Opinion
No. 1901 C.D. 2011
07-20-2012
Rashaun Nance, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Petitioner Rashaun Nance (Nance) petitions for review from a Final Determination of the Pennsylvania Board of Probation and Parole (Board) dated October 3, 2011, affirming its Order dated May 26, 2011, recommitting Nance to a state correctional institution as a convicted parole violator. Nance contends the Board erred in failing to dismiss the parole violation charge against him because the Board's parole revocation hearing was not timely under the Board's regulation at 37 Pa. Code § 71.4(1)(i) and was in violation of Nance's right to due process.
We note that the first name of the Petitioner is spelled "Rashawn" in the Board records, but "Rashaun" is used on the Petition for Review and the documents filed with this Court.
The relevant facts of the case are as follows. The Board paroled Nance on January 14, 2010, with a parole violation maximum date of February 7, 2013, from his sentence on charges involving two counts of robbery, one count of carrying a firearm in public, and a violation of probation. (Sentence Status Summary at 1, C.R. at 1; Conditions Governing Parole at 1-2, C.R. at 17-18.) However, on July 6, 2010, the Philadelphia Police arrested Nance on a new misdemeanor drug charge. (Revocation Hr'g Tr. at 9, C.R. at 47; Criminal Docket MC-51-CR-0029286-2010 at 1, C.R. at 62.) On July 7, 2010, Nance posted bail on his new criminal charge and was detained on a Board warrant. (Criminal Docket MC-51-CR-0029286-2010 at 2, C.R. at 63; Warrant to Commit and Detain, C.R. at 23.) On July 8, 2010, he was returned to the state correctional institution at Graterford (SCI Graterford) on the Board's detainer. (Moves Report at 1, C.R. at 69.) On October 7, 2010, Nance was transferred to the Philadelphia County Prison System to resolve the new criminal charges. (Moves Report at 1, C.R. at 69.) On the same day, October 7, 2010, Nance pleaded guilty to Intentional Possession of a Controlled Substance by a Person Not Registered in the Municipal Court of Philadelphia County, was sentenced to six months of probation, (Order-Negotiated Stipulated Trial, C.R. at 61), and was returned to SCI Graterford, (Moves Report at 1, C.R. at 69).
On February 7, 2011, the Board received official verification of Nance's conviction. (Notice of Charges and Hearing, C.R. at 27; Revocation Hr'g Tr. at 10-11, C.R. at 48-49.) On February 8, 2011, Nance waived his right to a Panel Hearing. (Waiver of Panel Hearing, C.R. at 28.) The Board held a revocation hearing thirty-eight days later, on March 17, 2011, at the state correctional institution at Rockview, to which Nance had been transferred on January 18, 2011. (Moves Report at 1, C.R. at 69.) Nance objected to the lack of timeliness of the hearing and the Board denied this objection. (Revocation Hr'g Tr. at 7-8, C.R. at 45-46; Hearing Report at 2, C.R. at 33.) Thereafter, by decision mailed on May 26, 2011, the Board recommitted Nance as a convicted parole violator to serve six months backtime and recalculated Nance's maximum sentence date to be August 29, 2013. (Notice of Board Decision, C.R. at 74; Order to Recommit, C.R. at 75-76.)
Nance filed an administrative appeal regarding the timeliness issue with the Board. (Nance's Appeal, C.R. at 77-86.) The Board denied Nance's administrative appeal by response mailed October 3, 2011, affirmed its May 26, 2011 decision, and concluded that the hearing was timely because it was held within 120 days of the date it received the official verification of Nance's guilty plea. (Letter from Board to Nance, C.R. at 89.) Nance now petitions this Court for review.
The scope of "[o]ur review is limited to determining whether constitutional rights have been violated, whether an error of law has been committed or whether the necessary findings of fact are supported by substantial evidence." Gibson v. Pennsylvania Board of Probation and Parole, 3 A.3d 754, 755 n.1 (Pa. Cmwlth.), petition for allowance of appeal denied, 608 Pa. 671, 13 A.3d 481 (2010).
Section 71.4 of the Board's regulations requires the Board to hold a revocation hearing "within 120 days from the date the Board received official verification of the plea of guilty" before a parolee may be recommitted as a convicted parole violator. Section 71.4 provides:
The Board's regulation defines 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.
[t]he following procedures shall be followed before a parolee is recommitted as a convicted violator:
37 Pa. Code § 71.4(1). The relevant exception in Section 71.4(1), upon which Nance relies, is:(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, 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.37 Pa. Code § 71.4(1)(i) (emphasis in original). When a parolee makes a claim that a revocation hearing is untimely, "the Board bears the burden of proving by a preponderance of the evidence, that the hearing was timely." Vanderpool v. Pennsylvania Board of Probation and Parole, 874 A.2d 1280, 1283 (Pa. Cmwlth. 2005).
Nance argues that Section 71.4(1)(i) applies in his case because he was confined outside the jurisdiction of the Department of Corrections (Department) and he did not waive his right to a revocation hearing pursuant to Rambeau within 120 days of his return to SCI Graterford. Therefore, Nance maintains that his revocation hearing was not timely when it was not held until March 17, 2011, more than 120 days after the date of Nance's return to state custody on October 7, 2010. Nance's argument is premised on the characterization of his period of less than twenty-four hours in Philadelphia County on October 7, 2010 as "confinement outside the jurisdiction of the Department of Corrections" under subsection (i) of the regulation, and contends that his return to SCI Graterford triggered the commencement of the 120 day period. Nance argues that Section 71.4(1)(i) should apply to him because he was not within the jurisdiction of the Board when he was not serving backtime and had not been recommitted before his hearing on the new charges, which Nance contends distinguishes his case from Montgomery v. Pennsylvania Board of Probation and Parole, 808 A.2d 999 (Pa. Cmwlth. 2002) and Morgan v. Pennsylvania Board of Probation and Parole, 814 A.2d 300 (Pa. Cmwlth. 2003).
In Montgomery, this Court addressed whether a parolee who was transferred to a county facility for the purpose of standing trial on new charges was outside the confinement of the jurisdiction of the Department. In that case, Montgomery was on parole from a state correctional institution when he committed a technical parole violation by traveling as a passenger in a car that was outside the parole district without permission. Montgomery, 808 A.2d at 1000. The Board issued a detainer and, after a violation hearing, recommitted Montgomery as a technical parole violator (TPV) to serve twelve months backtime. Id. While serving this backtime, the county district attorney filed new charges. Id. Montgomery was found guilty of the charges at a non-jury trial and was sentenced to nine to twenty-three months in the county jail, consecutive to his TPV backtime. Id. After approximately three weeks in the county jail, the county returned Montgomery to a state correctional institution. Id. at 1000-01. In determining whether Section 71.4(1)(i) applied instead of the general rule of Section 71.4(1), the issue, as in the instant case, was whether Montgomery was confined outside the jurisdiction of the Department. Although Montgomery was present in the county for nearly three weeks, a substantial period of time that could have been interpreted as "confinement outside the jurisdiction of the Department" pursuant to Section 71.4(1)(i), other circumstances in that case prevented such a characterization. Id. at 1001-02. Despite his physical presence in a county jail for nearly three weeks, this Court concluded that Montgomery never left the jurisdiction of the Department because he was continuously serving his TPV backtime. Id. at 1002. Therefore, Montgomery is distinguishable on its facts.
In Morgan, the parolee similarly invoked the exception of Section 71.4(1)(i) in objecting to the timeliness of a revocation hearing. Morgan, a parolee, had been arrested on new criminal charges and confined in the county prison. Morgan, 814 A.2d at 301. The next day, the Board issued a detainer against him based on the new charges and on technical parole violations. Id. The following day, Morgan was returned to a state correctional facility. Id. Approximately six weeks later, Morgan was recommitted as a TPV to serve backtime. Id. Approximately five months later, the new criminal charges were dismissed and no revocation hearing on those charges was ever necessary. Id. However, about seven months after being recommitted as a TPV, Morgan was charged with new federal crimes. Id. He was transferred by writ to a federal detention center and, after about one week in the federal facility, Morgan pleaded guilty and was transferred back to state prison on the following day. Id. Morgan was sentenced three months later to 57 months in federal prison. Id. Morgan argued that Section 71.4(1)(i) should apply because he was confined outside the jurisdiction of the Department. Id. at 302. However, we concluded that
[w]hen a prisoner is detained pursuant to a writ for the purposes of presenting him to the court on new criminal charges, the prisoner is "considered to remain in the primary custody of the first jurisdiction unless and until the first sovereign relinquishes jurisdiction over the person. The receiving sovereign . . . is, therefore, considered simply to be 'borrowing' the prisoner from the sending sovereign for the purposes of . . . trying[] and sentencing him.Id. at 303 (quoting Ruggian v. Reish, 307 F.3d 121, 125 n.1 (3rd Cir. 2002)).
Nance maintains that there exists no legal basis to conclude that he did not leave state jurisdiction when he left SCI Graterford. However, when Nance was transported to the county court for the purpose of the disposition of the new criminal charges and sentencing, and then returned to SCI Graterford, no county confinement ensued. As in Morgan, we consider Nance to have remained in the primary custody of the Department while he was presented to the county court for the purpose of the disposition of the criminal charges. Though he "was physically in the care of other authorities, he technically never left the [Department's] jurisdiction." Morgan, 814 A.2d at 303.
It is undisputed that the Board did not receive official verification of Nance's conviction until February 7, 2011. Consequently, under the application of the general rule in Section 71.4(1), the key question becomes whether the Board held the hearing within 120 days of the date when it received official verification of the conviction. The 120-day period began to run on February 7, 2011. Therefore, when the Board held the revocation hearing on March 17, 2011, this was thirty-eight days later and within the 120-day period.
Nance further contends that the revocation hearing in this case violates due process pursuant to Morrissey v. Brewer, 408 U.S. 471 (1972), Commonwealth v. Marchesano, 519 Pa. 1, 544 A.2d 1333 (1988), and Commonwealth v. Brown, 503 Pa. 514, 469 A.2d 1371 (1983), and because it prejudiced him by lengthening his incarceration. Nance maintains that he had to wait eight months for the Board to impose a six-month sentence for the violation. However, there is no right to be reparoled at the expiration of the recommitment period. See Section 6138(a)(2) of the Prisons and Parole Code, 61 Pa. C.S. § 6138(a)(2) (providing the Board with statutory authority to keep parole violators incarcerated for the remainder of their terms without reparole regardless of the imposed recommitment); Krantz v. Pennsylvania Board of Probation and Parole, 483 A.2d 1044, 1048 (Pa. Cmwlth. 1984) ("A parole violator may be reparoled by the Board only when reparole is justified as in the best interests of the parolee and the interests of the Commonwealth will not be injured by a grant of reparole.") (emphasis in original). Nance did not have a right to be reparoled and, therefore, had no basis to claim that he was prejudiced in this matter.
Additionally, Nance argues that even if the Board was technically compliant with the regulations, the delay in obtaining the proof of his conviction exceeded the minimum sanction and approached the maximum, which resulted in an unreasonable delay. As this Court has stated, Section 71.4(1) "sets a clear timeline for a revocation hearing, and in doing so it strikes a balance between a parolee's right to due process and the Board's ability to obtain information." Lawson v. Pennsylvania Board of Probation and Parole, 977 A.2d 85, 89 (Pa. Cmwlth. 2009). In Lawson, we noted that the timeliness of a parole revocation hearing is governed by statute and regulation. Id. at 88. Additionally, in Lawson, we reaffirmed the wisdom of Lee v. Pennsylvania Board of Probation and Parole, 596 A.2d 264 (Pa. Cmwlth. 1991), in which we held "as a matter of law, [] if the parole revocation hearing is held within 120 days after the receipt of the certified charges, that [] is reasonable for due process." Id. at 89 (quoting Lee, 596 A.2d at 265). Accordingly, the decision of the Board is affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, July 20, 2012, the Order of the Pennsylvania Board of Probation and Parole in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
DISSENTING OPINION BY SENIOR JUDGE FRIEDMAN
I respectfully dissent. I do not agree that the revocation hearing was timely held.
While on parole, Rashaun Nance (Nance) was arrested on a new criminal charge, which was an ungraded misdemeanor carrying a maximum punishment of one year in a county prison. See Section 9762(a)(3) of the Judicial Code, 42 Pa. C.S. §9762(a)(3) (providing that "[m]aximum terms of less than two years shall be committed to a county prison within the jurisdiction of the court"). The Pennsylvania Board of Probation and Parole (Board) issued a warrant to detain Nance based upon this charge. Because Nance posted bail on the new charge, he was detained solely on the Board's warrant and confined at the state correctional institution at Graterford (SCI-Graterford). On October 7, 2010, the Board transported Nance to the Philadelphia County Prison System (County) to stand trial on the new criminal charge. Nance pled guilty and was sentenced to six months of probation. The County returned Nance to SCI-Graterford on the same day, October 7, 2010.
When the Board transported Nance to the County to stand trial on the new criminal charge, I believe that the Board relinquished jurisdiction to the County and that Nance was temporarily confined by the County outside the jurisdiction of the Department of Corrections, albeit for a short period of time. Unlike the cases relied upon by the majority, when the Board transferred Nance to the County, Nance was not serving a sentence or backtime. See Morgan v. Pennsylvania Board of Probation and Parole, 814 A.2d 300 (Pa. Cmwlth. 2003) (petitioner was serving his state sentence when the Board transferred him to a federal detention center to enter his plea to federal charges); Montgomery v. Pennsylvania Board of Probation and Parole, 808 A.2d 999 (Pa. Cmwlth. 2002) (petitioner was serving backtime when the Board transferred him to a county jail for a non-jury trial on new criminal charges). The Board detained Nance solely on its warrant pending disposition of the County charge. But for the County charge, there was no basis for the Board to detain Nance. Furthermore, had the County sentenced Nance to serve time on the new criminal charge, Nance would have remained in the jurisdiction of the County to serve his new county sentence. Because Nance was only sentenced to probation on the new criminal charge, the County transferred jurisdiction back to the Board and returned Nance to SCI-Graterford so that Nance could serve time on the Board's detainer.
A new county sentence must be served before backtime resulting from the parolee's recommitment as a convicted parole violator. Section 6138(a)(5)(iii) of what is commonly referred to as the Prison and Parole Code, 61 Pa. C.S. §6138(a)(5)(iii).
Pursuant to the Board's regulations, the official verification of Nance's return to SCI-Graterford on October 7, 2010, triggered the 120-day time period within which to hold a revocation hearing. The March 17, 2011, revocation hearing was well beyond 120 days from Nance's official return on October 7, 2010. Therefore, I believe the revocation hearing was untimely. For these reasons, I would reverse the order of the Board.
Section 71.4 of the Board's regulations requires the Board to hold a revocation hearing "within 120 days from the date the Board received official verification of the plea of guilty" before a parolee may be recommitted as a convicted parole violator. 37 Pa. Code §71.4(1). The relevant exception in Section 71.4(1) provides:
(i) If a parolee is confined outside the jurisdiction of the Department of Corrections, such as confinement out-of-State, 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 . . ., the revocation hearing shall be held within 120 days of the official verification of the return of the parolee to a State correctional facility.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
37 Pa. Code §71.4(1)(i) (emphases added).