Opinion
No. 1392 C.D. 2011
04-13-2012
Tabio Harris a/k/a Tavio Harris, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Tabio Harris (Harris) petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board). The Board denied Harris' petition for administrative review, affirming its May 5, 2011 decision directing Harris to serve thirty-six (36) months backtime as a convicted parole violator. We affirm the Board's order.
The parties do not dispute the pertinent factual and procedural details in this matter, which we summarize below. Harris was convicted of various crimes for which he was serving a sentence of seven years and six months to twenty years. The Board granted parole to Harris and released him in May 2008, but he was arrested in September 2009 on new criminal charges. On August 18, 2010, the Board exercised a detainer it issued for Harris, and he was transferred from county prison to the State Correctional Institution at Graterford (SCI-Graterford). On September 15, 2010, the Pennsylvania Department of Corrections (DOC) transferred Harris to Philadelphia County for the purpose of prosecution relating to the new criminal charges. Harris pleaded guilty on September 16, 2010, to robbery, for which he was sentenced to a term of five-to-ten years. On September 20, 2010, Harris was returned to SCI-Graterford.
The Board conducted a revocation hearing on March 22, 2011. During that hearing, Harris asserted that the hearing was untimely. During the course of the hearing, Harris' parole agent, Mr. Bordoni, made a statement summarizing various details of Harris' history. Mr. Bordoni stated that he had a copy of Harris' conviction that he "obtained . . . in the Clerk of Court's office of Philadelphia County on December 3rd, 2010." (Certified Record (C.R.) at 90.) In response to claims by counsel for Harris that the hearing was untimely, Mr. Bordoni stated that he conducted a computer check on September 30 (presumably in 2010) "and found out that Mr. Harris did get the conviction. I filed [sic] the procedures in Philadelphia Parole Office, which are to send an e-mail notification to our Parole Investigator Adrienne Singleton to obtain the document. I hadn't heard back from Ms. Singleton readily, so then on December 3rd I took it upon myself to . . . obtain the document." (C.R. at 91.) The Board revoked Harris' parole and recommitted him as a convicted parole violator.
The Board denied Harris' administrative appeal, reasoning that, although Harris had been returned to state custody on August 18, 2010, he was not convicted of the new criminal charges until September 16, 2010. The Board stated that it did not receive official verification of the new conviction until December 3, 2010, and that, under 37 Pa. Code § 71.4, the Board had 120 days from the official verification to conduct a hearing. Thus, the Board concluded, its hearing, which the Board held 109 days after receiving official verification of Harris' conviction, was timely.
Harris petitions for review of that order, raising the following issue for this Court's review: whether the Board erred in concluding that its March 22, 2011 hearing was timely under 37 Pa. Code § 71.4. We begin by noting that the Board bears the burden of proving by a preponderance of the evidence that it has held a timely revocation hearing. Saunders v. Pennsylvania Bd. of Probation and Parole, 568 A.2d 1370, 1371 (Pa. Cmwlth.), appeal denied, 527 Pa. 620, 590 A.2d 760 (1990).
This Court's review of an order of the Board denying a parolee's petition for administrative review is limited to considering whether the Board's necessary factual findings are supported by substantial evidence and whether the Board erred as a matter of law or violated a parolee's constitutional rights. Gibson v. Pennsylvania Bd. of Probation and Parole, 3 A.3d 754 (Pa. Cmwlth.), appeal denied, 608 Pa. 671, 13 A.3d 481 (2010).
Section 71.4 of Title 37 of the Pennsylvania Code provides:
The following procedures shall be followed before a parolee is recommitted as a convicted parole 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 contendre 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.
(ii) A parolee who is confined in a county correctional institution and who has waived the right to a revocation hearing by a panel . . . shall be deemed to be within the
jurisdiction of the Department of Corrections as of the date of the waiver.
Thus, 37 Pa. Code § 71.4 provides distinct dates from which the clock begins to run on the Board for the purpose of conducting a timely revocation hearing for a convicted parole violator. Subsection (1) provides that, unless one of two exceptions applies, the date upon which the clock begins to run is the date when the Board receives "official verification" of a new conviction. The first exception to this primary rule, 37 Pa. Code § 71.4(1)(i), specifically refers to parolees who are confined outside the jurisdiction of DOC, such as where a parolee has been convicted of new crimes and/or is serving a sentence in another state or in a federal court. Under such circumstances, the clock begins to run on the Board when it receives "official verification" that a parolee who was convicted on new criminal charges has been returned to a State correctional facility. As indicated by the facts described above, at the time of his conviction, Harris was not confined outside the jurisdiction of DOC. Therefore, notwithstanding Harris' argument to the contrary, which we discuss below, this subsection does not apply. The other exception, 37 Pa. Code § 71.4(1)(ii), does not apply because Harris did not waive his right to a hearing. Consequently, the only applicable provision is 37 Pa. Code § 71.4(1), which, as noted above, requires the Board to conduct a hearing within 120 days of receiving official verification of a conviction.
The Board's regulations define "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.
Harris argues that, because Mr. Bordoni knew in September 2010, that Harris had been convicted, but waited until December 3, 2010, to obtain official verification of the conviction, the Board should have considered the date Mr. Bordoni became aware of the conviction as the date of official verification of Harris' conviction.
In making this argument, Harris relies upon this Court's decision in Jacobs v. Pennsylvania Board of Probation and Parole, 24 A.3d 1074 (Pa. Cmwlth. 2011), where we held that the Board held an untimely hearing when, without any explanation or justification, the Board delayed holding a hearing until approximately one year after it received official notice of a new conviction. In Jacobs, the trial court that had convicted Jacobs, the parolee, sent official notice to the Board, but the parolee's parole agent did not receive the notice. We concluded that based on the Board's receipt of the official notice, and the Board's failure to offer any explanation regarding why it did not communicate that information to the parole agent, the Board unreasonably delayed the revocation hearing, and, therefore, the hearing was untimely.
In this case, the Board did not receive official verification until December 3, 2010. As indicated above, Harris' parole agent testified that he had informal information from a computer search that Harris had been convicted in September 2010. He then took measures to have a parole investigator obtain official verification. Although the record does not indicate why the investigator did not supply Mr. Bordoni with the requested verification, we cannot conclude that Mr. Bordoni acted unreasonably. In contrast to the facts in Jacobs, where the Board had official notification from the trial court of a conviction, in this case there is no indication that the Board or one of its employees ever received official verification or notice from the trial court. Thus, based upon the distinguishable factual nature of Jacobs, we conclude that our holding in that decision does not apply in this case. Furthermore, as the Board notes, this Court has held that Board agents do not need to demonstrate that they acted with due diligence. Lawson v. Pennsylvania Bd. of Probation and Parole, 977 A.2d 85, 88 n.5 (Pa. Cmwlth. 2009), appeal denied, 606 Pa. 652, 992 A.2d 890 (2010).
Harris also points to the trial court's conviction order admitted during Harris' revocation hearing which apparently was obtained from the website of the Administrative Office of Pennsylvania Courts (AOPC). Harris contends that the date on the bottom of this document indicates that Mr. Bordoni printed the document on September 16, 2010, thus suggesting that Mr. Bordoni had official verification on that date. The date at the bottom appears to be an AOPC-generated date, unrelated to the date Mr. Bordoni printed the document. In fact, the date stamp on the document is December 3, 2010. (C.R. at 97.) Thus, the record does not support Harris' argument.
Harris also argues, however, that DOC's "Moves Report" for Harris reflects DOC's return of Harris to SCI-Graterford on September 20, 2010, for "diagnostic/classification" purposes. (C.R. at 101.) Harris asserts that, because this document indicates that Harris was returned to state custody on September 20, 2010, this document provided the Board official notice that Harris had been returned to state custody, and that, therefore, under the above-noted 37 Pa. Code § 71.4(1)(i), the Board should have held its hearing within 120 days of receiving official notice of Harris' return to state custody. Harris argues that this document is "obviously provided to the [Board] because it is made part of the [Board's] certified record." (Harris Brief at 11.)
The "Moves Report" appears to constitute a DOC-generated list which, by date, location, and reason, summarizes instances in which DOC has moved a particular inmate. --------
Harris contends that permitting the Board to ignore such information, and requiring the formality of "official certification," creates an absurdity. Harris asserts that the regulation unfairly authorizes inconsistency with regard to two classes of parolees, because, under 37 Pa. Code § 71.4(1)(i), where a parolee is returned to state custody from another jurisdiction, the Board is required to hold a hearing within 120 days of official verification of a parolee's return to a state correctional facility (as compared to conviction). Thus, Harris argues, the regulation results in unnecessarily disparate treatment. Harris suggests that the more reasonable approach would be to apply 37 Pa. Code § 71.4 in a manner that provides for the most timely hearing. In this case, Harris argues that, notwithstanding the fact that Harris was in DOC's jurisdiction at all pertinent times, the Board should have held Harris' revocation hearing within 120 days of being returned to SCI-Graterford. Harris asserts that, as with extra-jurisdictional returnees, the Board should have known that Harris' return to SCI-Graterford could only have occurred as a result of a new conviction.
First, we note that the "Moves Report" upon which Harris relies is dated April 30, 2011. There is insufficient evidence in the record regarding this document to support the legal significance Harris attaches to it. As the Board indicates, the record confirms that Harris remained in DOC's jurisdiction beginning in August 2010, when DOC exercised its detainer and first returned Harris to SCI-Graterford from county prison in advance of his trial on the new criminal charges.
Second, as the Board notes, this Court has rejected a parolee's claim that the 120-day requirement applicable to parolees who are not within the jurisdiction of DOC should also apply to parolees within DOC's jurisdiction. Montgomery v. Pennsylvania Bd. of Probation and Parole, 808 A.2d 999 (Pa. Cmwlth. 2002). The facts in Montgomery are similar to the facts in this case. In Montgomery, DOC had moved a parolee (who was serving backtime for technical parole violations) from a state correctional facility to a county facility for trial on new criminal charges. The parolee was convicted on the new charges, sentenced to serve a new county sentence following the completion of his backtime for his earlier technical violation, and sent back to the state correctional facility. This Court held that
[A]lthough Montgomery was moved from SCI-Waynesburg to the Bucks County jail for a non-jury trial on new criminal charges, Montgomery at all times was serving [backtime for his technical parole violations] within the jurisdiction of [DOC]. The county was not holding Montgomery pending disposition of his non-jury trial. The county had no reason to confine Montgomery until the court of common pleas imposed the county sentence . . . . Thus, the court of common pleas issued a detainer with [DOC], so that, upon completion of his backtime, Montgomery would be detained to serve his county sentence. Inasmuch as Montgomery was not confined outside the jurisdiction of [DOC], the exception in 37 Pa. Code [§] 71.4(1)(i) does not apply here.Id. at 1002. In this case, Harris was within the jurisdiction of DOC at all times pertinent to this appeal. In accordance with this Court's decision in Montgomery, we conclude that the Board did not err in concluding that it held Harris' revocation hearing in a timely manner under 37 Pa. Code § 71.4.
Accordingly, we affirm the Board's order denying Harris' request for administrative review.
/s/_________
P. KEVIN BROBSON, Judge
ORDER
AND NOW, this 13th day of April, 2012, the order of the Pennsylvania Board of Probation and Parole is AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge