J-S32001-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                    v.

GLENN CHRISTOPHER VENNERO,

                          Appellant                  No. 1446 WDA 2013


          Appeal from the Judgment of Sentence August 5, 2013
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0005761-2011,
                         CP-02-CR-0012866-2009


BEFORE: SHOGAN, OLSON, and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                              FILED JULY 13, 2015

     Appellant, Glenn Christopher Vennero, appeals from the judgment of

sentence entered August 5, 2013, following the revocation of his probation.

After careful review, we vacate the judgment of sentence and remand for

further proceedings.

     On April 14, 2010, at trial court docket number CP-02-CR-0012866-

2009, Appellant entered a guilty plea to one count each of burglary, criminal

trespass, and theft by unlawful taking. The trial court sentenced Appellant

to three years of probation on the burglary charge and no further penalty on

the other counts.      N.T., 4/14/10, at 7.   On May 21, 2012, at trial court

docket number CP-02-CR-0005761-2011, Appellant pled guilty to one count

each of burglary, criminal trespass, theft by unlawful taking, possessing an
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instrument of crime, and possession of drug paraphernalia. The trial court

sentenced Appellant to a term of eleven and one-half to twenty-three

months of incarceration followed by three years of probation on the burglary

charge and no further penalty on the other counts. N.T., 5/21/12, at 13. As

part of his probation at both CP-02-CR-0012866-2009 and CP-02-CR-

0005761-2011, Appellant was required to continue with his drug, alcohol,

and mental health treatment, and abstain from using drugs and alcohol. Id.

at 13-16.

        While Appellant was serving his terms of probation, the trial court held

regular review hearings. During a review hearing on January 14, 2013, the

trial court informed Appellant that if he failed to comply with the conditions

of probation at both CP-02-CR-0012866-2009 and CP-02-CR-0005761-2011,

he may face incarceration in a state correctional institution. N.T., 1/14/13,

at 3.      Appellant subsequently failed to comply with the terms of his

probation, and following a hearing on April 15, 2013, Appellant’s probation

at CP-02-CR-0012866-2009 was revoked, and he was resentenced to a new

term of three years of probation.         N.T., 4/15/13, at 11.     Thereafter,

Appellant started serving his new term of probation at CP-02-CR-0012866-

2009, continued his probation at CP-02-CR-0005761-2011, and started a

mental health and substance abuse treatment program at Alpha House. Id.

at 6-11.




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      On August 5, 2013, the trial court held a hearing regarding allegations

that Appellant had violated his probation at both CP-02-CR-0012866-2009

and CP-02-CR-0005761-2011 based upon his behavior at Alpha House. At

the conclusion of the hearing, the trial court revoked Appellant’s probation at

CP-02-CR-0012866-2009 and sentenced him to a term of one to two years

of incarceration followed by five years of probation.    N.T., 8/5/13, at 29.

The trial court also revoked Appellant’s probation at CP-02-CR-0005761-

2011 and sentenced Appellant to a term of three and one-half to seven

years of incarceration followed by five years of probation. Id. at 30. Post-

sentence motions were filed and denied, and Appellant filed a timely appeal.

      On appeal, Appellant raises the following issues for this Court’s

consideration:

      1.    Did the Probation Court act improperly, and violate
      Appellant’s state and federal due process rights, when it held
      that Appellant had violated the conditions of his probationary
      sentences imposed on Allegheny County Criminal Complaint (CC)
      Nos. 2009-12866 and 2011-05761 without either (A) holding a
      Gagnon II evidentiary hearing into the allegations that he had
      violated one or more of those conditions, or, alternatively, (B)
      requiring the Commonwealth to bear the burden of proving, at
      the Gagnon II hearing, that Appellant had violated the
      conditions of those probationary sentences, and instead put the
      burden upon Appellant to prove that he had complied with those
      conditions?

      2.    Did the Probation Court act improperly, and violate
      Appellant’s state and federal due process rights, when it held
      that Appellant had violated the conditions of his probationary
      sentences imposed on CC Nos. 2009-12866 and 2011-05761
      based upon unsubstantiated averments made by an Allegheny
      County Probation Department Agent at the Gagnon II hearing
      (thereby foregoing Appellant’s due process-based confrontation

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      and cross-examination rights) without either (A) an express
      finding that “good cause” existed to do so, or, alternatively, (B)
      without the actual existence of the requisite “good cause” for
      doing so?

Appellant’s Brief at 4.

      When we consider an appeal from a sentence imposed following the

revocation of probation, our standard of review is well settled:

      Our review is limited to determining the validity of the probation
      revocation proceedings and the authority of the sentencing court
      to consider the same sentencing alternatives that it had at the
      time of the initial sentencing. 42 Pa.C.S. § 9771(b). See also
      Commonwealth v. Gheen, 455 Pa. Super. 299, 688 A.2d
      1206, 1207 (1997) (the scope of review in an appeal following a
      sentence imposed after probation revocation is limited to the
      validity of the revocation proceedings and the legality of the
      judgment of sentence).       Also, upon sentencing following a
      revocation of probation, the trial court is limited only by the
      maximum sentence that it could have imposed originally at the
      time of the probationary sentence. Id., 688 A.2d at 1207-1208.
      Accord Commonwealth v. Ware, 737 A.2d 251, 254 (Pa.
      Super. 1999).

Commonwealth v. MacGregor, 912 A.2d 315, 317 (Pa. Super. 2006)

(citing Commonwealth v. Fish, 752 A.2d 921, 923 (Pa. Super. 2000)). It

is also well settled that the revocation of a probationary sentence is a matter

committed to the sound discretion of the trial court and that court’s decision

will not be disturbed on appeal in the absence of an error of law or an abuse

of discretion.   MacGregor, 912 A.2d at 317.       “[A]n abuse of discretion is

more than a mere error of judgment; thus, a sentencing court will not have

abused its discretion unless the record discloses that the judgment exercised

was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-



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will.”    Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007) (internal

quotation marks omitted).

         In his first issue on appeal, Appellant asserts that the trial court erred

when it failed to hold a proper Gagnon II hearing concerning allegations

that he violated his probation and that the trial court erred by shifting the

burden of proof to Appellant. Appellant’s Brief at 4.

         Initially, we note that the United States Supreme Court has held that

due process requires probationers be given two separate hearings prior to

revoking probation. Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973).

         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. Morrissey [v. Brewer, 408
         U.S. 471, 484 (1972)].        Notably, the purpose of having a
         Gagnon II hearing is to provide appellant additional due
         process safeguards.        Gagnon, supra.       Accordingly, the
         Commonwealth is required to meet a higher standard of proof at
         the Gagnon II hearing.            Those additional due process
         safeguards, particularly with regard to the higher standard of
         proof required in establishing a violation, would be rendered
         meaningless if we found that by waiving the Gagnon I hearing,
         that appellant conceded his guilt with regard to having
         committed a probation violation. Similarly, a defendant who
         waives his preliminary hearing does not concede that he is guilty
         of the charges against him. Rather, he agrees to be bound over
         for trial where evidence is presented before a finding of guilt is
         rendered. We do not allow for the defendant to be found guilty
         by waiver of his preliminary hearing. Likewise, in this case, we
         cannot allow appellant’s probation to be permanently revoked
         simply because he waived his Gagnon I hearing.

Commonwealth v. Sims, 770 A.2d 346, 352 (Pa. Super. 2001).




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      The Sims Court explained that “[w]hen a parolee or probationer is

detained pending a revocation hearing, due process requires a determination

at a pre-revocation hearing, a Gagnon I hearing, that probable cause exists

to believe that a violation has been committed.”      Sims, 770 A.2d at 349

(citations omitted). “Where a finding of probable cause is made, a second,

more comprehensive hearing, a Gagnon II hearing, is required before a

final revocation decision can be made. Id. (citation omitted). At a Gagnon

II hearing, the trial court must first determine whether the facts warrant

revocation.   Id. (citation omitted).      “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.” Id. (citations omitted). If the

trial court determines that the parolee or probationer violated the conditions

of his parole or probation, then the trial court must decide whether the

parolee or probationer should be recommitted to prison or whether other

steps should be       taken to   protect   society and improve    chances   of

rehabilitation. Id.

      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 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

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       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.

Sims, 770 A.2d at 349-350 (internal quotation marks omitted).

       Here, the record reflects that the trial court dutifully held review

hearings    concerning     Appellant’s     progress,   or   lack   thereof,   while   on

probation. However, we are constrained to agree with Appellant that in this

instance, there was not a proper Gagnon II hearing. As noted above, at

the April 15, 2013 hearing, Appellant’s probation was revoked and he was

resentenced. N.T., 4/15/13, at 11. Then, on August 5, 2013, Appellant was

informed of the allegations against him concerning technical violations of his

probation, his probation was revoked, and he was re-sentenced all at one

hearing. N.T., 8/5/13, at 29-30. This combining of Gagnon I and Gagnon

II hearings is not permitted. See Commonwealth v. Homoki, 605 A.2d

829, 831 (Pa. Super. 1992) (stating that 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 in

Gagnon. … We cannot accept that “two parts” to “one hearing” constitute

two separate hearings.”). For this reason, we vacate Appellant’s judgment

of sentence and remand for a proper Gagnon II hearing.1

____________________________________________


1
  In light of our disposition, we need not reach Appellant’s remaining claims
of error. However, we note with concern Appellant’s challenges to the
admission of hearsay and allegation of burden shifting that occurred at the
(Footnote Continued Next Page)


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      Judgment of sentence vacated.               Case remanded for a Gagnon II

hearing. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/13/2015




                       _______________________
(Footnote Continued)

August 5, 2013 hearing. Appellant’s Brief at 34; N.T., 8/5/13, at 18; Trial
Court Opinion, 12/2/14, at 6. It is not the responsibility of the probationer
to prove that he did not violate probation; rather, the Commonwealth bears
the burden of proving the probationer violated his probation.            See
Commonwealth v. Allshouse, 969 A.2d 1236, 1241 (Pa. Super. 2009)
(stating that the Commonwealth bears the burden of proving a violation of
probation by a preponderance of the evidence and that hearsay is not
admissible at a Gagnon II hearing absent a finding of good cause for not
allowing confrontation).



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