Disclaimer: The Bickerton Law Blog is for educational purposes only. If you have specific questions, contact Bickerton Legal Services at 412-267-9218 for more information

PA Probation & Parole Violations: Gagnon Hearings, Act 44 Caps, & Detainers

When you are accused of violating your probation or parole, you have the right to a hearing.  At the first hearing (a Gagnon I hearing), a judge will determine whether there is probable cause to believe that you violated your probation or parole.  You are also entitled to a separate hearing for the court or parole board to determine whether your parole or probation should be revoked (a Gagnon II hearing).  If you are found to be in violation of your parole in Pennsylvania, the court can sentence you to serve the rest of your sentence in prison.  If you violate your probation, the court can sentence you up to the maximum of time you faced when you were originally sentenced.

Probation and Parole Violation Law in Pennsylvania

How Probation works in Pennsylvania

When a defendant is on probation, they are free to live in the community but are required to follow certain conditions. If the defendant doesn’t follow those conditions, they can be accused of a probation violation and brought back to court. In some cases, the probation officer will “lodge a detainer.” What that means is that the probation officer will ask the court to issue an order that will keep the defendant in jail until the detainer is lifted. If the defendant doesn’t file a motion to have the detainer lifted, they will sit in jail until the court hears the case.

Violation of Probation

Pennsylvania has set up a system that classifies probation violations. If a person is convicted of committing a new crime, that violation is called a convicted violation. If a person has violated their probation conditions but hasn’t been convicted of a new crime, the violation is called a technical violation. This difference in classification is important because, in Pennsylvania, technical violations are not treated as harshly as convicted violations. 

With the difference in how technical and convicted violations are treated, it’s important that defendants file motions to modify or lift their detainers if they are only being detained for technicals. 

How Detainers Work & Why Motion Practice Matters

If a person’s probation officer believes that they have violated a condition of their supervision, then the officer can ask the court to issue a detainer. A detainer is an order directing law enforcement to arrest or detain the person whose name is on the detainer. Courts of common pleas and the state parole board both have the authority to issue detainers.

After a person is held on a detainer, they are scheduled for a Gagnon I hearing. The detainer can be lifted at that hearing. In certain situations, the person who is being detained should file a motion to get the detainer lifted.

When should a person ask to get their detainer lifted?

• When they’ve been detained for more than three days and have not had a Gagnon I hearing
• When they were detained because of a new case and the new charges were dropped or reduced to a summary
• When they’re being detained on technicals and are not scheduled to have their Gagnon II hearing within the next 14 days
• Any time when there doesn’t appear to be a good legal reason for the detention

The Two-Step Hearing Process: Gagnon I vs. Gagnon II

The first step in the probation violation process: The Gagnon I Hearing (Preliminary Hearing)

When a defendant is accused of violating their probation, they are given a Gagnon I hearing. At that hearing, the probation office has to show enough proof to support their allegation that the defendant violated their probation. If the hearing officer believes that there’s enough evidence to suggest that the defendant violated their probation, then the case proceeds to a Gagnon II (Gag II) hearing.

The second step in the probation violation process: The Gagnon II Hearing (Revocation Hearing)

At the Gagnon II hearing, the defendant is given the opportunity to hear the evidence against them and challenge the alleged violations. This hearing is mandatory and is important because it protects defendants from being wrongly punished. After both sides are heard, the probation violation hearing judge will generally decide whether there was a violation and will often proceed immediately to sentencing. In some cases, especially in cases where the judge plans to sentence the defendant to state prison, the sentencing hearing is scheduled for a new date.

Act 44 of 2023: Mandatory Sentencing Caps for Technical Violations

Exceptions to Technical Violation Caps

Act 44 listed the specific circumstances where a person’s technical violation sentence will be permitted to go outside of the 14 or 30 day caps. The law also requires that the court explain its reasons for disregarding the mandatory maximum on the record.

The technical violation sentence cap exceptions:

• The technical violation was sexual
• The technical violation was an assault or included a “credible threat” to physically harm someone
• The technical violation included possessing a firearm or another “dangerous weapon”
• The technical violation included possession controlled substances with the intent to manufacture, sell, or distribute them
• The technical violation included not following the treatment programs or conditions on three separate occasions and there’s no other way to get the person back on track
• The person is not reporting to their probation office and there’s no other way to get the person back on track

After the Gagnon II: Motions to Reconsider and Appeals

After the Gagnon II hearing, the defendant has the right to file post-sentence motions and to file a direct appeal.

Parole in Pennsylvania

In Pennsylvania, most sentences of incarceration have a minimum and a maximum amount of time that the defendant will have to serve. At the expiration of the minimum sentence, the defendant is eligible for parole. When a defendant is paroled, that means that they are released to the community to serve the rest of their sentence while being supervised by a parole agent or officer.

Parole Appeals: Minimum Dates and Time Credit Calculations

Sometimes, the defendant and the parole board disagree about the date that a person is eligible for parole, which is also known as a “minimum date.” To get the minimum date, the parole board applies the time credit that the trial court put on the record at the sentencing hearing. If that time credit is wrong, that will increase the sentence’s minimum and maximum date. Which means that the defendant will end up spending more time in jail and more time on parole.

In other situations, the defendant and the parole board may disagree over whether the defendant has completed the necessary classes or has taken enough responsibility for the crimes they were convicted of. When a person has been denied parole or disagrees with how their minimum and maximum dates were calculated, they have the right to appeal those decisions.

Need Help Fighting a Probation Violation or Detainer?

Attorney Lea Bickerton has 20 years of experience in criminal trial practice and post-conviction law and appeals. She has handled probation and parole violations at the county and state level.

If you or someone you know is currently being detained or is facing a probation or parole violation, contact Bickerton Legal Services at 412-267-9218 immediately to see what can be done to fight the violation and lift the detainer.