Commonwealth v. Berkhous

1

COMMONWEALTH OF PENNSYLVANIA v. JERRY ROBERT BERKHOUS III Appellant

No. 1042 WDA 2023

No. J-A13034-24

Superior Court of Pennsylvania

July 30, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered August 4, 2023 In the Court of Common Pleas of Warren County Criminal Division at No(s): CP-62-CR-0000460-2017

BEFORE: OLSON, J., SULLIVAN, J., and BENDER, P.J.E.

MEMORANDUM

BENDER, P.J.E.

Appellant Jerry Robert Berkhous, III, appeals from the judgment of sentence imposed following the revocation of his sentence of probation. Appellant asserts that his due process rights were violated by the procedure used to determine he had violated the terms of his probation. We affirm.

The revocation court set forth the procedural and factual background of the case as follows:

On May 31, 2018, Appellant was sentenced to a period of [probation] for five (5) years with the sentence requiring … Appellant to comply with all rules and conditions pursuant to Local Rule 705 (copy attached). On or about March 9, 2019, [Appellant's] supervision was transferred to Florida. On February 8, 2022, Florida Probation Officer Todd Fontaine issued an Interstate Compact Action Request (see Exhibit A from August 2, 2023 hearing) where [Appellant] had failed to report for one month in January 2022 and had received new charges in Florida. A second Interstate Compact Action Request issued when [Appellant] failed to appear in [c]ourt in Florida on April 20, 2022[,] and had not appeared in the Florida probation department in the months of January, February, or March[] 2022[,] with the last contact being a curfew check on February 20, 2022. (see Exhibit B from August 2, 2023 hearing). A progress report from Florida [was] initiated after the Florida [p]robation [o]fficer learned that Appellant had been arrested in Florida on November 5, 2021,^[1] for grand theft and unarmed burglary when Appellant requested a travel pass and the officer performed a record's [sic] check. Appellant did not inform the probation officer but rather the information was discovered. (see Exhibit D from August 2, 2023 hearing). Finally, on January 4, 2022, Appellant was again the subject of a [p]rogress [r]eport when he tested positive for methamphetamine and amphetamines. (see Exhibit F from August 2, 2023 hearing). Acting upon Florida's communication, Warren County Probation issued a supervisor's warrant on April 21, 2022[,] for the following reasons: 1. failure to report as directed; 2. use of a controlled substance; 3. new criminal charges[;] and 4. absconding. The warrant was logged into National Crime Information Center [NCIC] on June 28, 2022[,] for full extradition to Pennsylvania. Prior to that date, on June 5, 2022, Florida Probation Officer Fontaine had contact with Appellant but unbeknownst to him, … while the warrant had issued, it was not yet in the national system so he did not act upon it. On or about May 8, 2023, Appellant was arrested on suspected probation violations within the State of Florida. Appellant arrived in Pennsylvania on June 4, 2023. Appellant's period of supervision would have expired on May 31, 2023, but he was held on the supervisor's warrant that issued [on] April 21, 2022. The Commonwealth acted with due diligence to resolve this matter once extradition to Pennsylvania occurred.

There is no testimony of record that establishes what happened at the Gagnon I^[2] hearing. Neither the hearing officer [n]or Appellant testified regarding this proceeding[,] but Appellant's counsel argued that he had spoken with the Chief of Adult Probation Officer Michael Walters and informed him that he would be present for [Appellant's] Gagnon I probable cause hearing scheduled for 10 a.m. on June 7, 2023. On June 7, 2023, counsel for Appellant arrived at the Warren County Jail for the purpose of … Appellant's Gagnon I probable cause hearing. Counsel was informed that the hearing officer had already finished the Gagnon I hearing. The court reviews the law at this point. The relevant law concerning Gagnon I and Gagnon II violation of probation hearing[:] "When a … 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." Commonwealth v. Ferguson, 761 A.2d 613, 617 (Pa. Super. 2000). A Gagnon I hearing is similar to the preliminary hearing afforded all offenders before a Common Pleas Court trial: the Commonwealth must show probable cause that the violation was committed. Commonwealth v. Davis, 336 A.2d 616, 621 (Pa. Super. 1975).

On June 30, 2023, this court held a hearing on … Appellant's Motion for the Immediate Release of the Defendant, which has [sic] denied on the same date and filed of record on July 1, 2023. This court held that[,] given … Appellant's past conduct of absconding and the upcoming Gagnon II hearing on August 3, 2023, the Motion for Immediate Release was denied. On August 3, 2023, the [c]ourt found that … Appellant had violated the terms of his probation, and thus revoked his probation and then resentenced him to probation with restrictive conditions for a period of five years[,] as Appellant indicated that he was an addict and needed help. The restrictive portion of the sentence had been served, so immediate release was imposed provided Appellant had a suitable probation plan. He was also afforded the opportunity to obtain a new drug and alcohol evaluation to secure additional treatment, if appropriate.

Revocation Court Opinion (RCO), 10/20/23, at 1-4.

Herein, Appellant challenges his revocation sentence via three interrelated issues, which he describes as follows:

I. Whether the trial court erred in denying [Appellant's] motion for immediate release.

a. Whether [Appellant] should have been released on June 30, 2023, due to violations of his rights to due process of law? b. Whether the Commonwealth's delay in initiating probation revocation proceedings - until after his probation expired - was lawful?

c. Whether any delay in the initiation of probation proceedings may be attributable to … Appellant?

Appellant's Brief at 9 (unnecessary capitalization omitted).

Preliminarily, we note that "in an appeal from a sentence imposed after the court has revoked probation, we can review the validity of the revocation proceedings, the legality of the sentence imposed following revocation, and any challenge to the discretionary aspects of the sentence imposed." Commonwealth v. Wright, 116 A.3d 133, 136 (Pa. Super. 2015) (citation omitted). Further,

revocation of a probation sentence is a matter committed to the sound discretion of the trial court and that court's discretion will not be disturbed on appeal in the absence of an error of law or an abuse of discretion. When assessing whether to revoke probation, the trial court must balance the interests of society in preventing future criminal conduct by the defendant against the possibility of rehabilitating the defendant outside of prison. In order to uphold a revocation of probation, the Commonwealth must show by a preponderance of the evidence that a defendant violated his probation. The reason for revocation of probation need not necessarily be the commission of or conviction for subsequent criminal conduct. Rather, this Court has repeatedly acknowledged the very broad standard that sentencing courts must use in determining whether probation has been violated. A probation violation is established whenever it is shown that the conduct of the probationer indicates the probation has proven to have been an ineffective vehicle to accomplish rehabilitation and not sufficient to deter against future antisocial conduct.

Commonwealth v. Colon, 102 A.3d 1033, 1041 (Pa. Super. 2014) (cleaned up).

Because Appellant challenges the procedures used in determining that he had violated his probationary sentence, we enumerate the required procedures with particularity here. When a probationer is detained pending a revocation hearing, due process requires a determination at a pre-revocation hearing, called a Gagnon I hearing, that probable cause exists to believe that a violation has occurred. See Ferguson, 761 A.2d at 617 (citation omitted). When the revocation court finds probable cause, the court must hold a second, more comprehensive hearing, known as a Gagnon II hearing, before making a final revocation determination. Commonwealth v. DeLuca, 418 A.2d 699, 672 (Pa. Super. 1980).

The Gagnon II hearing entails two decisions, with the first being a consideration of whether the established facts warrant revoking probation. Morrissey v. Brewer, 408 U.S. 4710, 488 (1972). This determination is a wholly retrospective factual question: did the probationer in fact act in violation of one or more conditions of his probation? Gagnon, 411 U.S. at 784. Further, the Commonwealth's burden to prove a probation violation is less onerous than the burden of proof at a criminal trial; a probation violation is proven by a preponderance of the evidence presented. Commonwealth v. Reed, 285 A.3d 334, 337 (Pa. Super. 2022).

If it is determined that the probationer did indeed violate the conditions of his probation, the court must then consider whether the probationer must be recommitted to prison, or whether other steps should be taken to protect society and improve the probationer's chances of rehabilitation. Id. The Gagnon II hearing affords the probationer greater due process protections than those afforded in a Gagnon I hearing, including: (a) written notice of the claimed violations, (b) disclosure to the probationer of the evidence against him, (c) the opportunity to be heard and to present witnesses and evidence, (d) the...