Opinion
No. 969 C.D. 2012
11-28-2012
David Johnson, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
David Johnson (Johnson) petitions this Court for review of the Pennsylvania Board of Probation and Parole's (Board) May 8, 2012 denial of his petition for administrative review. The sole issue for this Court's review is whether the Board violated Johnson's due process rights by continuing his parole, subsequently detaining him, and then returning him to a state correctional institution without a hearing. We affirm.
Johnson was serving a 3 to 6-year sentence for robbery when he was released on parole on August 5, 2010. He was subsequently recommitted as a technical parole violator. On April 12, 2011, the Board reparoled Johnson to the Joseph Coleman Center (Coleman Center), a community corrections facility. On August 15, 2011, Johnson was arrested for harassment. He was released on August 16, 2011, with instructions to report to his parole agent that day. Because Johnson did not report to his parole agent as instructed, in a decision recorded August 17, 2011, the Board declared him delinquent effective August 16, 2011. On August 17, 2011, Johnson turned himself in to the parole supervision staff. The Board remanded him to the Coleman Center, rather than recommitting him for absconding. The Board issued a decision cancelling Johnson's delinquency on September 28, 2011, specifically referencing the delinquency recorded August 17, 2011.
On August 23, 2011, Johnson left the Coleman Center on a pass for treatment, but he did not timely return. The Board deemed him to have absconded for the second time, and discharged him from the Coleman Center. Johnson turned himself in to the Coleman Center on August 24, 2011. The Board lodged a detainer against Johnson, he was arrested by parole agents and confined to the State Correctional Institution at Graterford (SCI-Graterford) for parole violations. On September 6, 2011, the Board conducted a violation hearing relative to the August 23, 2011 incident. Johnson admitted violating parole Conditions 2 (change of residence without permission), 5A (use of drugs), and 7 (failure to successfully complete the Coleman Center program). Johnson expressly waived his right to a preliminary hearing, and a hearing before a panel. Rather he elected to have his violation hearing before a single hearing examiner. Johnson did not raise any due process challenges at the hearing. Although the hearing examiner voted to recommit Johnson as a technical parole violator, the decision was not immediately recorded due to the need for a second vote. On October 20, 2011, Johnson was released from SCI-Graterford with instructions to report to his parole agent. At that time, the Board's decision from the September 6, 2011 hearing was awaiting a second vote which was not obtained until October 28, 2011.
When Johnson returned to the Coleman Center on August 24, 2011, his urine sample tested positive for cocaine metabolites.
There is no set time in which the Board has to render a decision after a revocation hearing. This Court has held:
[G]enerally, even where there exists a statute or regulation directing the issuance of an adjudication by a time certain, those provisions have been construed as directory rather than mandatory, the basis for the rationale being that the legislature may not fix a time in which the exercise of a purely judicial function must occur . . . . There exists an exception, however, where the individual seeking redress from an agency's failure to issue a decision can demonstrate prejudice.
On October 23, 2011, the Board issued an administrative action declaring Johnson delinquent effective October 20, 2011. On November 9, 2011, the Board declared that Johnson was to be returned to a state facility when available. Johnson was returned to SCI-Graterford on December 5, 2011. On December 27, 2011, the Board issued a recommitment order based on the September 6, 2011 violation hearing, requiring Johnson to serve 12 months as a technical parole violator for violating parole conditions 2, 5A and 7. That decision also stated "Refer to Board action of 11/09/2011 when available pending your return to a state correctional institution . . . ." Certified Record (C.R.) at 96. Johnson filed an administrative appeal with the Board. On May 8, 2012, the Board denied his appeal and affirmed the Board's decision. C.R. at 106. Johnson appealed to this Court.
Our scope of review of the Board's decision denying administrative relief is limited to determining whether necessary findings of fact are supported by substantial evidence, an error of law was committed, or constitutional rights have been violated. McNally v. Pennsylvania Bd. of Probation & Parole, 940 A.2d 1289 (Pa. Cmwlth. 2008).
Johnson argues that the Board violated his due process rights by continuing his parole, subsequently detaining him, and then returning him to a state correctional institution without a hearing. Specifically, Johnson contends that because the Board's decision issued December 27, 2011 implicates the Board's October 23, 2011 action, he was denied due process. We disagree.
The United States Supreme Court has held that due process requires a parolee be afforded a final fact-finding hearing prior to revocation of his parole. Gagnon v. Scarpelli, 411 U.S. 778 (1973). The Supreme Court has declared that the minimum requirements of due process for a parole revocation hearing include:
(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a 'neutral and detached' hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.Morrissey v. Brewer, 408 U.S. 471, 489 (1972). Accordingly, Section 6138(c)(1) of the Prisons and Parole Code (Parole Code), 61 Pa.C.S. § 6138(c)(1), provides that "[a] parolee under the jurisdiction of the [B]oard who is released from a correctional facility and who, during the period of parole, violates the terms and conditions of his parole . . . may be recommitted after a hearing before the [B]oard." See also Section 71.2 of the Board's Regulations, 37 Pa. Code § 71.2.
It is clear from this record that the purpose of Johnson's September 6, 2011 hearing was to determine whether he should be recommitted for his August 23, 2011 parole violations. Johnson was notified of the hearing and he appeared with counsel. A violation hearing was held, during which he admitted the violations. A decision was rendered on October 28, 2011 and, on December 27, 2011, Johnson was recommitted. Based upon this record, there is no question that Johnson received due process relative to his August 23, 2011 violations.
It should be noted that the Board's cancellation of Johnson's August 17, 2011 delinquency was not issued until September 28, 2011, and Johnson was erroneously released from SCI-Graterford on October 20, 2011 based on that decision. Although the Board's December 27, 2011 recommitment decision references a "Return to a State Correctional Institution" related to a finding of delinquency on October 20, 2011, it was not the result of an additional violation, but rather to correct the record which caused Johnson's erroneous release. C.R. at 91, 96. See C.R. at 92, 90. Accordingly, there was no additional action requiring due process.
The last line of the Board's decision states: "the decision mailed June 2, 2011 is AFFIRMED". C.R. at 106 (emphasis added). Clearly, this date is a typographical error, as the entire letter refers to the decision mailed December 27, 2011, and there is no decision that was mailed June 2, 2011 in the record. --------
For all of the above reasons, the Board's May 8, 2012 order is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 28th day of November, 2012, the Pennsylvania Board of Probation and Parole's May 8, 2012 order is affirmed.
/s/_________
ANNE E. COVEY, Judge
Sanders v. Pennsylvania Bd. of Probation & Parole, 639 A.2d 872, 873-74 (Pa. Cmwlth. 1994) (citation omitted). Here, Johnson did not aver that he was prejudiced by the seven-week delay.