J-S17019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

JAMES FLETCHER

                         Appellant                   No. 3065 EDA 2015


    Appeal from the Judgment of Sentence entered September 9, 2015
           In the Court of Common Pleas of Philadelphia County
             Criminal Division at No: CP-51-CR-0002618-2011


BEFORE: OLSON, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                            FILED JUNE 08, 2017

      Appellant, James Fletcher, appeals from the September 9, 2015

judgment of sentence imposed after the revocation of Appellant’s parole.

We vacate and remand.

      The record reveals that, on December 17, 2010, Appellant was

arrested and charged with possession with intent to deliver (“PWID”) a

controlled substance (35 P.S. § 780-113(a)(30)).      On February 29, 2012,

the trial court sentenced Appellant to one to two years of incarceration

followed by five years of probation in accord with the parties’ negotiated plea

agreement.    On June 27, 2015, while Appellant was serving his term of

probation, he was arrested for theft and related offenses.     Those charges

were eventually dismissed, but the trial court conducted a hearing on

September 19, 2015, to address two technical violations—a positive drug
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test and failure to perform community service.       At the conclusion of that

hearing, the trial court revoked Appellant’s probation and imposed a

sentence of six to twenty-three months of incarceration followed by four

years of probation. Appellant raises three issues on appeal, which we have

reordered for purposes of analysis:

      1            Did not the lower court err by revoking Appellant’s
                   probation where the evidence was legally insufficient
                   to find him in technical violation by a preponderance
                   of the evidence, where it relied on inadmissible
                   hearsay, and where it denied Appellant the
                   opportunity to present a defense?

      2            Did not the lower court violate Appellant’s right to
                   allocution, requiring a new sentencing hearing?

      3            Did    not   the   sentencing    court    violate   the
                   requirements of [42 Pa.C.S.A. § 9771(c)] when,
                   after revoking his probation, it sentenced Appellant
                   to a period of total confinement where: i) he had
                   not been convicted of a new crime, ii)the record did
                   not demonstrate any likelihood that he would commit
                   a new crime if not incarcerated, and iii) incarceration
                   was not essential to vindicate the authority of the
                   court?

Appellant’s Brief at 3.

      Appellant first argues the evidence was insufficient to find him in

violation of his probation.       At a probation revocation hearing, the

Commonwealth must demonstrate a violation based on evidence containing

“probative value.”    Commonwealth v. Sims, 770 A.2d 346, 349 (Pa.

Super. 2001). Unlike a criminal trial, the Commonwealth need not prove its




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case beyond a reasonable doubt. Id. at 350. The Commonwealth need only

prove by a preponderance of the evidence that a violation occurred. Id.

      The instant record reveals that Appellant failed a drug test.         N.T.

Hearing, 9/9/15, at 6.     In addition, Appellant was unable to provide his

probation officer with proof that he performed any community service. Id.

at 5. Appellant was required to perform 100 hours per year of community

services as a condition of his probation.     Id.   These facts are more than

sufficient to establish, by a preponderance of the evidence, that Appellant

violated technical conditions of his probation.

      Next, Appellant argues that he is entitled to a new sentencing hearing

because the trial court did not afford him his right of allocution at the

sentencing hearing. The Rules of Criminal Procedure guarantee a defendant

the right to make a statement at his revocation hearing:        “At the time of

sentencing, the judge shall afford the defendant the opportunity to make a

statement in his or her behalf and shall afford counsel for both parties the

opportunity to present information and argument relative to sentencing.”

Pa.R.Crim.P. 708(D)(1).     Our Supreme Court has ruled that a trial court

must inform a defendant of his right to speak prior to sentencing.

Commonwealth v. Thomas, 553 A.2d 913, 919 (Pa. 1989). Failure to do

so requires a new sentencing hearing. Id.

      The trial court concedes that it failed to inform Appellant of his right to

speak on his own behalf. Trial Court Opinion, 7/7/16, at 5-6. The court also


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concedes that Appellant preserved the issue in a timely post-sentence

motion. Id. at 6.1 We will therefore vacate the judgment of sentence and

remand for a new hearing.              Given our decision, we will not address

Appellant’s challenge to the discretionary aspects of the trial court’s

sentence.

       Judgment of sentence vacated.             Case remanded.     Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/8/2017




____________________________________________


1
   The Commonwealth argues that Appellant waived this issue for failing to
raise it in a post-sentence motion. It appears that the local prothonotary
initially misfiled Appellant’s timely post-sentence motion. The trial court
eventually received Appellant’s motion, and the court concedes the validity
of Appellant’s argument. We therefore decline to find the issue waived.



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