J-S12014-15

                               2015 PA Super 116

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

MICHELLE WRIGHT,

                          Appellant                    No. 85 EDA 2014


           Appeal from the Judgment of Sentence December 2, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0510561-2005


BEFORE: BOWES, SHOGAN and FITZGERALD,* JJ.

OPINION BY BOWES, J:                                    FILED MAY 08, 2015

       Michelle Wright appeals from the judgment of sentence of eleven and

one-half to twenty-three months imprisonment followed by five years

probation that the trial court imposed after she was found to be in violation

of the terms of her probation. We find that Appellant had concluded serving

her probationary term when the probation was revoked and that her

violation of probation (“VOP”) proceeding was not held within a reasonable

period after her probation violations. We therefore vacate the judgment of

sentence.

       On November 14, 2005, Appellant entered a negotiated guilty plea to

one count of welfare fraud in return for a sentence of three years of

reporting probation and restitution in the amount of $13,967. No petition to

revoke the probation appears in the record nor does the docket indicate that

*
    Former Justice specially assigned to the Superior Court.
J-S12014-15



one was filed.   A violation of probation (“VOP”) hearing was conducted on

December 2, 2013. At that time, the following occurred. Appellant objected

to the court’s jurisdiction to conduct a VOP hearing and claimed that her

probationary period expired years before the hearing was conducted.        The

Commonwealth countered that Appellant absconded from probation during

the probationary period so that Appellant remained subject to probation.

     To establish Appellant’s status as absconder, Probation Officer Brian

Brown testified as follows.    According to Appellant’s probation records,

Appellant reported to her probation officer until June 25, 2007, and paid

$22.50 in restitution.   Mr. Brown then testified that Appellant re-initiated

contact with the probation office on December 2, 2009. N.T. VOP, 12/2/13,

at 8 (“THE PROBATION OFFICER: It was noted that there was contact June

25, 2007, and then not until December 2, 2009.”); Id. at 18 (“I wrote down

that she had contact on June 25, 2007, and didn’t have contact again until

December 2, 2009.”). Officer Brown could not testify personally as to these

events, his testimony being premised upon notations in Appellant’s probation

records by her previous probation officer.     Officer Brown testified that,

“According to the last probation officer’s notes, from 6/25/07 she absconded

until December 2, 2009.” Id. at 7-8.

     The Commonwealth also reported to the trial court that Appellant had

a direct violation of the terms of her probation in the form of 2013 federal

convictions for bank fraud and conspiracy.       Appellant objected to the

                                    -2-
J-S12014-15



Commonwealth’s     characterization      of   those   convictions    as   probation

violations and maintained that her probationary period had expired by 2013.

The Commonwealth responded that Appellant was a probation absconder

and that her probationary period had not expired.         Based upon the 2013

federal convictions, the Commonwealth sought a term of incarceration.

      Appellant   then   objected   to    the    timeliness   of    the   revocation

proceedings. She also claimed that she could not be found to be a probation

absconder because such a finding would be premised solely upon hearsay in

her probation records consisting of the notations that she did not report from

June 25, 2007, to December 2, 2009.              The trial court concluded that

Appellant violated her probation based upon technical violations as well as a

direct violation, the federal convictions.      It imposed “11 and a half to 23

months incarceration with immediate parole to be followed by five years of

reporting probation.” Id. at 26.

      Appellant filed a motion for reconsideration of the revocation decision

and the sentence, that motion was promptly denied, and this timely appeal

followed. She raises the following issues for our review:

            1. Did not the trial court lack jurisdiction or authority to
      revoke appellant's probation, where that probation had naturally
      expired approximately five years prior to the revocation hearing
      and where the court's conclusion that appellant had absconded
      from supervision was not justified by the evidence?

           2. Did not the trial court violate appellant's right to a
      speedy revocation hearing, where no allegations of technical



                                      -3-
J-S12014-15



      violations were brought and no hearing was held until five years
      after the natural expiration of her supervision?

Appellant’s brief at 3.

      Initially, we note that, in 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. Cartrette, 83 A.3d 1030, 1033 (Pa.Super. 2013) (en

banc).    In this case, Appellant’s position pertains to the validity of the

proceedings. Commonwealth v. Ortega, 995 A.2d 879 (Pa.Super. 2010).

“In   a   revocation   hearing   the   Commonwealth   has   the   obligation   of

establishing its case by a preponderance of the evidence.” Commonwealth

v. Brown, 469 A.2d 1371, 1374 n.2 (Pa. 1983).

      We also observe that the hearing was extremely disjointed, with the

Commonwealth maintaining that Appellant was an absconder and thus still

subject to probation, that she violated probation by failing to report, and

that she violated probation by committing the 2013 federal offenses.

Appellant continually interjected that she was no longer on probation, that

the VOP hearing was not held in a timely manner, and that the

Commonwealth did not prove that she was an absconder since that finding

could not be premised upon the hearsay proof submitted being the notations

made by the prior probation officer.



                                       -4-
J-S12014-15



     We first discuss the issue of whether Appellant was a probation

absconder since that finding impacts the remaining issues.         Appellant

maintains that it was impermissible for the trial court to determine that she

was a probation absconder based upon inadmissible hearsay consisting of

the notations made by the prior probation officer, who failed to testify. We

conclude that we need not address the hearsay issue since, even if the

notations were improper hearsay admitted to establish that Appellant was an

absconder, those same hearsay notations likewise proved that Appellant had

finished serving her probationary term when the direct violations occurred

and that the VOP hearing was not conducted within a reasonable period after

the 2007 – 2009 reporting violations.

     In Ortega, supra, at 885, we held that a defendant’s probation will be

“extended by his ongoing delinquency.” Herein, the notations in Appellant’s

file indicated that she was on probation from November 14, 2005 to June 25,

2007, nineteen months, and that she re-initiated contact with her probation

officer on December 2, 2009.      Officer Brown stated unequivocally that

Appellant was no longer an absconder as of December 2, 2009. N.T. VOP

Hearing, 12/2/13 at 7-8 (emphasis added) (“According to the last probation

officer’s notes, from 6/25/07 she absconded until December 2, 2009.”)1




1
  Appellant informed the court that she moved from the Philadelphia area
and that after 2009, she was given permission to report by telephone. At
the time of the VOP hearing, she was employed and the sole caretaker of

                                    -5-
J-S12014-15



As of December 2, 2009, Appellant had to serve an additional seventeen

months probation.        Thus, Appellant’s probationary term, according to the

Commonwealth’s own proof, expired on May 2, 2011, seventeen months

after she reinstituted contact with her probation officer.

      In     rendering    this    finding,    we   observe   the   following.    The

Commonwealth, as noted, has the burden of proof in a probation revocation

setting. Thus, it had to establish that Appellant was a probation absconder.

Under Ortega, the probationary term is extended only by the period of

delinquency.      Although       the   Commonwealth      presented    evidence   that

Appellant resumed contact with her probation officer on December 2, 2009,

it presented not a scintilla of evidence that Appellant was an absconder after

that date.    Instead, her probation officer admitted that she was no longer

considered an absconder on December 2, 2009. Thus, Appellant’s absconder

status ceased at that time.

      Assuming, arguendo, that Appellant’s delinquency began on June 25,

2007, and expired on December 2, 2009, her probation, as extended by

Appellant’s period of delinquency, ended on May 2, 2011. Her probation was

not revoked until December 2, 2013, which was thirty-one months after

expiration of her probationary period, and four years after she committed




her two minor children.          She agreed to resume making payments on the
restitution.

                                             -6-
J-S12014-15



the 2007-2009 probation violations consisting of the failure to report and

pay restitution.

      We are aware that a sentence for a violation of the terms of probation

can be imposed after the expiration of the probationary period if the

revocation is based on a violation which occurred within the probationary

period.   Commonwealth v. Lipton, 52 A.2d 521 (Pa.Super. 1975).

However, in that circumstance, the probation must be revoked and the

sentence must be imposed within a reasonable time after the expiration of

the probationary period. Id. at 522 (“When a sentence is imposed after the

expiration of a probationary period, based upon a violation which occurred

within the period (the situation in the case before us), the probation must be

revoked and the sentence imposed within a reasonable time after the

expiration of that period.”).

      Similarly, Pa.R.Crim.P. 708, which pertains, inter alia, to a violation of

probation, provides, in relevant part:

      (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.

Pa.R.Crim.P. 708(B) (emphasis added).



                                     -7-
J-S12014-15



        The bolded language has been interpreted as requiring a probation

violation hearing within a reasonable time. In determining whether a VOP

hearing is held within a reasonable period, we examine “the length of the

delay; the reasons for the delay; and the prejudice resulting to the

defendant from the delay.”      Commonwealth v. Woods, 965 A.2d 1225,

1227 (Pa.Super. 2009) (quoting Commonwealth v. Clark, 847 A.2d 122,

123–24 (Pa.Super. 2004)).

        We now examine both aspects of the trial court’s finding that Appellant

violated her probation. It found a direct violation due to the 2013 federal

convictions as well as technical violations consisting of the failure to report

and pay restitution from 2007-2009.          As noted, when a violation of

probation occurs within the probationary period, but the VOP hearing occurs

after probation expires, probation can be revoked if the VOP hearing is held

within a reasonable period.       Herein, the Commonwealth reported that

Appellant was convicted of federal bank fraud and conspiracy charges in

2013.    N.T. VOP, 12/2/13, at 10 (Commonwealth informed the court that

Appellant’s convictions occurred in 2013), after the probation was over.

Additionally, Appellant’s probation officer admitted that the federal charges

occurred after Appellant’s probationary sentence was served in this case:

        THE COURT: Why are we here?

        THE PROBATION OFFICER: For a direct violation.

        THE COURT: That occurred after my probation ended?

                                      -8-
J-S12014-15




        THE PROBATION OFFICER: It did, correct.

        THE COURT: Why did you schedule a hearing?

        THE PROBATION OFFICER: I just took the case about a month
        ago. The direct violation happened – but these cases tend to not
        naturally expire because it’s financial, so they get really clouded.

N.T. VOP, 12/2/13, at 5. Since Appellant’s probation was over as of May 2,

2011, a conviction occurring in 2013 cannot serve as a basis for revoking

that probation.

        We    stress   that,   at   the    probation   revocation   hearing,   the

Commonwealth provided no proof as to when these federal crimes were

committed. It reported only that the conviction was in 2013. In its brief,

the Commonwealth suggests that the crime occurred while Appellant was

still on probation herein. Commonwealth’s brief at 3. It cites to pages ten

and twenty-one of the VOP hearing in support of this factual assertion. The

transcript provides no support for this position.        At page ten, the district

attorney stated that the federal “conviction occurred this year,” which was

2013.     N.T. VOP Hearing, 12/2/13, at 10.            Page twenty-one does not

mention the federal crimes. Thus, the record cannot sustain a finding that

Appellant was charged in the federal case before her probation expired in

2011.     Moreover, Appellant was no longer a fugitive from justice as of

December 2, 2009.        Thus, we reject the Commonwealth’s assertion that,

while she was “a fugitive, defendant defrauded a federal bank, and was



                                          -9-
J-S12014-15



convicted   in   federal   court    of   bank     fraud   and   criminal   conspiracy.”

Commonwealth’s brief at 2.

      We now examine whether probation was properly revoked due to

Appellant’s alleged failure to report and pay restitution from June 25, 2007

to December 2, 2009. We conclude that the VOP hearing for those violations

was not held within a reasonable period after the violations occurred.

Herein, the length of the delay was significant, four years after the violations

occurred and thirty-one months after probation expired.               We believe this

delay was unreasonable.            Commonwealth v. Stancil, 524 A.2d 505

(Pa.Super. 1987), is instructive.         Therein, we held that the defendant’s

counsel was ineffective for failing to object to an unexplained and lengthy

delay in conducting a VOP hearing. The defendant failed to make required

restitution, and, three years after the end of his probationary term, his

probation was revoked based on that default.

      We observed that, even though “there is no presumptive period in

which a defendant's probation must be revoked, revocation hearings must

be held with reasonable promptness after a probation officer is chargeable

with knowing that probation has been violated.” Id. at 506-07. We noted

that the Commonwealth did not offer any reason for the delay and that it

was a long one.      We specifically indicated, “Although Appellant does not

allege any prejudice from this delay, we have held that in cases where

probation revocation hearings are not held until after the expiration of the

                                         - 10 -
J-S12014-15



probationary term, a certain amount of prejudice necessarily follows from

the fact of the expiration of that probation.” Id. at 507. We thus held that

the defendant was prejudiced by the delay. See also Commonwealth v.

McCain, 467 A.2d 382 (Pa.Super. 1983) (where VOP hearing was held

twelve months after defendant committed direct violation of his probation

and three months after his probationary period expired, hearing was not

held within a reasonable period).

      In this case, the Commonwealth knew about the 2007-2009 reporting

violations when Appellant reinitiated contact with her probation officer on

December 2, 2009. See Commonwealth v. Bomberger, 257 A.2d 630,

632 (Pa.Super. 1969) (the probation “department which is charged with the

duty to investigate whether appellant obeyed the terms of his probation

certainly should have known of his failure to make restitution” and

defendant’s VOP hearing was not held within a reasonable period after he

defaulted on restitution payments).      It offered absolutely no reason for

failing to conduct VOP proceedings until December 2, 2013, four years after

Appellant violated her probation by failing to report, which weighs in favor of

Appellant herein. McCain, supra at 384 (“absence of adequate explanation

for the delay must be weighed” against Commonwealth). In this connection,

we note that, since there was no evidence that Appellant committed the

federal crimes before May 2, 2011, the Commonwealth cannot contend that

the delay resulted from its decision to await the outcome of the federal trial.

                                     - 11 -
J-S12014-15



        Finally, Appellant was presumptively prejudiced by this delay since it

occurred two and one-half years after her probation was over. Additionally,

we find prejudice because the trial court’s decision to sentence her to jail

was affected by the 2013 convictions, which would not have been a

consideration had the VOP hearing been held promptly after Appellant began

reporting to her probation officer on December 2, 2009, when the reporting

violations ceased.     Specifically, we find that the trial court elected to

sentence Appellant to incarceration based solely upon the 2013 offenses due

to the following.    The Commonwealth requested a term of imprisonment

because Appellant committed the 2013 federal crimes, which, as noted, it

claimed were direct probation violations. The trial court agreed that a jail

sentence was appropriate based upon these direct violations.        N.T. VOP,

12/2/13, at 13 (where the trial court indicated that Appellant should serve a

period of incarceration given that she “has a direct violation”).

        In conclusion, we find the following. The Commonwealth established

that Appellant’s period of delinquency extended her probation to May 2,

2011, the 2013 federal crimes cannot serve as a basis for a revocation of

Appellant’s probation, and Appellant’s December 2, 2013 VOP hearing was

untimely as to her alleged reporting violations, which occurred from 2007 to

2009.

        Judgment of sentence vacated. Jurisdiction relinquished.

        Judge Shogan joins the Opinion.

                                     - 12 -
J-S12014-15



     Justice Fitzgerald concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/8/2015




                                    - 13 -
