPS, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P 65.37
Appeal from the Judgment of Sentence July 3, 2013, Court of Common Pleas, Philadelphia County, Criminal Division at No. CP-51-CR-1303866-2006 BEFORE: DONOHUE, SHOGAN and WECHT, JJ. MEMORANDUM BY DONOHUE, J.:
Laron Phillips ("Phillips") appeals from the July 3, 2013 judgment of sentence entered by the Philadelphia Court of Common Pleas following his violation of probation ("VOP") hearing. Concluding that the trial court erred by revoking Phillips' probation, we vacate the judgment of sentence.
The relevant background of this case is uncontested. The genesis of this case is Phillips' conviction by the trial court on June 28, 2007 of possession of a controlled substance with intent to deliver. The trial court sentenced him on that date to four years of reporting probation. On February 8, 2011, the trial court found that Phillips had violated his probation, revoked his probation and sentenced him to a new one-year term of reporting probation. Phillips did not appeal this revocation.
Prior to the expiration of his new probationary term, Phillips was arrested twice - once on November 4, 2011 and a second time on January 21, 2012. He was convicted on the charges from the first arrest (possession of a controlled substance and retail theft) on April 24, 2012. The charges stemming from the second arrest (possession of a firearm, carrying a firearm without a license, and possession of a controlled substance) were nol prossed by the Commonwealth on June 5, 2012. On August 1, 2012, following the expiration of his term of probation, Phillips was arrested for a third time for possession of a controlled substance.
On June 11, 2013, the trial court held a VOP hearing. At that hearing, Phillips' probation officer testified that although she originally was going to recommend terminating Phillips' probation, she learned that morning of his third arrest, and on that basis instead recommended that the trial court revoke Phillips' probation and resentence him based upon his violation of probation. N.T., 6/11/13, at 4, 6. Counsel for Phillips requested that the trial court terminate supervision of Phillips based upon the untimeliness of the VOP hearing. Id. at 6. Interested in more information regarding the nol prossed firearms charges, the trial court continued the revocation hearing until July 3, 2013.
At the July 3, 2013 hearing, counsel for Phillips renewed her motion to terminate supervision, again arguing that the VOP hearing was not timely held. N.T., 7/3/13, at 6-7. Counsel conceded that Phillips committed a direct violation of probation based upon his arrest during the term of his probation and ultimate conviction on April 24, 2012. Counsel continued that Phillips' probation expired on February 8, 2012, but Phillips was still required to report to his probation officer until the Commonwealth scheduled the VOP hearing, which did not occur for more than a year. Id. Based upon the untimeliness of the VOP hearing, counsel requested that the trial court terminate Phillips' probation.
An explanation of the Commonwealth's reason for nol prossing the firearms charges was provided to the trial court during an off-the-record sidebar.
Phillips' probation officer acknowledged that Phillips' probation case remained open until the VOP hearing, but testified that "the case was held open for so long because [Phillips] kept getting arrested, which [] force[d] [the probation department] to keep the case open until these matters are resolved." Id. at 10-11. The Commonwealth provided no further explanation for the delay in scheduling the VOP hearing.
The trial court found Phillips in direct violation of his probation, revoked his probation and resentenced him to a new term of four years of reporting probation. Phillips filed a timely motion to reconsider his sentence, again asserting, in relevant part, that the VOP hearing was untimely. The trial court denied this motion on August 2, 2013. Thereafter, Phillips filed a timely notice of appeal. He received an extension of time to file his concise statement of errors complained of on appeal ("1925(b) statement") based upon the unavailability of transcripts. Although the trial court ordered Phillips to file his 1925(b) statement "within twenty-one [] days of [his] receipt of all notes of testimony," Trial Court Order, 10/16/13, the trial court issued a written opinion pursuant to Pa.R.A.P. 1925(a) on June 13, 2014 finding all issues waived based upon Phillips' failure to file a 1925(b) statement.
On August 28, 2014, this Court granted Phillips' petition to vacate the briefing schedule and remanded the record for ninety days. We further ordered the trial court to provide Phillips' counsel with copies of the requested notes of testimony and for counsel to file a 1925(b) statement within twenty-one days of the receipt thereof.
On September 19, 2014, counsel for Phillips filed a 1925(b) statement and on October 29, 2014, the trial court filed its responsive opinion pursuant to Pa.R.A.P. 1925(a). On appeal, Phillips raises the following issue for our review: "Was not [] Phillips' probation violation hearing untimely, violating Pa.R.Crim.P. 708(B)(1), when it was held over a year after the violation, long after the probation was due to expire?" Phillips' Brief at 3.
Our review following the revocation of probation is limited to the validity of the proceedings, the legality of the sentence imposed following revocation of probation, and challenges to the discretionary aspects of the revocation sentence the trial court imposed. Commonwealth v. Wright , 2015 WL 2146418, *2 (Pa. Super. May 8, 2015). "In a revocation hearing the Commonwealth has the obligation of establishing its case by a preponderance of the evidence." Id. (quoting Commonwealth v. Brown , 469 A.2d 1371, 1374 n. 2 (Pa. 1983)). We review a trial court's decision to revoke a defendant's probation for an abuse of discretion or error of law. Commonwealth v. Colon , 102 A.3d 1033, 1041 (Pa. Super. 2014), appeal denied, 109 A.3d 678 (Pa. 2015).
The issue raised by Phillips challenges the validity of the VOP hearing. Specifically, he contends that the timing of the hearing violated Rule 708(B)(1) of the Pennsylvania Rules of Criminal Procedure. Phillips' Brief at 8-9. Rule 708(B) states:
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:Pa.R.Crim.P. 708(B).
(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.
Phillips does not contest that his April 24, 2012 conviction was in fact a violation of his probation. Phillips' Brief at 8.
The Rule does not specify what timeframe constitutes "as speedily as possible." Pennsylvania courts have interpreted this to mean that a VOP hearing must convene "within a reasonable [amount of] time." Commonwealth v. Woods , 965 A.2d 1225, 1227 (Pa. Super. 2009). Whether the delay in holding the VOP hearing was reasonable is answerable on a case-by-case basis.
In evaluating the reasonableness of a delay, the court examines three factors: the length of the delay; the reasons for the delay; and the prejudice resulting to the defendant from the delay. The court must analyze the circumstances surrounding the delay to determine if the Commonwealth acted with diligence in scheduling the revocation hearing. Prejudice in this context compromises the loss of essential witnesses or evidence, the absence of which would obfuscate the determination of whether probation was violated, or unnecessary restraint of personal liberty.Id. at 1227-28 (emphasis added) (quoting Commonwealth v. Clark , 847 A.2d 122, 123-24 (Pa. Super. 2004)). It has long been held that where a probationer is accused of committing a crime during the pendency of a term of probation, it is reasonable to hold the revocation hearing after the charges are disposed of. See , e.g., Commonwealth v. Burrell , 441 A.2d 744, 745-46 (Pa. 1982); Commonwealth v. White , 279 A.2d 768, 769 (Pa. Super. 1971) (en banc); Woods , 965 A.2d at 1228; Commonwealth v. Dickens , 475 A.2d 141, 143 (Pa. Super. 1984).
In the case at bar, Phillips was arrested twice during his term of probation. His first arrest resulted in conviction on April 24, 2012; the Commonwealth nol prossed the charges related to his second arrest on June 5, 2012. Thus, although Phillips' term of probation ended on February 8, 2012, as the charges for arrests that occurred during his sentence of probation were not disposed of until June 5, 2012, the delay in scheduling Phillips' VOP hearing until after June 5, 2012 was reasonable. See id.
The VOP hearing, however, was not held until more than a year after June 5, 2012. The hearing was initially scheduled on June 11, 2013, and it was continued until July 3, 2013. The trial court found that the delay of more than twelve months was "reasonable" based upon the fact that Phillips was arrested for a third time on August 1, 2012, which required Phillips' probation officer to "further postpone[] a violation hearing." Trial Court Opinion, 10/29/14, at 4. We find this conclusion unsupportable by the law or by the record. First, the third arrest occurred after Phillips' probationary term expired. A violation of probation occurring after the expiration of a sentence of probation "cannot serve as a basis for revoking that probation." Wright , 2015 WL 2146418 at *4. Furthermore, the record reflects that Phillips' probation officer testified at the June 11, 2013 hearing that she only learned of the third arrest the morning of the VOP hearing. N.T., 6/11/13, at 4. Thus, it is clear that the August 1, 2012 arrest played no role in the Department of Probation's failure to schedule Phillips' VOP hearing.
A twelve-month delay in holding Phillips' revocation hearing is not "intrinsically reasonable," and the Commonwealth provided no explanation of the reason for this lengthy delay or claims that it acted with diligence in scheduling Phillips' VOP hearing. See , e.g., Woods , 965 A.2d at 1228 (delay of nine months without explanation is not reasonable). This does not end our inquiry, however, as we must now determine whether Phillips was prejudiced by the delay in holding his VOP hearing. See Commonwealth v. Marchesano , 544 A.2d 1333, 1337 (Pa. 1988) ("even when there has been a violation of the speedy hearing requirement that denial in itself is not grounds for vacating the sentence imposed").
The Commonwealth makes a passing reference to Phillips' August 1, 2012 arrest and suggests that the additional delay may have been to permit the probation officer "to monitor the outcome" of those charges. Commonwealth's Brief at 9-10. As stated above, however, the record does not support this claim.
Our review of the record reveals that despite the fact that Phillips' probationary sentence concluded on February 8, 2012, the Probation Department kept Phillips' case open, requiring Phillips to continue reporting to his probation officer while awaiting the scheduling of the VOP hearing. N.T., 7/3/13, at 7, 11. There is no evidence that he was otherwise subject to supervision on another charge or conviction. Cf. Clark , 847 A.2d at 125 (finding that the defendant was not prejudiced by the lengthy delay in scheduling his VOP hearing as the defendant was serving a sentence on an unrelated criminal charge and "he was not imprisoned [for his VOP] longer than he otherwise would have been").
The Commonwealth acknowledges that Phillips continued to serve a term of probation past the court ordered end date of February 8, 2012, but asserts that Phillips' personal liberty was not unnecessarily restrained because he was not incarcerated for his violation. Commonwealth's Brief at 11. We disagree. A finding that the defendant's personal liberty was unnecessarily retrained is not limited to cases involving the unnecessary incarceration of the defendant while awaiting the scheduling of a VOP hearing. See Commonwealth v. Pelzer , 466 A.2d 159, 161 (Pa. Super. 1983) ("The primary purpose of a prompt revocation hearing is ... to avoid the continuance of unnecessary incarceration or other limitations of the personal liberty of the accused.") (emphasis added).
Requiring a defendant to continue a term of probation beyond its expiration is an unnecessary restraint on his personal liberty. As this Court has previously stated, "[A] person placed on probation does not enjoy the full panoply of constitutional rights otherwise enjoyed by those who [have] not run afoul of the law. A probation order with conditions placed on it will to some extent always restrict a person's freedom." Commonwealth v. Hartman , 908 A.2d 316, 321 (Pa. Super. 2006) (internal citation and quotation omitted; emphasis added).
Based upon the record before us, we conclude that Phillips' VOP hearing was not held as speedily as possible in violation of Rule 708(B)(1). The length of the delay was unreasonable, the Commonwealth provided no explanation for it, and Phillips was prejudiced thereby. See Woods , 965 A.2d at 1227-28. Therefore, the trial court abused its discretion and erred as a matter of law by revoking Phillips' probation. See Pa.R.Crim.P. 708(B)(1) (prohibiting the revocation of probation if the VOP hearing was not held "as speedily as possible").
Judgment of sentence vacated. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/4/2015