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[U] Commonwealth v. Houser

Superior Court of Pennsylvania

February 27, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
DANIEL JAMES HOUSER, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order July 2, 2013 in the Court of Common Pleas of Northampton County Criminal Division at No.: CP-48-CR-0004118-2011

BEFORE: GANTMAN, J., OLSON, J., and PLATT, J. [*]

MEMORANDUM

PLATT, J.

Appellant, Daniel James Houser, appeals from the order of July 2, 2013, [1] revoking parole and remanding him to serve the balance of a sentence previously imposed for conviction of, inter alia, driving under the influence (DUI), 75 Pa.C.S.A. § 3802(c). We affirm.

On December 8, 2011, Appellant pleaded guilty to DUI-highest rate, possession of drug paraphernalia, and driving under suspension (DUS)-DUI related. The court sentenced him to a term of not less than 180 days nor more than sixty months' imprisonment for DUI, three months' probation for possession, and ninety days' incarceration for DUS, to be served concurrently. (See Sentencing Sheet, 12/08/11). On April 27, 2012, Northampton County DUI Probation approved Appellant's petition for parole, effective April 30, 2012. (See Order, 4/27/12).

On April 4, 2013, the court held a Gagnon I hearing, [2] where it determined that there was probable cause to believe that, in violation of the conditions of his parole, Appellant had failed to remain drug and alcohol free and had incurred new charges arising from a July 15, 2012 arrest for possession of a controlled substance.[3] (See Praceipe for Gagnon I Hearing, 4/02/13; Gagnon I Order, 4/04/13). On July 2, 2013, the court held a Gagnon II hearing, [4] where it found that Appellant had violated the conditions of his parole and ordered him to serve the balance of his sentence. (See Sentencing Sheet, 7/02/13). On July 9, 2013, Appellant filed a motion for reconsideration of sentence, which the trial court denied on July 10, 2013. Appellant timely appealed on July 24, 2013.[5] See Pa.R.Crim.P. 708(E).

Appellant raises five questions for our review:

1. Whether the sentence of [the trial court] for a second DUI conviction to serve the balance of five (5) years incarceration subject to parole to be determined by the Pennsylvania Board of Probation and Parole is unlawful where the maximum sentence for DUI conviction is six (6) months incarceration pursuant to Title 75 Pa.C.S. §3803(A)(1)?
2. Whether the trial court stated on the record the reasons for violating Appellant's parole, forfeiting street time, and resentencing Appellant to serve the balance of his term without eligibility for re-parole pursuant to Pa.R.Crim.P. Rule 708?
3. Whether Appellant was denied due process rights because he was not provided with written notice of the alleged parole violations prior to his Gagnon II hearing?
4. Whether the trial court failed to advise . . . Appellant of his right to file a motion to modify sentence and to appeal, of a time within which Appellant must exercise these rights, and of the right to assistance of counsel in preparation of the motion and appeal pursuant to Pa.R.Crim.P. Rule 708(D)(3)?
5. Whether the sentence of the trial court to serve the balance of five (5) years incarceration subject to parole to be determined by the Pennsylvania ...

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