Opinion
September 7, 1983.
Pennsylvania Board of Probation and Parole — Compliance with regulations — Failure of hearing examiner to advise prisoner of right to be heard by quorum of Board.
1. Where the Pennsylvania Board of Probation and Parole fails to comply with its own regulation requiring that after a prisoner waives his right to a hearing by a quorum of the Board, the hearing examiner shall readvise the prisoner of his right to be heard by a Board quorum, the remedy is to remand the case to the Board in order that it may convene a hearing for the purpose of determining if recommitment is proper. [66]
Submitted on briefs January 6, 1983, to Judges ROGERS, CRAIG and MacPHAIL, sitting as a panel of three.
Appeal, No. 260 Miscellaneous Docket No. 3, from the Order of the Pennsylvania Board of Probation and Parole in case of Israel LaBoy v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole, dated October 23, 1981.
Parolee recommitted as technical parole violator by Pennsylvania Board of Probation and Parole. Parolee appealed to the Commonwealth Court of Pennsylvania. Appeal quashed. Appeal reinstated. Case remanded for transcript. ( 74 Pa. Commw. 332) Transcript filed. Held: Order vacated and case remanded.
Timothy P. Wile, Assistant Public Defender, for petitioner.
Arthur R. Thomas, Chief Counsel, with him Robert A. Greevy, Chief Counsel, Jay C. Waldman, General Counsel, and LeRoy S. Zimmerman, Attorney General, for respondent.
Israel LaBoy appeals from an order of the Pennsylvania Board of Probation and Parole recommitting him to prison for thirty months as a technical parole violator.
In LaBoy v. Pennsylvania Board of Probation and Parole, 74 Pa. Commw. 332, 459 A.2d 916 (1983), we erroneously stated that the board recommitted Mr. LaBoy to prison for eighteen months.
In LaBoy v. Pennsylvania Board of Probation and Parole, 74 Pa. Commw. 332, 459 A.2d 916 (1983), we remanded this case for a transcript to determine if, after Mr. LaBoy waived his right to a hearing by a quorum of the board, the hearing examiner readvised Mr. LaBoy of his right to be heard by a board quorum, as required by 37 Pa. Code § 71.2(14)(ii). The transcript, as received, reveals that the hearing examiner did not reiterate the required advice to him at the time of the single-examiner hearing.
The board contends that, under 37 Pa. Code § 71.5(h), Mr. LaBoy waived his rights because he did not mention the lack of a full board hearing in his petition for administrative review before the board. We rejected a similar argument in Brown v. Pennsylvania Board of Probation and Parole, 70 Pa. Commw. 597, 600-01, 453 A.2d 1068, 1070 (1982) (failure by pro se petitioner to specify right to counsel as basis for review does not constitute waiver of issue under parole board regulation governing applications for review).
Where the board has not complied with its own regulations, the remedy, in a case such as this, is to remand for a proper hearing, just as we have done where there has been a constitutional deprivation of due process, Commonwealth ex rel. Rambeau v. Rundle, 455 Pa. 8, 314 A.2d 842 (1973) (upholding the constitutional right of a convicted parolee to a revocation hearing and counsel, and, after failure of the board to afford the parolee those rights, remanding for a new revocation hearing).
Accordingly, we vacate the decision of the board recommitting Mr. LaBoy to thirty months in prison and order the board to convene a hearing before a quorum of the board for the purpose of determining if it should recommit Mr. LaBoy as a technical parole violator and, if so, the amount of time he should serve.
Because we are vacating the board's recommitment order, we need not reach Mr. LaBoy's argument that the board violated his due process and equal protection guarantees by allegedly failing to aggregate his recommitment time for general and special parole violations under 37 Pa. Code § 75.3(f).
ORDER
NOW, September 7, 1983, we vacate the order of the Pennsylvania Board of Probation and Parole recommitting Mr. LaBoy to thirty months in prison and remand this case to the board with the order that it convene a hearing before a quorum of the board for the purpose of determining if Mr. LaBoy should be recommitted as a technical parole violator and, if so, the amount of time he should serve.
Jurisdiction relinquished.