Disclaimer: The Bickerton Law Blog is for educational purposes only. If you have specific questions, contact Bickerton Legal for more information

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 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. 

There is a presumption against putting someone who has a technical violation in jail or prison. While there are specific circumstances where a court can sentence a technical violator to incarceration, the law says that specific criteria must be met and certain findings made before a defendant can go to jail or prison for a technical violation. 

The law also sets maximum sentences for technical violations. For a first technical violation, a defendant cannot be sentenced to more than 14 days of incarceration. After a second technical violation, a defendant cannot be sentenced to more than 30 days of incarceration. If a defendant has more than 2 technical violations, then the court is allowed to give any sentence that they were legally allowed to give at the original sentencing hearing.

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. 

The first step in the probation violation process: The Gagnon I 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.

The second step in the probation violation process: The Gagnon II 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.

After The Gagnon II

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.

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.