Pennsylvania Probation/Parole Violation Process*
The outline below will go through the steps of the Violation of Probation/Parole process in Pennsylvania.
Step 1: Sentenced and Placed Under Supervision: Once you plead guilty or are found guilty, you will be sentenced by a Court of Common Pleas Judge. The judge may place you on probation or sentence you to term of incarceration followed by probation. Once placed on supervision, you agree to abide by the rules established by your county’s adult probation and parole department and agree to comply with any terms or special conditions imposed on you by the judge at the time of sentencing. Click on the following links to view sample rules of probation: Delaware County Rules or Chester County Rules. Your supervision may include a term probation or parole. It is important to know the distinction between probation and parole.
Probation vs. Parole:
Probation – when a defendant is to be supervised by the Adult Probation Department and be bound by the department’s rules. Typically, a defendant must report to his probation officer, remain arrest free and submit to drug testing.
Ex. – a common sentence would be 24 months of probation for a misdemeanor charge.
Parole – when a defendant is released from prison before the end of his or her prison sentence. Once the defendant is released he or she will monitored by the county probation/parole department.
Ex. – if you are sentenced to 11 months to 23 months jail time, you may be paroled or released at 11 months. Once paroled, you will be supervised by your county’s probation and parole department until you complete the duration of your sentence (23 months).
Why is it important to know the difference between probation and parole?
Answer: If you are found in violation of probation the judge can resentence you to whatever period of incarceration or probation was available to the judge at the time of sentencing. On the other hand if you are found in violation of your parole the judge cannot sentence you beyond your max date. The following examples will help you understand:
Ex. #1: If you are placed on probation for 24 months and you violate your probation on month 23, the judge could resentence you to another 24 months probation. In other words, the clock starts over and you would have to do your probation all over again.
Ex. #2: Parole is different. If you are found in violation of your parole the judge can only put you in the jail for the maximum term of your sentence. For instance, if you are sentenced to 11-23 months incarceration, paroled on month 11, violate your parole on month 12, the judge can only resentence you to 11 more months. The judge cannot sentence you beyond your max date which would be 23 months.
How is Credit Calculated on a Parole Violation?
On a parole violation, you only get credit for the time you were incarcerated. You do not get credit for street time. The clock starts over again from the time you were released. For example, if you are serving a sentence of 11-23 months and you violate parole on month 20 you only get credit for 11 months served. You may be resentenced to your full back time which is 12 months. You may serve this back time incarcerated or under supervision. That decision is up to the court. The judge has a lot of discretion in these types of cases.
*Please note that you may be able to get credit for any time you spent in an inpatient treatment facility. Your attorney should make this argument to the court. You will most likely NOT get credit for any time spent on house arrest, but if a lenient judge is presiding, it may be worth a try for your attorney to make the argument.
Step 2: A Violation Occurs: Once your probation officer determines that you have violated the rules of your probation or parole he or she will then issue you a warning for the violation or ask a Pennsylvania Court of Common Pleas judge to find you in violation of your probation or parole. If your probation officer decides to go forward with the violation, he or she will likely file a petition with the Court of Common Pleas Judge that sentenced you. The petition will request the judge to find you in violation of your probation or parole. The petition will specify what activity occurred that constitutes a violation. The following are common violations that occur:
- Getting Arrested
- Not Reporting to Your P.O.
- Technical Violations
- Use of Drugs
- Use of Alcohol
- Not Reporting a Change of Address or Change of Employment
- Failure to Maintain Employment
- Not Paying Restitution
- Not Paying Fines and Costs
Step 3: Gagnon I Hearing: The “Gagnon” hearing process is named after the United States Supreme Court Case of Gagnon v. Scarpelli in which the Court mandated a two step revocation procedure. The first step is the Gagnon I hearing. You are entitled to a Gagnon I hearing if you are in detention while awaiting your Gagnon II, or formal revocation hearing. The Gagnon I hearing is a pre-revocation hearing. At the Gagnon I hearing the adult probation officer must prove that probable cause exists to believe that a violation has been committed. However, the “probable cause standard” is a low burden of proof for the probation officer. The purpose of this hearing is to protect against unlawful detention and serves as an additional safeguard for probationers or parolees. The Gagnon I hearing is informal and will be held before a hearing officer. The hearing will usually occur in the adult probation and parole office. At the Gagnon I hearing you have the following rights:
- notice of the alleged violations of probation or parole;
- an opportunity to appear and to present evidence on your own behalf;
- a conditional right to confront adverse witnesses
- an independent decision maker; and
- a written report of the hearing.
If probable cause is found at the Gagnon I hearing the case will proceed to a Gagnon II hearing.
Step 4: Gagnon II Hearing: This is the ultimate hearing and will determine if you have violated the conditions of probation or parole. The Gagnon II hearing will be scheduled before a Court of Common Pleas Judge in a courtroom. It is a more formal hearing. There are two legal questions that the judge must decide in a Gagnon II hearing.
Did a Violation Occur?
The first issue in a Gagnon II hearing is whether you violated one of the conditions of your probation or parole. You have the right to a hearing on this issue. The hearing would proceed as follows: the Assistant District Attorney would likely call your probation officer and any other witnesses to the witness stand and have them testify as to the occurrence of the violation. You or your attorney may confront and cross-examine the Commonwealth’s witnesses. You or your attorney will then have a turn to call your own witnesses. At the end of the hearing, the sitting judge must make a determination as to whether the violation occurred. The Commonwealth must prove the violation by a preponderance of the evidence – which means “more likely than not.” The standard is not beyond a reasonable doubt like in a criminal trial. Because the burden is low for the Commonwealth, in most cases the defense will admit to the violation and ask proceed to resentencing.
What Will the New Sentence Be?
Once you have been found in violation of your probation or parole or admitted to the violation, you will be re-sentenced. At this point, your probation officer will likely hand you or your attorney a written sheet, stating what he or she recommends as a sentence. This recommendation could entail additional probation, parole or incarceration. If you feel that the recommendation is fair and just, you may agree to the recommendation and ask the judge to follow the agreement. However, the judge is not required to follow the agreement but many times will.
If you do not agree with the probation officer’s recommendation you may let the court decide your sentence. At this point, your probation officer will make his or her recommendation in open court, and the district attorney’s office will concur or disagree with the recommendation of the probation office. Most of the time the district attorney’s office will agree with adult probation’s recommendation. After the Commonwealth is finished, you or your attorney may speak to the judge in open court and make his recommendation as to what the sentence should be. Once this occurs the judge will take all factors in consideration, revoke your probation or parole and re-sentence you at the court’s discretion. The judge may resentence you to additional probation, parole or jail time.
Contact my criminal defense practice if you or someone you know is facing a probation or parole violation. There are many Intermediate Punishment programs in the various counties that may allow you to avoid further incarceration. Contact my office for more information.
*This outline applies to County probation and parole.