Opinion
No. 1760 C.D. 2011
04-12-2012
Herman J. Boulware, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Herman J. Boulware petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) denying his administrative appeal from an order recommitting him as a convicted parole violator. We affirm.
In a decision mailed April 11, 2011, the Board ordered that Boulware be recommitted as a convicted parole violator to serve forty months for his aggravated assault conviction. The sole issue on appeal is whether the Board's March 30, 2011 revocation hearing was timely.
The relevant facts are as follows. On November 16, 2010, Boulware pled guilty to aggravated assault in the Court of Common Pleas of Delaware County. The court sentenced him to serve 42 to 120 months in a state correctional institution. While confined in Delaware County Prison, Boulware did not waive his right to a panel revocation hearing.
On December 3, 2010, Boulware was transferred from Delaware County Prison to State Correctional Institution at Smithfield (SCI-Smithfield). On December 7, 2010, the Board received official verification of the new conviction. The Board held a revocation hearing at SCI-Smithfield on March 30, 2011, at which time counsel for Boulware raised a timeliness issue. On April 11, 2011, the Board rendered a decision recommitting Boulware to a state correctional institution to serve 40 months as a convicted parole violator. In addition, the Board recalculated Boulware's maximum parole violation expiration date to be May 31, 2016.
On May 10, 2011, Boulware filed an administrative appeal with the Board and alleged that the revocation hearing was untimely. In an August 15, 2011 decision, the Board found no ground for administrative relief, concluding that "[b]ecause the March 30, 2011 revocation hearing was held within 120 days of both Mr. Boulware's return to a state correctional institution and the official verification of the conviction, the hearing was timely." Board's August 15, 2011 Decision. Boulware's appeal to this Court followed.
In pertinent part, the Board's regulation provides as follows regarding a revocation hearing:
The following procedures shall be followed before a parolee is recommitted as a convicted 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 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 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 added). Where, as here, "a parolee asserts that the Board held a revocation hearing beyond the 120-day period, the Board bears the burden of proving, by a preponderance of the evidence, that the hearing was timely." Koehler v. Pa. Bd. of Prob. & Parole, 935 A.2d 44, 50 (Pa. Cmwlth. 2007). In addition, where a parolee was confined in a county correctional institution and did not waive the right to a revocation hearing by a panel, the test for determining timeliness "is whether, after subtracting the periods of time not chargeable to the Board, the remaining time exceeds 120 days from . . . the offender's return to a state correctional institution." Id. at 50.
Boulware argues that his revocation hearing was untimely due to the seventeen-day delay between his November 16, 2010 conviction and his December 3, 2010 return to a state correctional institution. He contends that he was prejudiced by the delay, that the delay should be attributable to the Board and that the untimeliness should result in the dismissal of the parole violation charges. In support of his position, Boulware cites McDonald v. Pennsylvania Board of Probation and Parole, 673 A.2d 27 (Pa. Cmwlth. 1996), a case in which this Court concluded that the Board failed to meet its burden of establishing the timeliness of the revocation hearing. The McDonald holding simply does not apply here.
In McDonald, the parolee's new convictions were officially verified on May 6, 1994 and he was returned to SCI-Camp Hill on June 7, 1994. The Board lodged a detainer against him on January 10, 1995 and charged him with a parole violation on February 16, 1995. McDonald did not waive his right to a panel revocation hearing and the Board eventually held one on March 22, 1995, more than nine months after McDonald's return to a state correctional institution. Rejecting the Board's contention that the 120-day period should have started when it lodged a detainer, we held that there had been unreasonable and unjustifiable delay, not attributable to the parolee or to his counsel. Accordingly, we reversed the Board's order and directed that the parole violation charge against McDonald be dismissed with prejudice.
Not only is McDonald distinguishable from the present case, but this Court stated in Koehler that "[f]or offenders facing a revocation hearing based on [a] new criminal conviction, the period of time that an offender is confined to a Pennsylvania county prison does not count towards the 120 days that the Parole Board has to provide the offender with a revocation hearing." Koehler, 935 A.2d at 50-51. Accordingly, the seventeen-day delay in Boulware's transfer from the county prison to the state correctional institution is of no moment here. See also Fulton v. Pa. Bd. of Prob. & Parole, 663 A.2d 865 (Pa. Cmwlth. 1995) (rejecting Fulton's argument that the nineteen-day delay in returning him to a Pennsylvania state correctional institution from Arizona rendered his revocation hearing untimely and concluding that the 120-day period commenced on his return to a state correctional institution).
In conclusion, Boulware was returned to a state correctional facility on December 3, 2010 and the Board held the revocation hearing on March 30, 2011, a time period of less than 120 days. The hearing, therefore, was timely. Accordingly, we affirm the Board's order.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 12th day of April, 2012, the order of the Pennsylvania Board of Probation and Parole is AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge