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December 10, 1997


Appealed From Parole No. 7698-J. State Agency, Pennsylvania Board of Probation and Parole.

Before: Honorable Dan Pellegrini, Judge, Honorable Jim Flaherty, Judge, Honorable Charles P. Mirarchi, Jr., Senior Judge. Opinion BY Senior Judge Mirarchi.

The opinion of the court was delivered by: Mirarchi



FILED: December 10, 1997

In this petition for review of an order of the Pennsylvania Board of Probation and Parole (Board), Louis Pana raises a single issue: whether a parolee's due process rights are denied when the Board fails to notify a parolee that an admission to technical parole violations could result in a finding of delinquency and the loss of street time.

Pana was originally sentenced in 1974 to serve two concurrent terms of imprisonment of five to twenty years for burglary and conspiracy. Pana's minimum and maximum dates were increased because of several factors. In 1979, Pana was sentenced to a consecutive term of imprisonment of nine to eighteen months for escape. Also, Pana was twice determined to be a technical parole violator prior to the proceeding that is the subject of this petition for review.

In 1993, the Board paroled Pana for a third time. Thereafter, the Board declared Pana delinquent effective June 7, 1995. Pana was charged with three technical parole violations: (1) an unauthorized change of residence, (2) a failure to report to the parole agent as instructed, and (3) a failure to attend addiction treatment as required. Pana waived his right to a preliminary hearing and requested an immediate violation hearing. At the violation hearing, Pana, through his counsel, admitted the violations as charged.

The Board recommitted Pana as a technical parole violator to serve twenty-four additional months of his original sentence. By a recalculation order mailed July 5, 1996, the Board established that Pana's new maximum term on the original twenty-year sentence would expire on March 17, 2000. Pana filed an administrative appeal of this order, arguing that had he known he would have been deprived of his street time following his alleged delinquency, he would not have admitted committing the violations. Pana's argument is that without knowledge of all of the possible consequences of being found to be a technical parole violator, his admission to the charges against him was not made knowingly, intelligently, or voluntarily. The Board dismissed Pana's appeal, and this petition for review followed.

This Court's scope of review of the Board's order is limited to determining whether any necessary factual findings are supported by substantial evidence in the record, whether the parolee's constitutional rights were violated, or whether an error of law was committed. Smith v. Pennsylvania Board of Probation and Parole, 661 A.2d 902 (Pa. Commw. 1995), rev'd on other grounds, 546 Pa. 115, 683 A.2d 278 (1996). As previously stated, Pana argues that his constitutional rights to due process were violated because the Board failed to inform him of all of the consequences of his being found to be a technical parole violator, including the loss of street time following the dates of the violations (i.e., the period of delinquency).

Both Pana and the Board refer us to decisions of the United States Courts of Appeals. The Ninth Circuit has determined that due process requires that a parolee be specifically informed of the possible penalties connected with a finding of a parole violation. See Jessup v. United States Parole Commission, 889 F.2d 831 (9th Cir. 1989); Raines v. United States Parole Commission, 829 F.2d 840 (9th Cir. 1987); Vanes v. United States Parole Commission, 741 F.2d 1197 (9th Cir. 1984). The Second Circuit, however, has rejected that position and determined that due process does not require specific notice that street time may be subject to forfeiture because a parolee is on constructive notice of this penalty as it is set forth in a published regulation. See LaChance v. Reno, 13 F.3d 586 (2d Cir. 1994), cert. denied, 512 U.S. 1222, 129 L. Ed. 2d 837, 114 S. Ct. 2711 (1994); Miller v. Hadden, 811 F.2d 743 (2d Cir. 1987).

The Board argues that we should adopt the approach of the Second Circuit. It contends that Commonwealth parolees are also on constructive notice that they will lose street time following a parole violation by virtue of Section 21.1(b) of the Act of August 6, 1941, P.L. 861, as amended, added by the Act of June 1, 1995, P.L. 1020, commonly referred to as the Parole Act (Parole Act), 61 P.S. § 331.21a(b). That section provides in pertinent part that a parolee recommitted for a technical violation "shall be given credit for the time served on parole in good standing but with no credit for delinquent time...." 61 P.S. § 331.21a(b). The Board further argues that the holdings of the Ninth Circuit untenably go beyond the holdings of the U.S. Supreme Court regarding the process due a parolee under the U.S. Constitution. In Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972), the Court set forth the minimal due process requirements that a parole revocation must meet in order to satisfy the requirements of the Fourteenth Amendment to the U.S. Constitution. Although Morrissey provides that a parolee must receive written notice of the alleged parole violations, it does not specifically provide that a parolee be informed of the possible penalties he or she faces if found in violation of parole. Id. By contrast, it is established that a criminal defendant possesses the due process right to be informed of the range of penalties connected to the crime with which he is charged. Smith (Friedman, J., Dissenting). The Board points out that the Morrissey Court emphasized that the "full panoply of rights due a defendant in a [criminal prosecution] does not apply to parole revocations." Morrissey at 480.

Pana argues that due process would fundamentally require that we adopt the approach of the Ninth Circuit. Pana further argues that the Jessup Court made it clear that a parolee need not show prejudice; a failure to provide notice of all consequences to being found a parole violator deprives the parolee of his or her due process rights.

We find, however, that we need not determine this matter on constitutional grounds. The regulations of the Board require that a parolee be given notice of the full consequences of his or her violation of parole prior to ...

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