J-S60036-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DAVID PILAWSKI, :
:
Appellant : No. 3606 EDA 2015
Appeal from the Judgment of Sentence November 2, 2015,
in the Court of Common Pleas of Bucks County,
Criminal Division, at No(s): CP-09-CR-0000276-2012
CP-09-CR-0001181-2014
CP-09-CR-0004986-2013
BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 19, 2017
David Pilawski (Appellant) appeals from the judgment of sentence
imposed on November 2, 2015, following revocation of his parole at CP-09-
CR-0000276-2012 (276-2012) and CP-09-CR-0001181-2014 (1181-2014),
and the revocation of his probation at CP-09-CR-0004986-2013 (4986-
2013). We affirm.
The revocation court aptly set forth the relevant factual and procedural
history of this matter as follows.
[276-2012]
On March 9, 2012, [Appellant] pled guilty [at 276-2012] to
retail theft and receiving stolen property after his arrest on
November 11, 2011 for stealing baby formula from the
* Retired Senior Judge assigned to the Superior Court.
J-S60036-16
Genuardi’s Supermarket in Middletown Township, Bucks County,
Pennsylvania. He was sentenced to 18 months of probation, to
be served consecutively to a prior sentence of probation he had
received.
On September 10, 2012, [Appellant] was found to have
violated his probation, which was thereafter revoked. He was
resentenced to another 18 months of probation, to be again
served consecutively to a prior sentence of probation he had
received [on a prior, unrelated case].
On October 30, 2013, pursuant to a stipulated violation of
probation, [Appellant’s] probation previously granted on
September 10, 2012 was revoked, and he was resentenced to
one year of probation. This probation was again to be served
consecutively to the previous sentence he received [on a prior,
unrelated case].
On May 15, 2014, [Appellant] was again found to have
violated his probation, which was again revoked, and he was
sentenced to undergo incarceration in the Bucks County
Correctional facility (“BCCF”) for not less than 1 year minus one
day nor more than 2 years minus one day.
On November 2, 2015, pursuant to an agreement
[Appellant] entered into with the Commonwealth prior to the
bench warrant proceeding, [Appellant] was found to be in
violation of his parole granted under the sentence issued on May
15, 2014, and he was sentenced to serve his backtime of 9
months 13 days, concurrent to the sentences he was serving
under [4986-2013 and 1181-2014].
[4986-2013]
On October 3, 2013, [Appellant] pled guilty to retail theft,
after he and an accomplice were arrested on June 28, 2013 for
stealing Similac baby formula from the Toys R Us store in
Langhorne, Bucks County. [Appellant] received a sentence of
two (2) years of probation for that conviction.
On May 15, 2015, [Appellant] was found to be in violation
of that probation. His probation was revoked, and he was
resentenced to four (4) years of probation, to be served
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concurrently with his sentences of probation under Bill Nos.
[276-2012] and [1181-2014].
On November 2, 2015, pursuant to another agreement
[Appellant] entered into with the Commonwealth prior to the
bench warrant proceeding, [Appellant] was found to be in
violation of that probation, which was thereafter revoked, and he
was resentenced to undergo incarceration in a state correctional
institution in a therapeutic community for not less than two (2)
nor more than four (4) years.
[1181-2014]
On May 2, 2014, [Appellant] pled guilty to simple assault
and harassment after his arrest for assaulting another inmate in
a holding cell at the BCCF on January 7, 2014. On May 15, 2014,
[Appellant] was sentenced to undergo imprisonment at the BCCF
for not less than 1 year minus one day nor more than 2 years
minus one day. On August 1, 2015, he was granted parole from
that sentence.
On November 2, 2015, pursuant to a third agreement
[Appellant] entered into with the Commonwealth prior to the
bench warrant proceeding, this court found [Appellant] in
violation of his parole, which was thereafter revoked, and he was
sentenced to serve the remaining backtime of nine (9) months
and thirteen (13) days.
On November 10, 2015, the Bucks County Public
Defender’s Office filed on behalf of [Appellant] a Motion for
Appointment of Private Counsel and a Motion to Withdraw
Admission of Violation of Parole and/or Probation and for
Reconsideration of Sentence. In the latter motion, [Appellant]
“asked to withdraw his admission that he was in violation of his
probation and parole and asked for reconsideration of his
sentences because he claims he did not knowingly, intelligently,
and voluntarily waive his rights, did not fully understand the
proceeding, and did not have counsel.” Motion, 11/10/15.
On November 19, 2015, an order was issued by the
Honorable Wallace H. Bateman, Jr., granting the motion for
appointment of private counsel.
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On December 1, 2015, an order was issued which
scheduled a hearing on [Appellant’s] motions for December 15,
2015.
On December 2, 2015, [Appellant’s] court-appointed
private counsel filed a notice of appeal from the judgment of
sentences issued on November 2, 2015, and the hearing
scheduled for December 15, 2015 was cancelled.
Revocation Court Opinion, 3/31/2016, at 1-3 (footnotes and unnecessary
capitalization omitted). Both Appellant and the trial court complied with the
mandates of Pa.R.A.P. 1925.1
Appellant asks this Court to consider the following.
1. Did the [revocation court] err in finding that [Appellant’s]
waiver of his right to revocation hearings and/or his admission to
the violations alleged in support of the request to violate his
probation and parole was knowingly, intelligently and voluntarily
made?
2. Did the [revocation court] err in finding that [Appellant’s]
waiver of his right to revocation hearings before the judge who
received [Appellant’s] pleas of guilty at the time of the initial
disposition of the underlying cases and his right to have
sentence imposed after such revocation by the judge who
1
On September 21, 2016, we issued a memorandum quashing Appellant’s
appeal as premature and remanding the matter to the trial court for
consideration of Appellant’s outstanding post-sentence motion on the basis
that Rule of Criminal Procedure 720(B)(3)(a) and Commonwealth v.
Borrero, 692 A.2d 158 (Pa. Super. 1997), controlled. Commonwealth v.
Pilawski, 3606 EDA 2016 (Pa. Super. filed Sept. 21, 2016) (unpublished
memorandum). On November 11, 2016, the Commonwealth filed a petition
for panel reconsideration, which this Court granted on November 21, 2016,
because this case is governed by Rule 708, which provides, inter alia, that
the “the filing of a motion to modify sentence [after a revocation proceeding]
will not toll the 30-day appeal period.” Pa.R.Crim.P. 708(E). Because
Appellant timely filed his notice of appeal within thirty days of the imposition
of sentence as required by Rule 708, the issues raised herein are ripe for our
review.
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received [Appellant’s] pleas of guilty was knowingly, intelligently
and voluntarily made?
Appellant’s Brief at 3.
“[I]n an appeal from a sentence imposed after the court has revoked
probation, we can review the validity of the revocation proceedings, the
legality of the sentence imposed following revocation, and any challenge to
the discretionary aspects of the sentence imposed.” Commonwealth v.
Wright, 116 A.3d 133, 136 (Pa. Super. 2015) (quoting Commonwealth v.
Cartrette, 83 A.3d 1030, 1033 (Pa. Super. 2013) (en banc )). “Revocation
of a probation sentence is a matter committed to the sound discretion of the
trial court, and that court’s decision will not be disturbed on appeal in the
absence of an error of law or an abuse of discretion.” Commonwealth v.
McNeal, 120 A.3d 313, 322 (Pa. Super. 2015) (citations and quotation
marks omitted).
Appellant first contends that he did not knowingly, intelligently, or
voluntarily admit to the underlying probation and parole violations nor did he
waive properly his right to a violation hearing. Appellant’s Brief at 9-12.
In Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36
L.Ed.2d 656 (1973), the United States Supreme Court held that
a defendant accused of violating the terms of his probation is
entitled to two hearings prior to formal revocation and re-
sentencing.
When a parolee or probationer is detained pending a
revocation hearing, due process requires a
determination at a pre-revocation hearing, a
Gagnon I hearing, that probable cause exists to
believe that a violation has been committed. Where
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a finding of probable cause is made, a second, more
comprehensive hearing, a Gagnon II hearing, is
required before a final revocation decision can be
made.
Commonwealth v. Sims, 770 A.2d 346, 349 (Pa. Super.
2001). The Gagnon II hearing requires two inquiries: (1)
whether the probationer has in fact violated one of the
conditions of his probation, and, if so, (2) should the probationer
“be recommitted to prison or should other steps be taken to
protect society and improve chances of rehabilitation[.]” Id.
(quoting Gagnon, supra at 784, 93 S.Ct. 1756).
Commonwealth v. Heilman, 876 A.2d 1021, 1026–27 (Pa. Super. 2005).
However, it is well-settled that “there are articulable differences between
probation revocation hearings and criminal trials. Probation, like parole, is
not part of the criminal prosecution, and thus the full panoply of rights due a
defendant in a criminal trial does not apply to probation revocation.”
Gagnon, 411 U.S. at 781.
Relying on cases decided by our Commonwealth Court, McKenzie v.
Pennsylvania Board of Probation and Parole, 963 A.2d 616 (Pa.
Cmwlth. 2009) and Prebella v. Pennsylvania Board of Probation and
Parole, 942 A.2d 257 (Pa. Cmwlth. 2008), Appellant contends that the
language of the Order Probation/Parole Violation Agreement forms he signed
at all three above-captioned cases on November 2, 2015, was insufficient to
“ensure a knowing and voluntary waiver of one’s rights.” Appellant’s Brief at
12. However, as the Commonwealth correctly points out, those cases deal
with waiver documents subject to the regulations of parole revocation
hearings before the state Board of Probation and Parole. See 37 Pa. Code
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§ 71.2. As a Bucks County probation and parole matter, Appellant’s cases
fell under the procedures outlined in Pa.R.Crim.P. 708, which states as
follows.
(A) A written request for revocation shall be filed with the clerk
of courts.
(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.
(C) Before the imposition of sentence,
(1) the defendant may plead guilty to other offenses
that the defendant committed within the jurisdiction
of the sentencing court.
(2) When such pleas are accepted, the court shall
sentence the defendant for all the offenses.
Pa.R.Crim.P. 708.
Our Court has held that,
at a [county-level] probation or parole revocation hearing, the
following procedural safeguards apply:
(a) written notice of the claimed violations of
[probation or] parole; (b) disclosure to the
[probationer or] parolee of evidence against him; (c)
opportunity to be heard in person and to present
witnesses and documentary evidence; (d) the right
to confront and cross-examine adverse witnesses
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(unless the hearing officer specifically finds good
cause for not allowing confrontation); (e) a “neutral
and detached” hearing body such as a traditional
parole board, members of which need not be judicial
officers or lawyers; and (f) a written statement by
the factfinders as to the evidence relied on and
reasons for revoking [probation or] parole.
Commonwealth v. Ferguson, 761 A.2d 613, 617–18 (Pa. Super. 2000)
(citation omitted).
We acknowledge that one violation hearing may satisfy the
requirements of both a Gagnon I and Gagnon II hearing. In
addition, a defendant always has the right to waive his Gagnon
II hearing. However, for this Court to uphold such a waiver
[of a constitutional right], the record must clearly
demonstrate an informed relinquishment of a known
right.
Heilman, 876 A.2d at 1027 (emphasis added; citations omitted).
In Heilman, the appellant appealed from the judgment of sentence
entered following the revocation of his Clinton County probation, alleging,
inter alia, that the revocation court erred in revoking his probation without
providing him with a Gagnon II hearing. Heilman, 876 A.2d at 1026. The
record revealed that
after [Heilman’s] counsel informed the court that [Heilman] had
a different explanation for his termination [from a court-ordered
program], the court stated ‘You’re entitled to a Gagnon I or
Gagnon II. What do you want to do?’ Rather than responding to
the court’s question, counsel began questioning [Heilman]
regarding the circumstances surrounding his termination.
Heilman, 876 A.2d at 1024 (citation omitted). Rather than clarifying
Heilman’s position regarding a hearing, the revocation court unilaterally
revoked probation. Id. This Court reversed judgment of sentence and
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remanded for a proper hearing, holding that the revocation court’s
determination that Heilman’s failure to request a hearing was tantamount to
a waiver of his right to one was in error and failed to meet the standard of a
fully informed wavier. Id. at 1027.
The situation presented in Heilman is markedly different from the
case at bar. Here, according to the three written agreement forms and the
notes of testimony, Appellant appeared at the bench warrant hearing ready
to enter into a negotiated agreement on each of his three cases. The top of
the Order Probation/Parole Violation Agreement forms at issue includes,
inter alia, the names of the probation officer, district attorney, and defense
counsel who appeared at the November 2, 2015 hearing. In addition to
stating the negotiated sentence, each form signed by Appellant contains an
“Admission/Statement of Understanding,” which provides as follows.
By entering into the above agreement, I acknowledge that I am
in … Violation of Probation/Parole. I understand that I have the
right to a formal Probation/Parole Hearing. I further agree to
abide by the terms and conditions of this agreement, in addition
to the general rules of regulations of Probation/Parole. I
understand that failure to abide by the above agreement may
result in my arrest and detention, pending a formal
Probation/Parole Violation Hearing.
Order Probation/Parole Violation Agreement, 11/2/2015.
Further, prior to accepting Appellant’s agreements, the following was
placed on the record.
THE COURT: How many agreements do you have?
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[ASSISTANT DISTRICT ATTORNEY (ADA)]: I believe there
are five.
THE COURT: We’ll do them all at one time.
[ADA]: [Names five individuals entering into probation/parole
violation agreements, including Appellant and asks those
assembled if there are any other agreements to be
entered].
THE COURT: So for each of you who have reached agreements,
be they by way of dispositions or continuances or whatever
other matters constitute the Agreement between you and
the Commonwealth, it is not necessary for me to go into
the terms or conditions or whatever it was that you all
have agreed to because you’ve discussed the matter and
that you fully understand the terms of the Agreement.
You should know that once that Agreement is
accepted, it will constitute an Order of Court. So before
accepting those agreements, I ask each of you individually
and as a group is there anyone who has any question
about the terms of the agreement, if so, raise your hand
and we can discuss it now.
All right. No hands have been raised.
You do understand that once the Agreement is
accepted, if there is a disposition that involves the
adjudication of your violation, be in probation or parole,
that you will have ten days to appeal or to file post
disposition motions. Ten days for the motions, 30 days to
appeal to the Superior Court. You have a right to be
represented by an attorney. The Bucks County Public
Defender’s Office is available to represent you if you
qualify for their services. There is a panel of attorneys
provided by the Bucks County Bar Association who will
take criminal cases on below market rate. You, of course,
have the right to proceed without counsel.
Anybody have any questions?
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All right. The agreements that you have reached
with the Commonwealth [are] accepted and made [Orders]
of Court and you can take your seats at this point.
N.T., 11/2/2015, at 2-4.
Accordingly, the record demonstrates that Appellant freely and
voluntarily relinquished his known right to a formal hearing by signing three
written order forms to that effect. Further, unlike the appellant in Heilman,
Appellant was given the chance to inform the trial court that he did not
understand the document or the terms of his admission. He failed to do so.
As both parties point out, this was not Appellant’s first foray into the world
of violation hearings, and he was provided with counsel during the
negotiation. Thus, we find no error in the revocation court’s determination
that Appellant’s waiver and admission were valid.
Appellant next argues that the revocation court erred in finding that
the waiver of his right to a formal hearing and imposition of sentence by the
Honorable Clyde W. Waite occurred in violation of Rule of Criminal Procedure
7002, and Bucks County Local Rule 1401(b)*(1),3 both of which require
2
“Except as provided in paragraph (B), the judge who presided at the trial
or who received the plea of guilty or nolo contendere shall impose sentence
unless there are extraordinary circumstances which preclude the judge’s
presence. In such event, another judge shall be assigned to impose
sentence.” Pa.R.Crim.P. 700(A).
3
“The sentence on a plea of guilty or nolo contendere may be imposed by a
judge other than the judge who received the plea of guilty or nolo
contendere. In such event, the defendant must have been so notified at the
time of entering the plea.” Bucks County R.CR.P. 1401(b)*(1).
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imposition of sentence by the judge who presided over the original
disposition, unless special circumstances dictate otherwise. Appellant’s Brief
at 13-15. Specifically with respect to the local rule, Appellant contends that
he did not affirmatively waive his right to be sentenced by his original judge.
Id.
Before we may reach the merits of Appellant’s claim, we must
determine whether it has been preserved properly for our review. As the
above-quoted notes of testimony make clear, Appellant failed to object to
Judge Waite’s presiding over the November 2, 2015 hearing. As this Court
has held, “[w]here, […] there is no objection to the substitution of judges at
sentencing, the issue is deemed to be waived for purposes of appellate
review.” See Commonwealth v. Rhoads, 323 A.2d 249, 250 (Pa. Super.
1974). Accordingly, we find Appellant’s claim waived.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/19/2017
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