By J. Patrick Hickey
Probation allows a person convicted of a crime to avoid incarceration and remain in the community under a probation officer’s supervision as long as the person agrees to follow certain terms and conditions imposed by the court. These conditions are imposed not only to protect the public, but also to assist with the individual’s rehabilitation and reintegration into society. In Pennsylvania, an individual can violate probation either through technical violations or new criminal offenses.
Technical Violations of Probation
A technical violation occurs when an individual violates the terms and conditions imposed by the court’s probation order. Although technical violations may vary depending on the terms and conditions in the probation order, the most common technical violations include failure to:
- Regularly meet with probation officer.
- Submit to or failing a drug test.
- Pay fines and/or restitution.
- Maintain employment.
If a probation officer suspects a violation, the officer has discretion to either issue a verbal warning to the individual or to file formal probation violation charges in the court of common pleas.
New Criminal Offenses
A primary condition of any probation order is that the individual not commit any new crimes during the probationary period. If an individual has been convicted of a new criminal offense committed during this time, the individual is not entitled to a probable cause hearing for the probation violation. Any conviction establishes probable cause that the individual violated probation.
Probable Cause Hearing
If the individual has not yet been convicted of any new criminal offenses but has been arrested and detained for a potential probation violation, the individual is entitled to a preliminary hearing to determine if there is probable cause that the individual violated probation. This preliminary hearing provides the individual with notice of the alleged probation violations and protects the individual from improper detention pending a finding of probable cause. To satisfy due process requirements, the individual is entitled to the following rights at the preliminary hearing:
- An uninvolved and independent decision maker.
- An opportunity to be heard.
- An opportunity to present evidence, including letters, documents, or witnesses.
- A limited right to cross-examine adverse witnesses.
- A written report of what occurs at the hearing.
An individual may waive his or her right to a probable cause hearing. Although this waiver establishes the existence of probable cause, the waiver does not, by itself, establish that the individual actually violated his or her probation.
Once probable cause is established at the preliminary hearing, the individual will then proceed to a revocation hearing in front of a judge at the court of common pleas. This second hearing is more comprehensive than the preliminary hearing and involves deciding:
- Whether the offender in fact violated one or more conditions of probation.
- Whether probation should be revoked or modified.
At the revocation hearing, a probation violation must be proven by a preponderance of the evidence, meaning the individual more likely than not violated the conditions of his or her probation. A violation is established when the offender’s conduct indicates that probation is an ineffective method of accomplishing rehabilitation and insufficient to deter antisocial conduct in the future.
Once a violation has been established, the judge then has broad discretion in deciding the penalty to be imposed. Under Pennsylvania law, all sentencing alternatives that were available during the initial sentencing are available to the judge during resentencing. Various sanctions include imprisonment, an extension of the probationary period, or a modification of the terms and conditions of probation.
If you or someone you know is facing a probation violation or has any questions regarding probation violations in Pennsylvania, we suggest you contact the criminal defense attorneys at Raffaele Puppio. Our extensive experience in dealing with various criminal matters, including probation violations, makes Raffaele Puppio the attorneys of choice for minimizing the potential penalties you face.
J. Patrick Hickey is a partner with Raffaele Puppio where he heads the firm’s litigation department. His litigation practice includes personal injury, automobile liability, construction accidents, workers’ compensation, and criminal defense.