Our office represents a number of individuals who, while fighting criminal charges, also face violations of probation for a previous conviction. Some of these clients received sentences which consisted of solely probation while others received probation following a period of incarceration.
The basic objective of probation is to provide a vehicle for the rehabilitation without incarceration. While on probation an individual is subject to drug testing, regular appointments with their probation officer, status hearings before the sentencing judge who ordered the probation and any other conditions applicable under the law. The sentencing judge may revoke probation if, after a hearing, known as a Gagnon Hearing, it is found that probation is not appropriate due to a failure on the part of an individual to comply with the terms of the probation.
A judge has a great deal of discretion during a probation violation hearing and so it is very important for a defense attorney to make a persuasive argument if a client is faced with a possible revocation of his or her probation. In most situations one faces probation revocation due to an arrest, positive drug test, or a failure to comply with Court orders such as making restitution for property damage. Arrests and/or positive drug tests are considered direct violations because they involve the commission of crimes during probation which is obviously not permitted. While an arrest for an alleged criminal offense is not a conviction, Pennsylvania, similar to many states and the Federal Courts, permits a prosecutor to make a motion to the Court for the revocation of an individual’s probation based on the arrest alone.
In Pennsylvania, the lead case which is often cited in these prosecution motions is Commonwealth v. Daisey Kates. This case is based on the proposition that there is no statutory restriction preventing a Court from proceeding with a probation revocation hearing prior to a trial on criminal charges which form the basis for the alleged probation violation. Pennsylvania, like many jurisdictions, permits these proceedings because the issues pertaining to probation revocation and the standard of proof (beyond a reasonable doubt) at trial are not identical. Further, courts have found that individuals subject to these types of hearings are not deprived of their Due Process rights under the United States Constitution.
The 5th and 14th Amendment to the United States Constitution contain Due Process Clauses. These amendments pertain to self-incrimination, the right to counsel and the requirement that state governments comply with the Constitution despite their own State Constitutions. Due process is also found within other Amendments such as notification of the charges/allegations, the right to confront witnesses and the right to have one’s case heard before an impartial judge/jury. Despite these Constitutional protections, the issue at a probation hearing, however, is whether probation is appropriate and whether the sentencing judge is satisfied with an individual’s conduct while on probation. Courts have found that this issue is outside Due Process and the Constitutional Protections are not applicable.
This legal procedure is obviously very difficult for many clients as well as defense attorneys. It’s important, however, that if you are faced with a violation of probation that you and your attorney discuss possible strategies to avoid revocation based on the arrest alone. Your attorney’s argument must address not only the underlying violation but distinguish the prosecution’s constitutional argument so that a judge can assess whether a revocation is appropriate. If your attorney fails to address these issues, you face serious consequences and most likely jail.