HomeMy WebLinkAboutCP-21-CR-0358-2002COMMONWEALTH
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: 02-0358 CRIMINAL
JAMES J. NESMITH
OTN: H506268-0
:AFFIANT: SGT. DOUGLAS PFAHL
OPINION PURSUANT TO Pa.R.A.P. 1925
Hoffer, J.,
FACTS
On July 2, 2002, defendant James Nesmith pled guilty to Simple Assault
and Resisting Arrest. Defendant was sentenced to eleven and one half (11 ~)
months to two (2) years less one (1) day. He was then paroled on February 26,
2003. However, due to violations of his parole conditions, the Parole Officer filed
a Petition for Revocation of Parole on May 30, 2003. A hearing was scheduled
for June 10, 2003, and defendant failed to appear at the hearing. The Court
issued a bench warrant, and defendant was arrested later.
The Petition for Revocation alleged that the defendant had twice failed to
report to his supervising officer. Additionally, the Petition stated that the
defendant had failed to maintain gainful employment. On September 30, 2003,
the defendant appeared before the Court for his Parole Revocation Hearing and
admitted to the two allegations in the petition. Having acknowledged that the
defendant admitted to the two parole violations, the Court revoked his parole and
the defendant was recommitted to Cumberland County Prison to serve the
balance of his unexpired sentence.
DISCUSSION
The defendant asserts in his Statement of Matters Complained of on
Appeal that he was entitled to a preliminary parole revocation (Ga.qnon I) hearing
and did not receive one, thus he was denied due process. Ga.qnon v. Scarpelli,
411 U.S. 778,782, 93 S.Ct. 1756, 1759 (1973). Generally, when a defendant's
parole has been revoked, he or she is entitled to two hearings: 1) a preliminary
hearing at the time of his arrest and detention to determine whether there is
probable cause to believe that he has committed a violation of his parole; and 2)
a more comprehensive hearing prior to the making of a final revocation decision.
Id~ Defendant claims that he was not given a separate Ga.qnon I hearing prior to
his final revocation hearing, and thus was denied due process.
A Ga.qnon I hearing was not necessary in this situation for two reasons.
First, the defendant failed to notify the Court that he wanted a Ga.qnon I hearing
before his parole was revoked. Second, the defendant admitted at his Parole
Revocation Hearing that he violated his parole, thus making a preliminary
hearing unnecessary regarding whether there was probable cause that he
violated his parole.
In Commonwealth v. Perry, 254 Pa. Super. 48, 52,385 A.2d 518,520
(1978), the defendant complained on appeal that he did not receive a Ga.qnon I
hearing, but the Court denied his claim stating that because the defendant did
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not complain of the lack of a Ga.qnon I hearing before his parole was revoked,
the defendant had already suffered the harm that the omission allegedly caused.
Id~ In other words, because a Ga.qnon I hearing is intended to insure that there is
probable cause to hold the defendant in jail prior to his Parole Revocation
Hearing, if the defendant fails to object to such holding without a Ga.qnon I
hearing until after his probation is revoked, it is too late to insure that he was not
held without probable cause. The court also stated that because "the substance
of the revocation proceeding is not affected by the omission, the defendant
parolee will not be heard to complain later." Id.
Defendant argues that the purpose of the Ga.qnon I hearing is to afford "the
time and opportunity to prepare a defense against charges after review of them
by a neutral body" and thus the lack of a separate preliminary hearing denied
defendant that time and opportunity to prepare a defense. Commonwealth v.
Homoki, 413 Pa. Super. 490, 495, 605 A.2d 829 (1992). Disregarding for the
moment that at the Parole Revocation Hearing no defense was presented, but
rather defendant admitted to both violations, defendant's argument is still without
merit since he failed to object to such deprivation of the time and opportunity to
prepare a defense before his probation was revoked. If an argument had existed
to prove that there was no probable cause to revoke defendant's probation,
defendant would have objected to not having a preliminary Ga.qnon I hearing
prior to the revocation of his parole.
Similarly, had there been such a lack of probable cause, defendant would
not have admitted to the allegations of parole violation at his Parole Revocation
Hearing. The fact that he admitted to both allegations makes the entire purpose
of the Ga.qnon I hearing moot.
Defendant argues that in Commonwealth v. Czapla, 287 Pa. Super. 335,
430 A.2d 313 (1981) and Commonwealth v. Ferquson, 2000 Pa. Super. 312,761
A.2d 613 (2000), the Superior Court's holdings that a defendant who admits to
probation violations is entitled to only a limited appeal and is not entitled to a
timely Ga.qnon I hearing, respectively, are distinguishable from this case because
the defendants in those cases were given two separate hearings. However,
defendant's assertion that "had the Commonwealth [in Fer.quson] denied the
defendant his Ga.qnon I hearing [rather than merely delaying it] it almost surely
would have found prejudice" is incorrect. The Superior Court held that because
the defendant in Fer.quson admitted to the allegations at his Ga.qnon II hearing,
any claims that he had been prejudiced by an untimely Ga.qnon I hearing were
meritless. Obviously, the fact that he admitted to the allegations shows
unequivocally that there was probable cause, making the timing, or even the
existence of a Ga.qnon I hearing in such a situation, a moot point.
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