Opinion
536 C.D. 2023
08-22-2024
Kevin N. Gardner, Petitioner v. Pennsylvania Parole Board, Respondent
OPINION NOT REPORTED
Submitted: July 5, 2024
BEFORE: HONORABLE ANNE E. COVEY, Judge, HONORABLE STACY WALLACE, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge.
MEMORANDUM OPINION
STACY WALLACE, Judge.
Kevin N. Gardner (Gardner) petitions this Court for review of the Pennsylvania Parole Board's (Board) May 5, 2023 order (Order) affirming the Board's decision recorded May 16, 2022, (mailed May 23, 2022), finding that Gardner knowingly and intelligently waived his revocation hearing. After review, we affirm the Board's Order.
I. Factual and Procedural Background
The Board released Gardner on parole in August of 2019. Certified Record (C.R.) at 4. The Bensalem Township Police arrested Gardner on new charges on March 19, 2020, in Bucks County, Pennsylvania, and the Board detained Gardner at the local prison pending disposition of the new charges. Id. at 12-13, 23. The police charged Gardner with various offenses alleged to have occurred on March 16, 2020. Id. at 14, 22. On April 18, 2022, Gardner entered a nolo contendere plea to Trafficking Individuals (F2), Manufacture, Delivery, or Possession with Intent to Manufacture or Deliver (F), and Simple Assault (M2). Id. at 14, 27-28.
A nolo contendere plea does not admit to the facts alleged, or the elements of the crime. Knelly v. Pa. Dep't of Health, 307 A.3d 808, 819 (Pa. Cmwlth. 2023). Rather, a nolo contendere plea admits that the facts alleged, if proven, could support a conviction. Id. A nolo contendere plea is a conviction for purposes of a criminal case. Commonwealth v. Norton, 201 A.3d 112, 114 n.1 (Pa. 2019) (citing Eisenberg v. Dep't of Pub. Welfare, 516 A.2d 333, 335 (Pa. 1986)).
On May 6, 2022, Gardner executed several Board forms in the presence of a parole agent. C.R. at 14-17. Specifically, Gardner signed a Notice of Charges and Hearing form, forms waiving representation by counsel, and forms waiving his right to a revocation hearing. Id. Gardner also executed a waiver of revocation hearing and admission form. Id. at 16. In this form, Gardner acknowledged he understood his constitutional right to a violation hearing and waived this right "of [his] own free will, without any promise, threat or coercion." Id. Further, Gardner signed the section of the form indicating he was "knowingly, intelligently, and voluntarily" admitting he violated the conditions of parole, namely, that he had new criminal convictions. Id. He also acknowledged his right to withdraw the admission within 10 calendar days. Id. Gardner did not rescind the waiver of his revocation hearing and admission form. A Board panel prepared a report based on Gardner's waivers and admissions. Id. at 41-50. On May 16, 2022, relying on Gardner's admissions, the Board recommitted him to serve his unexpired term of 2 years, 11 months, and 28 days. Id. at 60.
Gardner filed a counseled request for administrative relief to the Board. C.R. at 62. On May 5, 2023, the Board entered its Order denying Gardner's request for administrative relief by affirming the May 16, 2022 decision. Id. at 63. Gardner filed a Petition for Review of the Board's Order in this Court. Gardner challenges the Board's conclusion that he knowingly and intelligently waived his revocation hearing. Gardner requests this Court vacate the Board's recommitment order and remand for new revocation proceedings.
The sole question raised on appeal is "DID THE BOARD ERR IN CONCLUDING THAT THE WAIVER OF THE REVOCATION HEARING WAS VALID?" Gardner's Br. at 4 (capitalization in original).
II. Discussion
In cases involving the Board's decision to deny a parolee's request for administrative relief, our review "is limited to determining whether necessary findings of facts are supported by substantial evidence, whether an error of law was committed, or whether the constitutional rights of the parolee were violated." McNally v. Pa. Bd. of Prob. & Parole, 940 A.2d 1289, 1292 (Pa. Cmwlth. 2008). For questions of law, our standard of review is de novo, and our scope of review is plenary. Pittman v. Pa. Bd. of Prob. & Parole, 159 A.3d 466, 473 (Pa. 2017). In other words, in considering the proper meaning of a given rule of law on appeal, we do not defer to the Board's own conclusions of law. Instead, we review the entire record with a fresh pair of eyes.
With our standard of review in mind, we address whether Gardner knowingly and voluntarily waived his right to a revocation hearing. Gardner alleges in his brief that the Board erred in accepting the hearing waiver as it failed to provide the parolee with the exact date and time of the hearing as required by its regulations, and therefore, it was not a knowing and intelligent waiver. The Board contends Gardner failed to raise this issue in an administrative appeal before the Board and therefore the issue is waived. "The law is well settled that issues not raised before the Board either at the revocation hearing or in the petitioner's administrative appeal are waived and cannot be considered for the first time on appeal." Thomas v. Pa. Parole Bd., 304 A.3d 810, 814 (Pa. Cmwlth. 2023) (quoting Chesson v. Pa. Bd. of Prob. & Parole, 47 A.3d 875, 878 (Pa. Cmwlth. 2012) (citations omitted)). Here, in his administrative appeal, Gardner asserted "[t]o the extent that the Board relied on a purported admission contained in the documents used to waive his revocation hearing, the documents were not knowingly executed and were the product of misinformation supplied by the . . . parole agent at [the State Correctional Institution at] Smithfield who led [P]etitioner to believe he would not be revoked." C.R. at 62. Thus, we conclude Gardner adequately raised the issue of whether he knowingly and voluntarily waived his right to a revocation hearing in his administrative appeal to the Board and, therefore, the issue is not waived. Accordingly, we turn to the merits of his appeal.
A parole revocation process has two distinct components: (1) whether the parolee violated one or more conditions of his parole, and (2) if the parolee did violate one or more of those conditions, whether he should be recommitted to prison or should other steps be taken. Gagnon v. Scarpelli, 411 U.S. 778, 784 (1973). A revocation hearing does not have to be conducted with the same procedural and evidentiary rules as a trial on the underlying criminal charges. Commonwealth v. Kates, 305 A.2d 701, 710 (Pa. 1973). "[T]he purpose of the revocation hearing is simply to establish to the satisfaction of the [Board] [which] granted [parole] that the individual's conduct warrants his continuing as a [parolee]." McKenzie v. Pa. Bd. of Prob. & Parole, 963 A.2d 616, 619 (Pa. Cmwlth. 2009) (quoting Kates, 305 A.2d at 710).
Gardner does not claim he did not know what his rights were, he was not advised of his right to obtain counsel, he was innocent of the parole violation, or he sought to rescind his admission or waiver. Gardner's only claim is that his waiver was not knowingly and intelligently made because he was not informed of the exact date of the revocation hearing as required by the Board's regulations. "In order to effectuate a knowing and voluntary waiver in Parole Board cases, all that is required is for the Board to show it followed its own regulations and provided the necessary information to the offender prior to the offender signing the written waiver form." McKenzie, 963 A.2d at 620 (citing Prebella v. Pa. Bd. of Prob. & Parole, 942 A.2d 257, 261-62 (Pa. Cmwlth 2008)). The waiver does not need to be through a colloquy on the record. Id. "[E]xecution of the Board's forms is sufficient." Id.
The Board's regulations provide that, before the revocation hearing, the parolee must be notified of "[t]he right to a revocation hearing, the right to notice of the exact date and the right at the revocation hearing to be heard by a panel." 37 Pa. Code §71.4 (2)(i) (emphasis added). As discussed in Prebella, the Board's regulations address waivers by parolees accused of violations, including waivers of revocation hearings, and Pennsylvania law supports such waivers. 942 A.2d at 261. "[T]he examiner shall initiate the scheduling of a violation hearing, if desired by the parolee or by the Board's representative to resolve the remaining contested relevant facts." 37 Pa. Code. §71.2(9) (emphasis added). A date for the revocation hearing does not need to be scheduled unless the parolee, or the Board, is requesting a revocation hearing. See id. A parolee only needs to be advised that he has the right to have such hearing, and if he requests to have a revocation hearing, then he will be notified of the exact date. See 37 Pa. Code §71.4(2)(1).
The Board's regulations further provide that before a revocation hearing, the parolee will be notified (1) he has the right to a revocation hearing, the date of that hearing, and the right for that hearing to be before a panel, (2) he has the right to retain counsel (either private or a public defender), (3) there is no penalty for requesting counsel, (4) he has the right to present witnesses and evidence, and (5) the purpose of the hearing is to determine whether to revoke parole, and if revocation is ordered, the parolee will receive no credit for time spent at liberty on parole. 37 Pa. Code §71.4(2)(i)-(v). The forms executed by Gardner on May 5, 2022, outlined his rights in accordance with the Board's regulations. See id.; C.R. at 14-17.
In addition, and contrary to Gardner's contentions, in two of the forms he signed, he stated he was waiving his right to a revocation hearing "of [his] own free will, without any promise, threat or coercion." C.R. at 16-17. The Board does not need to convene a hearing to validate that the choice to waive his revocation hearing was made knowingly and intelligently. McKenzie, 963 A.2d at 621. The clear statements in the forms are sufficient to establish the validity of Gardner's waiver of his revocation hearing. See id. at 622.
III. Conclusion
The Board correctly denied Gardner's administrative appeal on the basis that the waiver of his revocation hearing and admission were made knowingly and intelligently. Accordingly, we conclude the Board did not commit an error of law, and we affirm the Board's Order.
ORDER
AND NOW, this 22nd day of August 2024, the May 5, 2023 order of the Pennsylvania Parole Board is AFFIRMED.