Opinion
No. 1440 C.D. 2012
03-11-2013
Victor Carrasquillo, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Victor Carrasquillo (Offender) petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) that denied his administrative appeal of a Board order that recommitted him as a convicted parole violator to serve backtime. Offender contends that the Board failed to conduct a timely revocation hearing, that the Board lacked jurisdiction over him, and that the evidence failed to conclusively establish the criminal conduct resulting in his new convictions occurred prior to the expiration of his original sentence. Additionally, Alyce M. Busch, Esquire (Counsel), appointed counsel, petitions for leave to withdraw as counsel. Concluding the issues raised in Offender's appeal are meritless, we affirm the Board's order and grant Counsel's petition to withdraw.
I. Original Sentence; New Convictions
In September 1998, the Board paroled Offender from his original sentence of 7 to 14 years for criminal homicide in Northampton County. Offender's original sentence had a maximum date of April 9, 2005.
In June 2010, state police arrested Offender in Lehigh County and charged him with ten offenses, including rape and repeated sexual assaults over a five-year period involving a minor, his wife's biological daughter. Failing to post bail, Offender remained confined in the Lehigh County Prison. In April 2011, Offender proceeded to trial in the Lehigh County Court of Common Pleas (trial court). A jury convicted Offender of four offenses: forcible rape, involuntary deviate sexual intercourse with a person less than 13 years old (IDSI); aggravated indecent assault of a victim less than 16 years old (aggravated IA); and, indecent assault of a victim less than 16 years old (IA).
Upon Offender's conviction, the Board issued a detainer warrant alleging he violated parole. However, Offender remained in the county prison. In July 2011, the trial court sentenced Offender to 20 to 40 years for IDSI, to run consecutively to concurrent terms of 7 to 20 years for forcible rape and aggravated IA. In all, the trial court sentenced Offender to an aggregate term of 27 to 60 years on the new offenses. On July 22, 2011, Lehigh County returned Offender to the jurisdiction of the Pennsylvania Department of Corrections (DOC).
II. Revocation Hearing
Meanwhile, the Board's revocation hearing was rescheduled from June 10 to July 19, 2011. At Offender's request it was continued and rescheduled to October 5, 2011. Offender again requested a continuance to obtain counsel, and the Board rescheduled the hearing to October 17, 2011. At that time, the Board requested a continuance.
Ultimately, the revocation hearing took place on January 20, 2012. Offender, represented by hearing counsel, objected to the timeliness of the revocation hearing. Offender argued that on April 28, 2011, his parole agent received official verification of his new convictions. The Board then scheduled a revocation hearing for June 10, 2011, 42 days later. The Board also continued the October 17, 2011 hearing until January 20, 2012, another 95 days. Thus, Offender urged, the Board was responsible for a 137-day delay, well beyond the 120-day period permitted for a revocation hearing under 37 Pa. Code 71.4(1). The hearing examiner did not immediately rule on the timeliness objection.
Next, the hearing examiner noted Offender's original sentence expired in April 2005. The hearing examiner then reviewed Offender's new convictions, which Offender acknowledged. See Notes of Testimony (N.T.), 1/20/2012, at 10; Certified Record (C.R.) at 43. Parole Agent Nicole Baker (Parole Agent), appearing on behalf of the Board, introduced a certified copy of Offender's convictions.
Parole Agent also submitted certified copies of the criminal complaint and the investigating trooper's affidavit of probable cause. These indicated the alleged offenses began in 2003 and continued into September 2008.
Offender's counsel objected on the ground that although a jury found Offender guilty of four offenses, this does not mean the jury found the facts as stated in the complaint and affidavit. Moreover, the alleged dates of the offenses ranged between 2003 and September 2008. Without an adjudication of guilt for offenses on precise dates, Offender argued it could not be determined whether the Lehigh County convictions were based on criminal acts that occurred prior to the expiration of his original sentence. Therefore, Offender's counsel argued, the only evidence that could establish a particular date would be the transcript from the criminal trial. Parole Agent responded that the trial transcripts were unavailable because the Superior Court had the original transcript for purposes of Offender's appeal. The hearing examiner noted the objection and left the record open pending a discussion with the Board's legal department.
In April 2012, the hearing examiner issued a decision overruling Offender's objections. Regarding timeliness of the revocation hearing, the hearing examiner recognized the 120-day period begins to run with receipt of the verification of conviction or by the return to DOC jurisdiction. C.R. at 27. Here, Offender did not return to DOC jurisdiction until July 2011. Offender then requested continuances of the hearing, which was ultimately rescheduled for October 17, 2011. Thereafter, the Board requested a continuance to obtain court documents. Ultimately, the hearing took place on January 20, 2012, 95 days after the last scheduled hearing date. As such, the hearing examiner determined the 95-day delay attributable to the Board fell within the 120-day period permitted by 37 Pa. Code §71.4(1).
Regarding Offender's objection to criminal complaint and affidavit of probable cause, the hearing examiner stated in his report:
[Offender] argued that the Parole Agent failed to prove that the criminal offenses by [Offender] occurred while on parole from release date of 9/18/1998 to maximum expiration of sentence date of 4/9/05. The sole evidence to establish the offenses occurred while [Offender] was on parole was the Affidavit of Probable Cause. It is the opinion of the Hearing Examiner that the certified Affidavit of Probable Cause is admissible because of its reliability and accuracy. In addition, the affidavit shows that the new offenses of rape, involuntary deviate sexual intercourse, aggravated indecent assault and indecent assault occurred between 2003 and 2008. This establishes that there is an [sic] period of two years in which [Offender] could have committed the crimes in violation of his parole.C.R. at 27 (emphasis added).
Based on the hearing examiner's report, the Board recommitted Offender as a convicted parole violator to serve 30 months backtime on his original sentence. See id. at 92. The Board noted the evidence relied upon as the certified copy of the court record proving the conviction and Offender's acknowledgment of conviction. Id. Further, the Board recalculated the maximum date of Offender's original sentence as 11/06/2018 and determined that Offender will not be eligible for re-parole from the original sentence until 10/06/2014. Id.
III. Administrative Appeal
Offender, represented by current Counsel, filed an administrative appeal from the Board's recommitment decision. Id. at 95-96. The Board rejected Offender's appeal. Id. at 102. Offender, again represented by Counsel, petitions for review.
Our review is limited to determining whether constitutional rights were violated, whether the adjudication was in accordance with law, and whether necessary findings were supported by substantial evidence. 2 Pa. C.S. §704; Adams v. Bd. of Prob. & Parole, 885 A.2d 1121 (Pa. Cmwlth. 2005).
IV. Counsel's Petition to Withdraw
After reviewing the record, Counsel filed a petition for leave to withdraw. In her petition, Counsel alleges she researched the matter and concluded Offender's appeal is meritless. In addition, Counsel filed an Anders brief in support of her petition to withdraw. To that end, Counsel provided Offender with a letter advising that she reviewed his case and concluded that his appeal lacks merit and that the issues raised therein are meritless. Counsel also provided Offender with a copy of her petition to withdraw as counsel and her Anders brief.
See Anders v. State of California, 386 U.S. 738 (1967) (court-appointed counsel seeking to withdraw in frivolous appeal must notify parolee of request to withdraw, furnish parolee with a brief referencing anything in the record which might support parolee's appeal and advise parolee of right to retain new counsel or raise any new contention).
Prior to reviewing the merits of Offender's petition for review, we must decide whether Counsel satisfied the requirements necessary to withdraw. Although an indigent parolee is entitled to appointed counsel on appeal, this right does not require counsel to prosecute a meritless appeal. Presley v. Bd. of Prob. & Parole, 737 A.2d 858 (Pa. Cmwlth. 1999).
V. Anders: Notification
Before this Court will grant a petition to withdraw, appointed counsel must satisfy the technical requirements set forth in Anders. Craig v. Bd. of Prob. & Parole, 502 A.2d 758 (Pa. Cmwlth. 1985). Pursuant to Craig, counsel must notify the parolee of his request to withdraw, furnish the parolee with a copy of a brief complying with Anders, or a "no-merit" letter satisfying the requirements stated in Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and inform the parolee of his right to retain new counsel or submit a brief on his own behalf. Our careful review of Counsel's petition to withdraw, which attaches her letter to Offender, indicates she met the Anders requirements.
VI. Anders: Discussion of Merits
In her Anders brief, Counsel discusses the issues Offender raises in his appeal: whether the Board failed to conduct a revocation hearing within the 120-day period permitted by 37 Pa. Code §71.4(1); whether the Board lacked jurisdiction to revoke Offender's parole because his maximum original sentence expired years before the filing of the new charges; and, whether the evidence presented failed to conclusively establish that the jury convicted Offender for criminal conduct that occurred prior to the expiration of Offender's maximum original sentence.
Counsel's brief adequately explains why these arguments are meritless. First, when a parolee is confined outside DOC jurisdiction, the 120-day period in 37 Pa. Code 71.4(1) for bringing a revocation hearing does not begin to run until the parolee is returned to DOC jurisdiction. 37 Pa. Code §71.4(1)(i); Davidson v. Pa. Bd. of Prob. and Parole, 33 A.3d 682 (Pa. Cmwlth. 2011). Here, Lehigh County returned Offender to DOC jurisdiction in July 2011. Thereafter, the scheduled revocation hearings were continued at Offender's requests until October 17, 2011. At that time, the hearing was continued at the Board's request until January 20, 2012, a period of 95 days. The 95-day delay attributable to the Board fell within the 120-day period allowed under 37 Pa. Code §71.4(1).
The second and third issues are interrelated. The Board has the statutory authority to recommit a parolee after the expiration of his maximum sentence where the parolee is convicted of a crime committed while on parole even if he is not convicted until after his original sentence expired. Adams v. Bd. of Prob. & Parole, 885 A.2d 1121 (Pa. Cmwlth. 2005). Therefore, the Board had jurisdiction based on his new convictions even though he was not charged with the new offenses until after his original sentence expired. Id.
Further, the criminal complaint and affidavit of probable cause show that Offender's sexual assaults on the victim began either in 2001 or 2003 in Offender's Mohawk Street home in Allentown. See Ex. S1 (Criminal Complaint), C.R. at 52-58; Ex. S2 (Affidavit of Probable Cause), C.R. at 59-62. Offender's criminal conduct continued until the victim was in tenth grade in September 2008. Id.
In addition, Counsel asserts the record includes a certified copy of the trial court's docket entries, which reflect Offender's four convictions and list an offense date of "01/01/2001" for all charges. See C.R. at 69-72. Counsel further asserts Offender acknowledged his convictions at the revocation hearing. N.T., 1/20/2012, at 10; C.R. at 43.
VII. Independent Merits Review
Upon review, we are satisfied Counsel meets the Anders requirements for withdrawing representation. Nonetheless, we must independently determine whether Offender's appeal lacks merit before granting Counsel's petition to withdraw. Banks v. Pa. Bd. of Prob. & Parole, 827 A.2d 1245 (Pa. Cmwlth. 2003).
A. Timeliness
In his petition for review, Offender again contends the Board failed to conduct his revocation hearing within the 120-day period set forth in 37 Pa. Code §71.4(1). We disagree. Although the Board initially received official verification of Offender's convictions on April 28, 2011, he remained confined in the Lehigh County Prison until his return to DOC jurisdiction on July 22, 2011. The 120-day period in 37 Pa. Code §71.4(1) for conducting a revocation hearing does not begin to run until the parolee is returned from county prison to DOC jurisdiction. 37 Pa. Code §71.4(1)(i); Davidson; Johnson v. Pa. Bd. of Prob. & Parole, 19 A.3d 1178 (Pa. Cmwlth. 2011).
Consequently, contrary to Offender's contention, the 42-day period between April 28 and the first hearing scheduled for June 10, 2011 does not count toward the 120-day period in 37 Pa. Code §71.4(1). Davidson; Johnson. Following his return to DOC jurisdiction, Offender's revocation hearing was continued at his requests until October 17, 2011. Thus, the 120-day period began to run on October 17, 2011. Id.
In October 2011, the Board continued Offender's hearing until January 20, 2012, a period of 95 days, in order to obtain certain court documents. Because this 95-day delay is the only delay attributable to the Board following Offender's return to DOC jurisdiction, we conclude the Board timely conducted Offender's revocation within the 120-day period specified in 37 Pa. Code §71.4(1). Davidson; Johnson.
B. Expiration of Original Sentence
Offender next contends the Board lacked jurisdiction to revoke his parole because his original sentence expired in April 2005, more than five years prior to the filing of the Lehigh County charges in June 2011. Board regulations provide (with emphasis added) that a "parolee shall remain in the legal custody of the Board until the expiration of his maximum sentence, or until he is legally discharged." 37 Pa. Code §63.2. However, "If the parolee violates the conditions of parole, at a time during his period on parole, the Board may cause his detention or return to a correctional institution." 37 Pa. Code §63.3.
Further, Offender asserts, the evidence fails to conclusively establish the dates of the criminal conduct for which he was convicted. To that end, the only evidence the Board presented regarding the dates of Offender's crimes were the criminal complaint and affidavit of probable cause. These documents are merely certified copies of accusations, not evidence. Therefore, Offender argues, the Board erred in revoking his parole based on the criminal complaint and affidavit of probable cause.
Again, we disagree. In Adams, we recognized that Section 21.1a of the former "Parole Act," predecessor to current Section 6138(a) of the Prisons and Parole Code, 61 Pa. C.S. §6138(a), provided the Board with statutory authority to revoke parole even after the expiration of the parolee's maximum sentence date. Similar language is now codified at 61 Pa. C.S.§6138(a)(1). Thus, the Board retains jurisdiction to recommit a parolee who commits a criminal offense while on parole, even when the parolee is not arrested or convicted until after the expiration of his maximum sentence date. Reavis v. Pa. Bd. of Prob. & Parole, 909 A.2d 28 (Pa. Cmwlth. 2006); Adams.
See Act of August 6, 1941, P.L. 861, as amended, added by the Act of August 24, 1951 formerly 61 Pa. C.S. §§331.21.1a, repealed by Section 11(b) of the Act of August 11, 2009, P.L. 147.
Here, the trial court's docket entries reflect conviction of Offender for IDSI based on criminal acts against the victim while she was under the age of 13. See C.R. at 70. Moreover, the investigating state trooper's affidavit of probable cause indicates the child stated that Offender's sexual assaults began in 2003, when she was 10 years old and in the fifth grade. See C.R. at 59-62. Offender's sexual assaults became more egregious while the victim was in the sixth grade. Id. The investigating trooper also spoke with other witnesses, including a forensic interviewer and church counselors who indicated the victim told them that Offender sexually abused her since she was in the fifth grade in 2003. Id.
Nonetheless, the criminal complaint and affidavit of probable cause indicate Offender's convictions for forcible rape, aggravated IA and IA, were based on criminal acts that occurred after the April 9, 2005 expiration of Offender's original sentence. To that end, we note the criminal complaint indicates the victim's birthdate as July 24, 1993. Certified Record at 54. As such the victim would have been under 13 years old on the maximum date of Offender's original sentence. However, the complaint alleged the rape occurred while the victim was 15 years old and the aggravated IA and IA occurred while the victim was between the ages of 13 and 15 years old. See id. at 54, 56, 58. --------
Regarding the sufficiency of evidence establishing the dates of Offender's criminal acts, the Board reasoned (with emphasis added):
To the extent you suggest that the actions for which [Offender] was convicted 'could have occurred' after reaching his maximum sentence date of April 9, 2005, any convicted act that occurred during a period of supervision is sufficient to constitute a violation of parole. In reviewing the certified court documents and [Offender's] acknowledgement of conviction, the Board in its discretion found this evidence sufficient to find that [Offender] violated his parole.C.R. at 103. In reviewing the Board's decision, we recognize the Board is afforded broad discretion in parole matters and in the interpretation of its own regulations. Flowers v. Pa. Bd. of Prob. & Parole, 987 A.2d 1269 (Pa. Cmwlth. 2010). Further, the Board, as the ultimate fact-finder, determines witness credibility, resolves conflicts in the evidence and assigns evidentiary weight. Id.
Here, Offender acknowledged his convictions for sexual offenses against the victim occurring from 2003 into September 2008, while the victim was between the ages of 10 and 15 years old. See C.R. at 43. More importantly, Offender acknowledged his IDSI conviction based on sexual assaults which occurred while the victim under 13 years old. See id. at 43, 70.
Offender's acknowledgement of his IDSI conviction and the trial court's record of that conviction, combined with the affidavit of probable cause, indicate Offender's sexual assaults, which included genital penetration and forced oral sex, began in 2003 while the victim was in fifth grade and continued while she was in sixth grade, prior to the expiration of Offender's original sentence. As such, we hold the Board met its burden of proving by a preponderance of the evidence that Offender violated his parole by engaging in criminal conduct prior to the expiration of his original sentence. See, e.g., Sigafoos v. Pa. Bd. of Prob. & Parole, 503 A.2d 1076 (Pa. Cmwlth. 1986) (Board bears burden to establish by preponderance of the evidence that parole violation occurred; preponderance of the evidence is evidence that leads the fact-finder to find that the existence of a contested fact is more probable than its nonexistence); Commonwealth v. Rossetti, 388 A.2d 1090 (Pa. Super 1978) (quantum of proof necessary to establish grounds for parole revocation is significantly less than that required for criminal conviction; although circumstantial evidence may not be of such a degree to sustain a criminal conviction, it is sufficient to establish a parole violation).
Further, we note the presumptive range for recommitment for IDSI is 27 to 40 months. 37 Pa. Code §75.2. Here, the Board recommitted Offender to serve 30 months backtime. Thus, the Board's order falls well within the presumptive range for IDSI. In exercising its discretion, the Board may consider each conviction as a separate parole violation. Davidson; Corley v. Pa. Bd. of Prob. & Parole, 478 A.2d 146 (Pa. Cmwlth. 1984). See also Ralph v. Pa. Bd. of Prob. & Parole, 488 A.2d 377 (Pa. Cmwlth. 1985) (parolee's argument that recommitment was excessive in that it should have been based on 11 rather than 12 felonies rejected; had parolee been convicted of only one robbery, one burglary and a technical violation, the Board's recommitment order would have been within the aggregate presumptive range). Consequently, any challenge here to the Board's recommitment order based on length of backtime would lack merit. Davidson; Corley; Ralph.
In sum, the record contains substantial evidence that supports the Board's determination that Offender's acts resulting in his IDSI conviction occurred prior to the expiration of his original sentence. Therefore, the Board did not err or abuse its discretion in revoking Offender's parole, recommitted him as a convicted parole violator and recalculating the maximum date of his original sentence. Reavis; Adams.
VIII. Conclusion
For the above reasons, we conclude Offender's petition for review is meritless. Accordingly, we affirm the Board's order and grant Counsel's petition for leave to withdraw as counsel.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 11th day of March, 2013, the order of the Pennsylvania Board of Probation and Parole is AFFIRMED, and Counsel's Petition for Leave to Withdraw as Counsel is GRANTED.
/s/_________
ROBERT SIMPSON, Judge