Appeal from the Judgment of Sentence entered May 15, 1985, Court of Common Pleas of Philadelphia County, Criminal Division at No. 79-12-0143.
David L. Pallett, Philadelphia, for appellant.
Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
McEwen, Johnson and Watkins, JJ.
[ 362 Pa. Super. Page 278]
We are called upon to consider whether a defendant's right to a speedy probation revocation hearing is enjoined where that hearing is held after the expiration of the probationary term and no reasons for a delay in holding the hearing are offered. We also must decide whether counsel was ineffective for failing to object to an unexplained delay in holding a probation revocation hearing. We find that Stancil's right to a speedy revocation hearing was violated and that counsel was ineffective for failing to raise this objection.
On August 28, 1980, Stancil was found guilty of simple assault and recklessly endangering another person. Stancil was subsequently sentenced on November 30, 1980 to two (2) years probation and ordered to pay restitution to the victim in the amount of $359.22. On May 15, 1985 following a violation of probation hearing, Stancil's probation was revoked and a new two (2) years probation imposed. Stancil
[ 362 Pa. Super. Page 279]
was further ordered to make restitution to the victim in the amount of $359.22 to be paid in monthly amounts of $50.00 commencing on August 15, 1985. This timely appeal followed.
The Statement of Questions Involved set forth in appellant's brief presents five issues for our review:
1. Did undue and unreasonable delay result when a violation of probation hearing for failure to pay restitution was not held until five years after conviction and three years after the end of the two year probationary term.
2. Did ineffective assistance of counsel result where counsel representing the defendant at the 1985 violation of probation hearing failed to raise the issue of unreasonable delay in holding said hearing.
3. Did the District Attorney's Office and Probation Department demonstrate a lack of due diligence where said officials failed until after the expiration of the probationary period to request a violation of ...