Opinion
No. 1851 C.D. 2010
04-05-2012
Leonard Malloy, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Leonard Malloy petitions for review of an adjudication of the Pennsylvania Board of Probation and Parole (Board) denying his petition for administrative relief from the Board's order recommitting him as a convicted parole violator and recalculating his minimum and maximum sentence dates. Malloy argues that his signed waivers of his right to a revocation hearing and to be represented by counsel were invalid. In the absence of a hearing, Malloy argues that the Board's recalculation of his sentence dates was a nullity. Discerning no merit to these claims, we affirm.
On December 18, 2000, Malloy was sentenced to serve 5 to 10 years in state prison for aggravated assault. His minimum release date was September 13, 2005, and his maximum date was September 13, 2010. On November 14, 2006, the Board paroled Malloy.
On February 20, 2008, while conducting a routine field visit at Malloy's home, parole agents found drugs, drug paraphernalia, and a loaded handgun in Malloy's bedroom. The agents contacted the East Lansdowne police department, which seized the handgun and narcotics. The parole agents arrested Malloy on technical parole violation charges and returned him to the State Correctional Institution at Graterford. On February 20, 2008, East Lansdowne police filed one firearm and three drug offense charges against Malloy.
On March 4, 2008, Malloy signed a waiver of preliminary hearing and a waiver of panel hearing before the Board. In a combined revocation and detention order dated May 7, 2008, the Board recommitted Malloy as a technical parole violator and directed that he be detained pending disposition of the new criminal charges.
The waiver of preliminary hearing stated:
With full knowledge and understanding of my right to a preliminary hearing, I hereby waive that right and request a violation hearing.Supplemental Certified Record (S.C.R.___) at 5. Malloy and a witness signed this form. Also, the title of the form contained the word "detention" hand written between "preliminary" and "hearing." The import of this alteration is rendered nugatory by our holding in this case.
I waive this right of my own free will, without threat or coercion.
The waiver of panel hearing form stated:
With full knowledge and understanding of my right to a final hearing before a panel, I hereby waive that right and request that my hearing be held before an examiner.S.C.R. 5. Malloy and a witness signed the form.
I waive this right of my own free will, without threat or coercion.
On July 31, 2009, the Delaware County Court of Common Pleas arraigned Malloy on the new criminal charges and set bail at $30,000; Malloy did not post bail. The court set July 31, 2009, as the arrest date on the new criminal charges. Malloy pleaded guilty to one firearm charge and one drug charge, and on January 8, 2010, he was sentenced to serve 24 months in state prison.
On January 12, 2010, Malloy's parole agent received official verification of Malloy's new conviction and sentence. On that same date, Malloy signed a form waiving a revocation hearing and admitting to the criminal convictions. He also signed a form waiving representation by counsel. Finally, he signed a form waiving a hearing by a panel, thereby allowing the decision to be made by a hearing examiner. Based on the certified record of criminal convictions and the waivers executed by Malloy, the Board recommitted him to serve 30 months backtime by a decision mailed on March 5, 2010. That decision stated that any appeal must be filed within 30 days.
The waiver of revocation hearing and admission form stated:
I have been advised of my constitutional right to a detention hearing and a revocation hearing. With full knowledge and understanding of my constitutional right to a detention hearing and a revocation hearing, I hereby waive that right. I waive this right of my own free will, without promise, threat or coercion.Certified Record (C.R.___) at 27. Malloy and a witness signed this form. The form further stated:
On the 12th day of January two thousand and 10, I Leonard Malloy do knowingly, intelligently, and voluntarily admit that I was convicted of the following offenses committed while under parole supervision.C.R. 27. Malloy, a witness, and a parole supervisor signed this form. Additionally, in a space provided for additional information that Malloy would like the Board to consider in making its decision, Malloy wrote "I have family support and sickle cell disease. Health is getting bad." C.R. 27.
The specific indictment number(s) of the conviction(s) was/were CP-23-CR-0006741-09 (PWID-UM, PERSON NOT TO POSSESS FIREARM-F2). I knowingly, voluntarily and willingly admit to the conviction(s) listed above. I understand and agree that this admission can be withdrawn by me, in writing, within ten (10) calendar days of the date, as written above.
The waiver of representation by counsel form stated:
Having been fully advised of my right to counsel of my choice to represent me at a hearing before the Board, and of my right to appointed counsel if I cannot afford counsel of my choice, I hereby waive this right and request that my hearing be held without counsel.C.R. 28. Malloy and a witness signed this form.
This waiver is made of my own free will, without threat or coercion.
The waiver of panel hearing form stated:
With full knowledge and understanding of my right to a panel hearing, I hereby waive that right of my own free will without promise, threat or coercion and request that my hearing be held before an examiner.C.R. 26. Malloy and a witness signed this form.
On March 19, 2010, the Board issued a recalculation order setting the maximum sentence date for Malloy's original 10-year sentence as May 29, 2012. In recalculating Malloy's term, the Board credited him with 527 days for time he was confined solely on the Board's warrant from February 20, 2008, to July 31, 2009. Malloy did not receive credit for his time at liberty on parole, or for time he was confined from July 31, 2009, to January 8, 2010, on the drug and firearms charges for which he did not post bail.
On April 19, 2010, Malloy filed a petition for administrative review of the recalculation order, arguing that the Board erred by not crediting him with the time he was confined from July 31, 2009, to January 8, 2010. He argued that he was confined solely on the Board's warrant during that time period.
On August 10, 2010, the Board responded to Malloy's petition. It explained that during the time between July 31, 2009, and January 8, 2010, Malloy was not confined solely on the Board's warrant. Accordingly, under Gaito v. Pennsylvania Board of Probation and Parole, 488 Pa. 397, 412 A.2d 568 (1980), he was not entitled to credit on his original sentence. The Board affirmed the March 19, 2010, order, and on September 8, 2010, Malloy petitioned for this Court's review.
"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)).
On appeal, Malloy argues three points: (1) the Board erred in revoking Malloy's parole without a hearing because his signed waivers were invalid; (2) the Board failed to hold a timely revocation hearing after Malloy's return to state prison; (3) the Board did not give Malloy credit for the time he served solely under the Board's warrant. The Board argues that these issues are waived because they were not raised in Malloy's administrative appeal to the Board.
In his first issue, Malloy argues that his revocation of parole is invalid because the waivers he signed were not sufficient to inform him of his rights. Accordingly the Board was required to hold a detention hearing under 37 Pa. Code §71.3. Malloy argues that the waiver of a hearing form did not detail the composition of the panel, what a revocation hearing entails or that he had a right to present evidence, and does not verify that Malloy can read, write or understand English. Malloy argues, further, that for a waiver to be valid, it must be accompanied by an on-the-record colloquy, as is the case for guilty pleas in a criminal case.
It states, in relevant part:
The following procedures shall be followed if a parolee, not already detained after appropriate hearings for other criminal charges or technical violations, has been charged with a new criminal offense:
(1) A parolee may be detained on a Board warrant pending disposition of a criminal charge following the occurrence of one of the following:
(i) A district justice has conducted a criminal preliminary hearing and concluded that there is a prima facie case against the parolee.
(ii) The parolee waives a criminal preliminary hearing and is held for court.
(iii) The parolee is convicted of a crime at a trial before a judge of the Philadelphia Municipal Court or a district justice.
(iv) An examiner conducts a detention hearing.
37 Pa. Code §71.3.
(2) A parolee detained on a Board warrant upon the occurrence of one of the events enumerated in paragraph (1) may be held, without further hearing, pending disposition of the new criminal charge.
Malloy's arguments lack merit. In Prebella v. Pennsylvania Board of Probation and Parole, 942 A.2d 257 (Pa. Cmwlth. 2008), we confirmed the validity of the type of waivers signed by Malloy. There, we stated:
In Prebella, the parolee signed a waiver of representation by counsel, waiver of preliminary hearing, and waiver of panel hearing. Prebella, 942 A.2d at 259.
Pennsylvania Law clearly supports the type of waivers executed here. In order to effectuate a knowing and voluntary waiver in Parole Board cases, all that is required is for the Board to show that it followed its own regulations and provided the necessary information to the offender prior to the offender signing the written waiver form. The waiver need not be effectuated in an "on the record colloquy." Rather, as here, execution of the Board's form is sufficient.Id. at 261 (citations omitted). Here, the Board has shown proper execution of the forms by submittal into the certified record, and thus, the waivers are valid. Contrary to Malloy's position, the waivers do not need to be made in conjunction with an "on the record colloquy." Id.
Malloy also argues that the May 7, 2008, decision detaining and recommitting him as a technical parole violator is invalid because the Board did not conduct a detention hearing. A detention hearing or a criminal preliminary hearing is required to be held within 14 days of a parolee's detention. 37 Pa. Code §71.2(3). Again, Malloy's argument lacks merit because he signed a valid waiver of a detention hearing on March 4, 2008, relieving the Board of the need to hold a detention hearing.
37 Pa. Code §71.2(3) states: "The preliminary hearing shall be held within 14 days of the detention of the parolee on the Board warrant." --------
In his second issue, Malloy argues that the Board failed to hold a timely revocation hearing after Malloy's return to state prison. Malloy argues that because the Board failed to hold a detention hearing, the subsequent revocation hearing was not timely. However, the premise to this argument lacks a foundation. As noted above, the Board was not required to hold a detention hearing because Malloy waived it. Malloy also executed a waiver of the revocation hearing on January 12, 2010, thereby relieving the Board of the need to hold a hearing on its revocation of his parole as a convicted parole violator.
In any case, these two issues have been waived because Malloy did not raise them in his administrative appeal. It is well-settled that the failure to raise an issue before the Board results in a waiver and precludes this Court's review. Koehler v. Pennsylvania Board of Probation and Parole, 935 A.2d 44, 52-53 (Pa. Cmwlth. 2007). Malloy's administrative appeal simply cannot be read to include a challenge to the waivers he executed. His administrative appeal only challenged the time he was credited for confinement solely under the Board's warrant.
In his final issue, Malloy argues that the Board erred by not crediting him for the time he was confined between July 31, 2009, and January 8, 2010. He argues that "[b]ecause the [Board] failed to hold a timely detention hearing, the subsequent parole revocation is null and void." Malloy's Brief at 12. Again, the argument lacks a foundation because Malloy waived his right to a detention hearing, timely or otherwise. Further, Malloy's administrative appeal asserted that he was held solely on the Board's warrant, which the Board rejected because he was held not only on its warrant but also on criminal charges. Malloy's administrative appeal did not challenge the validity of his parole revocation; accordingly, the issue is waived. Koehler, 935 A.2d at 52-53.
For the foregoing reasons, the decision of the Board is affirmed.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 5th day of April, 2012, the order of the Pennsylvania Board of Probation and Parole dated August 10, 2010, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge