Opinion
No. 2152 C.D. 2012
06-17-2013
Kasan Sanders, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Kasan Sanders (Sanders) petitions for review of the October 26, 2012 order of the Pennsylvania Board of Probation and Parole (Board) denying Sanders' petition for administrative relief and affirming the Board's May 21, 2012 decision to recommit Sanders to a state correctional institution as a convicted parole violator to serve six months backtime. We affirm.
On January 26, 2012, Sanders was sentenced to 5 to 10 years of incarceration in a state correctional institution for robbery. (Certified Record (C.R.) at 1.) He was released on parole on October 6, 2003, with a maximum sentence expiration date of July 18, 2007. (C.R. at 10.) Sanders violated his parole and, on August 26, 2004, he was recommitted to a state correctional institution as a technical parole violator to serve 12 months backtime. (C.R. at 15.)
On December 15, 2005, Sanders was recommitted as a convicted parole violator to serve 24 months backtime concurrent with the previous technical parole violation recommitment. (C.R. at 17.) On June 25, 2007, Sanders was released from state custody and paroled to a federal detainer sentence. (C.R. at 24.) While in federal custody, Sanders assaulted another inmate. (C.R. at 28.) On October 23, 2008, Sanders pled guilty to possession of contraband by an inmate, and on January 27, 2009, Sanders was sentenced to an additional 30 months of federal imprisonment to run consecutive to the federal sentence he was already serving. (C.R. at 28, 65-66.)
The Board learned of Sanders' federal conviction on March 11, 2009, and, on March 13, 2009, the Board issued a warrant for Sanders' arrest, directing that he be detained and returned to the Board's custody. (C.R. at 27.) On March 16, 2009, the Federal Bureau of Prisons (BOP) notified the Board that the United States Penitentiary at Caanan in Waymart, Pennsylvania had received the Board's warrant and had tentatively scheduled August 10, 2011, as the date for Sanders' release to the Board. (C.R. at 34, 71.) The BOP also advised the Board that it would notify the Board no later than 60 days prior to the date of Sanders' actual release. (C.R. at 71.)
On January 5, 2012, the BOP notified the Board that Sanders would be available to the Board on March 9, 2012. (C.R. at 65.) Sanders was released from federal custody into the Board's custody at the State Correctional Institution at Rockview (SCI-Rockview) on March 9, 2012. (C.R. at 63.)
The Board served Sanders with notice of his parole violations on April 5, 2012. Sanders' parole revocation hearing was held at SCI-Rockview on April 19, 2012. (C.R. at 39.) At the hearing, Sanders objected to the timeliness of the hearing by asserting that the Board should have executed its warrant and retrieved him from federal custody to hold his parole revocation hearing before he served his new federal sentence. (C.R. at 47.)
The Board's regulations provide that a parole revocation hearing must be held within 120 days of the official verification of the return of the parolee to a state correctional facility from federal custody. 37 Pa. Code §71.4(1)(i).
By decision dated May 21, 2012, the Board overruled Sanders' timeliness objection because his parole revocation hearing was held within 120 days of his return to SCI-Rockview, and recommitted Sanders to SCI-Rockview as a convicted parole violator to serve six months backtime for possessing contraband. (C.R. at 74.) The Board also established a maximum release date of July 22, 2013. (Id.)
Sanders appealed the Board's order on June 7, 2012, arguing that the Board should have attempted to get him back on August 10, 2011 because he was available to the Board at this date, and that the hearing must have been held within 120 days of this date to be timely. (C.R. at 77-79). By order dated October 26, 2012, the Board denied Sanders' request for administrative relief.
The Board reasoned that it could only recommit Sanders when he was within its jurisdiction, which was after he served his federal sentence, and because Sanders was not under its jurisdiction at the time of his federal conviction, the Board was required to hold a revocation hearing within 120 days of official verification of his return to a state correctional institution. (C.R. at 82.) The Board held that Sanders' hearing was timely because he was returned to a state correctional institution on March 9, 2012, and the Board held a parole revocation hearing 41 days later, on April 19, 2012. (C.R. at 81.)
Sanders appeals to this Court, arguing that the Board's hearing was untimely because the BOP was prepared to release Sanders to the Board on August 10, 2011, but the Board did not attempt to take custody of Sanders. Relying on Williams v. Pennsylvania Board of Probation and Parole, 602 A.2d 434 (Pa. Cmwlth. 1992), Sanders argues that the Board cannot use the date of a parolee's return to state custody to assert that its hearing was timely when it has not diligently sought the parolee's return to its custody.
Our scope of review is limited to determining whether necessary findings of fact are supported by substantial evidence, an error of law was committed, or whether the constitutional rights of the parolee were violated. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704; Armbruster v. Pennsylvania Board of Probation and Parole, 919 A.2d 348 (Pa. Cmwlth. 2007). --------
Initially, we note that when a parolee challenges the timeliness of a parole revocation hearing, the Board bears the burden of proving that the hearing was timely. Brown v. Pennsylvania Board of Probation and Parole, 453 A.2d 1068 (Pa. Cmwlth. 1982). If the Board fails to meet this burden or explain the basis for delay, the appropriate remedy is dismissal of the parole violation with prejudice. McDonald v. Pennsylvania Board of Probation and Parole, 673 A.2d 27 (Pa. Cmwlth. 1996).
The Board's regulations provide that 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 . . . except as follows: if a parolee is confined outside the jurisdiction of the Department of Corrections, such as . . . confinement in a Federal correctional institution . . . 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). As we observed in Smith v. Pennsylvania Board of Probation and Parole, 417 A.2d 1350 (Pa. Cmwlth. 1980), official verification of the parolee's return to a state facility cannot be made earlier than the actual date of the parolee's return.
In Williams, the parolee was sentenced to incarceration by a Pennsylvania trial court and was paroled after serving four years. The parolee was then arrested in Georgia on new criminal charges and incarcerated in a Georgia state correctional facility. On November 28, 1988, the Georgia State Board of Pardons and Paroles notified the parolee that he was scheduled to be paroled on December 9, 1988. On December 8, the Georgia Department of Corrections advised the Board that it had received the Board's detainer for the parolee. The parolee believed that the Pennsylvania authorities were going to pick him up on that date, so he waived extradition. The Georgia State Board of Pardons and Paroles was unable to proceed with the parolee's Pennsylvania detainer until the Georgia Department of Corrections sent it a copy of the detainer, which did not occur until July 17, 1989. The parolee was then not paroled until August 23, 1989, when Pennsylvania authorities retrieved him.
The Board held a revocation hearing 63 days later, on October 25, 1989, at which the parolee objected to the timeliness of the hearing by asserting that he was available for Pennsylvania detainer on December 9, 1989. The Board recommitted the parolee as a technical and convicted parole violator and denied the parolee's request for administrative relief. On appeal to this Court, the parolee argued that the Board failed to adequately address the nine-month delay in retrieving him from Georgia and that his hearing was held 11 months after conviction for the offense underlying the parole violation.
This Court held that the hearing was untimely because the parolee was available to be released into the Board's custody nine months prior to his actual release, and, because the Board could not adequately explain the reason for the delay, his hearing should have been held within 120 days of the parolee's date of availability. We reasoned that "unreasonable and unjustifiable delays" do not toll the running of the 120 days. Williams, 602 A.2d at 437. This Court further held that, although the Georgia Department of Corrections was partially at fault for the delay in the Board's retrieval of the parolee, the Board should have promptly executed the detainer rather than arbitrarily leaving the parolee in Georgia's custody after the completion of his sentence. Id.
The circumstances presented in Williams are readily distinguishable from the facts here. Unlike the parolee in Williams who was available to the Board on December 9, 1988, but not retrieved by the Board until several months later, Sanders here was not available to the Board until March 9, 2012, and the Board executed its detainer and acquired custody of Sanders on that date. The BOP notified the Board that it would inform the Board no later than 60 days before Sanders' actual release; the Board had no reason to believe that Sanders was available to it on August 10, 2011; and Sanders was in fact not available to the Board at that date. Furthermore, there was no unreasonable delay in executing the Board's warrant; whereas the parolee in Williams had completed his sentence and waited several months for the Board to pick him up, Sanders did not complete his federal sentence until March 9, 2012, when he was immediately retrieved by the Board. Therefore, Sanders' reliance on Williams is misplaced.
Rather, we conclude that Sanders' hearing was timely because it was held within 120 days of his return to state custody at SCI-Rockview. Although the Board's regulations provide that a parolee's parole revocation hearing must be held within 120 days of official verification of a parolee's return to state custody from federal custody, this Court has consistently held that where no official verification is given, the hearing must be held within 120 days of the parolee's actual return to state custody, when it could have obtained official verification. See Davidson v. Pennsylvania Board of Probation and Parole, 33 A.3d 682, 687 (Pa. Cmwlth. 2011) (holding that the Board's hearing was timely when it was held less than 40 days after the parolee's return to state custody from federal custody); Johnson v. Pennsylvania Board of Probation and Parole, 19 A.3d 1178, 1180 (Pa. Cmwlth. 2011) (parolee was returned to the state correctional facility on September 1, 2009, therefore, his revocation hearing was required to be held within 120 days of that date); Geiger v. Pennsylvania Board of Probation and Parole, 655 A.2d 214, 218 (Pa. Cmwlth. 1995) (holding that the Board's hearing within 120 days of a parolee's return to a state facility from a county correctional institution was timely).
Moreover, in Hartage v. Pennsylvania Board of Probation and Parole, 662 A.2d 1157, 1160 (Pa. Cmwlth. 1995), we noted that 37 Pa. Code §71.4(1)(i) is based upon the principle that the 120-day period does not begin to run until the Board acquires jurisdiction over the parolee; the Board has no jurisdiction over a parolee until he is released by the county or federal authorities to a state correctional institution. Because Sanders was released from federal custody and returned to SCI-Rockview on March 9, 2012, and the Board held his hearing 41 days later, on April 19, 2012, the hearing was timely.
Sanders argues that the Board had an obligation to retrieve him from federal custody prior to March 9, 2012, because convicted parole violators should serve their original state sentence prior to serving their new federal sentence. In support, Sanders cites section 6138(a)(5.1) of the Prisons and Parole Code, 61 Pa.C.S. §6138(a)(5.1), which provides that "[i]f the parolee is sentenced to serve a new term of total confinement by a Federal court or by a court of another jurisdiction because of a verdict or plea under paragraph (1), the parolee shall serve the balance of the original term before serving the new term." Paragraph (1) provides that "[a] parolee under the jurisdiction of the board released from a correctional facility who, during the period of parole or while delinquent on parole, commits a crime punishable by imprisonment, for which the parolee is convicted or found guilty by a judge or jury or to which the parolee pleads guilty or nolo contendere at any time thereafter in a court of record, may at the discretion of the board be recommitted as a parole violator." 61 Pa.C.S. §6138(a)(1) (emphasis added).
The Board argues that it had no authority to remove Sanders from federal custody. We agree. This section of the law is inapplicable to Sanders because Sanders was confined in a federal penitentiary, outside the jurisdiction of the Board, at the time that he committed a crime for which he was sentenced to an additional 30 months in a federal penitentiary. Thus, the Board established that the hearing was timely and properly denied Sanders' petition for administrative relief.
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 17th day of June, 2013, the October 26, 2012 order of the Pennsylvania Board of Probation and Parole is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge