Opinion
No. 1858 C.D. 2011
06-05-2012
Michael Robert Henry, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Michael Robert Henry petitions this court for review of an order of the Pennsylvania Board of Probation and Parole (Board) denying his request for administrative relief from the Board's recommitment order revoking his parole and recommitting him as a technical parole violator to serve nine months backtime. After review, we affirm.
Henry was convicted of involuntary deviate sexual intercourse with a minor child and sentenced on April 8, 2004, to serve a sentence of 5 to 15 years, with a controlling maximum date of June 12, 2018. In August 2008, he was released on parole with conditions. On October 16, 2010, Henry visited his mother at his aunt's house in Emmaus, Pennsylvania. There were other relatives, including minors, who were at the home at the time. Due to the fact that a Halloween parade was passing through the town, the roads were blocked off and Henry was unable to leave the area. Henry was observed by parole supervision staff on the porch of the residence watching the parade. Henry was then arrested by parole supervision staff that same date for technical parole violations. Specifically, Henry was charged with violating special condition #7, count one, engaging in an activity that involves the social involvement of minor children; count two, contact with minor children of his extended family without permission of parole supervision staff; and count three, unsuccessful discharge from the Sex Offender Treatment Program for failure to follow the rules of the program and have a safety plan before contact with the minor children of his extended family. Notice of Charges, Certified Record (C.R.) at 11.
At the subsequent parole violation hearing, Henry was asked whether he was pleading guilty to violating special condition #7, counts one, two, and three, with an explanation, and he responded, "[t]hat's correct." Panel Violation Hearing of February 18, 2011, C.R. at 54. In its decision, the Board recommitted Henry as a technical parole violator to serve nine months backtime for multiple technical parole violations. Henry filed a request for administrative relief alleging that the violations resulted from circumstances beyond his control. Henry's request for administrative relief was denied. This appeal followed.
On appeal, Henry raises a single issue for review, that is, whether the Board erred in recommitting him when, due to circumstances beyond his control, he unintentionally and involuntarily violated the special conditions of his parole that he not engage in any activity involving the social involvement of minors, that he not visit or have any contact with any of his minor relatives, and that he have permission from parole supervision staff with a safety plan in place before any contact with his minor relatives. Henry argues that not only was he unaware that minors were going to be present at his aunt's house on the day in question, but that he did not have the ability to ensure that no minors would appear on the scene. Further, because the parade started during his visit and the streets were blocked off for the parade, he was unable to leave the area to avoid being in the presence of minors.
Henry phrases the issue as whether, "[t]he denial of relief from [the Board's] order revoking parole constitutes an error of law, a violation of [his] constitutional rights and is not supported by substantial evidence." Henry's Brief at 8. However, the thrust of his argument is that the Board erred in recommitting him when his violations resulted from circumstances beyond his control; accordingly, we will address only that issue. Based on the issue raised, the scope of our review is limited to determining whether an error of law was committed, Pitch v. Pennsylvania Board of Probation and Parole, 514 A.2d 638 (Pa. Cmwlth. 1986), an issue over which we exercise plenary review. --------
Henry asserts that in Hudack v. Pennsylvania Board of Probation and Parole, 757 A.2d 439 (Pa. Cmwlth. 2000), this court held that where a special condition of parole is outside the parolee's control, the Board must prove that the parolee was at least partially at fault for violating the special condition in order to find that there was a technical parole violation. According to Henry, since he could not control being in the presence of minors on that day, had no intention of being in the presence of minors, and made a good faith effort to avoid doing so, the Board did not show that he was partially at fault for violating the special conditions of his parole and, therefore, it erred in ordering him to be recommitted as a technical parole violator. We disagree.
In general, where the convicted offender is sentenced to a maximum sentence of two years or more of imprisonment, the Board has exclusive power "[t]o parole and reparole, commit and recommit for violations of parole and to discharge from parole . . . ." 61 Pa. C.S. § 6132(a)(1)(i). Furthermore, the Board "may, during the period for which an inmate shall have been sentenced, recommit the inmate, if paroled, for violation of the terms and conditions of his parole . . . ." 61 Pa. C.S. § 6137(h)(1). In parole violation proceedings, the Board has the burden to show by a preponderance of the evidence that the parolee violated the terms and conditions of his parole. Sigafoos v. Pa. Bd. of Prob. & Parole, 503 A.2d 1076 (Pa. Cmwlth. 1986). With this in mind, we turn now to the matter sub judice.
Henry's special conditions of parole prohibited him from participating or engaging in any activity which involved the educational, vocational, occupational or social involvement of any minor children, from having any contact with any minor children in his extended family without prior permission from parole supervision staff, and also required him to follow the rules of the Sex Offender Treatment Program. At the hearing, after admitting that he was guilty of violating these special conditions of his parole, Henry explained that on the day he was arrested, he had worked from 6:00 a.m. until 11:00 a.m., went home and slept for a while and then called his mother who was in from Texas and told her he would meet her at his aunt's house in Emmaus. Henry testified that, "I said, well, I'll get there before the parade starts. I knew there was going to be a parade. I thought it started at eight o'clock." Panel Violation Hearing, February 18, 2011, C.R. at 72. Henry further explained that by the time he got to his aunt's house, it was 6:50 p.m. and that shortly thereafter, his brother arrived and told him the parade was coming. Henry testified that he told his brother, "well, you know, I'm going to get going" but by then, his car "appeared to be blocked." Id. at 73. Henry testified that he told his brother he was going to hang out in the back yard and that his brother agreed with him, telling Henry that "rather then [sic] being in the house where the kids are going to come in, why don't we just stay right here . . . in full view of other people." Id. Henry testified that he "probably stood on that porch from 7:30 to 8:00 . . . ." Id. With respect to the minor children who were present, Henry testified that he didn't notice they were there at first, but admitted he told the parole agent when he was arrested that he was visiting them, but he denied having any communication or contact with any of them. Henry also testified that he knew that the sex offender treatment program required him to have a safety plan in place two weeks prior to any event he would be attending where kids would be present, but that sometimes "there's things that come up at the last minute . . . . So what I did was is [sic] I tried to get in to see my mom and out before there would be a problem." Id. at 75. Finally, Henry testified that, "I pled guilty because I made the mistake. I went there. I can't say I wasn't at the parade. I can't say there wasn't minors there. So rather than, you know, to argue that point, I'm admitting it with the explanation." Id. at 75-76.
We have previously held that a parolee's admission to asserted parole violations constitutes substantial evidence upon which the Board may base its parole revocation order. Sanders v. Pa. Bd. of Prob. & Parole, 958 A.2d 582 (Pa. Cmwlth. 2008); Pitch v. Pa. Bd. of Prob. & Parole, 514 A.2d 638 (Pa. Cmwlth. 1986); Heckrote v. Pa. Bd. of Prob. & Parole, 465 A.2d 118 (Pa. Cmwlth. 1983). Although Henry does not dispute that he admitted violating the terms of his parole, he argues that, as with the parolee in Hudak, the circumstances under which he violated his parole were "beyond his control." Hudak, however, is distinguishable and not dispositive, in that it was the parolee's ability to comply with the special condition itself that the court deemed beyond the parolee's control. In that case, the parolee had been released to a correction center and was required to remain at the center for at least six months. The parolee was prematurely discharged from the center due to medical problems and was consequently reincarcerated as a technical parole violator. In Hudak, we held that "where the Board has fashioned a condition of parole over which the petitioner does not have control, the Board must show that the petitioner was somewhat at fault in order to prove a violation." Id. at 442. Since the parolee in Hudak made a good faith effort to remain at the center and the Board failed to show his discharge was partially his fault, this court reversed the order recommitting him as a technical parole violator.
Here, we conclude that there is no merit to Henry's contention that his ability to comply with the special conditions of his parole was beyond his control. Henry's own testimony contradicts his argument. Specifically, Henry testified that he knew there was going to be a parade, that he knew it was starting shortly after he arrived and yet, in spite of this knowledge, he went to his aunt's home where minor children were present, and he stood on the porch watching the parade in which minor children participated. In addition, he testified that he knew he was required to have a safety plan in place and yet, admittedly did not have one. Thus, Henry knowingly and voluntarily placed himself in circumstances that violated the terms of his parole. No such burden is placed on the Board when a parolee acts under his own free will and admittedly violates his parole. McPherson v. Pennsylvania Board of Probation and Parole, 785 A.2d 1079 (Pa. Cmwlth. 2001).
Accordingly, the Board did not err in revoking his parole and recommitting him to serve nine months backtime.
The order of the Board is affirmed.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 5th day of June, 2012, the order of the Pennsylvania Board of Probation and Parole in the above-captioned matter is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge