J-S25007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

SHATEERA LEANN THOMPSON,

                        Appellant                  No. 2472 EDA 2016


            Appeal from the Judgment of Sentence July 6, 2016
             In the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0001738-2016


COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

SHATEERA LEANN THOMPSON,

                        Appellant                  No. 2475 EDA 2016


            Appeal from the Judgment of Sentence July 6, 2016
             In the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0003712-2015


BEFORE: BENDER, P.J.E., RANSOM, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                        FILED JUNE 05, 2017

     Shateera Leann Thompson (Appellant) appeals from the judgment of

sentence imposed on July 6, 2016, that resulted in an aggregate sentence of

four to eight years’ imprisonment after revocation of her probation in a 2015
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case and revocation of her parole in a 2016 case.1 After review, we reverse

the judgment of sentence and remand for further proceedings.

       In April of 2015, Appellant was arrested and charged with aggravated

assault on law enforcement, 18 Pa.C.S. § 2702(a)(3). Although she agreed

to plead guilty to two counts of aggravated assault, Appellant’s guilty plea

was held in abeyance by the court, which instead ordered her admission for

24 months into the mental health court program. Then, in March of 2016,

Appellant was again arrested and pled guilty to simple assault, 18 Pa.C.S. §

2701(a)(1), for which she received a sentence of time-served to 23 months’

incarceration. After a hearing was held on May 10, 2016, and as a result of

the 2016 simple assault conviction, Appellant was found to have violated the

terms of her commitment to the mental health court program in connection

with the 2015 aggravated assault case and was sentenced to three years’

probation to be served under the supervision of the mental health unit.

While still incarcerated, the probation department sought housing for

Appellant in a Carelink facility, due to the fact that she was homeless.

Shortly after Appellant’s release, allegations were made that she had

committed technical violations of both her probation relating to the 2015

case and her parole related to the 2016 case.



____________________________________________


1
 This Court issued a per curiam order on October 4, 2016, consolidating
Appellant’s two appeals.



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      A hearing was scheduled for July 6, 2016, at which both the 2015 and

2016 cases were at issue.     Appellant’s counsel stipulated that notice was

received; however, she contested the violations.         Following arguments

presented by the Commonwealth and Appellant’s counsel, the court imposed

the four to eight year aggregate sentence.       Appellant filed post-sentence

motions and an appeal to this Court. She also filed a concise statement of

matters complained of on appeal pursuant to Pa.R.A.P. 1925(b).           In her

brief, she sets forth the following two issues for our review:

      1. Did the trial court abuse its discretion and/or commit an error
      of law by finding Appellant in violation of her probation, where
      the evidence was gravely insufficient to support the violations
      alleged, and where Appellant was effectively denied the ability to
      participate in her own defense[?]

      2.   Did the trial court abuse its discretion by entering a
      manifestly excessive sentence, which consisted of total
      confinement, which was inappropriate to meet Appellant’s
      rehabilitative needs, and which was not essential to vindicate the
      authority of the court[?]

Appellant’s brief at 3. In its opinion in response to Appellant’s appeal to this

Court, the trial court discussed factual matters relating to the alleged

violations, which it relied upon to support the imposition of the aggregate

sentence of four to eight years in prison.

      Rather than specifically discuss the issues Appellant has raised, most

notably that there is insufficient evidence to support the alleged violations of

her probation and parole, we recognize that the Commonwealth has




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requested remand for a proper Gagnon II2 hearing. Following our review of

the record, we agree that Appellant’s sentence must be reversed and a

remand is necessary. No evidence at all was presented at the Gagnon II

hearing; the entire “hearing” consisted of argument by counsel for the

Commonwealth and for Appellant and minimal statements made by a

representative from the Adult Probation and Parole Department, who was

not under oath.

        Initially, we note that “[w]hen reviewing the results of a revocation

hearing,    this   Court   is   limited   to   determining   the   validity   of   those

proceedings, and the legality of the judgment of sentence imposed.”

Commonwealth v. Heilman, 876 A.2d 1021, 1026 (Pa. Super. 2005)

(quoting Commonwth v. Williams, 801 A.2d 584, 585 (Pa. Super. 2002)).

Moreover, this Court has explained:

             The Gagnon II hearing entails two decisions: first, a
        consideration of whether the facts determined warrant
        revocation. The first step in a Gagnon II revocation decision …
        involves a wholly retrospective factual question: whether the
        parolee [or probationer] has in fact acted in violation of one or
        more conditions of his parole [or probation]. It is this fact that
        must be demonstrated by evidence containing “probative value.”
        Only if it is determined that the parolee [or probationer] did
        violate the conditions does the second question arise: should the
        parolee [or probationer] be recommitted to prison or should
        other steps be taken to protect society and improve chances of
        rehabilitation? Thus, the Gagnon II hearing is more complete
        than the Gagnon I hearing in affording the probationer
        additional due process safeguards, specifically: (a) written notice
____________________________________________


2
    See Gagnon v. Scarpelli, 411 U.S. 778 (1973).



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     of the claimed violations of [probation or] parole; (b) disclosure
     to the [probationer or] parolee of evidence against him; (c)
     opportunity to be heard in person and to present witnesses and
     documentary evidence; (d) the right to confront and cross-
     examine adverse witnesses (unless the hearing officer
     specifically finds good cause for not allowing confrontation); (e)
     a “neutral and detached” hearing body such as a traditional
     parole board, members of which need not be judicial officers or
     lawyers; and (f) a written statement by the factfinders as to the
     evidence relied on and reasons for revoking [probation or]
     parole.

Commonwealth v. Sims, 770 A.2d 346 (Pa. Super. 2001) (quotation

marks and citations omitted).

     Simply stated, the “hearing” held on July 6, 2016, did not satisfy the

requirements of Gagnon II. No testimony or documentation was presented

that could in any way support the trial court’s decision. See Heilman, 876

A.2d at 1028 (concluding that insufficient evidence appeared in the record of

the hearing providing a basis for a finding that the appellant willfully

disregarded the terms of his probation).      Therefore, we are compelled to

remand for a new violation hearing. See Commonwealth v. Mullins, 918

A.2d 82, 85-86 (Pa. 2007) (holding that, when vacating a probation

revocation sentence due to insufficient evidence, the matter is to be

remanded    for   a   new   revocation   hearing).   Accordingly,   under   the

circumstances here, we reverse the judgment of sentence and remand for a

new revocation hearing.

     Judgment of sentence reversed.          Case remanded for proceedings

consistent with this memorandum. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/2017




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