holding defendant suffered no prejudice from delay in holding revocation of probation hearing where he pled guilty to charges which constituted probation violations; in addition, defendant was already incarcerated as result of prior convictions, therefore he was not subject to incarceration as result of any delay in revocation hearing
How later courts described this case
- holding defendant suffered no prejudice from delay in holding revocation of probation hearing where he pled guilty to charges which constituted probation violations; in addition, defendant was already incarcerated as result of prior convictions, therefore he was not subject to incarceration as result of any delay in revocation hearing
- holding defendant cannot establish prejudice merely by alleging court held probation revocation hearing after defendant’s period of probation expired
- holding defendant did not establish prejudice; he failed to show he was “subject to incarceration as a result of any delay in the revocation of probation hearing”
- no prejudice from delay where defendant was already incarcerated for other convictions
Written by the judges who cited it.
The opinion
*9 NIX, Chief Justice,
concurring.
I concur in the result reached by the majority. As the majority notes in footnote 4, appellant was incarcerated for other offenses at the time his probation on the 1980 burglary conviction expired. Therefore, there was no undue restraint placed upon appellant’s liberty because of the Commonwealth’s failure to hold the probation revocation hearing within the time prescribed by Pa.R.Crim.P. 1409. Appellant being unable to show actual prejudice as required by our recent decision in Commonwealth v. Pierce, 515 Pa. 153 , 527 A.2d 973 (1987), I would hold that his counsel below was not ineffective.
Were it not for Mr. Marchesano’s incarceration at the time his probationary period ended, I would be unable to agree with the conclusion reached by the majority of this Court and of the Superior Court that the delay constituted a “technical prejudice.” As this Court noted in Commonwealth v. Brown, 503 Pa. 514, 525 , 469 A.2d 1371 (1983), a revocation of probation hearing involves the question of whether the probationer will or will not be denied his liberty. Given the fundamental right the Commonwealth seeks to deprive the probationer of, this Court has mandated in Rule 1409 that any hearing for the purpose of revocation be held “as speedily as possible.” A failure to hold the revocation hearing within the prescribed period can never be properly deemed inconsequential, especially where the hearing is not held until after the expiration of the probationary period. Each day that a probationer must live with the specter of a further deprivation of his liberty beyond that period permitted by Rule 1409 is intolerable, just as it is intolerable for a criminal defendant to remain charged after his right to a speedy trial has been violated.
I therefore concur only in the result, and would reinstate the order of the court of common pleas.