A. Lozada v. PA Board of Probation and Parole (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Andre Lozada, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent BEFORE: : : : : : : : : No. 1218 C.D. 2007 Submitted: December 7, 2007 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE RENÃ E COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEAVITT FILED: February 1, 2008 Andre Lozada (Lozada), an inmate at the State Correctional Institution (SCI) at Mahanoy, petitions for review of the order of the Pennsylvania Board of Probation and Parole (Board) that denied his petition for administrative relief from the Board s order recommitting him as a convicted parole violator. In this case, we consider whether the Board conducted Lozada s revocation hearing within 120 days of receiving official verification of his conviction, as required by the Board s regulation at 37 Pa. Code §71.4(1). Finding no error by the Board, we affirm. The relevant facts are undisputed. On October 12, 2005, Lozada was paroled from his sentence of one-and-a-half to three years for a drug-related conviction. Lozada was released from SCI-Mahanoy on November 21, 2005, and was employed full-time as a window builder. On April 7, 2006, he was arrested and again charged with drug-related offenses.1 The Board lodged a detainer on April 10, 2006, and Lozada was returned to SCI-Graterford on April 26, 2006. Lozada was subsequently transferred to SCI-Mahanoy on May 18, 2006.2 Thereafter, Lozada was transferred to the Philadelphia County prison on a writ issued by the Philadelphia County Court of Common Pleas.3 On August 23, 2006, Lozada pled guilty and was convicted on two counts of possession with intent to deliver a controlled substance. Lozada was sentenced to a term of one to three years, and he was returned to SCI-Mahanoy on August 28, 2006. On September 5, 2006, Lozada executed a waiver of his right to have a parole hearing before a panel and, instead, requested a hearing before a hearing examiner. Over the next few months, Lozada s supervising parole agent contacted the Philadelphia District Office on several occasions to request an official verification of Lozada s conviction. The Board s Philadelphia Office received the official verification on January 26, 2007, and the Board received the official verification on February 2, 2007. These dates of receipt are shown by date stamp. Certified Record at 51, 52. A parole revocation hearing was held at SCI-Mahanoy on February 13, 2007.4 At the hearing, Lozada objected to the timeliness of the revocation 1 Lozada was charged with possession with intent to deliver a controlled substance. Lozada s criminal docket sheet indicates that he posted bail on May 3, 2006. However, it is unclear from the record whether Lozada was released from prison on bail or whether he remained in the custody of SCI-Mahanoy on the detainer. 3 Lozada was transferred on June 26, 2006, to the Philadelphia County prison and then returned to SCI-Mahanoy on July 10, 2006. Lozada was again transferred to the Philadelphia County prison on August 14, 2006. 4 Lozada was represented by legal counsel at the revocation hearing. 2 2 hearing, arguing that the hearing occurred more than 120 days after Lozada was returned to SCI-Mahanoy on August 28, 2006. The Board denied Lozada s objection and recommitted him as a convicted parole violator to serve nine months backtime with a parole violation maximum date of September 12, 2007. Lozada sought administrative relief from the recommitment decision, again arguing that the Board failed to hold a timely revocation hearing. The Board denied Lozada s request for relief, finding that Lozada was returned to a state correctional institution prior to his conviction and that the January 26, 2007, datestamp on the document submitted as proof of Lozada s conviction was reliable evidence of when the Board received official verification of the conviction. Because the February 13, 2007, revocation hearing was held 18 days after the Board received official verification, the Board held that the revocation hearing was timely. Lozada now petitions for this Court s review.5 Lozada raises one issue on appeal. Lozada contends that he did not receive a timely revocation hearing in accordance with the Board s regulation at 37 Pa. Code §71.4(1), which requires that a revocation hearing be held within 120 days from the date the Board received official verification of the plea of guilty or nolo contendere or of the guilty verdict at the highest trial court level. 37 Pa. Code §71.4(1). Lozada argues that the time-stamped document in the record is not an official verification and that the Board erred in finding that the 120-day period began to run on January 26, 2007. Lozada maintains that the 120-day period began 5 The Court s review is limited to determining whether constitutional rights were violated, errors of law were committed, or the Board s findings of fact were not supported by substantial evidence. Taylor v. Pennsylvania Board of Probation and Parole, 931 A.2d 114, 116 n.2 (Pa. Cmwlth. 2007) (citations omitted). 3 to run on September 5, 2006, when the Board became aware of his conviction by virtue of his execution of the document waiving a panel hearing. We begin with a review of the applicable regulation and case law. It has long been established that due process requires that parolees receive a hearing within a reasonable time after they are taken into custody for a parole violation. Morrissey v. Brewer, 408 U.S. 471 (1972). Accordingly, the Board s regulation requires that [a] revocation hearing shall be held within 120 days from the date the Board received official verification of the plea of guilty or nolo contendere or of the guilty verdict at the highest trial court level ¦. 37 Pa. Code §71.4(1) (emphasis added). Thus, the general rule, subject to two exceptions not relevant here,6 is that the 120-day period begins to run upon the Board s receipt of the official verification of conviction.7 When a parolee alleges 6 The 120 days begin to run when a parolee is returned to a state correctional institution and that parolee has not waived a panel hearing. See 37 Pa. Code §71.4(1) ( a parolee ¦ confined ¦ in a county correctional institution where the parolee has not waived the right to a revocation hearing by a panel ¦ ). See also Major v. Pennsylvania Board of Probation and Parole, 647 A.2d 284, 287 (Pa. Cmwlth. 1994) (execution of waiver of panel hearing makes return to state institution exception inapplicable). Lozada s brief assumes, incorrectly, that a return to a state institution starts the 120 day period. First, Lozada omits the second factor, i.e., that the parolee did not waive the panel hearing. Second, Lozada treats the exception as the general rule. It is beyond dispute that Lozada waived the panel hearing. Accordingly, the exception to the general rule, i.e., the 120 days begins to run from the date of official verification, does not apply here. 7 As explained in Auman v. Pennsylvania Board of Probation and Parole, 394 A.2d 686 (Pa. Cmwlth. 1978), the current regulation was adopted in 1977 in response to United States ex rel. Burgess v. Lindsey, 395 F. Supp. 404, 411 (E.D. Pa. 1975), where the District Court held that the Board s practice of waiting for a parolee s sentence on a new conviction before it scheduled a revocation hearing was unreasonable. The District Court further concluded that a nine-month gap between the parolee s conviction and the revocation hearing violated due process. 4 that the Board failed to hold a timely revocation hearing, the Board has the burden of proof. Mack v. Pennsylvania Board of Probation and Parole, 654 A.2d 129, 130 (Pa. Cmwlth. 1995). In challenging the Board s denial of relief in this case, Lozada asserts that there was no date of official verification in the record. We disagree. Official verification is defined as [a]ctual receipt by a parolee s supervising parole agent of a direct written communication from a court in which a parolee was convicted of a new criminal charge attesting that the parolee was so convicted. 37 Pa. Code §61.1. At the parole hearing, Parole Agent Joseph Gober testified that Lozada s supervising parole agent contacted the Philadelphia District Office on several occasions to request an official verification of Lozada s conviction. The official verification was not received by that office from the Court of Common Pleas of Philadelphia County until January 26, 2007, the date shown on the date stamp. He also testified that the Board received the official verification on February 2, 2007, as shown on the date stamp. The Board found January 26, 2007, to be the date of the Board s receipt of official verification. Although Lozada baldly asserts that there was no date of official verification in the record, this statement is unsupportable in light of the time-stamped copy of the record of Lozada s conviction sent to the Board s Philadelphia Office by the court of common pleas. Stated otherwise, Lozada s description of the record evidence is wrong. We affirm the Board s holding that January 26, 2007, was the date that it received official verification for purposes of 37 Pa. Code §71.4(1). Lozada also argues that his execution of the waiver of panel hearing on September 5, 2006, in the presence of a Board agent, constituted official 5 verification of his conviction. Lozada s argument is unavailing. This Court has held that actual knowledge of a parolee s new conviction does not commence the 120-day period prior to the Board s receipt of official verification of that conviction from the court in which the offender was convicted. Tarrant v. Pennsylvania Board of Probation and Parole, 521 A.2d 997, 998 (Pa. Cmwlth. 1987).8 Accordingly, even if some Board personnel knew of Lozada s conviction on September 5, 2006, this does not constitute official verification to the agency, i.e., the Board, as required under 37 Pa. Code §71.4(1). Only a direct, written communication from the convicting court can serve as official verification and commence the 120-day time period. In sum, the Board received official verification of Lozada s conviction on January 26, 2007. His parole revocation hearing, held 18 days later on February 13, 2007, was timely. Accordingly, we affirm the decision of the Board denying Lozada s petition for administrative relief. ______________________________ MARY HANNAH LEAVITT, Judge 8 See also Vanderpool v. Pennsylvania Board of Probation and Parole, 874 A.2d 1280, 12841285 (Pa. Cmwlth. 2005) (holding that a revocation hearing held within 120 days from the receipt of the official verification, but more than 120 days after the Board became aware of the parolee s conviction, was timely). 6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Andre Lozada, : : : : : : : : Petitioner v. Pennsylvania Board of Probation and Parole, Respondent No. 1218 C.D. 2007 ORDER AND NOW, this 1st day of February, 2008, the order of the Pennsylvania Board of Probation and Parole dated June 5, 2007, in the above captioned matter is hereby AFFIRMED. ______________________________ MARY HANNAH LEAVITT, Judge

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