For the Defense - Vol. 8, Issue 4 - 26

Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
* Request discovery early and in writing. That way,
if the Commonwealth fails to provide requested
discovery, any required continuance will be on
the prosecution. If you have to follow-up with the
Commonwealth about discovery they have failed to
hand over, be sure to memorialize such requests in
a writing such as an email.
* If a continuance is required due to the
Commonwealth's failure of diligence, be sure to
put that on the record at the time the continuance
is requested. Even if the judge does not rule in
your favor, you have at least preserved the issue for
appeal.
365-day period has elapsed. If the trial judge rules
against you and subsequently the Commonwealth
causes another substantial period of delay, file
a new Rule 600 motion based on this additional
time and litigate it prior to any trial to preserve an
objection to the additional time period.
Know the order of services of sentences contained in the Parole
Code and make sure your client is physically located in the correct
jurisdiction to serve his sentence in the correct order. A twentyyear
federal sentence is hard to do. It is exponentially worse if
one is walking that off with a Board detainer keeping him out of
institutional programming and supervised release to a half-way
house.
Prepare your client for the revocation hearing.
While the parole violator has a right to a revocation hearing, that
Using the strategy above, people both in and
outside my office have had tremendous success with
Rule 600 motions. Oftentimes, just making it plain
to the Commonwealth that you intend to seriously
litigate this issue can get you results. It is only one
weapon in your arsenal, but because a win means
discharge, it is a potent weapon that should never
be overlooked.
NOTES:
1
Cmwlth. 2005).
5
Super. Ct. 2020).
6
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250-51, 501 A.2d 1110, 1111 (1985).
8
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61 Pa. C.S.A. § 6138 (c).
right can be waived by the inmate despite the lack of provisions for
waiver in the Board's regulations.33
Most convicted parole violators,
for whatever reason, elect to waive their revocation hearings.
Your client has a statutory right to the free representation of the
public defender of the county where his revocation hearing will be
held.34
NOTES:
1
4
You might suggest discussing the issue with that attorney
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
prior to waiving important rights. Sometimes it's better for the
convicted parole violator to immediately accept responsibility and
try to fly under the radar, but there are occasions when a counselled
presentation of mitigation can benefit the offender at his revocation
hearing. This is especially true as the Board now has the discretion
not to take the parole liberty credit from a parolee convicted of
a non-violent offense. The decision to waive the hearing should
always be a tactical choice of the parolee.
File your client's motion after the
While a state parolee may not relitigate his new conviction or
collaterally attack it at his revocation hearing,35
he is entitled to
present facts to the Board which may mitigate against the Board
sanction.36
* At the Rule 600 hearing, after the defense has
made a prima facie showing that the defendant
has not been brought to trial within 365 days,
the Commonwealth bears the burden of proving
that they have nonetheless acted with diligence.
This means that after the defense has made such
a prima facie showing, it is the Commonwealth
who should be required to put on its evidence
and the defense should only argue after the
Commonwealth has done so. Essentially, a Rule 600
hearing should proceed in form almost identically
to a suppression hearing. If the judge asks you
to argue prior to the Commonwealth's evidence,
make it clear that you could not possibly argue
on behalf of your client until you know what the
Commonwealth's evidence of diligence is.
If there are documents which tend to mitigate his conduct
in the offense tell him to share that with his parole revocation
counsel. If you prepared a sentencing memorandum which outlined
positive things your client has done in his life, he can submit that
as dispositional evidence. Too often, the only things the revocation
panel has to consider before making its decision are parole agent
reports documenting every misstep made on supervision and the
criminal complaint's description of the new offense.
One final thing to consider is the possibility of extending your
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
Smith v. Com., Pennsylvania Bd. of Prob. & Parole, 524 Pa. 500, 505, 574
3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
Cmwlth. 1996).
11
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Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
* Request discovery early and in writing. That way,
if the Commonwealth fails to provide requested
discovery, any required continuance will be on
the prosecution. If you have to follow-up with the
Commonwealth about discovery they have failed to
hand over, be sure to memorialize such requests in
a writing such as an email.
5
* If a continuance is required due to the
Commonwealth's failure of diligence, be sure to
put that on the record at the time the continuance
is requested. Even if the judge does not rule in
your favor, you have at least preserved the issue for
appeal.
representation through the revocation hearing itself. Passaro made
the local public defender ultimately responsible for providing
representation at a state parole revocation hearing, but it did not
grant a monopoly to that office. Pasarro was based on the financial
absurdities of requiring counsel to " travel the width and breadth of
this Commonwealth " to attend a revocation hearing at a distant SCI.
Worse, in the view of the court, are the costs and security concerns
of bringing that state inmate back to his county of sentence.
365-day period has elapsed. If the trial judge rules
against you and subsequently the Commonwealth
causes another substantial period of delay, file
a new Rule 600 motion based on this additional
time and litigate it prior to any trial to preserve an
objection to the additional time period.
Barker v. Wingo, 407 U.S. 514, 530 (1972) (articulating the
constitutional test); Commonwealth v. Preston, 904 A.2d
1, 10 (Pa. Super. Ct. 2006) (the Barker test is an entirely
separate analysis from Rule 600 and therefore needs to be
raised separately).
A.2d 558, 561 (1990).
12
37 Pa. Code § 75.2.
13 53 Pa. Bull. 4585 (Aug. 26, 2023).
A.2d 146, 148-49 (1984).
15
61 Pa.C.S.A. § 6181.
(Pa. Cmwlth. 1979).
18
Cmwlth. 2021)
19
Pa.R.Crim.P. Rule 600(2)(a); see also Commonwealth
v. Kearse, 890 A.2d 388, 395 (Pa. Super. Ct. 2005) (no
" prejudice " need be shown to obtain Rule 600 dismissal).
While Rule 600 has a more definitive time period, the sole
focus of Rule 600 is on the action of the Commonwealth.
Thus, a constitutional argument should be forwarded
when a delay prejudices a defendant and that delay was
primarily caused by the courts.
16 61 Pa.C.S.A. § 6137(a)(2).
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365-66, 487 A.2d 90, 95-96 (1985).
20
6 Pa.R.Crim.P. Rule 600(D)(1). 2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
61 Pa.C.S.A. § 6138(a)(5).
NOTES:
1
4
HEXIDECIMAL
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
About the Author
Click here to view and/or print the
778, 781 (1991).
22
299, 304 (2003).
24
full notes section for this article.
File your client's motion after the 61 Pa. C.S. § 6138 (a) (5).
568, 571 (1980).
26
Cmwlth. 2015).
28
A.2d 778 (1991).
29
#153A5B
#EAC137
O'Hara v. Com., Pennsylvania Bd. of Prob. & Parole, 87 Pa.Cmwlth. 356,
61 Pa.C.S.A. § 6138(a)(5).
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21 Bailey v. Com. Bd. of Prob. & Parole, 140 Pa.Cmwlth. 108, 113, 591 A.2d
3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
23 Martin v. Pennsylvania Bd. of Prob. & Parole, 576 Pa. 588, 597, 840 A.2d
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
Com. v. Zuber, 466 Pa. 453, 457, 353 A.2d 441, 443 (1976); Kerak v.
Pennsylvania Bd. of Prob. & Parole, 153 A.3d 1134, 1139 (Pa.Cmwlth. 2016);
5
Com. v. Kelley, 2016 Pa. Super. 64, 136 A.3d 1007, 1012 (Pa. Super. Ct. 2016).
25
27 Wilson v. Pennsylvania Bd. of Prob. & Parole, 124 A.3d 767, 770 (Pa.
Barker v. Wingo, 407 U.S. 514, 530 (1972) (articulating the
constitutional test); Commonwealth v. Preston, 904 A.2d
1, 10 (Pa. Super. Ct. 2006) (the Barker test is an entirely
separate analysis from Rule 600 and therefore needs to be
raised separately).
Bailey v. Pennsylvania, Bd. of Prob. & Parole, 140 Pa.Cmwlth. 108, 591
Martin v. Pennsylvania Bd. of Probation and Parole, 576 Pa. 588, 840 A.2d
299 (2003).
Pa.R.Crim.P. Rule 600(2)(a); see also Commonwealth
v. Kearse, 890 A.2d 388, 395 (Pa. Super. Ct. 2005) (no
" prejudice " need be shown to obtain Rule 600 dismissal).
While Rule 600 has a more definitive time period, the sole
focus of Rule 600 is on the action of the Commonwealth.
Thus, a constitutional argument should be forwarded
when a delay prejudices a defendant and that delay was
primarily caused by the courts.
6 Pa.R.Crim.P. Rule 600(D)(1).
* If the Commonwealth appears at the Rule 600
hearing and does not present any evidence that
it acted with diligence-for instance, they did not
bring in the officer to testify to the attempts made
to find and apprehend the defendant-argue that
they have not met their burden because the burden
of proof includes the burden of production and
arguments of counsel are not evidence.
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* If the Commonwealth appears at the Rule 600
#153A5B
#EAC137
As a result, the system provides alleged state parole violators
with an attorney who knows comparatively little about him and
his new conviction. Assigning counsel in this fashion continues
but the practical reasons for it were eliminated by Act 59 of
2021 which codified a Board practice instituted at the beginning
of the COVID shut down to conduct all revocation hearings " via
videoconferencing or similar virtual presence technology. " 37
The
primary focus of most revocation hearings is mitigation. Who better
to present mitigation to the Board than the attorney who worked
the case to uncover reduced culpability and successfully used that
information to resolve the case?
* At the Rule 600 hearing, after the defense has
made a prima facie showing that the defendant
has not been brought to trial within 365 days,
the Commonwealth bears the burden of proving
that they have nonetheless acted with diligence.
This means that after the defense has made such
a prima facie showing, it is the Commonwealth
who should be required to put on its evidence
and the defense should only argue after the
Commonwealth has done so. Essentially, a Rule 600
hearing should proceed in form almost identically
to a suppression hearing. If the judge asks you
to argue prior to the Commonwealth's evidence,
make it clear that you could not possibly argue
on behalf of your client until you know what the
Commonwealth's evidence of diligence is.
About the Author
and trial units. Katherine graduated Magna Cum
Laude from Loyola Law School, New Orleans
in 2007 and was on law review. She practiced
at Kaufman, Coren & Ress in Philadelphia out
of law school, and thereafter did work in the
intersection of horseracing law and §1983 for a
number of years before following her passion
for indigent criminal defense.
Share this article
About the Author
Click here to view and/or print the
full notes section for this article.
Katherine Ernst is an
appellate attorney with the
Montgomery County Public
Defender's Office. She
handles appeals from all
units, juvenile to homicide,
and she also formulates
legal strategy for pre-trial
Mr. David Crowley has been a PACDL
member since 1988, was its secretary for
the first decade of this millennium and is
the proud recipient of its 2006 Alan Jay
Josel Advocacy Award. He has been the
chief public defender of Centre County
since 1989 where his practice currently
focuses on appellate work and the state
parole revocation hearings held at SCI
Rockview and SCI Benner Township.
Katherine Ernst is an
appellate attorney with the
Montgomery County Public
Defender's Office. She
handles appeals from all
units, juvenile to homicide,
and she also formulates
legal strategy for pre-trial
and trial units. Katherine graduated Magna Cum
Laude from Loyola Law School, New Orleans
in 2007 and was on law review. She practiced
at Kaufman, Coren & Ress in Philadelphia out
Vol. 4, Issue 4 l For The Defense 9
Gaito v. Pennsylvania Bd. of Prob. & Parole, 488 Pa. 397, 403-04, 412 A.2d
17 Kunkleman v. Pennsylvania Bd. of Probation and Parole, 396 A.2d 898
Snyder v. Pennsylvania Bd. of Prob. & Parole, 701 A.2d 635, 636 (Pa.
Cmwlth. 1997); Williams v. Pennsylvania Parole Bd., 266 A.3d 1215 (Pa.
Using the strategy above, people both in and
outside my office have had tremendous success with
Rule 600 motions. Oftentimes, just making it plain
to the Commonwealth that you intend to seriously
litigate this issue can get you results. It is only one
weapon in your arsenal, but because a win means
discharge, it is a potent weapon that should never
be overlooked.
14 Corley v. Pennsylvania Bd. of Prob. & Parole, 83 Pa. Commw. 529, 533, 478
#EAC137
CMYK
9 Krantz v. Com., Pennsylvania Bd. of Prob. & Parole, 86 Pa.Cmwlth. 38,
90/78/39/30
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9/22/91/0
Duncan v. Pennsylvania Bd. of Prob. & Parole, 687 A.2d 1179, 1180 (Pa.
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
42-43, 483 A.2d 1044, 1047-48 (1984).
10
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Com. v. Romolini, 384 Pa.Super. 117, 131, 557 A.2d 1073, 1080 (1989).
2 61 Pa.C.S. § 6138(a)(1).
3 61 Pa.C.S. § 6138(a)(1.1).
4 Adams v. Pennsylvania Bd. of Prob. & Parole, 885 A.2d 1121, 1125 (Pa.
Commonwealth v. Brown, 2020 PA Super 241, 240 A.3d 970, 974 (Pa.
Noah Fox #650-HG.
7 Rivenbark v. Com., Pennsylvania Bd. of Prob. & Parole, 509 Pa. 248,
https://nxt-staging-books.s3.amazonaws.com/nxtbooks/PACDL/FORTHEDEFENSE_vol8_issue4_2023/src/docs/Six_Suggestions.Crowley_Notes_FINAL.pdf
For the Defense - Vol. 8, Issue 4

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