Loading...
HomeMy WebLinkAbout01-0546 CRIMINALCOMMONWEALTH MICHAEL A. NOLL OTN: L081610-4 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO, 01-0546 CHARGES: (1) (2) CRIMINAL DUI DRIVERS REQUIRED TO BE LICENSED (Sum) IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 HOFFER, P. J. The appellant in this case has appealed from the Order of Court revoking his parole. On January 27, 2001 the appellant was charged with Driving Under the Influence (75 Pa.C.S.A. 3731 (a)(1)) (M2), Driving Without a License (75 Pa.C.S.A. 1501(a)) (s), and Possession of Drug Paraphernalia (CS 780-113 A32) (M). On July 3, 2001 the appellant plead guilty to the Count 1, Driving Under the Influence, and Count 2, Driving Without a License. On August 28, 2001, the Court sentenced him to a period of incarceration of 48 hours to 23 months in the Cumberland County Prison. Pursuant to a January 29, 2002, Petition for Revocation of Parole, a revocation hearing was held on May 21,2002, before the Court. At that hearing the appellant admitted to all allegations of the Petition, and subsequently his parole was revoked. In his Concise Statement of Matters Complained of On Appeal, appellant asserts ten claims of trial court error and one claim of ineffective revocation counsel. After reviewing the record, the Court finds that there was sufficient evidence to support the revocation of his parole and no merit to his claim for ineffective assistance of revocation counsel. DISCUSSION Pursuant to Rule 708 of Pennsylvania Rules of Criminal Procedure: (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)(1)-(2). In the case at bar, a revocation hearing was held at which the appellant was present and represented by counsel. to being in violation of the terms and Revocation of Parole Hearing, May 21, 2002 (hereinafter N.T. )). found that his parole was properly revoked because of this admission. At that hearing the appellant admitted conditions of his parole. (N.T. 2, The Court 2 1. Requirement of two separate hearings for revocation of parole. In his Brief in Support of Statement of Matters Complained of On Appeal, the appellant asserts that the Court violated his United States and Pennsylvania Constitutional due process rights by holding only one hearing to find probable cause that he violated his parole where two separate hearings are required. Pennsylvania law requires two independent hearings in order to revoke parole or probation where the allegations of the Petition for Revocation are at issue. Commonwealth v. Homoki, 413 Pa. Super. 490, 605 A.2d 829 (1992).4 The first hearing is intended to inform the defendant of the nature of the charges so that he may prepare a defense. Id~ at 493. The second hearing is then required to determine whether facts exist to justify the revocation of parole or probation. Id. In Homoki, the appellant was found to be in violation of his probation for possession of cocaine and a large knife. At the revocation hearing the appellant denied both allegations, and his probation was revoked at that first hearing. Id~ at 492. The court determined that the appellant was entitled to two ~ The Court in Homoki follows The United States Supreme Court decisions in Ga.qnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756 (1973), and Morrissey v. Brewer, 408 U.S. 471,92 S.Ct. 2593 (1972), which both require two separate hearings be held in order to revoke parole or probation. Both cases can be distinguished from the case at bar because the Court found that neither defendant in each case admitted to the allegations in the revocation of parole petition. Further, even though the respondents in Morrissey claim they admitted the violations alleged in the parole violation reports, the Court found nothing substantiating that admission in the record. Therefore, the Court determined the issue without those admissions, and suggests that the reasoning may have been altered had those admissions been made formally. Morrissey, 408 U.S. at 477, 92 S.Ct. at 2598. separate hearings, particularly a separate second hearing whereby the appellant would be afforded the time and opportunity to prepare a defense against charges after review of them by a neutral body. Id~ at 495. In the instant case, the reasoning in Homoki does not apply because the appellant admitted to all allegations in the Petition for Revocation of Parole at the first hearing. Thus to require a second hearing in such a case would prove to be time-consuming and inefficient for all parties involved. 2. Trial court inquiries at revocation hearing. The appellant asserts that the Court erred in not inquiring into the reasons for his failure to pay fines, failure to report to his parole officer, failure to complete an alcohol evaluation, failure to complete DUI school, failure to report a change in employment status, and failure to report a change of address. Specifically with regard to his failure to pay fines, the appellant cites Commonwealth v. Eq,qers2, which determined that a term of probation may not be revoked for failure to pay fines absent certain considerations by the revocation court. Id. In ECl.Clefs, the appellant's parole was revoked solely due to her inability to pay fines. Eqqers, 742 A.2d at 175. In the instant case, the appellant admitted to all allegations in the Petition for Revocation of Parole, allegations that extend 2 742 A.2d 174 (Pa. Super. 1999), citing Bearden v. Georqia, 461 U.S. 660, 103 S.Ct. 2064 (1983). The Eggers court also stated that a sentencing court must inquire into the reasons for the failure to pay. Commonwealth v. Eq.qers, 742 A.2d at 175, citing Bearden v. Georgia, 461 U.S. at 672, 103 S.Ct. at 2073. 4 beyond that of failing to pay fines. No further inquiry need be made into any of the above mentioned allegations because of the appellant's full admission. 3. Consideration of evidence of parole violations not alleged in Petition for Revocation of Parole. The appellant argues that the Court erred in considering evidence of parole violations not alleged in the Petition for Revocation of Parole. Because the appellant did in fact admit to all allegations in the Petition, the Court need not address this issue; in any event, only the written allegations were considered. 4. Requirement of the Court to state on the record its reasons for imposition of sentence. The appellant argues that the Court erred in failing to state on the record, at the time of sentencing, in the presence of the defendant, its reasons for the imposition of sentence. The Superior Court in Commonwealth v. DeLuca, 275 Pa. Super. 176, 179, 418 A.2d 669, 671 (1980), stated that a trial judge is required to state on the record his reasons for the particular sentence imposed. This requirement also applies to sentencing following the revocation of probation. Id. DeLuca is distinguishable from the case at bar because the appellant in that case did not admit to the allegations in the Petition for Revocation of Parole, and in fact, presented conflicting accounts of his involvement in the charges, thus requiring the sentencing judge to state on the record his reasons for the sentence. Id. at 180-81,418 A.2d at 671-72. In light of the reasoning in DeLuca, in the instant case, due to the admittance of all allegations by the appellant the Court's reasoning need not be stated on the record. 5. Ineffective assistance of revocation counsel. Lastly, the appellant argues that his revocation counsel was ineffective. In order to establish an ineffective assistance of counsel claim, the appellant must meet a three-prong test established in Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987), Commonwealth v. Crawle¥, 541 Pa. 408, 663 A.2d 676 (1995). First, the appellant must establish that the issue underlying the claim of ineffectiveness has merit. Commonwealth v. Crawle¥, 541 Pa. at 414, 663 A.2d at 679. Next, the appellant must establish that the course of action or inaction by counsel had no reasonable basis in advancing the appellant's interests. Id. Third, the appellant must establish that he suffered prejudice as a result of the counsel's action or inaction. Id. The ineffective assistance of counsel claim has no merit because the record indicates that the appellant admitted to all allegations in the Petition for Revocation of Parole, and made this admittance of his own free will. (N.T. 2). With no merit to the claim, the issue is thus resolved in favor of the Commonwealth.