Commonwealth v. Moriarty
180 A.3d 1279
Pa. Super. Ct.2018Background
- In July 2014 Moriarty pled guilty to REAP and resisting arrest, was sentenced (1–23 months+29 days for REAP; concurrent 12 months probation) and immediately paroled; parole/probation prohibited any law violations.
- New charges (aggravated assault, terroristic threats, simple assault, harassment) were filed while he was on parole (docket 521-2016); Commonwealth moved to revoke parole/probation based solely on those new charges.
- Moriarty waived the Gagnon I (probable-cause) hearing and the preliminary hearing on the new charges; on advice of appointed revocation counsel he proceeded to a Gagnon II hearing and "acknowledged" the violation on April 28, 2016.
- The court revoked parole and recommitted him to serve the remaining sentence (22 months, 28 days) and reimposed probation on the resisting-arrest count; Moriarty did not appeal; later a jury acquitted him of all new charges on December 6, 2016.
- Moriarty filed a timely pro se PCRA petition claiming revocation counsel ineffective for advising him to acknowledge the violation before trial; PCRA hearing held April 20, 2017; trial court denied relief; Moriarty appealed.
- Superior Court reversed: found counsel ineffective (no reasonable basis for advising Gagnon II before trial given arrest alone, waived prelim, and lack of factual proof), vacated revocation sentence, and remanded for recalculation of credit.
Issues
| Issue | Moriarty's Argument | Commonwealth/Trial Court Argument | Held |
|---|---|---|---|
| Whether counsel was ineffective for failing to advise that Moriarty could defer revocation until after trial | Counsel failed to tell him deferral was available and advisable when he maintained innocence | Court/Commonwealth contended counsel had strategic basis (work-release eligibility) and Moriarty waived hearings | Held: Counsel ineffective; deferral was a reasonable option and counsel offered no adequate basis for advising against it |
| Whether counsel misadvised about the sufficiency of an arrest (and prelim waiver) to support revocation | Arrest and waiver of preliminary hearing are insufficient to meet preponderance; counsel misrepresented this | Commonwealth relied on acknowledgment + prelim waiver/waiver of Gagnon I as sufficient | Held: Arrest plus waivers, without additional facts, insufficient for revocation; counsel's advice was flawed and had arguable merit |
| Whether counsel had a reasonable strategic basis (work-release eligibility) for advising revocation hearing | Counsel’s work-release rationale was unreasonable and unsupported by county policy; counsel failed to verify eligibility | Commonwealth asserted counsel sought better work-release prospects if Moriarty made bail | Held: No adequate record support for the claimed strategy; counsel’s basis was dubious and not shown reasonable |
| Prejudice: Whether different advice would likely have avoided revocation and loss of street time | If counsel had advised deferral, revocation likely would not have occurred; acquittal shows prejudice | Commonwealth argued procedural waivers limited relief or that issues were preserved poorly | Held: Prejudice established — vacatur warranted because revocation was based on nonexistent proven violation; relief granted |
Key Cases Cited
- Gagnon v. Scarpelli, 411 U.S. 778 (U.S. 1973) (due process requires preliminary probable-cause and full revocation hearings)
- Commonwealth v. Sims, 770 A.2d 346 (Pa. Super. 2001) (revocation requires violation proven by preponderance; arrest alone may be insufficient)
- Commonwealth v. Allshouse, 969 A.2d 1236 (Pa. Super. 2009) (probation cannot be revoked solely on basis of arrest)
- Commonwealth v. Infante, 888 A.2d 783 (Pa. 2005) (revocation may be postponed pending adjudication to avoid unjust revocation prior to acquittal)
- Commonwealth v. Royster, 572 A.2d 683 (Pa. 1990) (vacatur where revocation based solely on charges later dismissed)
- Commonwealth v. Kimball, 724 A.2d 326 (Pa. 1999) (standard for proving ineffective assistance of counsel)
- Commonwealth v. Williams, 950 A.2d 294 (Pa. 2008) (presumption of effective assistance and governing principles)
- Commonwealth v. Fleeger, 437 A.2d 60 (Pa. Super. 1981) (Commonwealth must provide facts beyond arrest to support revocation)
- Commonwealth v. Randal, 837 A.2d 1211 (Pa. Super. 2003) (illegal sentences are subject to sua sponte correction)