J-A09005-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EMMANUEL CASSIS,
Appellant No. 456 EDA 2014
Appeal from the Judgment of Sentence June 20, 2011
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s):
CP-51-CR-0003389-2011
CP-51-CR-0003396-2011
CP-51-CR-0003397-2011
CP-51-CR-0003398-2011
CP-51-CR-0003399-2011
BEFORE: BOWES, DONOHUE, AND STABILE, JJ.
MEMORANDUM BY BOWES, J.: FILED APRIL 28, 2015
Emmanuel Cassis appeals from the judgment of sentence of sixty-nine
and one-half to 139 years imprisonment that the trial court imposed after it
found him in technical violation of his probation. We reverse the trial court’s
order finding Appellant in violation of probation, vacate the judgment of
sentence, and remand for violation of probation (“VOP”) proceedings.
Appellant entered a negotiated guilty plea on April 25, 2011. As part
of the plea deal, Appellant agreed to plead guilty to seventeen counts of
robbery, eleven counts of theft, and multiple firearms violations. The
Commonwealth agreed to recommend a sentence of seven and one-half to
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fifteen years incarceration to be followed by twenty years of probation.
Judge Chris R. Wogan accepted the plea and imposed the aforementioned
sentence. In addition, Judge Wogan agreed to defer the date Appellant was
required to begin his sentence until June 20, 2011, and directed Appellant to
appear before him that day. Appellant failed to arrive at the courtroom to
relinquish himself to authorities; his counsel did appear.
On that date, June 20, 2011, the court, without complying with any of
the notice or procedural requirements necessary to conduct a VOP hearing,
determined that Appellant violated his probation. Trial counsel objected to
the proceeding going forward in Appellant’s absence. The court overruled
that objection and sentenced Appellant to sixty-two to 124 years
imprisonment to run consecutively to his earlier seven and one-half to
fifteen year sentence of incarceration. The court did not have the benefit of
a pre-sentence report, since at the original sentencing, Appellant waived
that requirement.1
The Commonwealth apprehended Appellant on June 27, 2011.
Appellant was not informed of his new sentence at that time, nor did he
contact his attorney. Accordingly, unaware of the new sentence, Appellant
did not file a timely post-sentence motion or a direct appeal. Appellant
subsequently filed a timely pro se petition for relief under the Post-
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1
Appellant was twenty-years old and had no prior criminal background.
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Conviction Relief Act (“PCRA”), on June 15, 2012. Appellant retained private
counsel, and counsel filed an amended petition on September 23, 2013.
Therein, counsel asked that Appellant’s direct appeal rights be reinstated
and also sought Judge Wogan’s recusal. Judge Wogan did not initially
recuse himself, and Appellant filed two supplemental motions for recusal.2
In one of those motions, Appellant averred that a sign was posted in Judge
Wogan’s courtroom which read, “69 ½ to 139 years—Beat that.” Judge
Wogan acknowledged that such a sign did exist, but he represented that he
did not post it himself and, after seeing it a second time, had it removed.3
Ultimately, Judge Wogan elected to recuse himself. Judge Jeffrey
Minehart then conducted a PCRA evidentiary hearing regarding trial
counsel’s failure to preserve Appellant’s appellate rights and sentencing
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2
Judge Wogan conducted hearings on these motions. At a contentious
December 16, 2013 hearing, Judge Wogan inappropriately vigorously cross-
examined Appellant regarding matters that were based on his own ex parte
and sua sponte investigation and questioning of warrant officers. Judge
Wogan then held PCRA counsel in contempt because counsel refused to
undergo a previously ordered mental health examination. He initially
sentenced counsel to jail and a fine over counsel’s objection that he was
entitled to an attorney and a hearing. The assistant district attorney,
however, also objected to the court’s actions and the court agreed not to
sentence PCRA counsel.
3
An attorney present at a November 22, 2013 PCRA hearing in this case
filed a declaration that referenced the sign and maintained that it was
“displayed prominently near where attorneys are required to check in with
the court staff and was easily read.” Declaration of Attorney James A. Funt,
at ¶ 12.
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issues after the June 20, 2011 sentencing. Trial counsel acknowledged that
he did not inform Appellant or his family of the new sentence. The PCRA
court reinstated Appellant’s direct appeal rights. This appeal ensued. The
court directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. Appellant complied, and the
trial court authored its Rule 1925(a) decision. Therein, the court concluded
that the underlying sentencing issues Appellant had alleged in his PCRA
petition were waived because Appellant had not sought reinstatement of his
right to file a post-sentence motion.
Appellant now raises three issues for this Court’s review.
1. Did not the trial court err as a matter of law, abuse its
discretion, and violate general sentencing principles when,
following appellant’s failure to turn himself in to begin serving
a negotiated sentence of 7 ½ to 15 years, the court in
absentia, conducted a cursory “violation of probation”
hearing, and imposed a manifestly excessive and
unreasonable sentence of 69 ½ to 139 years incarceration,
which far surpassed what was required to protect the public,
went well beyond what was necessary to foster appellant’s
rehabilitation, was not necessary to vindicate the authority of
the court, was grossly disproportionate to the crimes, and
was imposed without reference to any pre-sentence report or
sufficient information to make an individualized sentencing
decision?
2. Did not the trial court err as a matter of law, abuse its
discretion and violate appellant’s due process rights when it
imposed a 69 ½ to 139 year sentence for an alleged technical
violation of probation, where the court conducted the
“violation hearing” without any of the required constitutional
safeguards?
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3. Did not appellant properly preserve and perfect these
challenges for direct appeal, or if he did not, wasn’t such a
failure per se ineffective assistance of counsel, such that this
Court should address the matters on direct appeal?
Appellant’s brief at 3.
As we find Appellant’s second issue dispositive, we need only address
that issue. Appellant argues that the court erred by conducting “an
apparent in absentia violation of probation hearing” without providing notice
to Appellant of such a hearing and without hearing from any witnesses. He
notes that under Morrisey v. Brewer, 408 U.S. 471 (1972), a parolee has
certain Fourteenth Amendment due process rights before the court can
recommit that person. These protections have been extended into the
violation of probation arena. See Commonwealth v. Stafford, 29 A.3d
800, 802 n.1 (Pa.Super. 2011) (citing Morrissey, Gagnon v. Scarpelli,
411 U.S. 778 (1973); Commonwealth ex rel. Rambeau v. Rundle, 314
A.2d 842 (1973); and Commonwealth v. Davis, 336 A.2d 616 (Pa.Super.
1975)).
Appellant asserts that an individual alleged to have violated his
probation is entitled to two separate hearings. See Gagnon, supra. The
initial hearing, commonly known as a Gagnon I hearing, “is a pre-
revocation hearing to determine if probable cause exists that a violation was
committed.” Thereafter, “a Gagnon II hearing is conducted where the
Commonwealth is required to establish that the defendant did violate his
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parole/probation. See Commonwealth v. Ferguson, 761 A.2d 613
(Pa.Super.2000).” Stafford, supra at 802 n.1.
In Davis and Ferguson, supra, we outlined the distinctions between
the two hearings. At a Gagnon I hearing, a probationer “is entitled to
notice of the alleged violations of probation or parole, an opportunity to
appear and to present evidence in his own behalf, a conditional right to
confront adverse witnesses, an independent decisionmaker, and a written
report of the hearing.” Ferguson, supra at 617 (quoting Davis, supra at
621). In contrast, a “Gagnon II hearing is more complete than the
Gagnon I hearing in affording the probationer additional due process
safeguards[.]” Id. First, the court determines whether the probationer did
violate probation. Subsequently, the court considers whether the
probationer should be committed to prison “or should other steps be taken
to protect society and improve chances of rehabilitation[.]” Id. (Ferguson
and Davis quoting Gagnon, supra at 784).
In performing this review, due process requires similar protections
afforded by the Gagnon I hearing. Specifically, the defendant must be
given written notice of his alleged probation violation, disclosure of the
evidence against him, an opportunity to be heard in person and present
evidence, the right to confront and cross-examine adverse witnesses unless
good cause exists for not permitting confrontation, a neutral hearing body,
and a written statement by the factfinder regarding the evidence relied on
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for violating the defendant’s probation. See Morrisey, supra at 499;
Commonwealth v. Holder, 805 A.2d 499, 504 n.7 (Pa. 2002); Ferguson,
supra at 617-618; Davis, supra at 621.
Appellant adds that pursuant to Pa.R.Crim.P. 708(1), a court “shall not
revoke such probation” without a hearing “at which the defendant is present
and represented by counsel[.]” He points out that no notice was provided
regarding a violation of probation nor was he present to be heard or
provided with a written statement as to his violation. Continuing, Appellant
highlights that the court did not hear from a probation officer nor was any
evidence introduced. Rather, the court determined that Appellant’s failure to
appear was sufficient to warrant revoking Appellant’s probation without
notice and in absentia.
The Commonwealth counters that Appellant’s issue is waived because
his objection was not specific enough. We disagree. Here, counsel objected
to the violation hearing being conducted without his client being present.
The essentials of procedural due process are notice and an opportunity to be
heard. Without prior notice of a violation hearing, the absence of the
defendant encompasses both a lack of notice and an inability to be heard.
Thus, it is evident that objecting based on Appellant’s absence adequately
encompasses these due process concerns. An objection need not be so
specific and detailed as to amount to an oral briefing of the matter. Instead,
counsel must adequately alert the court of the alleged error. See In re
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T.P., 78 A.3d 1166, 1171 (Pa.Super. 2013) (“If an assertion raised by a
party can fairly be said to implicate a rule of law or legal precedent known
by a court to be applicable, it is not foreclosed from considering that legal
precept solely because that precise case, rule, or statute was not cited.”).
Finding that Appellant adequately objected, we hold that the trial court
erred in finding Appellant in violation of his probation without complying with
the minimal due process protections necessary for violation of probation
proceedings. Appellant was not given notice of a Gagnon I or II hearing or
notice of his violation, nor was he provided an opportunity to be heard or be
present.
Virtually none of the procedural safeguards required by both United
States Supreme Court and Pennsylvania case law were adhered to by Judge
Wogan. Since the court erred in proceeding in this fashion in Appellant’s
absence, he is entitled to new VOP proceedings. Therefore, we reverse the
court’s order finding Appellant in violation of probation, vacate his judgment
of sentence, and remand for proceedings consistent with this memorandum.
Judgment of sentence vacated. Case remanded for additional
proceedings. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/28/2015
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