Bickerton and Bickerton Attorneys at Law

Commonwealth v. Harry Galendez 2009 PA Super 185 (9/16/2009)

Topic: Defendant’s Right to be Present – Parole and Probation Searches

Summary: 1.) The defendant and his counsel have the right to be present at every crucial stage of the trial process, including the issuing of probationary conditions. 2.) Searches made as a condition of parole or probation must be supported by reasonable suspicion. Additionally, the trial court may not make any parole or probation conditions for any sentence that would subject the defendant to the supervision of the State Board of Probation and Parole.

http://www.pacourts.us/OpPosting/Superior/out/a15016_09.pdf

Commonwealth v. Christina Marie Houtz 2009 PA Super 186 (9/16/2009)

Topic: Terms of Probation – Undue Restrictions

Summary: A probationary restriction must be reasonably tied to the illegal act. Therefore, where a defendant was not accused of using the Internet to commit her offense, the trial court is not justified in prohibiting Internet usage as a term of probation.

http://www.pacourts.us/OpPosting/Superior/out/s23028_09.pdf

Commonwealth v. Grace May Nuse 2009 PA Super 125 (7/08/2009)

Topic: Restitution as a Condition of Probation

Summary: An indirect link between a defendant’s criminal act and a victim’s loss is sufficient where restitution is ordered as a condition of probation.

http://www.pacourts.us/OpPosting/Superior/out/A11034_09.pdf

Commonwealth v. Mears 2009 PA Super 83 (5/04/2009)

Topic: Sentencing Conditions – Random Searches as a Condition of Probation or Parole

Summary: The Superior Court reversed and remanded where the trial court made random residence searches a condition of Mears’ sentence. The sentence was invalid because 1.) Mears was not sentenced to probation and 2.) Mears’ was given a state sentence, therefore, the sentencing court could not usurp the power of the State Parole Board by giving parole conditions.

http://www.pacourts.us/OpPosting/Superior/out/a04025_09.pdf

A recent study shows that Pennsylvania is above the national average for the number of its citizens in jail, on probation, or on parole.

In “One in 31: the Long Reach of American Corrections,” by the Pew Center, Pennsylvania is shown to have one out of every 28 citizens under “correctional control.” This means that one out of every 28 Pennsylvanians is either in prison, on probation, or on parole. The study also shows that Pennsylvania ranks second nationwide for the length of sentences given to violent offenders. Adam Gelb, director for the Pew Center’s Public Safety Performance Project believes that Pennsylvania would benefit from creating more alternatives to incarceration and by implementing more gradual punishments for those who violate their probation. Gelb noted that, in enacting new sentencing legislation last year, Pennsylvania passed “one of the smartest and toughest packages of reform.”

For more information, go to:

http://www.philly.com/philly/hp/news_update/20090303_Pew_study__Pa__ranks_2nd_in_length_of_prison_terms.html

Commonwealth v. Eric Richard Johnson 2009 PA Super 36 (2/26/2009)

Topic: Probation – Credit for Time Served

Summary: Where a defendant was sentenced for a probation violation, the Superior Court concluded that he was entitled to credit for time-served prior to his initial sentencing and time served prior to the sentencing for his probation violation.

Illustration: Defendant was arrested for charges and spent time in prison from June 21, 2007 to October 12, 2007. Defendant was sentenced on the charges on October 11, 2007. Defendant violated his probation and was detained from November 8, 2007 to January 9, 2008. Defendant was sentenced to state time and the trial court denied any credit for time served. The Superior Court concluded that under 42 Pa.C.S.A. §9760, Defendant was entitled to the time served from June 21, 2007 to October 12, 2007 (the time before his sentencing) and the time-served from November 8, 2007 to January 9, 2008 (while he was being detained for the probation violation. Judge Fitzgerald dissented to counting the time from June 21, 2007 to October 12, 2007 as being inconsistent with existing precedent.

http://www.pacourts.us/OpPosting/Superior/out/s75020_08.pdf

Commonwealth v. Woods 2009 PA Super 19

Topic: Probation Violation – Right to a speedy violation hearing

Summary: Probationer was not denied his right to a speedy probation violation hearing where probationer was sentenced for a new offense and was subject to a delay of 15-months before having a probation violation hearing.

Illustration: Russell Woods was initially placed on probation on June 16, 2005. He violated his probation on July 20, 2005. His initial probation violation hearing was scheduled for August 9, 2005. The hearing was postponed for a mental health evaluation. Woods committed another offense on September 12, 2005. Woods entered a guilty plea to both new offenses on June 29, 2006 and was sentenced on those charges on December 12, 2006. Woods had his probation violation hearing on September 17, 2007.

Although the period from June 16, 2005 to December 12, 2006 could be attributed to Woods being convicted and sentenced for the new offenses, there was no explanation for the 9 month delay from the time of sentencing to the violation hearing in September 2007. However, the Superior Court concluded that Woods was in prison anyway and was not deprived of witnesses or new evidence. Therefore, the Court concluded that Woods suffered no prejudice and there was no violation of Pennsylvania Rule of Criminal Procedure 708.

http://www.pacourts.us/OpPosting/Superior/out/a34001_08.pdf

In January 2009, Armstrong County will have a new probation officer who will specialize in offenders with serious drug and alcohol problems. This new program is separate from Armstrong County’s drug court. Additionally, violent offenders will not qualify for the new supervision program. Compared to other probationers, offenders who are admitted to the program will have increased supervision.

For more information, go to:

http://www.pittsburghlive.com/x/leadertimes/s_604588.html