Loading...
HomeMy WebLinkAboutCP-21-CR-2125-2004 COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. BRANDY NICOLE JOHNSON CP-21-CR-2125-2004 IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Bayley, J., December 1, 2006:-- On November 9,2004, defendant, Brandy N. Johnson pled guilty to theft by unlawful taking, a misdemeanor in the first degree.1 She admitted that when she was an employee of Wal-Mart, she stole $1,455 from the company.2 On the same date, she was sentenced to undergo imprisonment in the Cumberland County Prison for time served to eighteen months. She was paroled on November 10, 2004, for the balance of her remaining term on supervision on condition that she be and remain on good behavior and comply with all written instruction of her probation officer. On September 14, 2006, defendant was arrested for violating her parole. A hearing was conducted on October 4, 2006, at which she was represented by counsel. An order was entered on October 4, 2006, adjudicating defendant in violation of the terms and condition of parole. She was recommitted for the balance of her remaining 118 Pa.C.S. S 3921 (a). 2 She also pled guilty at 2127-2004 to a count of theft, a misdemeanor in the first degree, and at 2128-2004, to issuing bad checks, a misdemeanor of the second degree. CP-21-CR-2125-2004 term, without credit for street time, to date from September 14, 2006. On October 27, 2006, defendant, pro se, filed a direct appeal from this order to the Superior Court of Pennsylvania. Defendant alleges error because no Gagnon I hearing was conducted before her Gagnon II adjudication on October 4, 2006. Nor was there a wavier of a Gagnon I hearing. In Commonwealth v. Homoki, 413 Pa. Super. 490 (1992), the Superior Court of Pennsylvania held, that under Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed. 656 (1973), and Morrisey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L. Ed. 484 (1972), a revocation of probation required two separate Gagnon I and Gagnon II hearings that cannot be conducted by running them together or holding them on the same day.3 In Homoki, the trial court concluded that it conducted a Gagnon I and Gagnon II hearing on the same day, one following the other. The Superior Court of Pennsylvania, stated: If we accepted the Commonwealth's argument, a probationer, such as appellant, or parolee would not be afforded the time and opportunity to prepare a defense against charges after review of them by a neutral body. Such a procedure could result in arbitrary and unchecked power by a probation officer to bring charges that could lead to incarceration if the parolee or probationer could not assert an adequate defense. 3 Gagnon and Morrisey apply to revocations of parole as well as revocations of probation. A Gagnon I hearing is a preliminary hearing where the Commonwealth must show probable cause that a violation was committed. Commonwealth v. Homoki, supra. A Gagnon II hearing involves a determination of whether there has been a violation, and if so, should the parolee and probationer be committed to prison or should other steps be taken to protect society and improve the changes of rehabilitation. Id. -2- CP-21-CR-2125-2004 Appellant was informed of the charges, his probation was revoked, and a sentence was imposed, all in one hearing. In our view, the instant proceedings defeated the constitutional due process requirements set forth in Commonwealth v. David, [234 Pa. Super. 31 (1975)], and was Improper. Accordingly, we are constrained to vacate appellant's sentence and remand with directions for the trial court to hold a Gagnon /I hearing. Jurisdiction relinquished. (Emphasis added.) In the case sub judice, the failure to hold a Gagnon I hearing is raised for the first time on direct appeal. The issue is waived.4 Defendant further maintains that the record contains insufficient evidence to support the adjudication that she violated the terms and conditions of her parole. In order to support a revocation of parole, the Commonwealth must prove, by a preponderance of the evidence, that a parolee violated parole. Commonwealth v. Smith, 368 Pa. Super. 354 (1988). Defendant's probation officer testified that defendant was in her office in the morning of August 21,2006. She was asked to give a urine sample. Defendant said she needed to be at a job interview in approximately one-half hour. She was told to wait but she left. She came back in the afternoon. She drank some water but stated she could not provide urine. On September 13, the probation officer went to defendant's home. Defendant saw her coming and darted 4 Unlike the facts in Homoki, here, a written petition for revocation of parole was filed on September 28, 2006. It contained three specific allegations regarding defendant's failure to provide a sample of urine when requested by her probation officer, and as required by the conditions of her parole. Thus, defendant and her counsel were on notice and had the time to prepare a defense, and a defense was presented at the Gagnon II hearing on October 4, 2006. Although there should have been a Gagnon I hearing, defendant was not prejudice in this case. See Commonwealth v. Ferguson, -3- CP-21-CR-2125-2004 inside her house. When the probation officer got there, defendant was coming out of the bathroom, had obviously just gone, and could not provide urine. She was told to be in the probation office the next morning, September 14, to provide a urine sample. She came but stated that she could not provide urine. She was told to wait. Approximately an hour and a half later she told a secretary that she had to urinate. Within a minute or two the probation officers arrived but by that time defendant stated she had just urinated in the bathroom. The probation officer took defendant into custody. Defendant testified at the hearing and had an excuse for everything. The testimony of the probation officer was credible, and supported our finding that defendant had willfully refused to provide a urine sample, a violation of the conditions of her parole. The evidence supports the adjudication. (Date) Edgar B. Bayley, J. Michelle Sibert, Esquire Assistant District Attorney Brandy Johnson, Pro se Cumberland County Prison 1101 Claremont Road Carlisle, PA 17013 :sal 761 A.2d 613 (Pa. Super. 2000). -4-