M. Warren v. PA Board of Probation and Parole (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Michael Warren, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent BEFORE: : : : : : : : : No. 1586 C.D. 2007 SUBMITTED: February 15, 2008 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE LEADBETTER FILED: March 24, 2008 Michael Warren petitions for review of the order of the Pennsylvania Board of Probation and Parole (Board) disposing of his administrative appeals from his recommitment as a technical and convicted parole violator and recalculation of his parole violation maximum date. In addition, Warren s appointed counsel, Anthony A. Logue of the Erie County Public Defender s Office, petitions for leave to withdraw on the ground that Warren s appeal is frivolous. On November 22, 2004, Warren was released on parole to a community corrections center after serving the minimum of his aggregate 8- to 20year sentence for robbery, aggravated assault, and firearms offenses. At the time of his parole, his maximum sentence date was November 17, 2016. Warren was declared delinquent on August 26, 2005. Philadelphia police arrested Warren on June 15, 2006, after observing him engaging in a drug transaction, and the Board issued a detainer warrant the same day. By decision mailed on August 8, 2006, the Board detained Warren pending disposition of his new criminal charges and recommitted him as a technical parole violator to serve 9 months of backtime for changing his residence without permission and failure to complete the community corrections program; the Board recalculated Warren s parole violation maximum date to September 6, 2017 to account for the period of his delinquency. Warren mailed an administrative appeal and an amended administrative appeal from this August 2006 decision on April 16, 2007. On November 6, 2006, Warren pleaded guilty in open court to possession of a controlled substance with intent to deliver and received a sentence of 1 to 2 years followed by 3 years of probation. At a revocation hearing held on March 19, 2007, the hearing examiner accepted Warren s waiver of his right to a panel hearing and admitted into evidence proof of Warren s conviction. Warren testified that at the time of his arrest he was working and helping his mother with her expenses. By decision mailed on April 27, 2007, the Board recommitted Warren as a convicted parole violator to serve 18 months of backtime concurrently with the backtime imposed for the technical violation, and modified its August 2006 decision to delete the parole violation maximum date and change the recommit portion to when available. Warren mailed administrative appeals from this decision on May 15 and May 17, 2007. 2 By decision mailed on July 31, 2007, the Board dismissed as untimely Warren s administrative appeals from the August 2006 decision. With respect to the appeals received by the Board in May 2007, the Board s decision reads, in pertinent part, as follows: In regards to the decision mailed April 27, 2007, a review of the record reflects that: (a) you were returned to a state correctional institution prior to your conviction, (b) the Board received official verification of your conviction on February 13, 2007, and (c) the revocation hearing was held on March 19, 2007. Therefore, the revocation hearing was timely pursuant to 37 Pa. Code § 71.4 because it was held only 34 days after the date the Board received official verification of your conviction. See Morgan v. Pennsylvania Board of Probation and Parole, 814 A.2d 300 (Pa. Commw. 2003). However, the Board did mail you a modified recalculation decision on June 21, 2007 that changed your max date from April 29, 2018 to March 14, 2018. Thus, your objection to the prior max date is now moot. Accordingly, your administrative appeals are dismissed as UNTIMELY in regards to the August 8, 2006 revocation decision. The decision mailed April 27, 2007 is AFFIRMED in regards to the decision to revoke your parole and REVERSED in regards to the April 29, 2018 max date. Record, p. 69.1 In his petition for review to this court, Warren challenges the timeliness of the March 19, 2007, parole violation hearing. His court-appointed appellate counsel, Anthony Logue, filed a petition to withdraw as counsel and a Turner letter2 in support thereof. In his Turner letter, 1 The June 21, 2007 recalculation decision referenced in the Board s July 31, 2007 decision is not of record, and in his petition for review to this court, Warren does not now challenge the Board s recalculation of his maximum date. 3 Logue adequately details the issue raised, which is discussed at length in our analysis below, the nature and extent of his review, and his analysis in concluding that the appeal is frivolous as to that issue. See Hont v. Pa. Bd. of Prob. and Parole, 680 A.2d 47, 48 (Pa. Cmwlth. 1996) (establishing requisite elements of adequate Turner letter). Logue notified Warren of the withdrawal request, provided him with a copy of the Turner letter, and advised him of his right to obtain substitute counsel or to raise any points that he deemed worthy of merit in a pro se brief to this court. In so doing, Logue complied with the technical requirements of Craig v. Pa. Bd. of Prob. and Parole, 502 A.2d 758 (Pa. Cmwlth. 1985). Warren did not file a brief or obtain substitute counsel. In reviewing the motion to withdraw in conjunction with Warren s appeal, we evaluate the record independently to determine whether the appeal is frivolous. Dear v. Pa. Bd. of Prob. and Parole, 686 A.2d 423, 426 (Pa. Cmwlth. 1996). Warren avers that his revocation hearing was untimely because it was not held within 120 days of the date of his plea of guilty to the new criminal charges or within 120 days of his return to a state correctional institution. After reviewing the record, we conclude that the Board did not err. 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 _____________________________ (continued ¦) 2 See Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988). 4 prejudice. McDonald v. Pa. Bd. of Prob. and Parole, 673 A.2d 27 (Pa. Cmwlth. 1996). When the parolee is confined within the jurisdiction of the Department of Corrections, 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 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. As counsel explains in his Turner letter, and this court held in Taylor v. Pa. Bd. of Prob. and Parole, 931 A.2d 114, 117 (Pa. Cmwlth. 2007), it is reasonable for the 120-day period to begin to run on the date that the Board receives official verification of a parolee s conviction, and it is reasonable for a parole agent to wait for official verification even if the agent is aware of the conviction. Undisputed is the fact that the Board received official verification of Warren s conviction on February 13, 2007. The Board held the revocation hearing on March 19, 2007, well within the 120-day period. Counsel correctly concludes that Warren s argument that the 120-day period begins to run on the date of conviction or upon his return to a state correctional institution after his guilty plea is contrary to the Board s regulation and contrary to this court s decisions. 5 Accordingly, we affirm the order of the Board and grant appointed counsel s petition for leave to withdraw. _____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge 6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Michael Warren, : : : : : : : : Petitioner v. Pennsylvania Board of Probation and Parole, Respondent No. 1586 C.D. 2007 ORDER AND NOW, this 24th day of March, 2008, the petition to withdraw as counsel in the above-captioned matter is hereby GRANTED, and the order of the Pennsylvania Board of Probation and Parole is AFFIRMED. _____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge
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