F. Cordero v. PA Board of Probation and Parole (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Frank Mark Cordero, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent BEFORE: : : : : : : : : No. 68 C.D. 2008 Submitted: May 16, 2008 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SIMPSON FILED: July 11, 2008 Frank Mark Cordero petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) denying his administrative appeal of a Board order that recommitted him as a technical and convicted parole violator. Cordero asserts the Board failed to provide him a timely revocation hearing. Discerning no merit in the assertion, we affirm. In May 1996, Cordero began serving a 10-year aggravated assault sentence (state sentence). Certified Record (C.R.) at 1. The state sentence had a minimum expiration date of August 1, 1998 and a maximum date of November 1, 2005. Id. Effective January 19, 1999, the Board paroled Cordero from the state sentence. Id. at 3-9. In addition to general parole conditions, the Board imposed special conditions prohibiting Cordero from engaging in assaultive behavior and contacting the assault victim. Id. at 8. In May 2001, before expiration of the maximum date on the state sentence, Maryland authorities arrested Cordero for second degree assault and reckless endangerment after he beat the victim of his earlier assault. Id. at 11. In April 2002, a jury found him guilty. Id. at 11-17. Also in 2001, Maryland police charged Cordero with driving while impaired. He pled guilty to that offense in March 2002. Id. at 25. Consequently, the Board declared Cordero delinquent effective April 25, 2002. Id. at 10. This also occurred before expiration of the maximum date on the state sentence. Cordero apparently fled Maryland, and in early December 2006 Florida authorities charged him with aggravated battery and aggravated assault with a deadly weapon. Id. at 23-24. Cordero s victim was the same individual in all three instances. Id. Accordingly, the Board issued a December 2006 arrest warrant for Cordero, and he returned to Pennsylvania on April 4, 2007. Id. at 19. From this date, Cordero contends, the Board had 120 days in which to conduct a parole revocation hearing. Shortly after his arrival at SCI-Graterford, Cordero executed a waiver of panel hearing on April 16, 2007. Id. at 21. This evidenced his intent to proceed before a single hearing examiner. Subsequently, on June 29, 2007, Cordero changed his mind and executed a request for a panel hearing. Id. at 26. The Board held a panel hearing on August 23, 2007. 2 At the revocation hearing, Cordero sought dismissal of the violation charges on the ground the hearing was untimely. Based on his April 4, 2007 return to Pennsylvania, Cordero asserted more than 120 days lapsed before the Board s August 23rd revocation hearing, in violation of 37 Pa. Code §71.4. Relying on matters of record, the hearing examiner explained the 120-day time period did not begin to run until June 29, when Cordero executed his request for a panel hearing. On the merits, Cordero admitted to numerous technical parole violations1 and did not object to the admission of certified copies of his Maryland convictions. By decision mailed September 6, 2007, the Board recommitted Cordero to consecutive terms of 12 months backtime as a technical parole violator and 12 months backtime as a convicted parole violator. Id. at 67-69. The Board subsequently denied Cordero s request for administrative review. Id. at 93. Cordero now petitions this Court, preserving for review the issue of whether the Board held a timely revocation hearing. On review, we are limited to determining whether the record supports the necessary findings of fact, whether errors of law were made, or whether constitutional rights were violated. Prebella v. Pa. Bd. of Prob. & Parole, 942 A.2d 257 (Pa. Cmwlth. 2008). 1 Cordero admitted the following technical violations of parole: Condition 1 (failing to report to district office and leaving the district without written permission); Condition 2 (changing residences without written permission); Condition 3 (failing to: report to parole supervision staff, notify staff of arrest within 72 hours and notify staff of change in status); Special Condition 5 (refraining from assaultive behavior); and, Special Condition 7 (refraining from contact with assault victim). 3 Where a parolee alleges the Board failed to hold a timely revocation hearing, the Board bears the burden of showing, by a preponderance of the evidence, a timely revocation hearing occurred. Taylor v. Pa. Bd. of Prob. & Parole, 931 A.2d 114 (Pa. Cmwlth. 2007), appeal denied, __ Pa. __, 946 A.2d 690 (2008); Reavis v. Pa. Bd. of Prob. & Parole, 909 A.2d 28 (Pa. Cmwlth. 2006). A preponderance of the evidence is tantamount to a more likely than not standard. Commonwealth v. $6,425.00 Seized From Esquilin, 583 Pa. 544, 880 A.2d 523 (2005). If the Board fails to meet its burden, the appropriate remedy is dismissal of the parole violation charges with prejudice. McDonald v. Pa. Bd. of Prob. & Parole, 673 A.2d 27 (Pa. Cmwlth. 1996). Cordero s position is contrary to the Board s regulations. The regulation governing revocation for conviction for a new criminal offense provides in relevant part: (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-of-State, ¦ the revocation hearing shall be held within 120 days of the official verification of the return of the parolee to a State correctional facility. 37 Pa. Code §71.4(1)(i). Another regulation addresses computation of the 120-day period. Specifically, 37 Pa. Code §71.5(c)(4) states, with added emphasis: 4 In determining the period for conducting hearings under this chapter, there shall be excluded from the period, a delay in any state of the proceedings which is directly or indirectly attributable to one of the following: ¦ (4) A change of decision by a parolee either to waive the right to be heard by a panel after asserting it or to assert that right after waiving it. In this case, the hearing shall be held within 120 days of the last change of decision. Our decision in Fetter v. Pennsylvania Board of Probation & Parole, 808 A.2d 611 (Pa. Cmwlth. 2002), is directly on point. There, the parolee initially requested a panel hearing. He later executed a written waiver of that right and chose to proceed before a single hearing examiner. The Board scheduled a hearing before an examiner; however, the parolee again changed his mind and requested a panel hearing. At the hearing, the parolee argued the revocation hearing was untimely because it was held more than 120 days after his preliminary hearing. The parolee asserted the Board was responsible for the delay because its agent induced him to waive the initial panel hearing. The Board rejected the parolee s claims and recommitted him as a technical parole violator. On appeal, we affirmed the Board s recommitment order. Observing the record lacked evidence supporting the parolee s claims of inducement, we concluded the Board correctly relied on 37 Pa. Code §71.5(c)(4) in determining it provided a timely revocation hearing. Here, Cordero returned to Pennsylvania on April 4, 2007; thus, the Board was required to hold Cordero s revocation hearing on or before August 2, 5 2007. However, after waiving his right to a panel hearing on April 16, 2007, Cordero later executed a request for a panel hearing on June 29, 2007. C.R. at 21; 26. Cordero s change in decision to request a panel hearing occurred within 120 days of his return to Pennsylvania. Pursuant to Board regulation 71.5(c)(4) then, the 120-day period began to run after the last change in decision. In this case, the last change in decision occurred June 29, 2007. The August 23, 2007 hearing was well within 120 days of Cordero s last change of decision and, therefore, timely.2 Accordingly, we affirm. ROBERT SIMPSON, Judge 2 Our decision in McDonald v. Pennsylvania Board of Probation & Parole, 673 A.2d 27 (Pa. Cmwlth. 1996), upon which Cordero relies, is factually distinguishable and does not compel the same result here. In McDonald, the parolee never waived his right to a panel hearing and later reasserted it. As a result, 37 Pa. Code §71.5(c)(4) did not apply. 6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Frank Mark Cordero, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent : : : : : : : : No. 68 C.D. 2008 ORDER AND NOW, this 11th day of July, 2008, the order of the Pennsylvania Board of Probation and Parole is AFFIRMED. ROBERT SIMPSON, Judge

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