Once a Defendant has either plead guilty, is found guilty by a Judge or jury to a criminal offence or offenses they will most likely serve some portion of their sentence on probation. Being on Probation goes by many names on the street, on paper, street time, probey, probo but whatever they call it, it means you must report to a probation officer, who has the power to lock you up on the spot, you don’t have a right to bail and you’ll most likely need to get a Judge to get you out of jail. It is very different then being charged with a crime, because you are presumed innocent of criminal charges in America. Probation sounds great at the time it is offered, plead guilty and you’ll get out of jail… but on probation.
Direct and Technical Probation Violations
Violate that probation and you will be right back in jail. Violation of Probation, or V.O.P.s as they are sometimes called, come in two general categories Direct and Technical. A Direct violation is a new arrest, typically for a misdemeanor or felony but summary offenses can get you “violated.” All counties go about V.O.P.s in their own way, but typically on a direct violation can expect to stay in Jail on a “detainer” which is the term for what is actually holding you in jail. You cannot bail out if there has been a detainer lodged against you by your probation officer. In many cases you will stay on jail on the probation violation until the new charges have been adjudicated, i.e. you are found or plead guilty.
Indirect Probation Violations
The other type of Probation Violation is an indirect violation, meaning you broke one of the rules of probation, which are provided to you in the form of a long list “don’t do” at your sentencing. Basically, other then don’t get arrested, you must show up for meetings with your probation officer, do not have illegal drugs in your urine/blood/hair follicles, do not have prescription drugs in you that you do not have a prescription for, keep or get a job, don’t leave the state/county, pay restitution (in some cases see below) or anything else on that list, but these are the major ones.
All of the above can land you in jail, it wont be easy to get out and guess what when do get out, you’ll be back on probation for as long or longer then were on it in the first place. Typically with the same probation officer, P.O., who now has an even bigger attitude toward you. Getting you out and off probation is where I come in. Once you find yourself in jail on a detainer for whatever reason, you can wait for you probation officer and District Attorny’s officer to get your case before a Judge, usually your back Judge, the one who sentenced you in the first place. Or you can hire me and I get you a hearing scheduled to lift that detainer A.S.A.P. and then hopefully we can resolve that V.O.P. from the street, as they say.
Gangon Hearings
That back Judge may very well be offended that you violated their probation and squandered the big break they gave you by not locking you up back then, but before they can make you pay for your mistake they must follow the law. That law was given to us by the United Supreme Court in 1971, in the case of Gagnon v. Scarpelli. Which also gives us the name of the two hearings to determine if you violated your probation or not, the Gagnon I and the Gagnon II. Which is much like he initial criminal process once charged with a violation of the crimes code, where you have a Preliminary Hearing and then the Trial. At Gagon I, the Commonwealth, a.k.a the D.A. must establish there is probable cause of a violation by proving a prima facia case, which is Latin for “on its face.” A very low standard of evidence, which they typically reach, the detainer remains and you stay in jail.
The Gagnon II required the D.A. to prove you violated your probation by a clear and convincing evidence, a higher evidentiary standard, but not the gold standard of beyond a reasonable doubt, which is what they would have had to prove if you didn’t plead out and take the probationary sentence, but I address that in another section. If it is a direct violation, they typically wait until you are found or plead guilty and that conviction is clear and convincing evidence you broke probation rule number one, which is “Don’t get convicted of a new crime.”
While Gagnon v. Scarpelli makes it illegal to revoke, the technical term for violate, ones probation with out a fair hearings, Gagnon I and II, described above did not provide for an absolute right of counsel at the Gagnon hearings, the liked Supreme Court did in the case of Gideon v. Wainwright. That is the case that gave us, what all crime show people know…. “You have the right to remain silent…. You have the right to an Attorney. If you can afford one, one will be provided for you.” The “provided for you” part means either a public defender a.k.a. a PD or a court appointed attorney. Side note, they only have to read you your Miranda rights if they want you to talk to them, i.e. snitch on yourself or your hommies. At a Gagon, weather you get an attorney provided for you is on a case by case basis, usually if you are in jail you’ll get a PD.
Probation Violations for Failure to Pay Restitution
As promised back to the technical violation of probation known as the failure to pay restitution. Restitution is a condition of probation sought by the D.A. and Ordered by Judge. It is typically to pay back a victim monitory damages resulting from the charges you are pealing or fond guilty of. For example, you steal $10,000.00 from someone and spend it all before you are caught and don’t have 10 stacks back at the crib, paying back that 10k becomes part of the terms and conditions of your probation a.k.a restitution.
In my years I have seen counties, one in particular comes to mind where they order high restitution and when your probation is up they violate you. They don’t lodge a detainer they just schedule a Gagnon hearing before a master and you walk into court, you don’t get bussed from county. They don’t provide you with an attorney because you are on the street. You come into the room, they say “you didn’t pay restitution, right?” You know you haven’t because life expenses, kids, whatever, takes most of if not all of your money honey. Without really saying anything they act like that alone is a Violation of your Probation, they get you to agree, boom your in front of the Judge telling them you agree you violated and just like that another fives on paper.
The truth is and if you hired me, you wouldn’t agree to any violation and make the D.A. prove their burden. This is where the Pennsylvania Superior Court comes in and shows up for us. In Commonwealth v. Marshall, 304 A.3d 739 (Pa. Super. 2023) where they held and stated “A court cannot revoke probation or parole for non-payment of fines, costs or restitution absent a determination that the failure to pay is willful or that the probationer made insufficient bona fide efforts to acquire the resources to pay and is not merely the result of inability to pay. See below facts from a case that I won.
Some of Our Recent Probation Violation Results
Defendant maintains that in 2009, he began a home improvement project, a kitchen remodel in good faith. As is typical in such pursuits the homeowner made changes in materials and the design of the project. A dispute ensued over the completion thereof and additional payments Defendant felt he was owed. Ultimately, the Defendant did not complete the job he had started, the homeowner sought criminal charges, the Defendant was held on bail and while confined he failed to complete a second unrelated project which resulted in additional charges.
On May 24, 2010, the Defendant plead guilty to Theft By Deception-False Impression and lesser related charges, under two separate dockets. On one, he was sentenced to confinement of 11.5 to 23.00 months, consecutive probation of 3 years, restitution in the amount of $16,057.00 and on the other, 4 years of consecutive probation, with restitution of $6,245.00. The first sentenced was due to be completed on or about March 7, 2015, thereby beginning the second sentence which would have been completed on or about January 7, 2018. However, he was twice previously found to have violated his probation and is currently before the Court to determine if he has violated it a third time.
This Defendant’s only alleged violation of probation was his failure to pay restitution in full during the course of his supervision. Defendant made what payments he was able, and as directed by his probation officer. To date he has paid approximately $7,025.00. However, every time he was due to complete his first sentence he was charged with violating his probation. The Defendant, while unrepresented, and without a hearing to determine his ability to pay restitution was enticed into agreeing he had violated his probation and resentenced thereto. This happened on February 6, 2018, February 5, 2021 and, with what is currently before the Court on February 5, 2024.
Defendant has never had an earning capacity or posses sufficient assets to pay more then what he did. While it is the Defendant’s position that it is the commonwealth’s burden of proof to establish he has the ability to pay and is willfully refusing to pay restitution, Defendant will present supporting evidence of the above to the Court via sworn testimony and documentation upon request. Probation was terminated on the spot at hearing.
Attorney Willis F. Watson, III Can Help if You Are Being Violated While on Probation
If you are in need of representation regarding a probation violation matter, call us today for a free consultation.