Brown v. Pa. Bd. of Prob. & Parole

184 A.3d 1021

Ali F. BROWN, Petitioner

v.PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent

No. 262 C.D. 2017

Commonwealth Court of Pennsylvania.

Argued: October 17, 2017

Decided: December 14, 2017

Publication Ordered March 20, 2018

Richard C. Shiptoski, Assistant Public Defender, Wilkes–Barre, for petitioner.

Morgan C. Davis, Assistant Counsel, Harrisburg, for respondent.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge (P), HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY JUDGE COHN JUBELIRER

Ali F. Brown petitions for review of the February 16, 2017 Order of the Pennsylvania Board of Probation and Parole (Board) denying Brown's administrative appeal from the revocation of his parole based on a November 21, 2013 federal conviction. The Board found that Brown's revocation hearing was timely because it was held within 120 days of his return to a State Correctional Institution (SCI) after the completion of his federal sentence, which is when Brown became available to the Board. On appeal, Brown asserts he was available to the Board when he was convicted and his unavailability was the result of the Board's inaction, which made him serve his new federal sentence before completing the balance of his original state sentence in contravention of Section 6138(a)(5.1) of the Prisons and Parole Code (Code).¹ Brown argues that, because his unavailability was caused by the Board, the delay in holding his revocation hearing was unreasonable, and that hearing should be deemed untimely and the parole violation charges against him dismissed. However, because Brown was in federal custody when he pled guilty and was sentenced, and the Board had no means of acquiring him from that custody, Brown was not available until his return to the SCI and his revocation hearing, held within 120 days of his return, was timely. Therefore, we affirm the Board's Order.

On March 30, 2010, the Board paroled² Brown, and he was released on June 3, 2010, subject to, among others, the standard parole condition that he not leave the district without the prior written permission of his parole supervision staff (Condition # 1). Brown's maximum date when he was paroled was May 12, 2013. The Mifflin County Regional Police Department arrested Brown on March 26, 2011, he was charged with possession with intent to deliver (PWID), and, unable to post bail, he remained confined in the Mifflin County Correctional Facility (County Jail). The Board issued a Warrant to Commit and Detain (Warrant to Detain) Brown on March 26, 2011. On March 31, 2011, Brown admitted to violating Condition # 1. By Notice of Board Decision mailed on May 20, 2011, the Board recommitted Brown as a technical parole violator (TPV) "to serve 6 months backtime, when available, pending resolution of your new criminal charges." (C.R. at 114–15.)

On May 4, 2011, Brown was indicted in the United States District Court for the Middle District of Pennsylvania (District Court) on two counts of using a communication facility to facilitate drug trafficking in violation of Section 843(b) of Title 21 of the United States Code, 21 U.S.C. § 843(b). The Commonwealth of Pennsylvania withdrew its PWID charge on May 10, 2011. A Magistrate Judge of the District Court issued a detainer for Brown on May 24, 2011. Brown pled guilty to both counts on April 1, 2013. On November 21, 2013, Brown was sentenced to a total of 64 months (32 months for each count) and remanded into the custody of the United States Marshal. The Board received official verification of Brown's conviction on November 26, 2013, five days after his sentencing.

On January 27, 2014, the Board issued a "Warrant for Arrest of Paroled Prisoner" (Warrant for Arrest), authorizing any of the Board's parole agents to arrest and detain Brown for a parole violation. (C.R. at 122.) Also prepared on that date was a new Notice of Charges and Hearing for Brown, which identified the new federal conviction but did not include a hearing date or any indication that it was sent to Brown. Notwithstanding the outstanding Warrant for Arrest and Notice of Charges and Hearing, the Board did not attempt to acquire Brown from the federal authorities, and he remained in federal prison until his release. In January 2015, due to a change in the federal sentencing guidelines, Brown's sentence was reduced from 64 months to 52 months. However, because the resentencing could not take effect until November 1, 2015, Brown was released on October 30, 2015, having already served more than the 52 months now required. Brown returned to the custody of the Department of Corrections (DOC) on or about October 31, 2015.

On January 28, 2016, Brown signed the January 27, 2014 Notice of Charge and Hearing based on the federal conviction, which now listed a hearing date of February 18, 2016. The revocation hearing was held that date, at which Brown was represented by counsel. At the hearing, the Board's parole agent testified that, because Brown was in federal prison, the March 2011 Warrant to Detain had never been lifted, even though Brown's maximum date was May 12, 2013. The Agent stated the Board would have detained Brown had he made bail on the federal charges. However, the Agent also stated that the federal detainer took precedence until Brown completed his federal time. (Id. at 229–30.) The Agent explained that, as far as he was concerned, Brown had been detained by the federal government and was unavailable to the Board beginning March 26, 2011.³ Brown did not dispute his conviction, but argued, inter alia , that, had he served his state sentence first, he would have received the full benefit of his reduced federal sentence.

The Board recommitted Brown as a convicted parole violator (CPV) to serve six months concurrently with the prior six months imposed for his technical parole violation. The Board recalculated Brown's maximum date to August 10, 2018, giving him 59–days credit for his confinement from March 26, 2011, to May 24, 2011. Brown filed a timely administrative appeal, arguing that the February 18, 2016 revocation hearing was untimely.⁴ The Board affirmed its decision, concluding that the revocation hearing was timely because it was held within 120 days of Brown's return to a SCI as required by Section 71.4(1)(i) of its regulations, 37 Pa. Code § 71.4(1)(i). The Board acknowledged it had received official verification of Brown's conviction on November 26, 2013, but, because Brown was in federal custody, it based the timeliness of the revocation hearing on the date Brown was returned to a SCI. (Id. ) Brown now petitions this Court for review.⁵

Relying on several recent cases from this Court, including Fumea v. Pennsylvania Board of Probation and Parole , 147 A.3d 610 (Pa. Cmwlth. 2016), and Baasit v. Pennsylvania Board of Probation and Parole , 90 A.3d 74 (Pa. Cmwlth. 2014),⁶ Brown argues that, pursuant to Section 6138(a)(5.1), he was to serve the balance of his original state term before serving the new federal sentence imposed on November 21, 2013. Brown asserts he was available to the Board when he was convicted of the federal charges on November 21, 2013, and, as in Fumea , the Board did not ensure that he serve the balance of his original state sentence in accordance with Section 6138(a)(5.1), which resulted in an unreasonable delay in the holding of his revocation hearing. Due to having to serve his federal sentence first, Brown argues, he served more time in federal prison than he otherwise would have been required had he served his sentences in the order mandated by the Code. According to Brown, Section 71.4(1)(i) of the Board's regulations should not apply to determine the timeliness of his revocation hearing because his unavailability was due to the Board's non-compliance with Section 6138(a)(5.1).

The Board responds that the timeliness of a revocation hearing is governed by Section 71.4 of its regulations, which provides that if a parolee is confined to a federal prison, the revocation hearing does not have to be held until 120 days from when the Board receives official verification of the parolee's return to a SCI. 37 Pa. Code § 71.4(1)(i). According to the Board, because Brown was not confined at a SCI until October 31, 2015, Brown's revocation hearing, held within 120 days of his return, was timely. The Board maintains that Brown's reliance on Section 6138(a)(5.1) disregards the facts that Brown was in federal custody until October 31, 2015, and that the Board had no ability to take Brown from the federal authorities to conduct a revocation hearing and recommit him as a CPV. Finally, the Board argues, Fumea is distinguishable because, unlike in that case, there was no opportunity for the Board to obtain custody of Brown after his sentencing and prior to his entering federal custody. Therefore, the Board maintains, Brown was unavailable and all it could do was lodge its detainer and await his return to a SCI. 37 Pa. Code § 71.5(a).

When a parolee challenges the timeliness of a revocation hearing, the Board has the burden of proving by a preponderance of the evidence that the hearing was, in fact, timely. Ramos v. Pa. Bd. of Prob. and Parole , 954 A.2d 107, 109 (Pa. Cmwlth. 2008). If the Board does not present substantial evidence to establish the timeliness of a revocation hearing, the parole violation charges are dismissed with prejudice. Id. at 109. An unreasonable and unjustifiable delay in holding a revocation hearing, which is "not attributable to the parolee or his counsel[,] do[es] not toll the running of the 120–days." Jacobs v. Pa. Bd. of Prob. and Parole , 24 A.3d 1074, 1080 (Pa. Cmwlth. 2011) (quoting Williams v. Pa. Bd. of Prob. and Parole , 134 Pa.Cmwlth. 597, 579 A.2d 1369, 1372 (1990) ).

To meet its burden, the Board relies on its regulations addressing the timing of and procedures related to revocation hearings to argue that Brown's revocation hearing was timely and any delay in Brown serving his original state...