Opinion
No. 277 C.D. 2013
04-07-2014
Lawrence Madison, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Lawrence Madison (Madison) petitions for review of the January 31, 2013 order of the Pennsylvania Board of Probation and Parole (Board), affirming its October 5, 2012 decision to recommit Madison as a convicted parole violator to serve twelve months backtime for his convictions of multiple counts of access device fraud. See Section 4106 of the Crimes Code, 18 Pa.C.S. §4106. We affirm.
By per curiam order dated August 27, 2013, this Court appointed counsel to represent Madison in this appeal.
On August 21, 2006, and December 1, 2006, Madison pled guilty to a variety of theft-related offenses, conspiracy, and criminal trespass, and he was sentenced collectively to an aggregate term of two to five years' imprisonment, with a minimum sentence date of December 1, 2008, and a maximum sentence date of July 27, 2011. (Certified Record (C.R.) at 1-3.) On January 7, 2009, the Board paroled Madison to his sister's residence, subject to conditions. (C.R. at 35-39.) Thereafter, on September 20, 2010, and December 14, 2010, Madison was charged in the three separate cases (Nos. 1901-2010, 0059-2011, and 0094-2011), in the Court of Common Pleas of Fayette County, with multiple counts of forgery and access device fraud in connection with incidents occurring from June through August 2010. (C.R. at 42-43, 103-05, 119-20.) On May 4, 2011, Madison entered guilty pleas and was sentenced in all three cases and on all counts to an aggregate term of two to four years' imprisonment, concurrent to any sentence previously imposed. (C.R. at 85-89.)
On May 12, 2011, the Board received official verification of Madison's guilty pleas. (C.R. at 41, 102, 117.) On June 14, 2011, Madison signed in two places a "Waiver of Revocation Hearing and Counsel/Admission Form" (Form). (C.R. at 100). The Form states that Madison was "advised of his rights to a parole revocation hearing and counsel at that hearing," and that "[w]ith full knowledge and understanding of these rights," Madison waives them of his "own free will, without any promise, threat or coercion." Id. The Form further states that Madison "knowingly, intelligently, and voluntarily admit[s] that [he has] been convicted of [multiple counts of access fraud] at Docket No(s) 1901/2010; 59/2011; 94/2011 in violation of [his] parole." Id. According to the Form, Madison understood and agreed "that this admission is binding and may only be withdrawn if [he] submit[s] a written withdrawal to [his] supervising agent, within ten (10) calendar days." Id. The Form was signed by Stephen P. Steiner as a witness on June 14, 2011, and was reviewed and signed by supervisor Donald R. Green on June 15, 2011. Id.
By decision dated October 5, 2012, the Board recommitted Madison to a state correctional institution as a convicted parole violator and ordered him to serve twelve months' backtime for his convictions of access device fraud. (C.R. at 135-36.) On November 5, 2012, Madison submitted a petition for administrative review, contending that the Board's October 5, 2012 recommitment order was legally invalid because he did not receive a revocation hearing within 120 days of notice of his convictions as required by 37 Pa. Code §71.4(1). (C.R. at 138-42.) Madison alleged that he informed the Board of his convictions in August 2011 and that the latest date on which the Board could have provided him with a timely hearing was December 19, 2011. (C.R. at 140.)
Generally, under 37 Pa. Code §71.4(1), "[a] revocation hearing shall be held within 120 days from the date the Board received official verification of the plea of guilty or nolo contendere or of the guilty verdict." Id. "Where the Board fails to meet its burden of showing by a preponderance of the evidence that a revocation hearing was timely, the appropriate remedy is a dismissal of the parole violation charges with prejudice." Taylor v. Pennsylvania Board of Probation and Parole, 624 A.2d 225, 229 (Pa. Cmwlth. 1993).
By decision dated January 31, 2013, the Board denied Madison's request for administrative relief and affirmed its October 5, 2012 decision. In explaining the basis for its conclusion, the Board informed Madison:
On June 14, 2011, you waived your right to a revocation hearing and admitted to being convicted of the offenses in violation of your parole in writing. The [Form] you signed specifically indicates that you chose to take said action of your own free will, without promise, threat or coercion. You also failed to withdraw the [Form] within the prescribed ten-day grace period. Thus, it is clear that the waiver/admission was knowing and voluntary. Because you waived your right to a revocation hearing, your claim that the Board failed to provide you with a timely revocation hearing is frivolous.(C.R. at 153.)
On appeal to this Court, Madison argues that he "never signed" the Form; that if he signed the Form, his signature "was rendered unknowingly and unintelligently, and/or by fraud;" and that the Form "is irrelevant as a matter of law." (Madison's brief at 14.) Madison asserts that because the Board did not hold a hearing within 120 days of receiving notice of his convictions, the Board could not recommit him and was obligated to dismiss the parole violation charges.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication was in accordance with the law, and whether necessary findings were supported by substantial evidence. 2 Pa.C.S. §704; Adams v. Board of Probation and Parole, 885 A.2d 1121, 1122 n.1 (Pa. Cmwlth. 2005).
It is well-established that a parolee "must have an opportunity to be heard and to show, if he can, that he did not violate the conditions, or if he did, that circumstances in mitigation suggests that the violation does not warrant revocation." McKenzie v. Pennsylvania Board of Probation and Parole, 963 A.2d 616, 620 (Pa. Cmwlth. 2009) (quoting Morrissey v. Brewer, 408 U.S. 471, 488 (1972)). However, this Court has held that no hearing is required after a parolee admits that he violated the terms and conditions of his parole and waives his right to a hearing because the clear statements in the waiver/admission form are sufficient evidence in and of themselves to justify recommitment. McKenzie, 963 A.2d at 620-21; Prebella v. Board of Probation and Parole, 942 A.2d 257, 260-61 (Pa. Cmwlth. 2008). In order to prove that a parolee made a knowing and voluntary waiver, all that the Board is required to show is that it followed its own regulations and provided the necessary information to the parolee prior to the parolee signing the written waiver form. Prebella, 942 A.2d at 261; accord Baldelli v. Pennsylvania Board of Probation and Parole, 76 A.3d 92, 98-100 (Pa. Cmwlth. 2013); McKenzie, 963 A.2d at 620.
In Prebella, the parolee executed forms wherein he waived his rights to counsel and a violation hearing. In the forms, the parolee stated that he understood his rights and waived them of his "own free will, without promise, threat or coercion." 942 A.2d at 259. The parolee also admitted "knowingly, voluntarily and willingly" that he violated the conditions of parole and that he had a right to withdraw his admission within ten days. Id.
On appeal to this Court, the parolee in Prebella argued that the forms were invalid because he was induced by representations from his parole agent that he would be placed in a "half-way back" program if he admitted the charges and waived his right to a hearing. Id. at 260. However, after concluding that "Pennsylvania law clearly supports the type of waivers" the parolee executed, we held that execution of the Board's form is sufficient to establish a knowing and voluntary waiver -- one that was made without undue influence or promises. Id. at 261. We further concluded that the waiver forms, alone, demonstrate that the parolee voluntarily, knowingly, and intelligently waived his right to a hearing and admitted the parole violations. In so determining, we rejected the parolee's argument that he was induced to waive his rights because this contention "was contrary to his signed statements" on the form and the parolee never sought to withdraw his admissions. Id. at 262. See McKenzie, 963 A.2d at 619.
Here, as in Prebella, the Form establishes that Madison voluntarily, knowingly, and intelligently waived his rights to a revocation hearing and counsel and did so of his "own free will, without any promise, threat or coercion." (C.R. at 100.) To the extent that Madison asserts that he signed the Form unknowingly, unintelligently, and/or through the means of fraud, these assertions are directly contradicted by his statements on the Form, and Madison cannot now use this opportunity to impeach his signed statements. See Baldelli, 76 A.3d at 100 ("[L]ike the parolees in Prebella and McKenzie, Baldelli seeks a hearing so that he may impeach his prior signed statements. Because Board regulations do not require such a hearing . . . we reject Baldelli's assertion that a hearing is required for this purpose."). Therefore, because Madison waived his right to a hearing one month after the Board received official verification of his guilty pleas, the Board was not obligated to hold a hearing and did not violate 37 Pa. Code §71.4(1).
Moreover, inasmuch as Madison now contends in his brief that he never signed the Form, in pro se correspondence to this Court dated March 13, 2013, Madison represented otherwise. In a document entitled "Request for Leave to Amend Petition for Review" (Request to Amend), Madison informed this Court that at the time he filed his original petition for review, he was not in possession of the Form and conceded that his arguments pertaining to the Form "were general and bordering on bald assertions in that he could not remember signing the document nor its contents." (Request to Amend, 3/13/2013, at 2.) Madison then stated that he recently received the Form, admitted that he met with Steiner on June 14, 2011, conceded that he signed the Form, and argued that the language of the Form was legally ineffectual. Id. at 2-3.
In In re S.A.J., 575 Pa. 624, 632-33, 838 A.2d 616, 621 (2003), our Supreme Court reiterated that "[a]dmissions . . . contained in pleadings, stipulations, and the like are usually termed 'judicial admissions' and as such cannot be later contradicted by the party who made them." Id. (citation omitted). The Court in In re S.A.J. explained that it has long-adhered to this principle, stating that "[w]hen a man alleges a fact in a court of justice . . . he shall not be allowed to contradict it afterwards. It is against good morals to permit such double dealing in the administration of justice." Id. (citation omitted).
Here, Madison represented to this Court in his Request to Amend that he signed the Form. In his subsequent brief, Madison contends that he did not sign the Form. Pursuant to In re S.A.J., Madison's prior statement that he signed the Form is a binding judicial admission and he cannot now assert the opposite. Consequently, we will not entertain the portion of Madison's argument denying that he signed the Form. See Riddle v. Department of Transportation, 583 A.2d 865, 867 (Pa. Cmwlth. 1990) (concluding that a licensee could not argue in his appellate brief that his notice of appeal was filed untimely due to the non-negligent conduct of his attorney because the licensee characterized his attorney's conduct as negligent in a petition for supersedeas and that statement constituted a judicial admission which could not later be contradicted).
In his brief, Madison also claims that a hearing examiner conducted a hearing on June 14, 2012, and dismissed the charges. However, there is nothing in the certified record to indicate or even suggest that such a hearing was held. "It is well settled that an appellate court cannot consider anything which is not part of the certified record in a case." Commonwealth v. Geatti, 35 A.3d 798, 800 (Pa. Cmwlth. 2011). --------
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 7th day of April, 2014, the January 31, 2013 order of the Pennsylvania Board of Probation and Parole is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge