J-A14026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JUSTIN CAREY                             :
                                          :
                    Appellant             :   No. 3570 EDA 2016

          Appeal from the Judgment of Sentence October 18, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0011154-2015


BEFORE:      GANTMAN, P.J., SHOGAN, J., and PLATT*, J.

MEMORANDUM BY SHOGAN, J.:                      FILED SEPTEMBER 06, 2018

      Appellant, Justin Carey, appeals from the judgment of sentence entered

following the revocation of his probation.    For the reasons that follow, we

reverse and remand for further proceedings.

      The notes of testimony from Appellant’s guilty plea hearing reveal that

on September 12, 2015, Appellant, who was driving his car, approached a

fourteen-year-old boy, J.D., who was walking his dog. Appellant exited the

car and asked J.D. if he would like to engage in sexual intercourse. Appellant

told J.D. that he could make a lot of money if he just got into Appellant’s car.

J.D. told Appellant he was going to go home and change, but he would meet

him later. Appellant then exposed his penis to J.D. J.D. walked home and

called police. Police officers responded to the location where J.D. informed

them that he encountered Appellant, and the officers discovered that


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A14026-18


Appellant was still there. The police then arrested Appellant. N.T., Guilty

Plea, 2/9/16, at 7-8.

        Appellant was charged with one count each of luring a child into a motor

vehicle and indecent exposure.1 On February 9, 2016, Appellant entered a

guilty plea to both charges.        On that same date, the trial court sentenced

Appellant to a term of ten to twenty-three months of incarceration, followed

by three years of probation for luring a child into a motor vehicle and a

consecutive term of five years of probation for indecent exposure. The trial

court immediately paroled Appellant.2 N.T., 2/9/16, at 12.

        The record reveals that on February 17, 2016, Appellant met with his

probation officer, Owen O’Connell. N.T., Sentencing, 10/18/16, at 7. Officer

O’Connell testified that he explained the rules of probation, Appellant’s

reporting requirements, the prohibitions against possessing pornography, and

the rules regarding the use of electronic devices. Id. at 8. Despite these

instructions,    Appellant    failed   to      inform   Officer   O’Connell   about   his



____________________________________________


1   18 Pa.C.S. §§ 2910(a) and 3127(a), respectively.

2 The basis upon which Appellant was released prior to completing his
minimum sentence is unclear from the record. However, authority for such a
release is provided in 42 Pa.C.S. § 9813, and the trial court, which retained
jurisdiction pursuant to 42 Pa.C.S. § 9762, was permitted to release Appellant
for “lawful purposes as the court shall consider necessary and appropriate.”
42 Pa.C.S. § 9813(a). Ultimately, there is no indication that Appellant was
paroled or that his parole was revoked, and trial court’s rationale for releasing
Appellant to begin his probationary sentence is not germane to our disposition
of the instant appeal.

                                            -2-
J-A14026-18


employment, and he was seven hours late to the appointment with Officer

O’Connell. Id. at 8-9. At his next appointment, Appellant had still failed to

register   his   employment   information   in   violation   of   42   Pa.C.S.   §

9799.16(b)(9). Id. at 8-9. During this appointment, Officer O’Connell looked

through Appellant’s telephone and discovered text messages with photos of

Appellant’s erect penis and impermissible use of social media. Id. at 11-12.

      On March 7, 2016, the Philadelphia Department of Adult Probation

requested the revocation of Appellant’s probation due to Appellant’s failure to

register his employment as required by 42 Pa.C.S. § 9799.16(b)(9) and

because of other technical violations, including the possession of the

photographs of Appellant’s erect penis and unauthorized use of electronic

devices. At a hearing on August 2, 2016, the trial court revoked Appellant’s

probation and ordered a presentence investigation report (“PSI”).           N.T.,

Hearing, 8/2/16, at 4-5. On October 18, 2016, the trial court resentenced

Appellant to eighteen months to three years of incarceration for luring a child

into a motor vehicle and a consecutive term of five years of probation for

indecent exposure. Appellant filed a timely post-sentence motion; however,

the trial court did not rule on it. Pursuant to Pa.R.Crim.P. 708(E), a post-

sentence motion to modify sentence imposed following the revocation of




                                     -3-
J-A14026-18


probation does not toll the 30-day3 appeal period, and Appellant filed a timely

notice of appeal on November 17, 2016. On December 9, 2016, the trial court

directed Appellant to file a concise statement of errors complained of on

appeal. Appellant filed a Pa.R.A.P. 1925(b) statement on January 5, 2017,

and another on January 17, 2017. The trial court filed an opinion on July 7,

2017. On August 10, 2017, Appellant filed a motion in this Court requesting

that we remand this matter to allow Appellant to file a supplemental Pa.R.A.P.

1925(b) statement.        This Court granted the motion, and Appellant filed a

supplemental Pa.R.A.P. 1925(b) statement on September 7, 2017.           The trial

court filed a second opinion on September 27, 2017.

        On appeal, Appellant presents the following issues for this Court’s

consideration:

        1. Did not the court below violate [A]ppellant’s due process rights,
        Pennsylvania case law, Pa. R. Crim. P. 708 and 42 Pa. C. S. §
        9771(b) and (d) when it failed to hold a Gagnon II[4] revocation
        hearing prior to finding [A]ppellant in violation and revoking his
        probation?

        2. Did not the sentencing court err and violate [A]ppellant’s First
        and Fourteenth Amendment rights under the Federal Constitution
        as well as his rights under Article 1, Sections 3 and 7, of the
        Pennsylvania Constitution and violate general sentencing
        principles and Pa. C. S. §9754(c)(13) by sentencing [A]ppellant
        to state incarceration for alleged technical violations of his sex
        offender probation where the conditions for restrictions on use of
        social media were unconstitutional as applied to [A]ppellant as the
____________________________________________


3An appeal shall be filed within thirty days after the entry of the order from
which the appeal is taken. Pa.R.A.P. 903(a).

4   Gagnon v. Scarpelli, 411 U.S. 778 (1973).

                                           -4-
J-A14026-18


      conditions were not rationally related to the crimes of conviction
      and were unduly restrictive and incompatible of freedom of
      conscience?

      3. Did not the sentencing court err as a matter of law and abuse
      its discretion to sentence [A]ppellant for alleged violations of his
      probation where the evidence was insufficient to support those
      alleged violations?

      4. Did not the sentencing court err as a matter of law and abuse
      its discretion by entering a manifestly excessive and unreasonable
      sentence where the alleged violations were technical only, there
      was no indication that [A]ppellant would commit another crime if
      he was not incarcerated, incarceration was not essential to
      vindicate the authority of the court and the lower court neither
      stated adequate reasons on the record for so doing nor considered
      the extensive mitigation presented, all in violation of 42 Pa. C. S.
      §§ 9721(b) and 9771(c)?

Appellant’s Brief at 3-4.

      In general, the imposition of sentence following the revocation of

probation is left to the discretion of the trial court, which, absent an abuse of

that discretion, will not be disturbed on appeal. Commonwealth v. Sierra,

752 A.2d 910, 913 (Pa. Super. 2000).        Our scope of review includes 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. Cartrette, 83 A.3d 1030, 1033

(Pa. Super. 2013) (en banc) (emphasis added). Once probation has been

revoked, a sentence of total confinement may be imposed if any of the

following conditions exist: (1) the defendant has been convicted of another

crime; or (2) the conduct of the defendant indicates that it is likely that he

will commit another crime if he is not imprisoned; or, (3) such a sentence is

                                      -5-
J-A14026-18


essential to vindicate the authority of court. Commonwealth v. Hoover,

909 A.2d 321, 322-323 (Pa. Super. 2006) (citations omitted).

       In Appellant’s first issue, he alleges that the trial court erred as a matter

of law and violated his right to due process when it failed to hold a Gagnon

II hearing prior to revoking Appellant’s probation. The Supreme Court of the

United States has held that due process requires parolees to be afforded two

separate hearings prior to the revocation of parole.5 Gagnon, 411 U.S. at

782.

       [A] parolee is entitled to two hearings, one a preliminary hearing
       at the time of his arrest and detention to determine whether there
       is probable cause to believe that he has committed a violation of
       his parole, and the other a somewhat more comprehensive
       hearing prior to the making of the final revocation decision.

Id. at 781-82.      “The purpose of having two hearings, a Gagnon I and a

Gagnon II, is to allow for a factual determination of whether a violation

occurred and to give each side the opportunity to present evidence in support

of its case.” Commonwealth v. Sims, 770 A.2d 346, 352 (Pa. Super. 2001)

(citation omitted). “Notably, the purpose of having a Gagnon II hearing is

to provide appellant additional due process safeguards.”              Id. (citation

omitted).    “Accordingly, the Commonwealth is required to meet a higher

standard of proof at the Gagnon II hearing.” Id.



____________________________________________


5The due process requirements established for parole revocations in Gagnon
are applicable to probation revocation proceedings. Wolff v. McDonnell, 418
U.S. 539, 559-560 (1974).

                                           -6-
J-A14026-18


      The record reflects that the trial court held a hearing on August 2, 2016,

at which Appellant was represented by counsel. During that hearing, the trial

court summarily revoked Appellant’s probation without providing Appellant an

opportunity to present any evidence. N.T., 8/2/16, at 5. Counsel for Appellant

did not offer any objection, and as noted above, the trial court resentenced

Appellant on October 18, 2016.

      On appeal, Appellant argues that the trial court erred in failing to hold a

Gagnon II hearing. Appellant’s Brief at 21. The Commonwealth points out

that Appellant did not object to the proceedings that resulted in the revocation

of his probation.   Commonwealth’s Brief at 15.      Thus, the Commonwealth

alleges that any challenge to the failure to hold a Gagnon II is waived. Id.

      The Commonwealth also argues that because the trial court apparently

“believed” it had already conducted a Gagnon II hearing, this case is

distinguishable from a case where there is a “tacit waiver of such right

altogether.” The Commonwealth’s Brief at 21. We disagree, as we are aware

of no authority that countenances waiver of a Gagnon II hearing due to the

trial court’s subjective belief.   We conclude that the trial court’s apparent

misunderstanding is immaterial in our determination as to whether Appellant

was afforded due process.

      Although a defendant has the right to waive his Gagnon II hearing, for

this Court to uphold such a waiver of a constitutional right, the record must

clearly demonstrate an informed relinquishment of that right.


                                       -7-
J-A14026-18


Commonwealth v. Heilman, 876 A.2d 1021, 1027 (Pa. Super. 2005)

(citation omitted) (emphasis added).           After review, we conclude that the

record does not demonstrate an informed relinquishment of Appellant’s right

to a Gagnon II hearing.

       Because Appellant was not provided with a Gagnon II hearing and did

not waive his right to a Gagnon II hearing through an informed

relinquishment of his right to a hearing, we conclude that the revocation

proceedings were invalid. Cartrette, 83 A.3d at 1033; Heilman, 876 A.2d

at 1028. Accordingly, we are constrained to reverse Appellant’s judgment of

sentence and remand for a proper hearing.6 Heilman, 876 A.2d at 1028.

       Judgment      of   sentence     reversed.    Case   remanded   for   further

proceedings. Jurisdiction relinquished.7

       P.J. Gantman joins the Memorandum.

       Judge Platt concurs in the result.




____________________________________________


6 In light of our disposition, we do not address Appellant’s remaining issues
on appeal.

7 On June 18, 2018, Appellant filed an application seeking to supplement the
record. In light of our disposition, Appellant’s application is DENIED as moot.
Should Appellant seek to supplement the record, he may endeavor to do so in
the trial court upon remand.

                                           -8-
J-A14026-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/6/18




                          -9-
