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Commonwealth v. Wright

Superior Court of Pennsylvania

May 8, 2015

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
MICHELLE WRIGHT, Appellant

Page 134

Appeal from the Judgment of Sentence December 2, 2013. In the Court of Common Pleas of Philadelphia County. Criminal Division at No(s): CP-51-CR-0510561-2005.

BEFORE: BOWES, SHOGAN and FITZGERALD, [*] JJ.

OPINION

Page 135

BOWES, J

Michelle Wright appeals from the judgment of sentence of eleven and one-half to twenty-three months imprisonment followed by five years probation that the trial court imposed after she was found to be in violation of the terms of her probation. We find that Appellant had concluded serving her probationary term when the probation was revoked and that her violation of probation (" VOP" ) proceeding was not held within a reasonable period after her probation violations. We therefore vacate the judgment of sentence.

On November 14, 2005, Appellant entered a negotiated guilty plea to one count of welfare fraud in return for a sentence of three years of reporting probation and restitution in the amount of $13,967. No petition to revoke the probation appears in the record nor does the docket indicate that one was filed. A violation of probation (" VOP" ) hearing was conducted on December 2, 2013. At that time, the following occurred. Appellant objected to the court's jurisdiction to conduct a VOP hearing and claimed that her probationary period expired years before the hearing was conducted. The Commonwealth countered that Appellant absconded from probation during the probationary period so that Appellant remained subject to probation.

To establish Appellant's status as absconder, Probation Officer Brian Brown testified as follows. According to Appellant's probation records, Appellant reported to her probation officer until June 25, 2007, and paid $22.50 in restitution. Mr. Brown then testified that Appellant re-initiated contact with the probation office on December 2, 2009. N.T. VOP, 12/2/13, at 8 (" THE PROBATION OFFICER: It was noted that there was contact June 25, 2007, and then not until December 2, 2009." ); Id. at 18 (" I wrote down that she had contact on June 25, 2007, and didn't have contact again until December 2, 2009." ). Officer Brown could not testify personally as to these events, his testimony being premised upon notations in Appellant's probation records by her previous probation officer. Officer Brown testified that, " According to the last probation officer's notes, from 6/25/07 she absconded until December 2, 2009." Id. at 7-8.

The Commonwealth also reported to the trial court that Appellant had a direct violation of the terms of her probation in the form of 2013 federal convictions for bank fraud and conspiracy. Appellant objected to the Commonwealth's characterization of those convictions as probation violations and maintained that her probationary period had expired by 2013. The Commonwealth responded that Appellant was a probation absconder and that her probationary period had not expired. Based upon the 2013 federal convictions, the Commonwealth sought a term of incarceration.

Appellant then objected to the timeliness of the revocation proceedings. She also claimed that she could not be found to be a probation absconder because such a finding would be premised solely upon hearsay in her probation records consisting of the notations that she did not report from June 25, 2007, to December 2, 2009. The trial court concluded that Appellant violated her probation based upon technical violations as well as a direct violation, the federal convictions. It imposed " 11 and a half to 23 months incarceration with immediate parole to be followed by five years of reporting probation." Id. at 26.

Appellant filed a motion for reconsideration of the revocation decision and the sentence, that motion was promptly denied, and this timely appeal followed. She raises the following issues for our review:

1. Did not the trial court lack jurisdiction or authority to revoke appellant's

Page 136

probation, where that probation had naturally expired approximately five years prior to the revocation hearing and where the court's conclusion that appellant had absconded from supervision was not justified by the evidence?
2. Did not the trial court violate appellant's right to a speedy revocation hearing, where no allegations of technical violations were brought and no hearing was held until five years ...

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