Opinion
No. 446 C.D. 2013
12-05-2013
Robert L. Fehnel, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Robert L. Fehnel (Offender) petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) that denied his administrative appeal from a Board order recommitting him as a technical parole violator to serve 12 months' backtime for violating Special Condition No. 7 (failure to successfully complete sex offender treatment). Offender contends the Board violated state law and the Due Process Clause of the Fourteenth Amendment by revoking his parole and incarcerating him solely on the basis of his discharge from a sex offender treatment program after he failed three polygraph tests. Offender asserts the Due Process Clause requires that the Board prove a technical parole violation by clear and convincing evidence. Upon review, we affirm.
The Due Process Clause of Fourteenth Amendment to the United States Constitution provides that no State shall "deprive any person of life, liberty, or property, without due process of law ...." U.S. CONST. amend. XIV, §1.
I. Background
In 1989, Offender pled guilty to charges of rape and involuntary deviate sexual intercourse with a minor and received an aggregate sentence of 10 to 30 years. The maximum date of Offender's sentence is February 28, 2019. The Board initially paroled Offender in September 1999 to a community corrections center (CCC), but then recommitted him in 2000 to a state correctional institution (SCI) as a technical parole violator based on his failure to complete a treatment services program.
The Board re-paroled Offender in July 2009 to a CCC. In September 2009, Offender started out-patient sex offender treatment with Resources for Human Development, Inc. (RHD). As part of his treatment, RHD required Offender to take and pass polygraph tests. Offender twice failed polygraph tests due to deception.
In, addition, the CCC where Offender resided discharged him from the residential program due to his presence in an unauthorized area and possession of an automobile without permission. Following a hearing, the Board recommitted Offender as a technical parole violator for a violation of Special Condition No. 7 (failure to successfully complete the CCC residency program). On appeal, this Court, in a memorandum opinion, reversed on the basis that substantial evidence did not support the Board's determination that Offender committed the two CCC rule violations. See Fehnel v. Pa. Bd. of Prob. & Parole, (Pa. Cmwlth., No. 2723 C.D. 2010, filed August 23, 2011) (Fehnel I).
In September 2011, the Board released Offender from SCI custody to a CCC. In January 2012, Offender resumed out-patient sex offender treatment with RHD. In August 2012, Offender failed a third polygraph examination. More specifically, RHD reported that Offender deliberately tried to manipulate the polygraph by constantly moving and breathing heavily. See RHD Discharge Summary; Certified Record (C.R.) at 43-45.
See Certified Record (C.R.) at Item #7 (Exhibits).
RHD further indicated Offender failed to disclose, as expected during his treatment group, a developing relationship he had with a woman whom he described during the third polygraph as "disabled." C.R. at 45. RHD found this relationship problematic because Offender did not inform her that he is a sex offender and also because he has a history of preying on the children of vulnerable adults. Id.
On September 10, 2012, RHD discharged Offender without his satisfactory completion of the treatment program. Board staff took Offender into custody on September 12 and charged him with a violation of Special Condition No. 7 (failure to successfully complete sex offender treatment) and scheduled a preliminary hearing. See Notice of Charges and Hearing; C.R. at 33.
On September 14, Offender signed a "Waiver of Violation Hearing and Counsel/Admission Form." See C.R. at 41. The waiver/admission form provides:
I have been advised of my rights to a preliminary hearing, a violation hearing, and counsel at those hearings. I have also been advised there is no penalty for requesting counsel, that free counsel is available if I cannot afford to retain counsel, and the name and address of the local public defender. With full knowledge and understanding of these rights, I hereby waive my right to a preliminary hearing, a violation hearing and counsel at those hearings. I waive these rights of my own free will, without any promise, threat or coercion.Id. (underline in original).
[Signature of Offender (dated 9-14-12)]
[Signature of Parole Agent (dated 9-14-12)]
On the 14 day of September 2012, I [Offender] do knowingly, intelligently, and voluntarily admit that I was in violation of the terms and conditions of my parole. The specific violation(s) that I committed was/were:
Condition No. 7 - Failure to complete sex offender treatment. I knowingly, voluntarily, and willingly admit to the violation(s) listed above. I understand and agree that this admission is binding and may only be withdrawn if I submit a written withdrawal to my supervising agent, within ten (10) calendar days of the date written above.
[Signature of Offender (dated 9-14-12)]
[Signature of Parole Agent (dated 9-14-12)]
(Provide any additional information that you would like the Board to consider while making a decision below)
I took 3 polygraph test[s] and failed but I tried to be as honest as possible. I am 70 years old and a nervous person. I did my best on these tests to be cooperative and honest. Why would I lie if I was paying for test.
The Board accepted Offender's admission and recommitted him as a technical parole violator to serve 12 months' backtime for failure to successfully complete sex offender treatment. See Notice of Bd. Dec., 11/9/12; C.R. at 57. As evidence, the Board indicated it relied on Offender's admission, a documented Board form, and a documented discharge letter. Id.
Offender, now represented by counsel, filed an administrative appeal. The Board denied Offender's administrative appeal. C.R. at 74. In its decision, the Board stated:
Offender asserted various grounds for reversing the Board's revocation order, including: inadequate notice of what conduct violated parole; inadequate notice of what conduct justified his discharge from the treatment program; inadequate notice of what misconduct Offender allegedly admitted; Offender's unknowing and involuntary waiver and admission; the Board's reliance on alleged misconduct that pre-dated Offender's current parole period; the Board's addition of new allegations from 2009 that were not included in the Board's 2010 charges; and, the Board's revocation of parole based on unreliable lie detector results.
Offender further asserted the preponderance of evidence standard employed to determine whether there is a violation of parole is constitutionally inadequate because the Due Process Clause requires proof of a violation by clear and convincing evidence. In addition, Offender argued his recommitment to state prison rather than a CCC constituted a violation of Section 6138(c) of the Prisons and Parole Code (Parole Code), 61 Pa. C.S. §6138(c).
The form your client signed specifically indicates that he knowingly and voluntarily waived his hearing rights of his own free will, without promise, threat or coercion. [Offender] also failed to withdraw the waiver/admission within the prescribed ten-day grace period. This waiver/ admission gave the Board sufficient evidence to revoke [Offender's] parole. Therefore, the Board was justified in revoking your client's parole and there is no evidence to support your claim that the decision was not knowing and voluntary. Nor is there any basis to find that your client was denied his due process or confrontation clause rights.Bd. Dec., 2/26/13; C.R. at 75. Offender 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; Flowers v. Pa. Bd. of Prob. & Parole, 987 A.2d 1269 (Pa. Cmwlth. 2010).
II. Issues
Offender states three issues for review. Offender contends the Board violated his rights under state law and the Due Process Clause by revoking his parole solely on the basis of his discharge from sex offender treatment after he failed three polygraph tests. Further, Offender asserts, the Due Process Clause requires that the Board establish a technical parole violation by clear and convincing evidence. Offender also contends his recommitment to state prison rather than a CCC constituted a violation of Section 6138(c) of the Prisons and Parole Code (Parole Code), 61 Pa. C.S. §6138(c).
III. Discussion
A. Admission of Technical Parole Violation
Offender first contends the Board erred in revoking his parole on the basis of his admission that RHD discharged him from sex offender treatment after he failed three polygraph tests. He asserts the Board disregarded our decision in Fehnel I, where we recognized that discharge from a CCC only warrants a revocation of parole where the parolee is somewhat at fault for the discharge. See Hudak v. Pa. Bd. of Prob. & Parole, 757 A.2d 439 (Pa. Cmwlth. 2000) (where CCC discharged parolee for purely medical reasons, the Board's recommitment of him as technical parole violator for failing to remain at CCC for six months constituted an abuse of the Board's authority).
In Fehnel I, the CCC discharged Offender because of rule infractions, including presence in an unauthorized area (the residence of his adult son), and possession of an automobile without permission from CCC staff. After a hearing, the Board recommitted Offender to serve three months' backtime. Ultimately, we determined the record did not support either of the alleged CCC rule violations. We noted Offender obtained permission from his parole agent to possess the automobile. In addition, Offender signed out to his son's address on numerous prior occasions.
The present case, however, is factually and procedurally distinguishable from Fehnel I. Here, the Board's Notice of Charges and Hearing informed Offender of the following charge (with emphasis by underline added):
TECHNICAL PAROLE VIOLATION
CONDITION #7: YOU SHALL COMPLY WITH THE FOLLOWING SPECIAL CONDITIONS .... OUT-PATIENT SEX OFFENDER TREATMENT IS A SPECIAL CONDITION OF YOUR PAROLE SUPERVISION UNTIL THE TREATMENT SOURCE AND/OR PAROLE SUPERVISION STAFF DETERMINE IT IS NO LONGER NECESSARY.
* * * *
SUPPORTING EVIDENCE: ON 9/1/2009 YOU STARTED SEX OFFENDER TREATMENT AT [RHD]. AS PART OF YOUR TREATMENT YOU WERE ADMINISTERED THREE POLYGRAPH EXAMINATIONS ON THE FOLLOWING DATES:
11/10/2009C.R. at 33.
12/30/2009
08/23/2012
ON THE DATES OF 11/10/2009, DECEPTION WAS INDICATED. ON THE DATE OF 8/23/2012, THE RESULTS WERE "COUNTER MEASURES" INDICATING THAT YOU WERE DELIBERATELY TRYING TO MANIPULATE THE RESULTS, RESULTING IN YOU NOT PASSING THE TEST. AS A RESULT OF THE FAILED THREE POLYGRAPHS, WHICH ARE PART OF YOUR SEX OFFENDER TREATMENT, YOU WERE UNSUCCESSFULLY DISCHARGED ON 9/10/12.
Two days after receiving notice of the charges, Offender signed the waiver/admission form. C.R. at 41. The form provided: "Condition No. 7 - Failure to complete sex offender treatment. I knowingly, voluntarily and willingly admit to the violation(s) listed above." Id. (emphasis in original). Although Offender stated later on the form that he "tried to be as honest as possible" during the polygraphs (C.R. at 41), we agree with the Board that Offender's statement is impertinent to his knowing, intelligent and voluntary admission of the violation. If Offender believed he did not violate his parole as charged, he should not have waived his hearing rights and admitted the parole violation.
A parolee's admission to alleged parole violations constitutes substantial evidence upon which to base a parole revocation order. Pitch v. Pa. Bd. of Prob. & Parole, 514 A.2d 638 (Pa. Cmwlth. 1986). Further, the Board is afforded broad discretion in parole matters; it is not required to accept justifying or mitigating evidence to excuse the commission of parole violations. Id.
Furthermore, this Court repeatedly upholds similar written waivers and admission by parolees. See Baldelli v. Pa. Bd. of Prob. & Parole, ___ A.3d ___ (Pa. Cmwlth., No. 1463 C.D. 2012, filed July 31, 2013), 2013 WL 3929826 (Pa. Cmwlth.); McKenzie v. Pa. Bd. of Prob. & Parole, 963 A.2d 616 (Pa. Cmwlth. 2009); Prebella v. Pa. Bd. of Prob. & Parole, 942 A.2d 257 (Pa. Cmwlth. 2008). Citing Morrissey v. Brewer, 408 U.S. 471 (1972), we recognized in Prebella that a parole revocation hearing is not the equivalent of a criminal prosecution and that nothing prevents a parolee from waiving his right to a violation hearing and admitting a parole violation without first consulting counsel.
Similar to the parolees' waivers and admissions in Baldelli, McKenzie and Prebella, Offender's waiver/admission here indicates he voluntarily, knowingly, and intelligently waived his right to a violation hearing and admitted the parole violation.
However, Offender now asserts, he "did not admit that the failure of a polygraph test is a reliable basis for revoking parole or that the results of the test were reliable or accurate." Pet'rs' Br. at 6. To that end, Offender argues that the use of the polygraph results violates his constitutional rights. We disagree.
"The general rule in this Commonwealth is that any reference to a polygraph test that raises an inference concerning the guilt or innocence of a defendant is inadmissible at trial." Commonwealth v. A.R., 990 A.2d 1, 6 (Pa. Super. 2010), aff'd, ___ Pa. ___, ___ A.3d ___, (Pa., No. 60 MAP 2012, filed October 30, 2013) (emphasis in original). "This rule derives from the inherent unreliability of polygraph examinations in the determination of innocence or guilt in fact." Id. However, a probation violation hearing does not deal with questions of guilt or innocence as those terms are commonly understood in criminal law. Id. In addition, the degree of proof necessary to establish a probation violation is far less than required to sustain a criminal conviction. Id.
Further, the Superior Court, in Commonwealth v. Shrawder, 940 A.2d 436 (Pa. Super. 2007), held that use of a therapeutic polygraph examination is a proper element of sex offender treatment and does not violate a probationer's right against self-incrimination. However, the questioning must relate to the offense for which the offender was sentenced and cannot compel information that could be used against the offender in a subsequent criminal trial. See Commonwealth v. Fink, 990 A.2d 751 (Pa. Super. 2010).
More recently, in A.R., the Superior Court, relied on Shrawder. The Court determined that with certain caveats, when a therapeutic polygraph evidence test is used as part of probation-related sex offender therapy, polygraph evidence may be admitted as supportive proof of a sex offender's violation of probation requirements. To that end, the Superior Court summarized:
Consequently, we find that the results obtained from the administration of a therapeutic polygraph examination in a sexual offender's treatment program are admissible at a probation revocation hearing as evidence to support the underlying violation, i.e., a sexual
offender's lack of amenability to treatment, so long as the results of that examination are not the sole basis for the revocation petition; they do not reveal uncharged criminal conduct on the part of the defendant; and they are not used for purposes of the investigation of criminal conduct.A.R., 900 A.2d at 7 (citations omitted).
Applying the rationale of A.R. here, we note the following. Offender's violation was based on his admitted failure to successfully complete sex offender treatment. That the failure to complete sex offender treatment related to the administration of a therapeutic polygraph examination (as opposed to the results of that examination) does not violate Offender's rights in the parole revocation context.
With regards to "fault," our resolution is supported by this Court's unreported but persuasive decision in Hill v. Pennsylvania Board of Probation and Parole, (Pa. Cmwlth., No. 1759 C.D. 2009, filed October 29, 2010), 2010 WL 9513274 (Pa. Cmwlth.) (unreported). In that case we noted Superior Court's decisions were instructive on the issue of whether a purportedly deceptive polygraph result constitutes fault for purposes of a parole violation. In Hill, we stated (with emphasis added):
The Superior Court's analysis informs us that there are limits to the permissible range of questions that may be asked a parolee undergoing a therapeutic polygraph examination and those limits are circumscribed by the criminal convictions of the parolee. Thus, to demonstrate that the parolee was somewhat at fault when discharged from a program based on the results of a therapeutic polygraph examination, the Board must show that the
polygraph examination is related to an offense that resulted in a conviction, which is the statutorily imposed parameter of the Board.Slip, Op., 10/29/10, at 9-10; 2010 WL 9513274 at *5.
Here, Offender's rape and involuntary deviate sexual intercourse convictions arose out of repeated sexual assaults on his wife's minor daughter. See RHD Discharge Summary; C.R. at 43. In its reasons for discharge, RHD noted Offender has yet to verify his offense history, "as he has yet to pass a polygraph examination with this focus." C.R. at 45.
Because the therapeutic polygraph examinations related to Offender's criminal convictions, Offender's voluntary admission that he failed to complete sex offender treatment that included those examinations established his fault. Hill. Thus, the rationale that the Board cannot recommit a parolee where he is not at fault for his discharge from treatment is inapplicable here. Moreover, since Offender voluntarily waived his right to a hearing on the administration of the polygraph examinations, he may not now challenge the existing factual record relating to his deception and manipulation during the examinations. As such, we discern no error or constitutional violation in the Board's revocation order. McKenzie; Prebella; Pitch.
B. Clear and Convincing Evidence Standard
Offender further contends the Board violated his due process rights by not establishing Offender's technical parole violation by clear and convincing evidence. We disagree.
First, a prisoner enjoys no right to release from confinement on parole prior to the expiration of his maximum term. Baldelli; Green v. Pa. Bd. of Prob. & Parole, 515 A.2d 1006 (Pa. Cmwlth. 1986). Second, our decisions consistently reaffirm that in parole revocation proceedings, the Board has the burden to show, by a preponderance of the evidence, that the parolee violated the terms and conditions of his or her parole. See Price v. Pa. Bd. of Prob. & Parole, 863 A.2d 618 (Pa. Cmwlth. 2004); Miller v. Pa. Bd. of Prob. & Parole, 837 A.2d 618 (Pa. Cmwlth. 2003); Smalls v. Pa. Bd. of Prob. & Parole, 823 A.2d 274 (Pa. Cmwlth. 2003); Sigafoos v. Pa. Bd. of Prob. & Parole, 503 A.2d 1076 (Pa. Cmwlth. 1986). In fact, Offender, citing Board regulations, acknowledges that currently, technical parole violations require proof by a preponderance of the evidence. See 37 Pa. Code §71.2(19).
Nevertheless, Offender asserts the due process provisions of the United States and Pennsylvania Constitutions support the adoption of a clear and convincing burden of proof for technical parole violations. In support of his position, Offender cites e .g ., Commonwealth v. Maldonado, 576 Pa. 101, 838 A.2d 710 (2003) (in order to require state registration as a violent sexual predator, due process necessitates that the Commonwealth establish by clear and convincing evidence that the defendant was a sexually violent predator); G.V. v. Dep't of Pub. Welfare, 52 A.3d 434 (Pa. Cmwlth. 2012) (en banc), appeal granted in part, ___ Pa. ___, 66 A.3d 252 (2013) (clear and convincing evidence standard is applicable in child abuse expungement proceedings where the Commonwealth seeks to maintain information of alleged child abuse in the ChildLine Registry).
In response, the Board asserts its acceptance of Offender's written admission of violation does not violate Offender's constitutional rights. As a Commonwealth agency, the Board may admit and receive all relevant evidence of reasonably probative value. 2 Pa. C.S. §505; Pitch. Further, as noted above, a parolee's admissions to parole violations provide substantial evidence upon which the Board may base a parole revocation order. Pitch.
Again, given Offender's written admission to the parole violation, we discern no error of law or due process violation in the Board's revocation proceeding. McKenzie; Prebella; Pitch. In short, Offender's voluntary admission to violating Special Condition No. 7 provides sufficient evidence to support the Board's revocation order. Id.
Having determined Offender's due process rights were not violated in light of his admission of the parole violation and waiver of the preliminary and violation hearings, we need not address in full Offender's constitutional challenge to the continued use of the preponderance of the evidence standard in technical parole violation hearings. Rather, it is sufficient for current purposes to note, first, that our Supreme Court acknowledged the propriety of the use of the preponderance of the evidence standard in criminal probation violation hearings brought prior to trial on the actual criminal charges. Commonwealth v. Brown, 503 Pa. 514, 469 A.2d 1371 (1983). Second, consistent with a Mathews procedural due process analysis, there is no substantial risk of erroneous deprivation of Offender's liberty interest where the Board relies on Offender's voluntary admission of parole violation. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (consideration of the risk of an erroneous deprivation of individual's interest through the procedures used). Third, under a Mathews analysis, where the Board relies on a voluntary admission, there is no increased value in using a higher standard of proof (consideration of the probable value, if any, of additional or substitute procedural safeguards).
C. Incarceration
Lastly, Offender contends his recommitment to an SCI for a technical parole violation violated his rights under Section 6138(c) of the Parole Code, 61 Pa. C.S. §6138(c). Offender acknowledges that at the time of the Board's hearing, former Section 6138(c)(6) of the Parole Code was in effect. Former 61 Pa. C.S. §6138(c)(6) provided, "The Board shall divert technical parole violators from confinement in a State correctional institution unless the parolee's diversion poses an undue risk to public safety."
Section 6138(c)(6) was added by the Act of October 27, 2010, P.L. 931. It was deleted, and replaced with a similar, but not identical Section 6138(c)(1)(v) by the Act of July 5, 2012, P.L. 1050, which became effective January 2, 2013. --------
Nonetheless, Offender asserts, effective January 2, 2013, the Legislature replaced former Section 6138(c)(6) with new Section 6138(c)(1)(i)-(v), which provides (with emphasis added):
(c) Technical Violators.—
(1) A parolee under the jurisdiction of the board who violates the terms and conditions of his parole, other than by the commission of a new crime ... may be detained
pending a hearing before the board or a waiver of the hearing or recommitted after a hearing .... Detention and recommitment under this paragraph shall be in a community corrections center or community corrections facility, unless the board determines that one of the following conditions is present:61 Pa. C.S. §§6138(c)(1)(i)-(v).
(i) The violation was sexual in nature.
(ii) The violation involved assaultive behavior.
(iii) The violation involved possession or control of a weapon.
(iv) The parolee has absconded, and the parolee cannot be safely diverted to a community corrections center or community corrections facility.
(v) There exists an identifiable threat to public safety, and the parolee cannot be safely diverted to a community corrections center or community corrections facility.
Offender asserts the provisions in Section 6138(c)(1)(i)-(v) are applicable here because they became effective prior to the Board's February 2013 denial of his administrative appeal. Thus, Offender contends, his technical violation is far less serious than the offenses the Legislature listed in Section 6138(c)(1)(i)-(v) as warranting incarceration. As such, his current technical violation (failure to complete sex offender treatment) does not show he is an identifiable threat to public safety. Thus, Offender urges, the Board erred or abused its discretion in failing to place him in a CCC as required by 61 Pa. C.S. §§6138(c)(1).
First, we note the Board issued its revocation order on November 9, 2012. Because the Board recommitted Offender prior to the effective date of the 2012 revisions, former Section 6138(c)(6) of the Parole Code is applicable here.
In Baldelli, we recognized that the Board is traditionally granted broad discretion in parole matters due to its highly specialized expertise in evaluating such matters. "In reviewing the Board's discretionary acts, this Court will only overturn the Board's actions where the Board acts in bad faith, fraudulently, capriciously or commits an abuse of its power." Baldelli, ___ A.3d at ___, 2013 WL 3929826 at *3. Due to the Board's broad discretionary powers, we will only hold the Board's determination to be arbitrary or unreasonable where it is not supported by substantial evidence. Id.
Former Section 6138(c)(6) provided the Board with the discretion not to divert technical violators from SCIs where such diversions would pose an undue safety risk. Baldelli. Here, the Board determined in its revocation order that diverting Offender from confinement posed an undue risk to public safety. C.R. at 57.
The Board's revocation order indicated it relied in part on Offender's documented discharge letter. Id. RHD's Discharge Summary assessed Offender's current risk level as "high." See C.R. at 45. RHD noted Offender's first two polygraphs indicated he is capable of passing a polygraph examination, but that he chose to engage in deception. Id. During his third polygraph, Offender engaged in tactics specifically aimed at altering the results of his test. Id. Overall, RHD determined that Offender did not appear to be invested in the treatment process. Id. Therefore, RHD recommended as follows:
[Offender] should have a specific issue polygraph examination readministered immediately to verify that he has not engaged in high-risk sexual behavior. In addition, he should also verify his offense history, as he has yet to pass a polygraph examination with this focus. It would also be prudent to have [Offender] undergo an Abel Screen of Sexual Interest, or similar measure of sexual interest, in order to better identify his areas of sexual attraction. [Offender's] supervising officer intends to request incarceration at this time. Once returned to the community and to treatment, [Offender] should be given extraordinary supervision conditions, such as GPS monitoring, curfew, etc.
Id.
Given RHD's assessment of Offender as a high-risk sex offender, his need for treatment, and Offender's failure to successfully complete sex offender treatment, we discern no abuse of discretion in the Board's decision not to divert Offender to a CCC based on his technical parole violation. Baldelli.
For the above reasons, we discern no error, abuse of discretion or constitutional violations in the Board's recommitment of Offender to serve 12 months' backtime in an SCI based on his violation of Special Condition No. 7 (failure to successfully complete sex offender treatment). Accordingly, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 5th day of December, 2013, for the reasons stated in the foregoing opinion, the order of the Pennsylvania Board of Probation and Parole is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge