After a defendant has been sentenced, the case isn’t necessarily over. When the defendant walks out of the courtroom, they will have to finish their sentence and, depending on the circumstances of their case, continue their fight.

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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.

Criminal Appeals and PCRA Petitions in PA

Pennsylvania has special rules for filing a criminal appeal or Post-Conviction Relief Act (PCRA) petition.  With these rules, you have a limited amount of time to act before you lose your right to appeal.  All post-sentencing actions have a time limit, so if you don’t bring your appeal before the court, you may not be able to appeal later.

Types of Post Conviction Actions

• Post Sentencing Motions 

After you have been sentenced, you have 10 days to ask the trial court to reconsider its decision.  In a post sentencing motion, you can raise an argument that the prosecutor failed to present enough evidence to prove that you are guilty, an argument alleging that the sentence you were given was unjust, that errors were made during the trial, etc.  If you believe that something went wrong with your trial, you should contact an attorney to determine whether any post-sentencing motions can or should be filed in your case.

• Direct Appeals 

In some circumstances (constitutional issues, improperly admitted evidence, weak evidence, unfair sentence, etc.), you can file a direct appeal.  In a direct appeal, you are trying to overturn your conviction.  Whether you entered a guilty plea or went to trial, it is possible to file a direct appeal to try to get the right result in your case.  An experienced criminal appeals lawyer will help you determine whether a direct appeal is appropriate for you.

• Post-Conviction Relief Act (PCRA) Appeals 

Under limited circumstances, you can file a PCRA petition to get relief for certain conditions that happened during your trial. You can use a PCRA to get relief when your previous attorneys gave you ineffective assistance and to fight the conviction when new evidence comes to light.