The opinion of the court was delivered by: Judge Simpson
Submitted: November 21, 2008
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE JAMES R. KELLEY, Senior Judge.
Lawrence McKenzie petitions for review of a decision of the Pennsylvania Board of Probation and Parole (Board) denying his administrative appeal of a Board order recommitting him as a technical parole violator to serve 15 months' backtime. On appeal, McKenzie asserts the Board violated his right to due process by failing to provide a final hearing prior to parole revocation and by utilizing improper procedures for obtaining waivers of hearings and counsel. We affirm.
In May 2007, the Board paroled McKenzie from a seven-year sentence for aggravated assault, resisting arrest, and forgery-related offenses (state sentence). Certified Record (C.R.) at 1, 15. The state sentence had a minimum expiration date of December 27, 2005 and a maximum expiration date of August 29, 2009. Id. at 3. The Board subsequently recommitted McKenzie as a technical parole violator but re-paroled him to the Philadelphia Kintock-Erie Community Corrections Center. Id. at 22. The special conditions of McKenzie's parole included completion of Kintock's Back on Track Program. Id. at 27.
McKenzie absconded from Kintock but turned himself in to Board agents on December 31, 2007.*fn1 Id. at 33. At that time, parole staff placed McKenzie in Coleman Hall, another community corrections facility. Id. However, Coleman Hall discharged McKenzie from its program after he kicked a hole in the wall. Id. The Board then placed McKenzie in the Pennsylvania Community Alternatives to Prison Program (PennCAPP). Id. at 35. PennCAPP discharged McKenzie for aggressive behavior, and the Board subsequently issued a warrant to commit and detain him. Id. at 30, 33.
On January 18, 2008, Board agents arrested McKenzie for technical parole violations, namely, his failure to complete a community corrections program. On the day of his arrest, McKenzie executed several Board forms. McKenzie signed these forms in the presence of Parole Agent Justin Kennett (Parole Agent). In particular, McKenzie signed a Notice of Charges and Hearings. Id. at 35. He also executed forms waiving representation by counsel, his right to a preliminary hearing, and his right to a panel hearing. Id. at 44-45.
Important for current purposes, McKenzie also executed a waiver of violation hearing and admission form. Id. at 43. In this form, McKenzie acknowledged an understanding of his constitutional right to a violation hearing, and he waived the right of "his own free will, without promise, threat or coercion." Id. McKenzie further "knowingly, intelligently, and voluntarily" admitted he violated the conditions of his parole, namely, discharge from a community corrections facility without completion of the program. Id. He also acknowledged his right to withdraw the admission within 10 calendar days. Id. In the space provided, McKenzie indicated staff (presumably PennCAP) inaccurately reported he refused to complete intake paperwork and he would prefer a prison program if re-paroled. Id. Parole Agent witnessed McKenzie's execution of the Board's forms. McKenzie did not rescind the Waiver of Violation Hearing and Admission Form.
A Board panel subsequently prepared a report based on McKenzie's waivers and admissions. Id. at 37-42. Relying on McKenzie's admissions, the Board recommitted him to serve 15 months' backtime.*fn2 Id. at 48. The backtime imposed by the Board's recommitment order was in the presumptive range for the technical violations. See 37 Pa. Code §75.4 (presumptive range of 3 to 18 months for violation of special condition).
Representing himself, McKenzie filed a petition for administrative relief. Id. at 49-51. McKenzie alleged Parole Agent "coerced" him into signing the Notice of Charges and Hearings by convincing him he would be re-paroled.
The Notice of Charges and Hearings was filled with inconsistencies and perjury; therefore, he was denied all of his constitutional rights. Id. at 49-51. In particular, McKenzie averred Parole Agent acted as a hearing examiner by requesting McKenzie sign the Notice and a waiver. McKenzie asserted errors in the Notice and the Board's failure to provide an opportunity to defend the allegations against him in violation of 37 Pa. Code §71.2.*fn3
By decision mailed May 28, 2008, the Board affirmed its recommitment order, citing McKenzie's voluntary waiver of his hearing rights and admission of the parole violation. C.R. at 53; see Wile, Pa. Law of Prob. & Parole, §17.7 (2d ed. 2003) (Board review is limited to determining whether the decision is supported by substantial evidence or whether a violation of law occurred). McKenzie appeals.*fn4
In a counseled petition for review, McKenzie asserts the Board violated his right to due process by failing to conduct a final fact finding hearing in accord with the Board's regulations. McKenzie assigns further error in the Board's procedures allowing parole agents to secure waivers.
In his first assignment of error, McKenzie asserts the Board's regulations require a final fact finding hearing before it may revoke a parolee's parole. After a detailed review of the parole revocation process, McKenzie contends the evidence upon which the Board ordered recommitment is not of record because a Board representative familiar with the facts constituting the violation did not ...