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COMMONWEALTH v. CLARK (09/19/73)

decided: September 19, 1973.

COMMONWEALTH
v.
CLARK, APPELLANT



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1967, Nos. 1537 and 1538, in case of Commonwealth of Pennsylvania v. Izell Clark.

COUNSEL

Martin A. Ostrow, for appellant.

James T. Ranney and Milton M. Stein, Assistant District Attorneys, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Cercone, J.

Author: Cercone

[ 225 Pa. Super. Page 172]

On April 28, 1967, appellant Izell Clark was arrested and charged with two counts of larceny, receiving stolen goods, and conspiracy. Appellant pleaded guilty to the aforesaid charges and was given a sentence on November 6, 1967 of two years probation on each bill, both sentences to run concurrently.

On December 6, 1967, appellant was arrested on a charge of shoplifting. The probation officer entered a detainer and subsequently a violation of probation hearing was scheduled for March 8, 1968 at which appellant failed to appear. Appellant was again arrested on February 18, 1970 and held for court on additional charges of larceny, receiving stolen goods, and conspiracy. A probation revocation hearing was held on March 24, 1970, less than five weeks after he was apprehended, at which time appellant's probation was revoked and he was given a new sentence based on his failure to report to the probation officer from the time he was initially placed on probation. From March 8, 1968 until he was again arrested on February 18, 1970, appellant, as conceded by his counsel at the probation violation hearing, purposely avoided the probation office authorities for fear that he was going "to be sent away".

Appellant contends that his new sentence at the revocation of probation hearing is invalid because it was not imposed with reasonable promptness.

[ 225 Pa. Super. Page 173]

If the probationary period ended two years after his initial arrest on April 28, 1967, then the revocation of probation and new sentence were recorded eleven months after the probationary period had expired. If the probationary period ended two years after the date of sentence, then four and one-half months had elapsed beyond the probationary period.

With respect to sentences imposed after the expiration of the probationary period based upon a violation occurring within the period, the implications are clear under our statute*fn1 that, for such a violation occurring within the probationary period, the probation may be revoked within a reasonable time after the expiration of that period. Commonwealth v. Fox, 69 Pa. Superior Ct. 456 (1918). In Commonwealth v. Duff, 201 Pa. Superior Ct. 387, 394-5, 192 A.2d 258, reversed on other grounds, 414 Pa. 471, 200 A.2d 773 (1964), this court set forth the circumstances under which a revocation was permissible after the expiration of the probationary period, stating: "It seems obvious that a violation which takes place on the last day of the probationary period, or so near the end of the probationary period that the court cannot act within the period, should be punishable by a revocation of the probation thereafter. Similarly, a serious violation of the terms of probation which occurs under circumstances which prevent it from coming to the attention of the probation authorities or the court until after the expiration of the probationary period, should be punishable promptly after the court learns of it. . . . In each such case, the question reduces to whether the delay in the revocation and the imposition of the prison sentence is reasonable. It is sufficient that the court which imposed the probation should act promptly after the violation is discovered

[ 225 Pa. Super. Page 174]

    or, in the case of an accusation of crime, after the conviction, even though the probationary ...


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