Opinion
No. 1372 C.D. 2012
03-12-2013
Trent Rollins, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Trent Rollins (Rollins) challenges the final determination of the Pennsylvania Board of Probation and Parole (Board) that recommitted him to serve twelve months backtime as a technical parole violator and established his maximum date as November 27, 2016.
This Court's review is limited to determining whether the Board's findings are supported by substantial evidence, are in accordance with the law, and whether constitutional rights have been violated. Krantz v. Pennsylvania Board of Probation and Parole, 483 A.2d 1044 (Pa. Cmwlth. 1984). This Court will interfere with the Board's exercise of administrative discretion only where it has been abused or exercised in an arbitrary or capricious manner. Green v. Pennsylvania Board of Probation and Parole, 664 A.2d 677 (Pa. Cmwlth. 1995).
Rollins was sentenced on November 27, 2006, to a term of three years to seven years six months for criminal conspiracy and robbery. He was consecutively sentenced to a term of three months to one year for possession of a controlled substance. He was also consecutively sentenced to a term of one month to six months each for two counts of disorderly conduct. His total sentence was three years five months to nine years six months. Rollins was released on parole to a community corrections center on April 7, 2011. On July 6, 2011, he was released on parole to his approved home plan at his mother's residence in Bethlehem, Pennsylvania.
On January 17, 2012, Parole Agent Miranda Lee (Agent Lee) was notified by the North Catasauqua Police Department that a protection from abuse order had been filed against Rollins by a former girlfriend. That night Agent Lee searched Rollins's residence and discovered three alcohol bottles in his room. On January 18, 2012, the Board issued a warrant to commit and detain Rollins. That day Rollins surrendered to the Board's Allentown District Office.
The Board charged Rollins with the following technical violations: (Condition #3C) failing to maintain regular contact with parole supervision staff by notifying parole supervision staff within seventy-two hours of a change in status, (Condition #3A) failing to comply with his curfew of 7:30 p.m. to 5:00 a.m., and (Condition #7) consuming or possessing alcohol.
On April 17, 2012, the Board held a final violation hearing. Agent Lee announced that the Board was removing the violation of Condition #3C because it could not secure a witness. Notes of Testimony, April 17, 2012, (N.T.) at 9; Certified Record (C.R.) at 36. Rollins admitted violating Condition #3A. N.T. at 10-11; C.R. at 37-38.
With respect to the violation of condition #7, Agent Lee testified that there was a bottle of Kiwi Strawberry Mad Dog in a mini-refrigerator in Rollins's bedroom which contained alcohol. N.T. at 12; C.R. at 39. On cross-examination, Agent Lee did not remember whether she opened the bottle: "I honestly don't remember. Probably, it's standard procedure that I would do so." N.T. at 15; C.R. at 42.
Parole Agent Tina Kaminski (Agent Kaminski) who was present during the search of Rollins's residence, testified that when she searched the dressers and nightstands in Rollins's bedroom, "[w]e found a bottle of Yukon Jack with a small amount of alcohol in it and a bottle of Coconut Jack coconut rum. . . . They were both in drawers." N.T. at 12-13; C.R. at 39-40. On cross-examination, Agent Kaminski did not recall whether there was any liquid in the Coconut Jack bottle. She testified that there was a "little bit of alcohol in the Yukon Jack" and that it smelled like alcohol. N.T. at 14-15; C.R. at 41-42.
Rollins denied that the "MD-2020" or "Mad Dog" bottle was in the mini-refrigerator. N.T. at 16; C.R. at 43. The other two bottles were in a drawer which he kept for decorative purposes, and "[m]y mom must have put them in the drawer. I was locked up for the original charges." N.T. at 17; C.R. at 44. On cross-examination, he stated that there was no alcohol in the bottles. N.T. at 18; C.R. at 45. He knew the bottles were there but did not use that drawer because it was filled with old clothes that no longer fit him. N.T. at 19-20; C.R. at 46-47.
In a decision recorded May 1, 2012, and mailed May 7, 2012, the Board recommitted Rollins to serve twelve months for technical violations of Condition #3A and Condition 7. The Board reestablished Rollins's parole violation maximum date of November 27, 2016.
Rollins requested administrative relief and asserted that he was not in possession of any alcoholic beverages, just empty decorative bottles.
The Board denied the request for administrative relief:
The Board determined that sufficient evidence was presented at the April 17, 2012 violation hearing to recommit Mr. Rollins for conditions #3A (curfew violation) and #7 (alcohol possession). The evidence relied upon by the Board was Mr. Rollins' admission as to violation of condition #3A and the parole agent's testimony as to violation of condition #7. Mr. Rollins' admission was sufficient evidence that he violated condition #3A of his parole. The evidence relied upon by the Board regarding the violation of condition #7 was the testimony of State Parole Agent Lee and documented photo of the alcohol containers in question. This evidence was sufficient to find that Mr. Rollins violated condition #7 and the fact that the Board found the witness to be credible is not subject to challenge. . . . Additionally, because there was sufficient evidence to revoke Mr. Rollins' parole, the Board had discretion to continue Mr. Rollins on parole or recommit him to a state correctional institution. . . .
The Board chose to recommit Mr. Rollins to serve 12 months for the aforementioned violations. The presumptive recommitment ranges for the violation of condition #3A is 3-6 months and 3-18 months for condition #7. The aggregate presumptive range for both violations is 6-24 months. . . . Therefore, the 12 month recommitment period imposed for Mr. Rollins' violations
falls within the presumptive range and is not subject to challenge. . . . (Citations omitted).Board Decision, June 28, 2012, at 1; C.R. at 65.
Rollins contends that the Board's denial of relief from the order revoking his parole constituted an error of law, a violation of his constitutional rights, and was unsupported by substantial evidence. Rollins argues that the condition of his parole was that he not possess alcohol but did not prohibit him from possessing bottles that once contained alcohol. He further argues that there was no evidence that the liquid in the bottles contained alcohol at the time the parole agents discovered them.
While it is true that no condition of Rollins's parole prevented him from possessing empty bottles of alcohol, Rollins ignores the testimony by the two parole agents.
Agent Lee testified that she found a bottle of Kiwi Strawberry Mad Dog in a mini-refrigerator in Rollins's bedroom which contained alcohol. N.T. at 12; C.R. at 39. Agent Kaminski testified that the agents discovered a bottle of Yukon Jack containing a small amount of alcohol in it in a drawer in Rollins's room. N.T. at 12-15; C.R. at 39-42. The Board specifically stated in its denial of Rollins's request for administrative relief that it found Agent Lee credible. "[I]ssues of resolving conflicts in the evidence, witness credibility, and evidentiary weight are properly within the exclusive discretion of the Board, as the ultimate factfinder, and are not matters for a reviewing court." McCauley v. Pennsylvania Board of Probation and Parole, 510 A.2d 877, 879-880 (Pa. Cmwlth. 1986), citing Fallings v. Pennsylvania Board of Probation and Parole, 502 A.2d 787, 790 (Pa. Cmwlth. 1986).
The credited testimony supported the determination that alcohol was found in Rollins's room. Rollins argues that there was no proof that the liquid in the bottles contained alcohol. However, Agent Lee testified that the Kiwi Strawberry Mad Dog contained alcohol. Agent Kaminski testified that the liquid in the bottle of Yukon Jack smelled like alcohol. The Board found this testimony sufficient to prove that Rollins violated the parole condition which prohibited him from possessing alcohol. This Court agrees.
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 12th day of March, 2013, the order of the Pennsylvania Board of Probation and Parole in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
DISSENTING OPINION BY JUDGE LEAVITT
Respectfully, I dissent. The Board was required to prove by a preponderance of substantial evidence that Rollins violated Condition 7 of his parole, which stated that he "shall not consume or possess alcohol under any condition for any reason." Certified Record at 14 (C.R. ___). The Board failed to sustain its burden and, therefore, I would reverse.
Our scope of review of a Board recommitment order is to determine whether the order is in accordance with law, whether necessary factual findings are supported by substantial evidence, and whether the petitioner's constitutional rights were violated. Chapman v. Pennsylvania Board of Probation and Parole, 484 A.2d 413, 416 (Pa. Cmwlth. 1984). "Substantial evidence" has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Chapman, 484 A.2d at 416. It requires something more than a scintilla creating a mere suspicion of the existence of the fact to be established. Id. The Board bears the burden of proof of showing, by a preponderance of the evidence, that the petitioner violated his parole. Id. See also 37 Pa. Code §71.2(19).
The regulation states, in relevant part:
The following procedures shall be followed if a parolee, not already detained after appropriate hearings for other technical violations or criminal charges, has been charged with a technical violation:
* * *
(19) The panel may not find that a violation was proved except by a preponderance of the evidence.
Here, the Board's evidence consisted of the testimony of two parole agents who searched Rollins' bedroom while conducting a curfew check. Agent Miranda Lee testified that she discovered a bottle of Kiwi Strawberry Mad Dog in a mini-fridge "which did contain alcohol." Notes of Testimony, April 17, 2012, at 12 (N.T. ___); C.R. 39. Agent Lee could not recall, however, if she actually opened the bottle and smelled it. N.T. 15; C.R. 42. Agent Tina Kaminski testified that she searched a dresser drawer and "found a bottle of Yukon Jack with a small amount of alcohol in it and a bottle of Coconut Jack coconut rum." N.T. 12; C.R. 39. Agent Kaminski could not recall if there was anything in the Coconut Jack bottle. She believed "[t]here was a little bit of alcohol in the Yukon Jack [bottle]" because it "smelled like alcohol." N.T. 14-15; C.R. 41-42.
Based on the above evidence, the Board did not show that it was more likely than not that Rollins "consume[d] or possesse[d] alcohol." The parole agents' statements that two of the three bottles contained alcohol, based solely on one of the agents smelling one of the bottles, raised only a mere suspicion of that fact. It is unknown whether it was the bottle itself or the remnants of the liquid at the bottom that smelled like alcohol. The Board could have, but did not, offer a chemical analysis of the contents of the bottles, as it would have done to confirm, for example, that a green leafy substance that smells like marijuana is marijuana, or that a white powdery substance that looks like cocaine is cocaine.
For these reasons, I would reverse the Board's order.
/s/_________
MARY HANNAH LEAVITT, Judge