P. J. DeSabetino v. PA Board of Probation and Parole (Majority Opinion)

Annotate this Case

Download PDF

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Paul J. DeSabetino, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent BEFORE: : : : : : : : : No. 1240 C.D. 2007 Submitted: February 15, 2008 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McGINLEY FILED: March 19, 2008 Paul DeSabetino (DeSabetino) petitions for review from final determinations of the Pennsylvania Board of Probation and Parole (Board) that recommitted him to serve eighteen months as a convicted parole violator and established his new maximum date as February 19, 2018.1 DeSabetino was effectively sentenced on August 10, 1984, to a term of ten to twenty years for robbery, and to a consecutive term of five to ten years for criminal conspiracy for a total term of fifteen to thirty years. DeSabetino was paroled to a community corrections center on May 8, 2000. On August 10, 2001, 1 This Court s review is limited to determining whether the Board s findings are supported by substantial evidence, are in accordance with the law, and whether constitutional rights have been violated. Krantz v. Pennsylvania Board of Probation and Parole, 483 A.2d 1044 (Pa. Cmwlth. 1984). This Court will interfere with the Board s exercise of administrative discretion only where it has been abused or exercised in an arbitrary or capricious manner. Green v. Pennsylvania Board of Probation and Parole, 664 A.2d 677 (Pa. Cmwlth. 1995). the Board declared DeSabetino delinquent effective August 6, 2001. In a decision recorded on February 6, 2002, DeSabetino was recommitted as a technical parole violator to serve ten months backtime for failing to report as instructed and for failing to successfully complete the Halfway Back program at Gateway Rehabilitation Center. DeSabetino was paroled to an approved plan on May 1, 2003. His effective sentence date was recalculated as July 2, 1985. On June 6, 2005, the Etna Borough Police Department lodged a criminal complaint against DeSabetino and charged him with theft by unlawful taking or disposition, receiving stolen property, criminal mischief, and criminal conspiracy stemming from DeSabetino s alleged theft of four bottles of liquor, a six pack and a twelve pack of beer, and forty packs of cigarettes from One Higgins Street Tavern. The District Attorney of Allegheny County also charged DeSabetino with burglary. On August 26, 2005, the Sharpsburg Borough Police Department charged DeSabetino for driving under the influence, for driving the wrong way on a one way street, and for involvement in an accident involving property. On August 27, 2005, the Board issued a warrant to commit and detain DeSabetino. On September 6, 2005, the Board charged DeSabetino with a technical violation for consuming alcohol. On October 18, 2005, the Board detained DeSabetino pending disposition of criminal charges. On January 12, 2006, the Court of Common Pleas of Allegheny County convicted DeSabetino of driving while under the influence and sentenced him to seventy-two hours time served and fined him $1,000.00. He also was ordered to complete a regional alcohol program and undergo drug and alcohol 2 evaluation and treatment. He was fined $25.00 for the summary traffic offense. He was also sentenced to two years probation for the accident that involved damage to property. On February 17, 2006, DeSabetino was convicted of burglary and criminal conspiracy in the Court of Common Pleas of Allegheny County. On April 17, 2006, the Court of Common Pleas of Allegheny County sentenced DeSabetino to a term of three to six years in a state correctional institution for burglary and to a concurrent term of three to six years for criminal conspiracy. On July 12, 2006, the Board held a violation/revocation hearing. The Board charged DeSabetino with the technical violation of consuming alcohol. However, the Board had no evidence to submit. The Board did submit the court papers for the burglary and related offenses. DeSabetino s counsel lodged a hearsay objection and asserted the documents were not officially certified. Notes of Testimony, July 12, 2006, (N.T.) at 6; Certified Record (C.R.) at 70. DeSabetino s counsel also objected on the basis of timeliness because DeSabetino was convicted on February 17, 2006. DeSabetino s counsel noted that the verification date of the conviction was not until April 20, 2006. N.T. at 7-8; C.R. at 71-72. Parole Agent Colby Connor (Agent Connor) testified that DeSabetino was not sentenced until April 17, 2006, and he couldn t get the case until after the sentence date. N.T. at 8; C.R. at 72. The Board overruled the timeliness objection. N.T. at 9; C.R. at 73.2 2 The Board introduced evidence of the DUI conviction. DeSabetino s counsel objected on the basis of hearsay and timeliness because the conviction papers stated a (Footnote continued on next page ¦) 3 In a decision recorded August 22, 2006, and mailed October 5, 2006, the Board continued DeSabetino on parole on the technical violation and recommitted him to serve eighteen months as a convicted parole violator for the burglary, theft by unlawful taking, receiving stolen property, criminal conspiracy, DUI, and the accident that involved damage. The Board established a maximum date of May 29, 2018. DeSabetino petitioned for administrative review and contended the hearing relating to the DUI conviction was untimely where the conviction was verified on January 24, 2006, and the hearing was not held until July 12, 2006. DeSabetino further asserted the hearing for the burglary conviction was also untimely because he was convicted on February 17, 2006, sentenced on April 17, 2006, and the hearing was not held until July 12, 2006, more than 120 days from the verification date of the return of DeSabetino to a state correctional institution. DeSabetino further argued the Board failed to meet its burden to establish the verification dates of the new convictions and that the revocation hearing was timely and it was unreasonable to wait more than forty days to obtain notice of a decision made August 22, 2006, until on or after October 5, 2006. Further, the Board failed to give DeSabetino credit for time served on the Board s detainer (continued ¦) verification date of January 24, 2006, which meant the hearing was held more than 120 days after the verification of the conviction. N.T. at 11; C.R. at 75. Agent Connor asserted that DeSabetino had, on September 7, 2005, at a preliminary hearing requested that the hearing be postponed until the disposition of all outstanding criminal charges. N.T. at 11-12; C.R. at 75-76. The hearing examiner overruled the objections. N.T. at 12; C.R. at 76. The Board ultimately did not recommit DeSabetino because of the DUI conviction, and nothing stemming from that conviction is before this Court. 4 from July 18, 2005, to August 31, 2005, and the Board erred when it recalculated his new minimum/maximum sentence. Lastly the September 2007, date for review should have been set before February 2007. In a decision recorded on February 16, 2007, and mailed February 22, 2007, the Board recalculated DeSabetino s maximum date as February 19, 2018, and changed the review date to on or after June 2007. DeSabetino petitioned for administrative review and raised many of the same contentions raised in the earlier petition. He also contended that while the Board adjusted the Board maximum date, he could not determine if the calculation was correct and that the Board untimely recalculated his new maximum date and review date. The Board reversed the revocation with respect to the DUI conviction and the original maximum date for the October 5, 2006, decision, but affirmed the February 22, 2007, decision in all other respects: To the extent you object to the Board s decision to recommit your client as a convicted parole violator based on his convictions at CP-020CR-0013062-2005, the decisions are affirmed. The record reflects that: (a) your client was returned to a state correctional institution prior to his April 17, 2006 conviction, (b) the Board received official verification of that conviction on April 20, 2006, and (c) the revocation hearing was held on July 12, 2006. Therefore, the revocation hearing was timely pursuant to 37 Pa.Code §71.4 because it was held only 83 days after the date the Board received official verification of the April 17, 2006 conviction. . . . Additionally, when your client was paroled on May 1, 2003 his max date was July 2, 2015, which left 4445 days remaining on his sentence. As a convicted parole violator, your client automatically forfeited credit for all 5 of the time that he spent on parole. This means that you still had 4445 days remaining on his sentence. However, your client did receive 233 days of backtime credit for the period he was incarcerated from August 27, 2005 to April 17, 2006. Subtracting this credit from the time he had remaining results in a total of 4212 days remaining on his sentence. Your client became available to begin serving his backtime on August 9, 2006, when the Board obtained the necessary signatures to recommit him as a parole violator. . . . Adding 4212 days to that date yields a new parole violation maximum date of February 19, 2018. (Citations omitted). Board Decision, June 1, 2007, at 1; C.R. at 123. Before this Court, DeSabetino again contends that the Board failed to meet its burden of proof that DeSabetino had a timely revocation hearing within 120 days of the verification date of his burglary conviction, and that the Board erred when it failed to give him credit for time served after he posted bail, appealed his conviction and had not commenced serving the new sentence. When a parolee alleges that the Board failed to hold a timely revocation hearing, the Board bears the burden of proof. Where the Board fails to meet its burden, the appropriate remedy is the dismissal of the violation charges with prejudice. Taylor v. Pennsylvania Board of Probation and Parole, 931 A.2d 114 (Pa. Cmwlth. 2007). The Board s regulation, 71 Pa.Code §71.4(1), provides two exceptions for not providing a revocation hearing within 120 days: A revocation hearing shall be held within 120 days from the date the Board received official verification of the 6 plea of guilty or nolo contendere of or the guilty verdict at the highest trial court level except as follows: (i) If a parolee is confined outside the jurisdiction of the Department of Corrections, such as confinement out-ofState, confinement in a Federal correctional institution or confinement in a county correctional institution where the parolee has not waived the right to a revocation hearing by a panel in accordance with Commonwealth ex rel. Rambeau v. Rundle, 455 Pa. 8, 314 A.2d 842 (1973), the revocation hearing shall be held within 120 days of the official verification of the return of the parolee to a State correctional facility. (ii) A parolee who is confined in a county correctional institution and who has waived the right to a revocation hearing by a panel in accordance with the Rambeau decision shall be deemed to be within the jurisdiction of the Department of Corrections as of the date of the waiver. Neither of the exceptions applies here. The Board had the burden of proving that DeSabetino s hearing was held within 120 days from the date that the Board received official verification of the conviction. The Board defines official verification 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. Here, with respect to the verification date, Agent Connor testified, He didn t get sentenced until April 17. A lot of times I mean, I ve had to go searching for cases before because they re not in the Clerk of Courts yet and you get back in the Judge s chambers and they can t find them. . . . I didn t get the case couldn t get the case until after the sentence date. N.T. at 8; C.R. at 72. Agent Connor also introduced the Criminal Arrest and Disposition Report, PBPP-257C (Report) which indicated that the verification date of the conviction was April 20, 7 2006. DeSabetino s counsel objected to the introduction of the Report. The Hearing Examiner overruled the objection. Agent Connor did not actually state on the record that April 20, 2006, was the verification date. However, Agent Connor explained that he could not get the verification of conviction until after the sentence date. It is undisputed that DeSabetino was not sentenced until April 17, 2006. It stands to reason that the common pleas court or the clerk of courts did not verify the conviction until the sentencing was complete as the case was not final. The revocation hearing of July 12, 2006, was held well within the 120 day period even if April 17, 2006, is used as the starting date. DeSabetino next contends that he should be credited for time served against his original sentence where he posted bail and appealed his conviction and had not commenced serving his new sentence. DeSabetino asserts that he should receive credit for the period from his date of sentencing, April 17, 2006, through August 9, 2006, the date when the Board determined he was available to begin serving his backtime. DeSabetino argues that once he was sentenced he was on bail for the robbery conviction and serving time solely on the Board detainer. When he appealed the robbery conviction, he asserts that he remained on bail and had not begun serving his new sentence. Pa.R.Crim.P. 521(B)(2) provides: Except as provided in paragraph (A)(1) [Capital and Life Imprisonment Cases], when the sentence imposed includes imprisonment of 2 years or more, the defendant 8 shall not have the same right to bail as before verdict, but bail may be allowed at the discretion of the judge. Here, DeSabetino was sentenced to a term of three to six years. Therefore, under the rule his bail did automatically continue. There is nothing in the record to indicate that the Court of Common Pleas of Allegheny County received any request for bail or allowed bail after sentencing. Indeed, DeSabetino does not claim that he made bail after sentencing. This issue has no merit. The Board properly credited DeSabetino with all time to which he was entitled. Accordingly, this Court affirms. ____________________________ BERNARD L. McGINLEY, Judge 9 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Paul J. DeSabetino, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent : : : : : : : : No. 1240 C.D. 2007 ORDER AND NOW, this 19th day of March, 2008, the order of the Pennsylvania Board of Probation and Parole in the above-captioned matter is affirmed. ____________________________ BERNARD L. McGINLEY, Judge

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.