J-S55016-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROBERT D. CRAVENER, SR.                    :
                                               :
                       Appellant               :   No. 166 WDA 2019

                Appeal from the Order Entered January 17, 2019
     In the Court of Common Pleas of Armstrong County Criminal Division at
                        No(s): CP-03-CR-0000139-2008


BEFORE:      MURRAY, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY McLAUGHLIN, J.:                         FILED JANUARY 06, 2020

        Robert D. Cravener, Sr., appeals from the order revoking his parole. He

argues that his rights were violated because the trial court did not conduct a

Gagnon I1 hearing within a reasonable time following his arrest. We affirm.

        In 2008, Cravener pled guilty to driving under the influence of alcohol

(“DUI”), driving while operating privileged is suspended or revoked, and

required financial responsibility.2 The trial court sentenced Cravener to 13 to

60 months’ incarceration. He was originally granted parole in March 2009.

Cravener violated parole numerous times, and remained on parole in 2018.



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*   Retired Senior Judge assigned to the Superior Court.

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

2   75 Pa.C.S.A. §§ 3802(c), 1543, and 1786, respectively.
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      In February 2018, the trial court revoked Cravener’s parole and

remanded Cravener to custody, without credit for street time. In March 2018,

Cravener was re-paroled, with a condition that he complete an inpatient

treatment program at Pyramid in Wilkinsburg, Pennsylvania, and comply with

all after-care recommendations. Order of Court, filed Mar. 15, 2018. The order

warned that “[f]ailure to comply with treatment shall result in a bench warrant

for [Cravener’s] arrest.” Id. Shortly after entering the treatment program,

Cravener called his Probation Officer Joshua Czekanski to inform him that he

wanted to leave the facility early. N.T., 11/7/18, at 22. Officer Czekanski told

Cravener that he would violate parole if he left. Id. at 22-23. At a parole

revocation hearing, Cravener testified that he wanted to leave the facility

because the recommended length of treatment was longer than he expected.

Id. at 37-38.

      Pyramid discharged Cravener for leaving the facility against its advice.

Commonwealth Exh. 1, Pyramid Healthcare, Inc, Discharge Summary. In April

2018, a bench warrant was issued for Cravener’s arrest. On October 7, 2018,

Cravener was arrested. On October 16, 2018, Cravener received notice of the

parole revocation charges and refused to sign a waiver of his right to a

Gagnon I hearing. N.T., 11/7/18, at 28-29; see also Commonwealth’s Exh.

2, Gagnon I Waiver. On October 23, 2018, Officer Czekanski filed a petition

to revoke parole, asserting the following grounds for revocation:

         Failed to: maintain a schedule of payments toward
         costs/fines and/or restitution, comply with all Municipal,
         County, State and Federal Criminal Laws; undergo

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          evaluation/successfully     complete       a     course    of
          alcohol/controlled substance abuse treatment and/or
          counseling at any facility approved by Probation at own
          cost/expense and cooperate completely with counselors and
          other personnel of the facility[; p]articipate in meetings of
          self-help groups required; report to the Probation
          Department as directed; and abide by the Parole Order
          dated March 15, 2018.

Petition to Revoke Parole, filed Oct. 23, 2018, at ¶ 4.

       On October 29, 2018, Cravener filed a pro se Writ of Habeas Corpus

challenging the calculation of time served that should be counted toward his

sentence, and requesting the appointment of counsel.

       The trial court held a hearing on October 30, 2018, but continued it and

appointed counsel. It held Gagnon I and Gagnon II hearings on November

7, 2018.3 Following the hearings, the trial court ordered the parties to submit

briefs on their respective positions, including whether the Gagnon I hearing

was held within a reasonable time. In January 2019, the trial court revoked

Cravener’s parole. Cravener filed a timely notice of appeal.4
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3 The Commonwealth claimed that one ground for revocation of parole was a
new conviction against Cravener. Cravener maintained, and the trial court
agreed, that the new conviction could not be grounds for revocation because
the conviction had been known to the Commonwealth prior to the February
2018 parole revocation hearing and therefore could not be used to support
revocation in October 2018. N.T., 11/7/18, at 14-16.

4 The trial court issued an order requiring Cravener to file a concise statement
of errors complained of on appeal. Cravener did not comply with this order.
This was per se ineffectiveness of counsel. Commonwealth v. Burton, 973
A.2d 428, 432 (Pa.Super. 2009) (en banc). However, we conclude that
remand is not necessary on this parole revocation case. Because the trial court
explained its reasoning in the findings of fact supporting the revocation of
parole and explained why the timing of the Gagnon I hearing did not violate



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       Cravener raises the following issue on appeal: “Given the delay between

[Cravener’s] arrest and the filing of a parole revocation petition, and the

additional delay pending his hearing, were [Cravener’s] rights violated under

the standards set forth in Gagnon and Davis[5]?” Cravener’s Br. at 4.

       “[B]ecause of the possible deprivation of liberty inherent in parole

revocation proceedings,” a parolee is entitled to minimum due process

protections. Commonwealth v. Ferguson, 761 A.2d 613, 617 (Pa.Super.

2000) (citing Morrissey v. Brewer, 408 U.S. 471, 482 (1972)). “When 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.”

Id. (citing Commonwealth v. Holmes, 375 A.2d 379, 381, n. 4 (Pa.Super.

1977)).

       “To determine whether a delay in a Gagnon I hearing violated a

defendant’s due process rights, a court must determine whether the hearing

was held within a “reasonable time.” Ferguson, 761 A.2d at 619 (interpreting

predecessor to Pa.R.Crim.P. 708(B)(1)). To determine whether the delay was
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Cravener’s due process rights, and because counsel filed a brief in support of
Cravener’s position, we decline to remand for the filing of a Rule 1925(b)
statement. Burton, 973 A.2d at 433 (finding remand not necessary under
Rule 1925(c)(3) where counsel filed late 1925(b) statement and trial court
issued opinion addressing issue raised); Commonwealth v. Presley, 193
A.3d 436, 441 (Pa.Super. 2018) (noting “in criminal cases, remand, not
waiver, results from the late filing of a statement, unless the trial court
addressed the issues raised in a late-filed statement”).

5   Commonwealth v. Davis, 336 A.2d 616 (Pa.Super. 1975).

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reasonable, the court must “examine[] three factors: the length of the delay;

the reasons for the delay; and, the prejudice resulting to the defendant from

the delay.” Id.

      In Ferguson, the appellant alleged a due process violation where his

Gagnon I hearing was held 15 days after his arrest and incarceration. The

court found the delay was reasonable. It noted the appellant had initially

stated he would waive his rights to a Gagnon I hearing, but later chose not

to do so, and that the appellant did not establish he was prejudiced by any

delay. The court noted that the appellant admitted at the Gagnon II hearing

that he committed the alleged parole violations. Id. We concluded that the

appellant contributed to the delay and that he “assert[ed] no actual prejudice

to him resulting from the delay” and he therefore “fail[ed] to demonstrate that

the delay was unreasonable.” Id.

      Here, the trial court found:

         Under these circumstances[,] the thirty-one day delay for
         the Gagnon I hearing was not unreasonable and [Cravener]
         was not prejudiced by the delay. At the Gagnon II hearing,
         the    Commonwealth’s       evidence   demonstrated      that
         [Cravener] violated the terms of his parole in several ways.
         First, he left the Pyramid in-patient treatment facility
         against the staff’s advice. Second, he never reported to the
         Probation Office from the time he left the facility until the
         bench warrant was executed. Third, [Cravener] never paid
         a cent toward fines, costs, fees, etc. after December 16,
         2016.

Trial Court Opinion, filed Jan. 17, 2019, at 4.




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      We agree. Although the Gagnon I hearing was not held until 31 days

after Cravener’s arrest, he received notice of the grounds for revocation on

October 16, 2018, nine days after his arrest. Further, on October 30, the court

held a hearing, at which it determined Cravener should be represented by

counsel, and appointed the same. Further, because the Commonwealth

proved the grounds for revocation, and Cravener admitted to the grounds for

revocation, he cannot establish he was prejudiced by any delay.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/6/2020




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