Opinion
No. 2320 C.D. 2012
09-23-2013
Barrett Q. Griggs, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Barrett Q. Griggs petitions for review of an adjudication of the Pennsylvania Board of Probation and Parole (Board) that recommitted Griggs as a convicted parole violator. Griggs argues that the Board erred because his detention hearing did not take place within 14 days of his arrest, which denied him due process. The Board held, inter alia, that this issue was not preserved, and we agree.
On November 16, 2009, Griggs was paroled from his three-and-half to seven year sentence for illegal possession and use of a firearm, which was imposed in 2006. On April 30, 2012, Griggs was taken into custody by parole agents for violating condition #5C of his parole ("You shall abstain from any assaultive behavior") after he made threatening comments to his parole officer. Certified Record at 7, 12-13 (C.R. ___). He was detained in a state correctional facility.
On May 14, 2012, at Griggs' request, his detention hearing was continued so that he could discuss his case with counsel. At the rescheduled hearing on May 29, 2012, Parole Agent Robert Dean read the technical charges and Griggs, appearing pro se, raised two objections. First, he claimed that he was not given sufficient notice of the hearing and, second, he was attending the hearing under duress. Both objections were overruled. Griggs then testified on his own behalf and presented the testimony of his aunt, Denise Eure, and his wife, Jodi Griggs. The hearing examiner determined that there was probable cause that Griggs had violated condition #5C and, thus, ordered Griggs detained.
This hearing is required within 14 days of arrest, but can be waived. 37 Pa. Code §§71.2(3), 71.5(c)(2).
Griggs fired his private attorney on May 16, 2012, and waived his right to a public defender. C.R. 16.
On August 27, 2012, a hearing on his parole revocation was held. At the beginning of the revocation hearing, Griggs, appearing pro se, objected that his detention hearing was invalid because he did not receive adequate notice. C.R. 43-45. These objections were overruled. Agent Dean testified for the Commonwealth. Griggs again testified on his own behalf and presented the testimony of Denise Eure and Jodi Griggs. On September 6, 2012, the Board, relying on the testimony of Agent Dean and Jodi Griggs as well as various documents submitted at the hearing, recommitted Griggs to serve six months backtime as a technical parole violator. The Board also held that Griggs had waived his claim that the detention hearing had been invalid because he had failed to raise the issue in advance of his revocation hearing. Griggs appealed to the Board, but his request for administrative relief was denied on December 5, 2012. C.R. 108. Griggs then petitioned for this Court's review.
On appeal, Griggs raises two arguments. First, he argues that he preserved the issue that his detention hearing was untimely and invalid. Second, he argues that his detention hearing was invalid because he did not receive adequate notice of the hearing and because it was not held within 14 days of his arrest.
"Our scope of review is limited to a determination of whether necessary findings are supported by substantial evidence, an error of law was committed, or whether constitutional rights of the parolee were violated." Slaymaker v. Pennsylvania Board of Probation and Parole, 768 A.2d 417, 418 n.1 (Pa. Cmwlth. 2001) (citing Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Shaffer v. Pennsylvania Board of Probation and Parole, 675 A.2d 784 (Pa. Cmwlth. 1996)).
In his first issue, Griggs argues that the Board erred in holding that he did not preserve the issue that his detention hearing was invalid. In Donnelly v. Pennsylvania Board of Probation and Parole, 457 A.2d 145 (Pa. Cmwlth 1983), this Court held that not challenging the timeliness of a detention hearing in advance of the revocation hearing constitutes waiver. Here, Griggs did not challenge the validity of his detention hearing prior to his revocation hearing. Thus, the Board did not err in holding this claim was waived.
Further, even if Griggs had preserved the timeliness issue, the argument lacks merit. The Board's regulations state that a detention hearing must be held within 14 days of the detention of a parolee. 37 Pa. Code §71.2(3). They also provide that a parolee's request for a continuance shall not render a hearing untimely. 37 Pa. Code §71.5(c)(2). Griggs was detained on April 30, 2012, and the preliminary hearing was originally scheduled for Monday, May 14, 2012. On the day of the hearing Griggs requested a continuance so that he could consult with an attorney. Griggs' request was granted and the hearing was rescheduled for May 29, 2012. The delay between May 14 and May 29 was due to Griggs' request and therefore cannot be counted against the Board. For purposes of 37 Pa. Code §71.5(c), Griggs' hearing was held on the 14th day after he was detained and, therefore, was timely.
37 Pa. Code §71.5(c) provides in relevant part:
(c) In determining the period for conducting hearings under this chapter, there shall be excluded from the period, a delay in any stage of the proceedings which is directly or indirectly attributable to one of the following:
(1) The unavailability of a parolee or counsel.
(2) Continuances granted at the request of a parolee or counsel, in which case the Board is not required to reschedule the hearing until it receives a written request to reschedule the hearing from the parolee or counsel.
Finally, Griggs argues that he did not receive adequate notice of his detention hearing because the Board did not provide him with the original signed copy of the notice. This argument lacks merit. The pertinent regulation states that "[a]fter the [detention] hearing is scheduled, the parolee and counsel shall be given a copy of the written notice of the charges and of the date and time of the hearing." 37 Pa. Code §71.2(2) (emphasis added). The regulation only requires that a parolee be given a copy of the hearing notice, not the original. At the hearing, Agent Dean presented a photocopy of the notice signed by Griggs, and that copy was sufficient to prove notice. Further, on May 14, 2012, Griggs signed the Request for Continuation of Hearing, which stated that the preliminary hearing would be held on May 29, 2012. C.R. 15. Therefore, Griggs had actual notice of the detention hearing.
For the foregoing reasons, the decision of the Board is affirmed.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 23rd day of September, 2013, the order of the Pennsylvania Board of Probation and Parole, dated December 5, 2012, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge