Opinion
No. 493 C.D. 2011 No. 651 C.D. 2011
08-30-2011
Craig Alford, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Craig Alford (Alford) challenges the final determination of the Pennsylvania Board of Probation and Parole (Board) that recommitted him to serve six months backtime as a convicted and technical parole violator.
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.
Alford was effectively sentenced on January 10, 1997, to an aggregated term of five to ten years for aggravated assault, one to two years for reckless endangerment and three to six years for drug manufacture/sale/delivery or possession with intent to deliver. The Board paroled Alford on August 28, 2006, to the Allentown Community Corrections Center. His approved residence was subsequently transferred to his grandmother's residence in Trenton, New Jersey. Alford reported to New Jersey on September 18, 2006, and was under the supervision of the New Jersey parole authorities.
On April 12, 2007, Alford was arrested in Ewing Township, New Jersey, for robbery, theft and harassment. On June 24, 2008, Alford pleaded guilty to the harassment charge and was sentenced to serve a 1-year term of non-reporting probation. The charges of robbery and theft were dismissed.
On March 24, 2010, Trenton, New Jersey, police arrested Alford on charges of stalking, endangering the welfare of a child, contempt-domestic violence, burglary, possession of a weapon for unlawful purposes, contempt-harassment, criminal mischief, and domestic violence. Alford was released on ROR bail on April 1, 2010, on the criminal charges, but remained in police custody on the parole detainer.
On April 9, 2010, New Jersey issued a New Jersey Parole Offender Violation Report which stated that Alford had violated his parole by changing his residence without permission of the parole supervision staff. The Board was also informed of Alford's new criminal charges. The Board issued a warrant for Alford on April 21, 2010, and also requested a probable cause hearing, which was conducted on April 27, 2010. The hearing officer determined that probable cause existed to establish that Alford violated certain conditions of his parole by failing to maintain his approved residence and by engaging in acts of violence and domestic violence.
The Board received the hearing documents on May 18, 2010, and on June 7, 2010, it was informed that criminal charges against Alford remained pending. On June 29, 2010, Alford was released from the Mercer County workhouse to the Hamilton Township Police Department because of an outstanding warrant. On July 7, 2010, Alford signed a waiver of extradition, which the Board received on July 8, 2010, along with a notice that Board agents had ten days to pick up Alford at the Mercer County Correctional Center. Board agents picked up Alford on July 15, 2010, and returned him to the State Correctional Institution at Graterford.
The Board charged Alford as a technical parole violator for changing his residence without permission and as a convicted parole violator based upon his June 24, 2008, guilty plea in New Jersey. On October 28, 2010, the Board held a combined Revocation Hearing/Violation Hearing. In a decision recorded December 1, 2010, and mailed on December 14, 2010, the Board recommitted Alford to serve six months backtime, as a technical parole violator concurrently with a six month recommittal as a convicted parole violator. Alford's parole violation maximum was set as November 28, 2017.
On December 27, 2010, Alford requested administrative relief and alleged: that his hearing was not timely, that the Board did not have authority to recommit Alford because his conviction was not in a court of record, that the decision was unsupported by substantial evidence, and that he did not receive credit for all time served pursuant to the Board's warrant. On January 24, 2011, the Board mailed a re-computation of Alford's maximum sentence date, now set at August 14, 2018. Alford filed a request for administrative relief on the recalculation on February 17, 2011. On March 8, 2011, the Board affirmed its December 14, 2010, decision except with regard to the November 28, 2017 maximum sentence date, and separately denied Alford's request for administrative relief on the recalculation. Alford filed a petition for review with this Court.
Alford filed two petitions for review on March 23, 2011, at 651 CD 2011, and at 493 CD 2011. By order of June 8, 2011, this Court consolidated Alford's cases.
Alford contends that the Board failed to give him credit for all time served solely under its warrant, erroneously recalculated his maximum sentence date, failed to provide him with a timely revocation hearing, and did not present sufficient evidence to revoke his parole.
Alford raised the issue in his Statement of Questions Involved that the Board lacked authority to recommit him because his New Jersey conviction was not in a court of record. He admits in the argument section of his brief that the conviction was in a court of record. Therefore, this Court need not address this argument.
Alford first alleges that the Board erred in its calculation of his backtime credit, and that he is entitled to 8 days credit for time spent in prison between March 24, 2010, and April 1, 2010. The Board determined Alford was entitled to 97 days credit for time spent in prison between April 1, 2010, and July 7, 2010.
It is well established that a parolee is entitled to credit for time spent in prison solely because of a detainer issued by the Board if he has otherwise met the requirements of bail on a new criminal charge. Gaito v. Pennsylvania Board of Probation and Parole, 488 Pa. 397, 412 A.2d 568 (1980). Here, however, Alford was being held on new criminal charges until April 1, 2010, at which time he posted bail. Only after April 1, 2010, was Alford detained solely for violations of his parole. Alford is not entitled to credit for time spent in prison between March 24, 2010, and April 1, 2010, while he was being held on new criminal charges.
In recalculating Alford's maximum sentence date, the Board stated:
When Mr. Alford was paroled from a state correctional institution on August 28, 2006, his max date was January 10, 2015. In light of his recommitment as a convicted parole violator, that left him with 3057 days remaining on his sentence . . . .Board Decision, March 8, 2011, at 1-2; Certified Record (C.R.) at 195-196.
. . . .
[T]he Board gave Mr. Alford 97 days of credit for the time he was incarcerated solely on the parole detainer from April 1, 2010 to July 7, 2010. . . . Subtracting the 97 days of credit he received from the time he had remaining left 2960 days on his sentence. Mr. Alford became available to commence service of his original sentence when New Jersey released him back to Pennsylvania on July 7, 2010. Adding 2960 days to that date yields a new maximum sentence date of August 14, 2018. (Citations omitted)
Alford does not state in his argument how the Board erred in its recalculation, and this Court finds the Board's computation to be accurate.
Alford next argues that the Board failed to hold a timely revocation hearing. Specifically, Alford contends that because he posted bail on his criminal charges as of April 1, 2010, he was available to the Board on April 21, 2010, when it issued its warrant.
"When a parolee alleges that the [B]oard held a revocation hearing beyond the 120-day period..., the [B]oard bears the burden of proving, by a preponderance of the evidence, that a timely revocation hearing was held." Saunders v. Pennsylvania Board of Probation and Parole, 568 A.2d 1370, 1371 (Pa. Cmwlth. 1990).
37 Pa. Code §71.4(1) provides in pertinent part that:
Before a parolee is recommitted as a convicted violator ... 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 ... 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. (emphasis added).
In Fulton v. Pennsylvania Board of Probation and Parole, 663 A.2d 865 (Pa. Cmwlth. 1995), this Court stated:
Although 37 Pa.Code § 71.2(3) requires that a preliminary hearing "be held within 14 days of the detention of the parolee on the Board warrant[,]" 37 Pa.Code § 71.5(a) provides that "[i]f the parolee is in custody in another state, . . . the Board may lodge its detainer but other matters may be deferred until the parolee has been returned to a State correctional facility in this Commonwealth."
The Board issued a warrant for Alford on April 21, 2010, and his probable cause hearing was held on April 28, 2010, well within 14 days. Alford was returned to a Pennsylvania correctional facility on July 15, 2010, and his revocation hearing was held 105 days later on October 28, 2010. Therefore, the Board conducted a timely revocation hearing. The record supports that Alford was not available to Pennsylvania authorities until July 7, 2010, because on June 29, 2010, the Mercer County workhouse turned him over to the Hamilton Township Police Department based on an outstanding warrant. C.R. at 22.
Alford finally contends that the Board did not present sufficient evidence to revoke his parole because his June 24, 2008, conviction was not addressed at his probable cause hearing and, therefore, the summons and disposition admitted into evidence were inadmissible and did not support the revocation of his parole.
In affirming its decision to revoke Alford's parole, the Board stated:
The Board found that sufficient evidence was presented to recommit Mr. Alford as both a technical and convicted parole violator based on the testimony of the agent and the documentary evidence presented at the hearing. Additionally, Mr. Alford expressly waived his right to confront or cross-examine agents in the State of New Jersey or any other jurisdiction where he committed a parole violation when he signed the PBPP 11-Conditions Governing Parole/Reparole. Therefore, the Board had sufficient evidence to support the recommitment decisions in this case.Decision by Board Secretary, March 8, 2011, at 2; C.R. at 177.
There is no merit to Alford's argument that any evidence of his June 24, 2010, conviction presented by the Board was inadmissible because it was never addressed at the probable cause hearing. Whether Alford committed harassment did not need to be addressed at the probable cause hearing because the Board introduced documented evidence of his conviction for this crime. C.R. at 82-84. Furthermore, though the documents introduced were photocopies and not originals, they were admissible as evidence. In Sanchez v. Pennsylvania Board of Probation and Parole, 616 A.2d 1097 (Pa. Cmwlth. 1992), this Court held that photocopies of criminal court docket sheets were admissible to support the Board's decision and, in doing so, this Court cited its decision in Anderson v. Pennsylvania Board of Probation and Parole, 497 A.2d 947 (Pa. Cmwlth. 1985), "that photocopies of court records need not be additionally certified, because 37 Pa.Code § 71.5(d) permits the board to use documentary evidence if the board is satisfied that the evidence is authentic, relevant and accurate." Therefore, the Board presented sufficient evidence to revoke Alford's parole.
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 30th day of August, 2011, the order of the Board of Probation and Parole is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge