Opinion
No. 1352 C.D. 2011
07-26-2012
Clyde McGriff, 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 LEAVITT
Clyde McGriff petitions for review of an adjudication of the Pennsylvania Board of Probation and Parole (Board) denying his request for administrative relief and upholding his recommitment as a technical parole violator. In this appeal, we consider whether there is substantial evidence to support the finding that McGriff used narcotics in violation of his parole. Concluding that there is substantial evidence, we affirm.
McGriff was serving a sentence of five to twenty years for burglary, with a maximum sentence of August 10, 2018. McGriff was paroled on January 28, 2008, subject to, inter alia, condition 5A, that he not possess, sell or use illegal drugs. In December 2009, parole staff charged McGriff with violating his parole by using narcotics.
A parole revocation hearing was held on February 11, 2011. Parole Officer David Sedon testified that on December 10, 2009, McGriff was given a urine drug test at the parole office, and it was positive for cocaine and opiates. Sedon testified that McGriff then admitted to him that "he had been using crack cocaine and heroin." Supplemental Certified Record at 37 (S.C.R. ___). Sedon instructed McGriff to return to the office the next day for a meeting where parole staff would decide whether McGriff should be sent to a drug rehab program or back to prison. McGriff returned the next day. However, a warrant had been issued on new criminal burglary charges, and McGriff was arrested on that warrant.
McGriff testified on his own behalf. McGriff recalled Sedon telling him that his December 10, 2009, drug test was positive. McGriff denied telling Sedon on December 10th that he had used crack cocaine and heroin. Nevertheless, McGriff went home and packed a bag, expecting to go to drug rehab when he returned the next day. McGriff testified that he knew he was going to rehab because he had submitted "dirty urine" during a drug test a week earlier on December 3, 2009. S.C.R. 47-48. Further, McGriff admitted that he told Sedon on December 3rd that he had used illegal drugs. S.C.R. 48.
By notice mailed on February 25, 2011, the Board recommitted McGriff as a technical parole violator for using illegal drugs, to serve 12 months backtime. The Board relied on Parole Officer Sedon's testimony. On June 21, 2011, the Board denied McGriff's administrative appeal and affirmed its order. McGriff now petitions this Court for review.
The Board has exclusive discretion over credibility matters. Chapman v. Pennsylvania Board of Probation and Parole, 484 A.2d 413, 416 (Pa. Cmwlth. 1984).
This Court's review of an action of the Board is limited to a determination of whether the Board's findings are supported by substantial evidence, whether an error of law was committed, or whether any of the parolee's constitutional rights were violated. Carter v. Pennsylvania Board of Probation and Parole, 936 A.2d 155, 156 n.3 (Pa. Cmwlth. 2007). Substantial evidence has been defined as such relevant evidence that a reasonable mind would find sufficient to support a conclusion. Miller v. Pennsylvania Board of Probation and Parole, 837 A.2d 618, 620 n.1 (Pa. Cmwlth. 2003).
McGriff presents one issue for our consideration. McGriff argues that there was not sufficient evidence presented at the parole revocation hearing to support a finding that he had violated his parole. McGriff points out that no actual drug test results were submitted into evidence, and he contends that Sedon did not testify that McGriff had admitted using drugs.
The Board urges that this issue is waived because it was not included in McGriff's petition for review. We disagree. McGriff's petition for review is less than clear as to the basis for his appeal; therefore, we treat his brief as a clarification and articulation of the exact basis for his appeal and address this issue. At any rate, the issue is without merit for the reasons discussed herein. --------
McGriff is correct that there was no documentation of the drug test results. Sedon testified that the test was not sent to a lab because it was the type of test that instantly showed the results. Sedon testified that he immediately "disposed of" the test results. S.C.R. 38. However, this is of no moment because other evidence establishes the violation.
Contrary to McGriff's assertion, Sedon did, in fact, testify that McGriff admitted using drugs. Sedon testified unequivocally that after the drug test turned up positive for cocaine and opiates, "he [McGriff] admitted to me that he had been using crack cocaine and heroin." S.C.R. 37. If a parole officer testifies that a parolee admitted using drugs to him, that testimony, if believed, constitutes substantial evidence to support the decision to recommit as a technical parole violator. Jones v. Pennsylvania Board of Probation and Parole, 520 A.2d 1258, 1260 (Pa. Cmwlth. 1987). Therefore, because the Board credited Sedon's testimony, there is substantial evidence in the record that McGriff violated his parole by using illegal drugs.
What is more, McGriff admitted that he violated his parole. McGriff testified that he failed a drug test and told Sedon that he had been using drugs. McGriff was uncertain only about the exact date in December 2009 when he made that admission to Sedon. McGriff also acknowledged that he came to the parole office on December 10, 2009, with a bag packed for entry into a drug rehab program.
Accordingly, we affirm the order of the Board.
/s/_________
MARY HANNAH LEAVITT, Judge
ORDER
AND NOW, this 26th day of July, 2012, the order of the Pennsylvania Board of Probation and Parole dated June 21, 2011, in the above captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge