reversing revocation order for new hearing where probationer was notified of substantive, but not technical, violations of probation
How later courts described this case
- reversing revocation order for new hearing where probationer was notified of substantive, but not technical, violations of probation
- “it would be a derogation of the minimum due process rights of an alleged probation violator to require him to raise lack of notice at a less-then-formal hearing or waive his right to do so.”
- failure to receive notice of reason for revocation hearing
- majority opinion by Price, J.
Written by the judges who cited it.
Distinguished
Distinguished by Commonwealth v. Parker, 250 Pa. Super. 346 (1977)
In this context, we must reject appellant’s reliance upon Commonwealth v. Alexander, 232 Pa.Super. 57, 331 A.2d 836 (1974), a case where the Majority of our Court reversed a revocation of probation wherein the lower court clearly relied, in part, upon “technical” violations of probation of which Alexander had no notice prior to the hearing.
The opinion
Dissenting Opinion by
Van deb Voort, J.:
The appellant, Henry L. Alexander, on December 6, 1971, entered pleas of guilty to two charges of burglary. After a pre-sentence investigation, appellant was sentenced to probation for a period of three years (upon payment of costs) on each of the two counts, said pro-bations to run consecutively.
On September 21, 1973, a Probation Violation Hearing was held, with no action taken on the alleged violation. The matter was continued instead on condition that appellant enroll at a drug rehabilitation center and work out a schedule for the payment of costs. Subsequently, appellant was arrested by the police on *63 charges of burglary, theft, and receiving stolen goods. Appellant’s probation officer discovered the fact of these arrests and lodged a detainer at the Delaware County Prison on January 18, 1974, for probation violation. The agent visited appellant at the jail on January 26, 1974, and orally advised appellant that he had violated his probation because of the arrest. A Probation Violation Hearing took place on February 1, 1974, at which time the probation violations were alleged to be:
(1) Appellant’s arrest on the strength of probable cause; and
(2) Appellant’s failure to report the arrest to the parole officer. At the conclusion of the hearing, the Court revoked appellant’s probation and sentenced appellant to serve two terms of imprisonment of two and one-half to five years, plus costs of prosecution, said sentences to run consecutively.
Appellant argues that his due process rights, as enumerated in Morrissey v. Brewer, 408 U.S. 471 , 92 S. Ct. 2593 , 33 L. Ed. 2d 484 (1972) and Commonwealth v. Kates, 452 Pa. 102 , 305 A. 2d 701 (1973), have been violated in that he was not given written notice of all the charges against him. (Appellant alleges other due process violations, but they are totally without merit.) Our Supreme Court has said that “the minimum due process requirements . . . include (a) written notice of the claimed violations of [probation]. . . .” 452 Pa. at 117-118 .
It is clear that appellant was informed orally that he had violated his parole by being arrested, but that he was never formally informed before the hearing itself that his failure to report the arrest would also be a charge against him.
Despite his belated claim that the violation of probation proceedings should be declared a nullity the *64 appellant has made no allegations that he was unaware that he had violated his probation by failing to inform his parole officer of his arrest; he has not alleged (nor can we define from the record) any prejudice to himself and he failed to object before the time of the hearing to the failure of the agent to specify the alleged violations in writing. These circumstances indicate that the want of written notice was not a matter of importance to appellant, and by his conduct he has waived his right to such notice.
I would not remand the case for a new hearing on the probation violation but would affirm the action of the trial court.
Cercione, J., joins.