The Benefit of Deferring Probation Revocation Hearings

Comm. v. Moriarty, 2018 PA 51 (Mar. 8, 2018)

The Benefit of Deferring Probation Revocation Hearings

This was an appeal out of Adams County. On appeal, Moriarty asserted that his attorney rendered ineffective assistance because of the advice he provided pertaining to a probation-revocation hearing.  These are the facts.

In 2014, Moriarty had previously pled to certain crimes for which he was sentenced to 1-to-23 months less a day (a county sentence), plus 12 months probation.  He was immediately paroled because of time that he had served during the pendency of his case, and one of the terms of his parole/probation was to refrain from committing any violation of the law.

While Moriarty was on parole, he was charged with new crimes to which he asserted his innocence.  As a result, the Commonwealth filed a motion for revocation of parole/probation.  The Commonwealth claimed the new charges constituted a “Rule 1 violation” (prohibition against committing any violation of the law).  Moriarty was appointed counsel for the revocation proceeding as well as the new charges.

Moriarty waived a Gagnon I hearing related to the parole violation.  (The name Gagnon comes from the U.S. Supreme Court case of Gagnon v. Scarpelli, 411 U.S. 778 (1973).  That case says a parolee or probationer awaiting a revocation hearing is entitled to a pre-revocation hearing where probable cause must be shown that a violation has been committed.) He then, later, waived his preliminary hearing on his new charges.  A week after that, Moriarty had a Gagnon II hearing, which is a more in-depth hearing to determine whether, in fact, a parole/probation violation occurred and whether revocation is warranted.  (As an aside, when a Gagnon II hearing happens before a defendant’s trial on new charges, the hearing is sometimes referred to as a “Daisey-Kates” hearing.)

At the Gagnon II hearing, the court asked Moriarty if he was acknowledging his violations because he in fact committed those violations.  Moriarty’s attorney interjected saying, “Because you got arrested on new charges,” and to that Moriarty said, “Yes.”  Accordingly, the court revoked Moriarty’s parole and sentenced him to the balance of 22 months and 28 days of jail time.  The court also imposed a new 12-month period of probation.

Moriarty never filed an appeal from the revocation proceeding, but he did file a petition for post-conviction relief (PCRA), claiming his counsel was ineffective, after a jury acquitted him on the new charges that were the basis for his parole revocation.  A PCRA hearing was held.  There, Moriarty testified that (1) he told his lawyer he was innocent of his new charges; (2) his lawyer never informed him that he could defer the Gagnon II hearing; (3) his lawyer told him to acknowledge his arrest on the new charges so he could get work release; (4) he believed he was confirming at the Gagnon II that he had only been arrested on new charges; and (5) his lawyer did not inform him that an arrest on new charges alone was insufficient to justify revocation of parole/probation.

Moriarty’s lawyer also testified.  He stated (1) that he was appointed for purposes of Moriarty’s probation-revocation hearing and his new charges; (2) he spent roughly an hour talking with Moriarty about both cases; (3) Moriarty was “very concerned” about his employment and stressed he wanted work release; (4) he told Moriarty that if he deferred the Gagnon II hearing he would be ineligible for work release, but if he went ahead with the revocation proceeding and then made bail on the new charges, he could be eligible for work release; and (5) Moriarty acknowledged his arrest on new charges was sufficient to revoke his parole/probation when coupled with a waiver of his preliminary hearing on the new charges.

Based on this record, the Superior Court held that Moriarty’s attorney was ineffective.  The Superior Court said,

Importantly, [Moriarty’s] waiver of a Gagnon I hearing on the new charges, and/or his waiver of a preliminary hearing on the new charges, are individually and cumulatively insufficient to warrant revocation of parole/probation, under the circumstances.

An arrest on new charges, without some evidence of some facts in addition, is not enough for revocation of parole or probation.  The Superior Court seemed surprised that Moriarty’s counsel did not defer the Gagnon II hearing until after the trial on the new charges since doing so would have avoided the unjust eventuality that occurred here—that is, Moriarty was revoked on his new charges but subsequently acquitted of those charges.

Considering this and the fact that Moriarty’s attorney failed to explain why he believed Moriarty could have been eligible for work release if he followed the course he did, the Superior Court found counsel’s advice on this topic to be “dubious.”  For these reasons, the Superior Court found Moriarty was prejudiced by his counsel’s advice, so it reversed his revocation sentence.