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12/16/97 MICHAEL BROOKS v. PENNSYLVANIA BOARD

December 16, 1997

MICHAEL BROOKS, PETITIONER
v.
PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



Appealed From No. Parole No. 8198-V State Agency Pennsylvania Board of Probation and Parole.

Before: Honorable James Gardner Colins, President Judge, Honorable Doris A. Smith, Judge, Honorable Rochelle S. Friedman, Judge. Opinion BY Judge Friedman *fn1

The opinion of the court was delivered by: Friedman

OPINION BY JUDGE FRIEDMAN *fn1

FILED: December 16, 1997

Michael Brooks (Brooks) petitions this court for review of a decision of the Pennsylvania Board of Probation and Parole (Board) denying his request for administrative relief after a Board order revoked his parole and recommitted him as a convicted parole violator. We vacate and remand this matter to the Board as further findings of fact are required.

Brooks, incarcerated on a one and one-half to seven year sentence for robbery, was paroled on November 13, 1990, with a maximum term expiration of May 13, 1996. On July 27, 1992, Brooks was recommitted as a convicted parole violator, based on his conviction for violating drug laws, simple assault, resisting arrest, recklessly endangering another person and criminal mischief, and was then sentenced for these crimes. Brooks was reparoled from the second sentence on March 16, 1993.

Following this release, and with the permission of the Board, Brooks resided in Whitehall, Ohio. On February 5, 1995, while in Ohio, Brooks was arrested on two counts of drug trafficking. He pleaded guilty and, on July 6, 1995, was sentenced to six months imprisonment, with one-hundred and fifty-two days credit. Accordingly, Brooks completed his Ohio sentence and was available to commence service of his Pennsylvania backtime on August 2, 1995.

Brooks was returned to Pennsylvania, and a parole revocation hearing was held on December 13, 1995. By decision dated May 28, 1996, the Board revoked Brooks' parole, based on his Ohio conviction, and recommitted him as a convicted parole violator to serve twenty-four months backtime. Brooks filed an administrative appeal, which the Board denied, (R.R. at 51), and Brooks now seeks review of that denial with this court. *fn2

Brooks first argues that the Board failed to hold his revocation hearing within the one-hundred and twenty day period required by 37 Pa. Code ?71.4 (emphasis added), which provides:

Before a parolee is recommitted as a convicted violator:

(1) A revocation hearing shall be held within 120 days from the date the Board received official verification...of the guilty verdict at the highest trial court level except as follows:

(i) If a parolee is confined outside the jurisdiction of the Department of Corrections...the revocation hearing shall be held within 120 days of the official verification of the return of the parolee to a State correctional facility.

The requirement in 37 Pa. Code § 71.4(1)(i) is based on the well-settled principle that the one-hundred and twenty day period does not begin to run until the Board acquires jurisdiction over the parolee. Williams v. Pennsylvania Board of Probation and Parole, 134 Pa. Commw. 597, 579 A.2d 1369, 1371 (Pa. Commw. 1990), appeal after remand, 602 A.2d 434 (Pa. Commw. 1992), appeal denied, 533 Pa. 616, 618 A.2d 405 (1992). Thus, the general rule is that the one-hundred and twenty day period begins to run on the date that the parolee is actually returned to a state correctional facility. Here, however, Brooks contends that the one-hundred and twenty day period commenced not on the date of his return, but on August 2, 1995, the date of his availability to Pennsylvania, one-hundred and thirty-three days before the December 13, 1995 revocation hearing. Where a convicted parole violator alleges that his revocation hearing was held beyond the one-hundred and twenty day period, it is for the Board to prove by a preponderance of the evidence that it was, in fact, timely. Abbruzzese v. Pennsylvania Board of Probation and Parole, 105 Pa. Commw. 415, 524 A.2d 1049 (Pa. Commw. 1987). If the Board fails to sustain its burden, the appropriate remedy is a dismissal of the parole violation charges with prejudice. Taylor v. Pennsylvania Board of Probation and Parole, 154 Pa. Commw. 462, 624 A.2d 225 (Pa. Commw. 1993).

In Fulton v. Pennsylvania Board of Probation and Parole, 663 A.2d 865 (Pa. Commw. 1995), appeal denied, 543 Pa. 732, 673 A.2d 337 (1996), this court dealt with a factually similar case. There, Arizona authorities informed the Board that a Pennsylvania parolee who had been incarcerated in Arizona would complete his Arizona sentence and be available to the Pennsylvania Department of Corrections on February 9, 1994. The parolee was not actually returned to a Pennsylvania state correctional facility until February 28, 1994, and the Board finally held the parole revocation hearing on June 14, 1994. The parolee claimed that the hearing was held beyond the permissible one-hundred and twenty day period, maintaining, like Brooks ...


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