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COMMONWEALTH PENNSYLVANIA v. WALTER CARTER (01/05/87)

submitted: January 5, 1987.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
WALTER CARTER, APPELLANT



Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 709 & 713 July Term, 1983.

COUNSEL

John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.

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

Wieand, Tamilia and Hester, JJ.

Author: Wieand

[ 362 Pa. Super. Page 72]

Walter Carter was tried by jury and was found guilty on two counts of simple assault.*fn1 On May 9, 1985, he was sentenced to two consecutive, two year terms of probation. On August 16, 1985, Carter was arrested and charged with aggravated assault, simple assault, recklessly endangering another person, and possession of an instrument of crime. On October 21, 1985, Carter and his attorney appeared before the court for a preliminary or Gagnon I hearing to enable the court to determine whether probable cause existed for believing that Carter had violated the terms of his probation by committing one or more new offenses. During the course of this hearing, the court learned that Carter had failed to report as ordered during probation. Upon learning this fact, the court immediately revoked probation and imposed a sentence requiring Carter to serve concurrent terms of imprisonment for not less than one year nor more than two years.*fn2 The later charges, which had led to the Gagnon I hearing, were subsequently dismissed by the Municipal Court of Philadelphia.

Carter filed an appeal from the order revoking probation and imposing a sentence of imprisonment. He argues (1) that the court erred when it summarily revoked probation without prior written notice that he was being accused of technical violations; and (2) that because he cannot now receive a speedy revocation hearing, the convictions for simple assault should be vacated and he should be discharged.

We must initially determine whether, as the Commonwealth contends, the alleged irregularity in the probation violation proceeding is moot. The sentence of imprisonment imposed for probation violation has been fully served, and the parole period has now expired. Because there are

[ 362 Pa. Super. Page 73]

    collateral consequences which remain, however, we conclude that the validity of the probation violation adjudication is not a moot issue.

In Commonwealth v. Sheehan, 446 Pa. 35, 285 A.2d 465 (1971), the Supreme Court held that when a criminal sentence has been fully satisfied, a collateral attack upon the underlying conviction is not moot and can be considered if it is shown that the criminal sentence may directly affect any subsequent criminal prosecution or conviction. This rule was later extended to have application even if one could not show any criminal consequences, but could show actual or potential civil consequences. See: Commonwealth v. Rohde, 485 Pa. 404, 402 A.2d 1025 (1979); Commonwealth v. Doria, 468 Pa. 534, 364 A.2d 322 (1976). See also: Commonwealth v. Markley, 348 Pa. Super. 194, 501 A.2d 1137 (1985). Although these cases involved attacks upon the underlying convictions, the principles announced therein are equally applicable where, as here, an attack is made upon an order revoking probation and imposing a sentence of imprisonment. See: Nickens v. Board of Probation & Parole, 93 Pa. Commw. 313, 317 n. 8, 502 A.2d 277, 278 n. 8 (1985) (future consequence rule applied where challenge involved order revoking parole). See also: Commonwealth v. Adams, 350 Pa. Super. 506, 519, 504 A.2d 1264, 1271 (1986) (same principles of mootness applied where challenge involved legality of sentence); Commonwealth v. Kelly, 274 Pa. Super. 242, 245, 418 A.2d 387, 388 (1980) (collateral consequence rule applied where defendant challenged sentencing court's interpretation of his sentence).

In the instant case, the revocation of Carter's probation and the subsequent imposition of sentence would have potential criminal consequences if Carter were subsequently to be convicted and sentenced for another offense. The fact that it had previously been determined that he was a poor probation risk would most certainly appear in a presentence report and would be given consideration in imposing ...


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