TABLE OF CONTENTS

1. Caption
2. Introduction and Procedural History
3. Response to Allegations
4. Constitutional Rights and Gagnon Hearing Framework
5. Standard of Proof
6. Procedural Defenses
7. Mitigating Factors
8. Alternative Sanctions Proposed
9. Evidence and Witness List
10. Conclusion and Prayer for Relief
11. Certificate of Service

Caption

IN THE COURT OF COMMON PLEAS OF [________________________________] COUNTY
COMMONWEALTH OF PENNSYLVANIA
CRIMINAL DIVISION

Introduction and Procedural History

COMES NOW Defendant, [________________________________], by and through [his/her] attorney, [________________________________], Esq., PA Attorney ID No. [________], and hereby files this Response to the Alleged Violation of Probation.

1. On [__/__/____], the Defendant was convicted of / pleaded guilty to [________________________________] in violation of 18 Pa.C.S. § [________________________________], a felony / misdemeanor of the [____] degree.

2. On [__/__/____], the Court sentenced Defendant to a term of probation of [____] months/years pursuant to 42 Pa.C.S. § 9721 subject to standard and special conditions.

3. On [__/__/____], a Petition / Motion alleging Violation of Probation was filed, alleging:

a. [________________________________]

b. [________________________________]

c. [________________________________]

4. ☐ A Gagnon I hearing was held on [__/__/____] and the Court found / did not find probable cause.
   ☐ A Gagnon I hearing has not yet been held; one is scheduled for [__/__/____].

5. A Gagnon II hearing is scheduled for [__/__/____].

Response to Allegations

A. Classification of Alleged Violations

☐ Technical Violation(s): Allegation(s) [____] are technical violations of probation conditions.

☐ New Criminal Offense(s): Allegation(s) [____] allege commission of a new criminal offense.

B. Specific Responses

Allegation 1: [________________________________]

☐ Denied. The Defendant denies this allegation. [________________________________]

☐ Admitted with Explanation. The Defendant admits the factual basis but offers the following explanation: [________________________________]

☐ Admitted. The Defendant admits this allegation.

Allegation 2: [________________________________]

☐ Denied. [________________________________]

☐ Admitted with Explanation. [________________________________]

☐ Admitted. The Defendant admits this allegation.

Constitutional Rights and Gagnon Hearing Framework

The Defendant asserts the following rights under the two-tier Gagnon framework:

A. Gagnon I — Preliminary Hearing (Probable Cause)

1. A Gagnon I hearing must be held before a member of the Adult Probation staff within ten (10) court business days if the Defendant is incarcerated as a result of the violation.

2. The purpose is to determine whether there is probable cause to believe a violation occurred.

3. The Defendant is entitled to: notice of the alleged violation; an opportunity to appear and speak; an opportunity to present letters, documents, or individuals; and upon specific request, the opportunity to question adverse witnesses.

B. Gagnon II — Revocation Hearing

1. A Gagnon II hearing must be scheduled no later than 120 days after the officer files a motion requesting the hearing. 234 Pa. Code Rule 708.

2. The judge may not revoke probation on arrest alone, but only upon a finding of a violation after a hearing. 234 Pa. Code Rule 708.

3. Constitutional protections at Gagnon II include:
   - Written notice of the claimed violation. Morrissey v. Brewer, 408 U.S. 471, 489 (1972).
   - Right to representation by counsel. Gagnon v. Scarpelli, 411 U.S. 778 (1973).
   - Right to confront and cross-examine adverse witnesses. Morrissey, 408 U.S. at 489.
   - Right to present evidence and witnesses on Defendant's behalf.
   - Right to a written finding of fact.

Standard of Proof

The Commonwealth bears the burden of proving each alleged violation by a preponderance of the evidence. The Defendant submits the Commonwealth cannot meet this burden as to the denied allegations because:

[________________________________]

Procedural Defenses

The Defendant raises the following procedural defenses:

☐ Untimely Gagnon I. The Gagnon I hearing was not held within 10 court business days of incarceration as required.

☐ Untimely Gagnon II. The Gagnon II hearing was not scheduled within 120 days of the filing of the motion as required by 234 Pa. Code Rule 708.

☐ No Probable Cause. The Gagnon I hearing did not establish probable cause to believe a violation occurred.

☐ Total Confinement Not Authorized. Under 42 Pa.C.S. § 9771(c), the Court may only sentence to total confinement if: (1) the Defendant has been convicted of another crime; (2) the conduct indicates the Defendant poses a threat to public safety; or (3) the Defendant is otherwise unamenable to supervision. None of these conditions are met because: [________________________________].

☐ Other Procedural Defect: [________________________________]

Mitigating Factors

The Court should consider the following mitigating factors:

☐ Employment: Defendant is currently employed at [________________________________] since [__/__/____].

☐ Education: Defendant is enrolled in / has completed [________________________________].

☐ Treatment: Defendant is participating in [________________________________] since [__/__/____].

☐ Family: Defendant is the primary caretaker for [________________________________].

☐ Compliance: Defendant has substantially complied with all other conditions, including: [________________________________].

☐ Circumstances: The alleged violation occurred due to: [________________________________].

☐ Health: Defendant has medical/mental health conditions: [________________________________].

☐ Time Served: Defendant has served [____] of [____] months/years of probation without prior violations.

☐ Other: [________________________________]

Alternative Sanctions Proposed

In lieu of revocation and total confinement, the Defendant respectfully requests:

☐ Continuation of probation under existing terms and conditions.

☐ Modification / addition of probation conditions, specifically: [________________________________].

☐ Extension of probation period by [____] months.

☐ County intermediate punishment program.

☐ Community service of [____] hours.

☐ Enrollment in treatment program: [________________________________].

☐ Increased supervision/reporting requirements.

☐ Substance abuse testing at increased frequency.

☐ Short-term county incarceration of [____] days with continuation of probation.

☐ House arrest / electronic monitoring.

☐ Other: [________________________________]

Evidence and Witness List

A. Documentary Evidence

B. Witness List

1. [________________________________] — [relationship/title] — will testify regarding [________________________________].

2. [________________________________] — [relationship/title] — will testify regarding [________________________________].

3. [________________________________] — [relationship/title] — will testify regarding [________________________________].

Conclusion and Prayer for Relief

WHEREFORE, the Defendant respectfully requests that this Court:

☐ Dismiss the Violation of Probation in its entirety;

☐ Find that the Commonwealth has failed to meet its burden of proof;

☐ Find that total confinement is not authorized under 42 Pa.C.S. § 9771(c);

☐ Continue probation under existing or modified terms and conditions;

☐ Impose alternative sanctions in lieu of revocation;

☐ Grant such other and further relief as the Court deems just and appropriate.

Respectfully submitted,

Date: [__/__/____]

_____________________________________________
[________________________________]
Attorney for Defendant
PA Attorney ID No. [________]
[________________________________]
[________________________________]
[________________________________]
Telephone: [________________________________]
Email: [________________________________]

Certificate of Service

I hereby certify that on [__/__/____], a true and correct copy of the foregoing RESPONSE TO ALLEGED VIOLATION OF PROBATION was served upon:

☐ Hand-delivered to:
☐ Electronically filed and served via PACFile to:
☐ Mailed via U.S. Mail, postage prepaid, to:

[________________________________]
Assistant District Attorney
[________________________________] County District Attorney's Office
[________________________________]
[________________________________]

_____________________________________________
[________________________________]

Sources and References

• 42 Pa.C.S. § 9771 — Modification or Revocation of Probation
• 234 Pa. Code Rule 708 — Violation of Probation Hearing and Disposition
• Gagnon Hearings in Pennsylvania
• Gagnon v. Scarpelli, 411 U.S. 778 (1973)
• Morrissey v. Brewer, 408 U.S. 471 (1972)
• Commonwealth v. Ferguson, 761 A.2d 613 (Pa. Super. 2000)