J. Adams v. PA Board of Probation and Parole (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA John Adams, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent BEFORE: : : : : : : : : No. 1502 C.D. 2007 Submitted: December 28, 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 SMITH-RIBNER FILED: March 12, 2008 John Adams (Petitioner) petitions the Court for review of the decision mailed June 11, 2007 by the Pennsylvania Board of Probation and Parole (Board) that denied Petitioner's administrative appeal of the April 5, 2007 Board decision recommitting him as a convicted parole violator to serve nine months concurrently with his unexpired term of one year, nine months and twenty-seven days backtime as a technical parole violator, when available. Petitioner presents the following statement of the question: "Was petitioner's technical hearing held well beyond the 120-day limit prescribed by the Board's own regulations." Petitioner is currently an inmate at SCI-Fayette. On January 4, 2001, he was sentenced by the Philadelphia County Common Pleas Court to a three-to six-year prison term, effective December 16, 2000, after pleading guilty to drug charges. Petitioner's original parole violation maximum date was December 16, 2006. He was released on parole August 21, 2002 and was arrested on new drug charges February 18, 2005. The next day, on February 19, the Board lodged its warrant for Petitioner's new arrest; and on February 20 he was returned to the Department of Corrections' custody. The new charges were later nolle prossed. On March 9, 2006, Petitioner was re-arrested on drug charges, and on April 7, 2006 he was transferred to the Philadelphia County Prison. Petitioner pled guilty on April 7; he was sentenced to fifteen to thirty months and then transferred to a state correctional institution the same day. One week later, on April 14, 2006, the Board issued its warrant to commit and detain Petitioner for technical parole violations. The Board held a violation hearing on June 2, 2006, and by decision mailed July 20, 2006 it recommitted Petitioner to serve in a state correctional institution his unexpired term of eight months and nine days as a technical parole violator for violating two counts of parole condition #5a (possession of drugs). The Board received its official verification on January 4, 2007 of Petitioner's conviction, and it held a parole revocation panel hearing on March 22, 2007. Petitioner's counsel objected to the hearing on the basis that it was untimely and entered into evidence Petitioner's pro se motion to dismiss on that ground, citing Taylor v. Pennsylvania Board of Probation and Parole, 624 A.2d 225 (Pa. Cmwlth. 1993). In its decision mailed April 5, 2007, the Board modified its earlier order, inter alia, by recommitting Petitioner to a state correctional institution as a technical parole violator to serve his unexpired term of one year, nine months and twenty-seven days of backtime and recommitting him as a convicted parole violator to serve nine months concurrently for a total of the unexpired backtime.1 1 The Board interprets Petitioner's statement of the question involved as seeking relief from his June 2, 2006 technical parole violation hearing rather than his March 22, 2007 parole revocation hearing, and citing McCaskill v. Pennsylvania Board of Probation and Parole, 631 A.2d 1092 (Pa. Cmwlth. 1993), it argues that the issue is waived because it was not raised in his (Footnote continued on next page ¦) 2 Petitioner filed a petition for administrative relief alleging that his due process rights were violated because the parole revocation hearing was untimely, citing Abbruzzese v. Pennsylvania Board of Probation and Parole, 524 A.2d 1049 (Pa. Cmwlth. 1987), and 37 Pa. Code §71.4(1).2 The Board mailed its decision June 11, 2007 denying the administrative appeal. It noted Petitioner's return to a administrative appeal. Citing Pa. R.A.P. 2116(a), the Board also contends that Petitioner waived his right to appellate review on the timeliness of his parole revocation hearing because he failed to present the issue in his statement of the question involved. Although Petitioner has not strictly conformed to Pa. R.A.P. 2116(a), the Court nevertheless will address whether Petitioner's parole revocation hearing was timely because it is clear that he is raising this issue in his petition for administrative relief and in the argument section of his brief and that he is not questioning the timeliness of his technical parole violation hearing. 2 The Board's regulation at 37 Pa. Code §71.4(1) provides: The following procedures shall be followed before a parolee is recommitted as a convicted violator: (1) 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 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. 3 state correctional institution prior to his conviction, the January 4, 2007 receipt of official verification of Petitioner's conviction and the parole revocation hearing held March 22, 2007. Relying upon Morgan v. Pennsylvania Board of Probation and Parole, 814 A.2d 300 (Pa. Cmwlth. 2003), the Board determined that the hearing was timely as it was held 77 days after the official verification date.3 Petitioner argues that his due process rights were violated because of the untimely parole revocation hearing, noting that a revocation hearing must be held within 120 days of the Board's receipt of official notice of a guilty verdict or plea. Petitioner believes that the Board was aware of the new charges immediately after the arrest and that it is inconceivable that official verification was received almost one year after Petitioner's guilty plea. Citing Griggs v. Pennsylvania Board of Probation and Parole, 917 A.2d 910 (Pa. Cmwlth. 2007), Petitioner asserts that no reasonable explanation exists for the delay. He also argues that he was entitled to credit for time spent in custody on a Board warrant and new criminal charges, but this issue was not raised in the administrative appeal and therefore is waived. The Board states that the record supports its finding that a timely parole revocation hearing was conducted. Moreover, there is no evidence to support the notion that the Board was aware of Petitioner's conviction prior to official verification. In any event, the Court consistently has rejected the argument that the 120-day time limit commences when the Board becomes aware of a conviction. See, e.g., Taylor v. Pennsylvania Board of Probation and Parole, 931 A.2d 114 (Pa. Cmwlth. 2007). 3 The Court's review is limited to determining whether the Board violated constitutional rights, committed an error of law or failed to follow a Board practice or procedure and whether the findings of fact are supported by substantial evidence in the record. Torres v. Pennsylvania Board of Probation and Parole, 861 A.2d 394 (Pa. Cmwlth. 2004). 4 In Taylor, 931 A.2d at 117, the Court explained that "[t]he Board's regulation was designed specifically to satisfy due process. 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." Because the exceptions under 37 Pa. Code §71.4(1) do not apply, the Board was required to conduct a revocation hearing within 120 days from receipt of official verification of the guilty plea. 37 Pa. Code §71.4(1). Official verification is defined as the "[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; see also Koehler v. Pennsylvania Board of Probation and Parole, 935 A.2d 44 (Pa. Cmwlth. 2007). The Board must prove timeliness by a preponderance of the evidence. Vanderpool v. Pennsylvania Board of Probation and Parole, 874 A.2d 1280 (Pa. Cmwlth. 2005). Substantial evidence exists to establish that the Board received official verification on January 4, 2007 of Petitioner's conviction. A parole agent testified that the Board received official verification on that day and submitted the trial court's conviction document as evidence. The date also is reflected on the criminal arrest and disposition report (Form 257-C) and on the notice of charges/hearings (Form 257-N) admitted into evidence by the panel without objection. From these records, the Court concludes that the March 22, 2007 parole revocation hearing was timely because it was held 77 days after the Board's official verification of Petitioner's conviction. The Board met its burden of proof, and the Court affirms. DORIS A. SMITH-RIBNER, Judge 5 IN THE COMMONWEALTH COURT OF PENNSYLVANIA John Adams, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent : : : : : : : : No. 1502 C.D. 2007 ORDER AND NOW, this 12th day of March, 2008, the Court affirms the order of the Pennsylvania Board of Probation and Parole. DORIS A. SMITH-RIBNER, Judge
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