J-A09005-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

EMMANUEL CASSIS,

                         Appellant                   No. 456 EDA 2014


           Appeal from the Judgment of Sentence June 20, 2011
           In the Court of Common Pleas of Philadelphia County
                        Criminal Division at No(s):
                         CP-51-CR-0003389-2011
                         CP-51-CR-0003396-2011
                         CP-51-CR-0003397-2011
                         CP-51-CR-0003398-2011
                         CP-51-CR-0003399-2011

BEFORE: BOWES, DONOHUE, AND STABILE, JJ.

MEMORANDUM BY BOWES, J.:                             FILED APRIL 28, 2015

      Emmanuel Cassis appeals from the judgment of sentence of sixty-nine

and one-half to 139 years imprisonment that the trial court imposed after it

found him in technical violation of his probation. We reverse the trial court’s

order finding Appellant in violation of probation, vacate the judgment of

sentence, and remand for violation of probation (“VOP”) proceedings.

      Appellant entered a negotiated guilty plea on April 25, 2011. As part

of the plea deal, Appellant agreed to plead guilty to seventeen counts of

robbery, eleven counts of theft, and multiple firearms violations.         The

Commonwealth agreed to recommend a sentence of seven and one-half to
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fifteen years incarceration to be followed by twenty years of probation.

Judge Chris R. Wogan accepted the plea and imposed the aforementioned

sentence. In addition, Judge Wogan agreed to defer the date Appellant was

required to begin his sentence until June 20, 2011, and directed Appellant to

appear before him that day. Appellant failed to arrive at the courtroom to

relinquish himself to authorities; his counsel did appear.

        On that date, June 20, 2011, the court, without complying with any of

the notice or procedural requirements necessary to conduct a VOP hearing,

determined that Appellant violated his probation. Trial counsel objected to

the proceeding going forward in Appellant’s absence.            The court overruled

that    objection   and    sentenced     Appellant   to   sixty-two   to   124   years

imprisonment to run consecutively to his earlier seven and one-half to

fifteen year sentence of incarceration. The court did not have the benefit of

a pre-sentence report, since at the original sentencing, Appellant waived

that requirement.1

        The   Commonwealth apprehended Appellant on June                   27, 2011.

Appellant was not informed of his new sentence at that time, nor did he

contact his attorney. Accordingly, unaware of the new sentence, Appellant

did not file a timely post-sentence motion or a direct appeal.              Appellant

subsequently filed a timely pro se petition for relief under the Post-
____________________________________________


1
    Appellant was twenty-years old and had no prior criminal background.



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Conviction Relief Act (“PCRA”), on June 15, 2012. Appellant retained private

counsel, and counsel filed an amended petition on September 23, 2013.

Therein, counsel asked that Appellant’s direct appeal rights be reinstated

and also sought Judge Wogan’s recusal.           Judge Wogan did not initially

recuse himself, and Appellant filed two supplemental motions for recusal.2

In one of those motions, Appellant averred that a sign was posted in Judge

Wogan’s courtroom which read, “69 ½ to 139 years—Beat that.”             Judge

Wogan acknowledged that such a sign did exist, but he represented that he

did not post it himself and, after seeing it a second time, had it removed.3

       Ultimately, Judge Wogan elected to recuse himself.        Judge Jeffrey

Minehart then conducted a PCRA evidentiary hearing regarding trial

counsel’s failure to preserve Appellant’s appellate rights and sentencing

____________________________________________


2
  Judge Wogan conducted hearings on these motions. At a contentious
December 16, 2013 hearing, Judge Wogan inappropriately vigorously cross-
examined Appellant regarding matters that were based on his own ex parte
and sua sponte investigation and questioning of warrant officers. Judge
Wogan then held PCRA counsel in contempt because counsel refused to
undergo a previously ordered mental health examination.        He initially
sentenced counsel to jail and a fine over counsel’s objection that he was
entitled to an attorney and a hearing. The assistant district attorney,
however, also objected to the court’s actions and the court agreed not to
sentence PCRA counsel.
3
   An attorney present at a November 22, 2013 PCRA hearing in this case
filed a declaration that referenced the sign and maintained that it was
“displayed prominently near where attorneys are required to check in with
the court staff and was easily read.” Declaration of Attorney James A. Funt,
at ¶ 12.



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issues after the June 20, 2011 sentencing. Trial counsel acknowledged that

he did not inform Appellant or his family of the new sentence.       The PCRA

court reinstated Appellant’s direct appeal rights. This appeal ensued. The

court directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. Appellant complied, and the

trial court authored its Rule 1925(a) decision. Therein, the court concluded

that the underlying sentencing issues Appellant had alleged in his PCRA

petition were waived because Appellant had not sought reinstatement of his

right to file a post-sentence motion.

      Appellant now raises three issues for this Court’s review.

      1. Did not the trial court err as a matter of law, abuse its
         discretion, and violate general sentencing principles when,
         following appellant’s failure to turn himself in to begin serving
         a negotiated sentence of 7 ½ to 15 years, the court in
         absentia, conducted a cursory “violation of probation”
         hearing, and imposed a manifestly excessive and
         unreasonable sentence of 69 ½ to 139 years incarceration,
         which far surpassed what was required to protect the public,
         went well beyond what was necessary to foster appellant’s
         rehabilitation, was not necessary to vindicate the authority of
         the court, was grossly disproportionate to the crimes, and
         was imposed without reference to any pre-sentence report or
         sufficient information to make an individualized sentencing
         decision?

      2. Did not the trial court err as a matter of law, abuse its
         discretion and violate appellant’s due process rights when it
         imposed a 69 ½ to 139 year sentence for an alleged technical
         violation of probation, where the court conducted the
         “violation hearing” without any of the required constitutional
         safeguards?




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      3. Did not appellant properly preserve and perfect these
         challenges for direct appeal, or if he did not, wasn’t such a
         failure per se ineffective assistance of counsel, such that this
         Court should address the matters on direct appeal?

Appellant’s brief at 3.

      As we find Appellant’s second issue dispositive, we need only address

that issue.    Appellant argues that the court erred by conducting “an

apparent in absentia violation of probation hearing” without providing notice

to Appellant of such a hearing and without hearing from any witnesses. He

notes that under Morrisey v. Brewer, 408 U.S. 471 (1972), a parolee has

certain Fourteenth Amendment due process rights before the court can

recommit that person.     These protections have been extended into the

violation of probation arena. See Commonwealth v. Stafford, 29 A.3d

800, 802 n.1 (Pa.Super. 2011) (citing Morrissey, Gagnon v. Scarpelli,

411 U.S. 778 (1973); Commonwealth ex rel. Rambeau v. Rundle, 314

A.2d 842 (1973); and Commonwealth v. Davis, 336 A.2d 616 (Pa.Super.

1975)).

      Appellant asserts that an individual alleged to have violated his

probation is entitled to two separate hearings. See Gagnon, supra. The

initial hearing, commonly known as a Gagnon I hearing, “is a pre-

revocation hearing to determine if probable cause exists that a violation was

committed.”    Thereafter, “a Gagnon II hearing is conducted where the

Commonwealth is required to establish that the defendant did violate his



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parole/probation. See Commonwealth v. Ferguson, 761 A.2d 613

(Pa.Super.2000).” Stafford, supra at 802 n.1.

        In Davis and Ferguson, supra, we outlined the distinctions between

the two hearings.      At a Gagnon I hearing, a probationer “is entitled to

notice of the alleged violations of probation or parole, an opportunity to

appear and to present evidence in his own behalf, a conditional right to

confront adverse witnesses, an independent decisionmaker, and a written

report of the hearing.” Ferguson, supra at 617 (quoting Davis, supra at

621).     In contrast, a “Gagnon II hearing is more complete than the

Gagnon I hearing in affording the probationer additional due process

safeguards[.]” Id. First, the court determines whether the probationer did

violate   probation.     Subsequently,   the   court   considers   whether   the

probationer should be committed to prison “or should other steps be taken

to protect society and improve chances of rehabilitation[.]” Id. (Ferguson

and Davis quoting Gagnon, supra at 784).

        In performing this review, due process requires similar protections

afforded by the Gagnon I hearing.        Specifically, the defendant must be

given written notice of his alleged probation violation, disclosure of the

evidence against him, an opportunity to be heard in person and present

evidence, the right to confront and cross-examine adverse witnesses unless

good cause exists for not permitting confrontation, a neutral hearing body,

and a written statement by the factfinder regarding the evidence relied on

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for violating the defendant’s probation.    See Morrisey, supra at 499;

Commonwealth v. Holder, 805 A.2d 499, 504 n.7 (Pa. 2002); Ferguson,

supra at 617-618; Davis, supra at 621.

      Appellant adds that pursuant to Pa.R.Crim.P. 708(1), a court “shall not

revoke such probation” without a hearing “at which the defendant is present

and represented by counsel[.]” He points out that no notice was provided

regarding a violation of probation nor was he present to be heard or

provided with a written statement as to his violation. Continuing, Appellant

highlights that the court did not hear from a probation officer nor was any

evidence introduced. Rather, the court determined that Appellant’s failure to

appear was sufficient to warrant revoking Appellant’s probation without

notice and in absentia.

      The Commonwealth counters that Appellant’s issue is waived because

his objection was not specific enough. We disagree. Here, counsel objected

to the violation hearing being conducted without his client being present.

The essentials of procedural due process are notice and an opportunity to be

heard.   Without prior notice of a violation hearing, the absence of the

defendant encompasses both a lack of notice and an inability to be heard.

Thus, it is evident that objecting based on Appellant’s absence adequately

encompasses these due process concerns.        An objection need not be so

specific and detailed as to amount to an oral briefing of the matter. Instead,

counsel must adequately alert the court of the alleged error.     See In re

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T.P., 78 A.3d 1166, 1171 (Pa.Super. 2013) (“If an assertion raised by a

party can fairly be said to implicate a rule of law or legal precedent known

by a court to be applicable, it is not foreclosed from considering that legal

precept solely because that precise case, rule, or statute was not cited.”).

      Finding that Appellant adequately objected, we hold that the trial court

erred in finding Appellant in violation of his probation without complying with

the minimal due process protections necessary for violation of probation

proceedings. Appellant was not given notice of a Gagnon I or II hearing or

notice of his violation, nor was he provided an opportunity to be heard or be

present.

      Virtually none of the procedural safeguards required by both United

States Supreme Court and Pennsylvania case law were adhered to by Judge

Wogan.     Since the court erred in proceeding in this fashion in Appellant’s

absence, he is entitled to new VOP proceedings. Therefore, we reverse the

court’s order finding Appellant in violation of probation, vacate his judgment

of sentence, and remand for proceedings consistent with this memorandum.

      Judgment of sentence vacated.          Case remanded for additional

proceedings. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/28/2015




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