J-S11021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    DARLYMIR LARKINS

                             Appellant               No. 1652 EDA 2017


         Appeal from the Judgment of Sentence Entered April 28, 2017
            In the Court of Common Pleas of Montgomery County
              Criminal Division at No.: CP-46-CR-0007172-2013


BEFORE: OTT, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                             FILED MAY 21, 2018

        Appellant Darlymir Larkins appeals from the April 28, 2017 judgment of

sentence entered in the Court of Common Pleas of Montgomery County,

following the revocation of his parole after a Gagnon I1 hearing. Upon review,

we vacate and remand for a Gagnon II hearing.

        The facts and procedural history underlying this case are undisputed.

On July 16, 2014, Appellant pleaded guilty to driving under the influence of

alcohol (“DUI”) (75 Pa.C.S.A. § 3802(a)(1)) and unauthorized use of an

automobile (18 Pa.C.S.A. § 3928(a)). For his DUI conviction, the trial court

sentenced Appellant to time served to six months’ imprisonment, and for his

unauthorized use of an automobile conviction, he received a sentence of time

served to twenty-three months’ imprisonment.           Following sentencing,

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1   Gagnon v. Scarpelli, 411 U.S. 778 (1973)
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Appellant immediately was paroled. Appellant eventually violated his parole.

On October 9, 2015, following a Gagnon II hearing, Appellant was

recommitted to serve seventeen months and 23 days in prison. After serving

seven months, Appellant once again was paroled.

        On January 24, 2017, Appellant received letters from the Adult

Probation and Parole Department of Montgomery County (“Probation

Department”), informing him that he was charged with the following seven

parole violations:

        1. Failed to abstain from the unlawful possession, use, and/or sale
           of narcotics or other dangerous drugs and drugs paraphernalia.
           To wit: On or about August 31, 2016, September 21, 2016 and
           October 21, 2016, you submitted a urine sample to the
           Philadelphia County Adult Probation and Parole Department[2]
           that tested positive for the presence of marijuana. (Violation
           of Rule #8)

        2. The subject failed to report to the [Probation Department] as
           directed on or about October 3, 2016, and October 20, 2016.
           (Violation of Rule #1)

        3. Absconded from supervision on or about October 20, 2016
           (Violation of Rule #3)

        4. Failed to obtain and/or maintain a legal and verifiable address
           as directed (Violation of Rule #3)

        5. Failed to undergo a Probation and Parole Intervention (PPI)
           Evaluation as directed the [trial court]. (Violation of Special
           Condition)

        6. Failed to enter, cooperate and participate in, and/or completed
           an evaluation, test and/or treatment as directed. To wit: The
           subject failed to complete a CRN Evaluation and Alcohol High
           Safety School. (Violation [of] Special Condition)

        7. Failed to pay fines, costs and/or restitution as directed by [the
           trial court] (Violation of Rule #6).        Docket #: (CP-46-

____________________________________________


2   At some point, Appellant’s parole was transferred to Philadelphia.

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         Cr.0007172-2013);      Balance    Due:   $2,444.38;     Overdue
         Amount: $2,444.38

Violation Letters, 1/24/17. On April 28, 2017, the trial court held a Gagnon

I hearing, at which both sides presented evidence. Following the hearing, the

trial court found that Appellant had violated the conditions of his parole. As a

result, it revoked his parole and, among other things, recommitted him to

serve the remainder of his sentence, i.e., ten months and twenty-four days,

in prison. Appellant timely appealed.

      Following Appellant’s filing a Pa.R.A.P. 1925(b) statement of errors

complained of on appeal, the trial court issued a detailed Pa.R.A.P. 1925(a)

opinion. The trial court concluded that Appellant was not entitled to relief.

      On appeal, in addition to challenging the sufficiency of the evidence

underlying the revocation of his parole, Appellant directs our attention to the

fact that the trial court did not follow the mandates of Gagnon by failing to

hold a Gagnon II hearing. Moreover, Appellant points out in his brief that

the trial court failed to apply the standards applicable to a Gagnon II hearing

to the April 28, 2017 Gagnon I hearing, and, as a result, urges this Court to

remand the matter to the trial court for a proper Gagnon II hearing.

Appellant’s Brief at 34.

      As noted earlier, the trial court here did not hold a Gagnon II hearing,

but instead held a Gagnon I hearing, which was contested, before revoking

Appellant’s parole and recommitting him to serve the remainder of his

sentence.



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      It is settled, as determined by the United States Supreme Court, that

due process requires parolees be afforded two separate hearings prior to

revoking parole. 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.2 346, 352 (Pa. Super. 2001)

(citation omitted). Importantly, the purpose of a Gagnon II hearing is “to

provide appellant additional due process safeguards,” and, as a result, the

Commonwealth is “required to meet a higher standard of proof at the Gagnon

II hearing.” Id. A parolee, however, may waive his Gagnon II hearing.

“[F]or this Court to uphold such a waiver [of a constitutional right], the record

must clearly demonstrate an informed relinquishment of a known right.”

Commonwealth v. Houtz, 856 A.2d 119, 122 (Pa. Super. 2004) (citations

omitted).

      We have determined that the combining of Gagnon I and Gagnon II

hearings is not permitted. In Commonwealth v. Homoki, 605 A.2d 829,

831 (Pa. Super. 1992), we explained “that the case law clearly requires two

independent hearings.       Running them together or holding them on the

same day does not meet the constitutional due process requirements set forth


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in Gagnon. . . . We cannot accept that ‘two parts’ to ‘one hearing’ constitute

two separate hearings.” Homoki, 605 A.2d at 831 (emphasis added).

        Here, our review of the record reveals—and trial court concedes—that

the trial court failed to hold a Gagnon II hearing. Instead, as noted, it held

a Gagnon I hearing, following which it revoked Appellant’s parole and

recommitted him to prison. Even if we viewed the April 28, 2017 Gagnon I

hearing as a combined Gagnon I and Gagnon II hearing, it still would fall

short of the requirements of Gagnon to hold two independent hearings. See

Homoki, supra. Finally, the record is bereft of any indication that Appellant

voluntarily waived his right to a Gagnon II hearing. Because the trial court

failed to follow the two-hearing requirements of Gagnon and otherwise failed

to colloquy Appellant on the waiver of those rights, we are constrained to

vacate the judgment of sentence and remand this matter to the trial court for

a proper Gagnon II hearing.3

        Judgment of sentence vacated. Case remanded for further proceedings.

Jurisdiction relinquished.

        Judge Musmanno joins the memorandum.

        Judge Ott concurs in the result.




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3   In light of our disposition here, we need not address the merits of this appeal.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/21/18




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