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COMMONWEALTH PENNSYLVANIA v. JOSEPH MARCHESANO (06/21/85)

submitted: June 21, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
JOSEPH MARCHESANO, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Philadelphia County, Criminal Division, at No. 80-06-2700.

COUNSEL

Dennis J. Cogan, Philadelphia, for appellant.

Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Brosky, Watkins and Hoffman, JJ.

Author: Brosky

[ 348 Pa. Super. Page 392]

This appeal is from the judgment of sentence imposed after the revocation of appellant's probation. Appellant contends that he was denied his right to a speedy revocation hearing and that trial counsel was ineffective for failing to assert that claim at the probation revocation hearing. We agree with appellant that trial counsel was ineffective and, for the reasons that follow, remand the case for an evidentiary hearing.

Appellant was sentenced to two years probation for burglary on June 3, 1982. On December 29, 1983, in Montgomery County, appellant was arrested for and subsequently pled guilty to theft and simple assault. He was sentenced on May 5, 1984, to five years probation for the theft and two years probation for the simple assault.

On January 12, 1984, again in Montgomery County, appellant was arrested for and subsequently pled guilty to robbery.

[ 348 Pa. Super. Page 393]

He was sentenced to three and one-half to ten years incarceration for that crime on June 6, 1984.

The probation department apparently did not advise the court of these violations of its June 3, 1982 sentence of probation until September 10, 1984. A hearing was then scheduled for October 17, 1984, at which time appellant was not brought down from the State Correctional Institution at Dallas. The hearing was therefore continued until November 28, 1984, at which time appellant's probation was revoked and a sentence of two to four years imprisonment was imposed. This appeal timely followed.

Appellant argues that his right to a speedy revocation hearing under Pa.R.Crim.P. 1409 was violated.*fn1 The Commonwealth's response to this claim is that it has been waived by appellant's failure to raise it at the revocation hearing. For the reasons that follow, we agree with the Commonwealth.

In Commonwealth v. Alexander, 232 Pa. Super. 57, 331 A.2d 836 (1974), this Court held that another requirement central to a probation revocation hearing, that of written notice of the claimed violation,*fn2 was not subject to waiver because "it would be in derogation of the minimum due process rights of an alleged probation violator to require him to raise lack of notice at a less-than-formal hearing or waive his right to do so." Id., 232 Pa. Superior Ct. at 62, 331 A.2d at 839; see Commonwealth v. Kile, 237 Pa. Super. 72, 346 A.2d 793 (1975); Commonwealth v. Stratton, 235 Pa. Super. 566, 344 ...


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