For the Defense - Vol. 9, Issue 4 - 21

Note that nothing in this subsection provides that an arrest
is sufficient to establish a violation. Thus, the mandates of
Morrissey v. Brewer6
period of 14 days.
and Commonwealth v. Kates7
would still
stand-meaning, competent evidence must be presented to
establish a technical violation has been committed.
Of all the amendments to Section 9771(c), it may be sections
(E) and (F) that present the greatest opportunities in terms of
advocacy and changed outcomes going forward. Long periods
of absconding have long been known to result in sentences of
incarceration for defendants as courts have sought to vindicate
their authority and try to " send a message " that absconding
is not tolerated. In the wake of Act 44, however, a longer
period of absconding, but one that is met with a defendant's
subsequent rehabilitation and stability, may very well result in
lower rates of incarceration if defense counsel can establish
that there are least restrictive means available. To illustrate, if a
defendant has been absconding for five years but in the interim
has completed treatment, enrolled in school or gotten a job,
entered into a stable relationship, has housing or demonstrates
similarly pro-social behaviors, that is likely to be evidence
that can help support a non-incarceration sentence. When
combined with the original presumption against confinement
as initially laid out in Section 9771(c), there are now significant
tools in the defense counsel's arsenal to be able to argue for a
non-custodial sentence.
Similarly, failure to comply with treatment has long been
used as justification for re-incarcerating individuals. Through
Act 44, the legislature has built in a grace period such that a
defendant cannot even be considered for a custodial sentence
until there have been three or more failures to comply. The
Act clarifies in Section 9771(c)(iii)(f), that for purposes of this
subsection, multiple technical violations stemming from the
same episode of events shall not constitute separate technical
violations. That language alone is something to celebrate as it
affords criminal defendants struggling with issues of addiction
a built-in form of forgiveness and grace as they navigate the
process of sobriety. Like subsection E, subsection F also requires
that a judge find that the defendant cannot be safely diverted
through less restrictive means. By making this section so
explicit, the legislature has made clear we should be prioritizing
different treatment modalities over incarceration.
Limitations on Sentences of Total Confinement for Technical
Violations
In addition to creating a presumption against total
confinement for technical violations and specifically
enumerating the types of violations that would permit a
sentence of total confinement, Act 44 goes one step further
to set concrete limits on the type of sentence a defendant may
receive upon revocation:
Section 9771(c)(2): If a court imposes a sentence
of total confinement following a revocation,
the basis of which is for one or more technical
violations under paragraph (1)(ii) or (iii), . . . .8
The
defendant shall be sentenced as follows:
(i): For a first technical violation, a maximum
(ii): For a second technical violation, a maximum
period of 30 days.
(iii): For a third or subsequent technical violation,
the court may impose any sentencing alternatives
available at the time of initial sentencing.
(iv): Additional total confinement, not to exceed
30 days, where necessary to allow a defendant to
either be evaluated for or to participate in drug
or mental health treatment or a problem-solving
court.
A few important notes as it relates to this section. First, the
section establishes statutory maximum sentences. That means
the maximum sentence for a first violation is 7-14 days, not
11.5 to 23 months incarceration with parole after 14 days. So,
if there is a resentencing after the effective date of the statute,
the new sentence must comply with these statutory limits.
Second, as for the sentence itself upon revocation, this is
likely to have one, perhaps unintended, consequence: a lot of
really ugly sentences. Upon violating a three-year probation
tail, judges are unlikely to simply sentence to the 7-14 days for
a first technical or the 15-30 days for a second technical. Much
more likely is 7-14 days followed by a new three-year probation
tail (otherwise there might be a perverse incentive to violate if
you could reduce your three year sentence down to 14 days...).
Anecdotally, we have seen judges sentence defendants upon
violation to 7-14 days or 15-30 days with nothing else put on the
record. Because this is a resentencing, and not a modification or
imposition of back time, the probations that were violated do
not automatically remain. The judge must resentence to new
probation on top of the carceral sentence; but if a new order of
probation does not make it onto the record, your client may be
the beneficiary of that.
Third, where a defendant is held only on a detainer for a
violation of probation matter and has been in custody for longer
than the limits prescribed in Section 9771(c)(2), a writ of habeas
corpus petitioning for release should be filed. In that instance,
the defendant has served more than the maximum sentence
allowed by law and is now the subject of an illegal detention.
Note, that while some probation departments have taken the
position that the limits do not apply to defendants being held
on a detainer because they are not serving a sentence of total
confinement, the fact remains that if they were sentenced, they
would be serving beyond the statutory maximum. Thus, their
continued detention awaiting a violation of probation hearing
(and sentencing) is illegal.
Legal Ambiguity Within Section 9771: What is a " first "
technical violation?
While Section 9771 provides some clear avenues of relief as
it relates to violation of probation matters, the legislature was
not entirely clear as it relates to certain subsections. One of the
main areas of litigation related to this ambiguity is likely to
be the definition of a " first, " " second, " or " third " technical
violation as those terms are used in Section 9771(c)(2).
Vol. 9, Issue 4 l For The Defense 21
For the Defense - Vol. 9, Issue 4

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