PA SUPER. COURT: VOP REQUIRES VIOLATION OF SPECIFIC CONDITION/NEW CRIME
The Pennsylvania Superior Court has decided the case of Commonwealth v. Giliam, No. 3882 EDA 2016. In this case the Superior Court held that to violate probation a defendant must either; 1.) violate a specific condition of probation; or 2.) commit a new crime. It is not enough for a defendant to engage in antisocial conduct or be arrested for a crime he did not commit. Therefore where the Defendant is found not guilty (as happened in this case) there may be insufficient evidence to find a violation of probation even where there is a Daisey Gates Hearing. The Court effectively recommends that defendants and their counsel defer a violation of probation hearing until after a new case is resolved.
WHAT IS A VIOLATION OF PROBATION
In Pennsylvania, a defendant who is on probation and picks up a new case is charged with a violation of probation. Defendants may also be sentenced to violation of probation for failing to adhere to specific terms and conditions of probation. These conditions must be specified at sentencing. Once a defendant on probation has picked up a new case and a detainer is lodged there are three possible outcomes: 1.) the defendant beats his open case and is released; 2.) the defendant is convicted of the new crime and is sentenced for a violation of his original probation; 3.) or the defendant beats the new case and the government still attempts to find a violation of probation. Where the government attempts to find a probation violation irrespective of outcome of the criminal case there is a Daisey Kates hearing.
OUTCOME OF GILIAM
In Giliam, the Defendant beat his case but the DA proceeded with a Daisey Kates. At the Daisey Kates the defendant was found in violation of probation. The sentencing court reasoned that Defendant’s alleged conduct of slapping his girlfriend was inappropriate and a violation of probation. He was sentenced to 2 1/2 to 5 years incarceration. The Superior Court overturned the sentence holding that the sentence was illegal. According to the Court, there was no credible evidence Giliam committed a probation violation since he was found not guilty. It was not enough to violate the defendant for generally anti-social conduct.
The Court further held that to incur a probation violation there must be a new crime committed or violation of a specific condition. Generally anti-social conduct or failure to rehabilitate is insufficient to find a violation of probation. The government must prove the probation violation by a preponderance of the evidence. Finally, a defendant has a right to defer his probation violation hearing until after his new criminal charges are disposed.
Generally, it makes sense to delay the violation of probation hearing until after the open case is resolved. If the defendant beats the open case he may not have to see his back judge. In the interim the defendant may file a motion to lift detainer. The motion to lift detainer asks the back judge to allow the defendant out-of-custody while he faces his back charges. For more information on detainer hearing visit our blog post.
Giliam is an important victory for defendants who are on probation and have been charged with new crimes. Whereas previously defendants may have been found in violation of probation despite beating their new charges, the Superior Court has discouraged this practice. The Court affirmed that incur a violation there must be violation of a specific condition of probation or evidence by a preponderance that new criminal activity was committed. It is not enough to engage in generally anti-social conduct. This is an important development as it requires the Court to base their findings on specific actions rather than general conduct.
WINNING A VIOLATION OF PROBATION HEARING
If you have been convicted of a new crime and are on probation it is important to understand your options. Even if you are found in violation you may be sentenced to probation. Consider that a judge may weigh relevant evidence at a Violation of Probation hearing. This may include mitigating factors to the court like proof of employment, family ties, and defendant’s attempts to pay costs and fines. The Court may also consider the probation officer’s recommendation, and the length of time the defendant went without a probation violation. In cases where the Defendant is convicted the Court has the power to sentence the Defendant to a new period of probation rather than incarceration. Therefore it is important to zealously defend against violation of probation charges, even where the defendant is convicted. Based on Giliam the defendant may now argue the alleged violation is void for vagueness as it does not detail violation of a specific condition or new criminal activity.
OUR SUCCESSES IN LITIGATING VIOLATION OF PROBATION HEARINGS
Our firm has successfully defended countless violation of probation hearings. In many such cases, the violation of probation hearing was cancelled because defendant was acquitted of the open case or found not guilty. In other cases we have successfully argued the defendant should be given another chance on probation because of the nature of the offense, the defendant’s work history, proof of income, familial obligations, and commitment to rehabilitation. A skilled Philadelphia criminal defense attorney will present your case in the best light possible to the sentencing judge, working to keep you out of prison, even where there is a clear violation of probation.
CONTACT A PHILADELPHIA CRIMINAL DEFENSE ATTORNEY
If you were on probation and have been charged with a new crime or a violation of probation, it is important to remember the burden of proof is on the government to prove the violation based on the preponderance of the evidence. According to Giliam, the violation cannot be vague but must reference a specific condition of probation violated or new criminal conduct. If the violation is new criminal conduct and the defendant beats the case, Giliiam would suggest there is insufficient evidence to convict on the VOP. If you are charged with a violation of probation, contact our experienced Philadelphia criminal defense attorneys for a free thirty minute no-obligation consultation.