E. Dowling v. PA Board of Probation and Parole (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Eric Dowling, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent BEFORE: : : : : : : : : No. 1423 C.D. 2007 SUBMITTED: January 11, 2008 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE RENÃ E COHN JUBELIRER, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE LEADBETTER FILED: February 22, 2008 Eric Dowling petitions for review of the order of the Pennsylvania Board of Probation and Parole (Board) affirming his recommitment as a convicted parole violator and recalculating his parole violation maximum date. Dowling asks this court to determine whether his revocation hearing was timely and whether the Board improperly failed to credit his parole violation sentence with time spent in custody from the date of his sentencing on new criminal charges until the date of his recommitment as a convicted parole violator. On January 23, 2001, Dowling was released on parole from his 10- to 20-year sentence for third degree murder and two counts of robbery. At the time of his release, his maximum sentence date was October 19, 2010. On March 14, 2003, Dowling was arrested in Delaware County for drug offenses, and he posted bail. On March 18, 2003, the Board arrested Dowling on its own detainer warrant and returned him to state custody. Dowling requested a continuation of his detention hearing pending disposition of the outstanding criminal charges. Dowling was convicted of the new drug offenses on June 27, 2005, and sentenced on December 8, 2005.1 After a panel hearing on March 22, 2007, the Board recommitted Dowling as a convicted parole violator and recalculated his parole violation maximum date as March 25, 2014. Dowling s administrative appeal was denied by decision mailed on July 17, 2007. This appeal followed. Dowling argues that the Board failed to hold a timely revocation hearing because the Board s agent admitted having actual notice of Dowling s new conviction as early as February or March of 2006 even though official verification was not made until January 22, 2007. He also argues that in recalculating his parole violation maximum date, the Board failed to credit him with the period from December 18, 2005, to March 22, 2007. Timeliness of Revocation Hearing With two exceptions that do not apply in the present case, the Board s regulations provide that before a parolee is recommitted as a convicted parole violator, the Board must hold a revocation hearing within 120 days from the date the Board received official verification of the plea of guilty or of the guilty verdict. 37 Pa. Code § 71.4(1). Official verification is [a]ctual receipt by a parolee s 1 Dowling received an aggregate sentence of 10 to 20 years based on his conviction of five counts of Possession with Intent to Deliver a Controlled Substance, one count of Possession of a Controlled Substance, and one count of Possession of Drug Paraphernalia. 2 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. Unreasonable and unjustifiable delays that are not attributable to the parolee or his counsel do not toll the running of the 120-day period. Fitzhugh v. Pa. Bd. of Prob. and Parole, 623 A.2d 376 (Pa. Cmwlth. 1993). Unreasonable and unjustifiable delay may be found where the evidence shows that the Board is aware of a parolee s conviction but does not act to retrieve available conviction records. Id. Where a parolee alleges that his revocation hearing was held beyond the 120-day period, the Board bears the burden of proving by a preponderance of the evidence that the hearing was timely. Abbruzzese v. Pa. Bd. of Prob. and Parole, 524 A.2d 1049 (Pa. Cmwlth. 1987). If the Board fails to sustain its burden, the appropriate remedy is a dismissal of the parole violation charges with prejudice. McDonald v. Pa. Bd. of Prob. and Parole, 673 A.2d 27 (Pa. Cmwlth. 1996). In Taylor v. Pa. Bd. of Prob. and Parole, 931 A.2d 114 (Pa. Cmwlth. 2007), a case with facts similar to those in the present case, we rejected the parolee s argument that the 120-day period should begin when the parole agent has actual knowledge of the parolee s conviction. We observed that the Board s regulation requiring a revocation hearing within 120 days after the Board receives official verification of a guilty verdict was designed specifically to satisfy due process. We concluded that it is reasonable for the 120-day period to begin to run on the date the Board receives official verification of the parolee s conviction, and that it is reasonable for a parole agent to wait for official verification even if the agent is aware of the parolee s conviction. Distinguishing Fitzhugh, this court 3 concluded that a 14-month period between the parolee s conviction and revocation hearing was not unreasonable where it was held within 120 days of the Board s receipt of official verification and where the Board demonstrated its attempts to obtain official verification once its agent became aware of the conviction. In the present case, parole agent John Bentzley testified that he had actual knowledge of Dowling s new conviction in February or March 2006 and that Dowling signed a request for panel hearing in November 2006. Bentzley also testified that he repeatedly sought a certified copy of the conviction record, but the criminal file had been sent to the Superior Court and was not available. Official verification of the conviction was made on January 22, 2007. The record establishes that the revocation hearing was held within 120 days of the date the Board received official verification of Dowling s conviction of the Delaware County drug offenses and that the Board s agent made efforts to obtain official verification after learning of Dowling s conviction. Our decision in Taylor compels our conclusion that Dowling s revocation hearing was timely. Recalculation of Parole Violation Maximum Date Dowling s second issue on appeal is that the Board improperly calculated his parole violation maximum date. We disagree. Undisputed is that at the time Dowling was released on parole he had 3556 days remaining on his sentence. As a convicted parole violator, he forfeited credit for any time spent in good standing while on parole. Section 21.1(a) of the Act commonly referred to as the Parole Act,2 61 P.S. § 331.21a(a). The Board 2 Act of August 6, 1941, P.L. 861, as amended, added by Section 5 of the Act of August 24, 1951, P.L. 1401. 4 credited Dowling with 996 days that he spent in custody solely on its warrant from March 18, 2003, to December 8, 2005.3 Adding 2560 days (3556 days less 996 days) to the date of March 22, 2007, the date that Dowling became available to serve his backtime, the Board re-calculated Dowling s parole violation maximum date as March 25, 2014. Dowling argues that he is entitled to credit from the date of sentencing4 until March 22, 2007. He premises his argument on a misreading of Parole Act Section 21.1(a), 61 P.S. § 331.21a(a), which provides, in the case of convicted violators: The period of time for which the parole violator is required to serve shall be computed from and begin on the date that he is taken into custody to be returned to the institution as a parole violator. Dowling argues that he was returned to state custody on March 18, 2003, and should receive credit from that date until the date he was recommitted. What this argument overlooks is that Dowling was not returned as a parole violator until March 22, 2007, and this court has repeatedly held that time spent in custody between the date of conviction on new charges and the date the Board recommits the parolee as a direct violator is credited to the new sentence. Plummer v. Pa. Bd. of Prob. and Parole, 926 A.2d 561 (Pa. Cmwlth. 2007); Hill v. Pa. Bd. of Prob. and Parole, 683 A.2d 699 (Pa. 3 This period represents the time from the date the Board arrested him to the date he was sentenced on the Delaware County conviction of drug offenses. The Board s decision erroneously references December 18, 2005, as the date of sentencing, but it accurately credited Dowling with 996 days, the correct number of days between the date of arrest on its detainer and December 8, 2005, the correct date of sentencing. The Board s misstatement of the date of sentencing is harmless error. 4 Appointed counsel also erroneously references the date of December 18, 2005, as the date of sentencing. 5 Cmwlth. 1996); Campbell v. Pa. Bd. of Prob. and Parole, 409 A.2d 980 (Pa. Cmwlth. 1980). Accordingly, the order of the Board is affirmed. _____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge 6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Eric Dowling, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent : : : : : : : : No. 1423 C.D. 2007 ORDER AND NOW, this 22nd day of February 2008, the order of the Pennsylvania Board of Probation and Parole in the above-captioned matter is hereby AFFIRMED. _____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge

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