The opinion of the court was delivered by: Judge Butler
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE DORIS A. SMITH-RIBNER, Judge, HONORABLE DAN PELLEGRINI, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JOHNNY J. BUTLER, Judge.
Marc Wiley (Wiley) petitions this Court for review of the orders of the Pennsylvania Board of Probation and Parole (Board) denying his requests for administrative relief. For reasons that follow, we affirm the Board's orders.
On August 22, 2001, the Court of Common Pleas of Philadelphia County sentenced Wiley to a term of four to eight years imprisonment for possession of a controlled substance with the intent to deliver. Wiley's original maximum sentence date was December 29, 2008. On January 4, 2005, the Board granted Wiley parole. On March 4, 2006, Wiley was arrested for criminal conspiracy, possession of a controlled substance and possession of a controlled substance with the intent to deliver. On April 19, 2006, Wiley was recommitted as a technical parole violator to serve nine months backtime. On April 10, 2007, Wiley pled guilty to possession of a controlled substance with the intent to deliver and was sentenced to a term of one and one half to three years imprisonment. On September 28, 2007, Wiley was recommitted as a convicted parole violator to serve a concurrent term of twenty-four months backtime. Wiley's maximum sentence date was thus changed to August 24, 2010.
On November 5, 2007, Wiley filed a request for administrative relief on the grounds that his parole revocation hearing was untimely; the Board failed to meet its burden in proving it was timely; and the Board erred in calculating his new maximum sentence date. On December 12, 2007, the Board mailed its decision modifying Wiley's maximum sentence date to November 30, 2009. On January 3, 2008, prior to receiving a response to his November 5, 2007 request, Wiley filed another request for administrative relief objecting to the modified recalculation. On January 8, 2008, the Board mailed a letter to Wiley denying his request submitted on November 5, 2007, explaining that the revocation hearing was timely, the Board met its burden of proving that it was timely, and the maximum sentence date had been recalculated. On January 11, 2008, the Board mailed a letter to Wiley denying his request submitted on January 3, 2008, explaining the calculations used to modify his maximum sentence date, and further explaining that the Board would not address his challenge to the modified date because he could not use a recalculation to argue the merits of an improper revocation. Wiley appealed both decisions to this Court.*fn1
Wiley argues that his revocation hearing was not timely and the Board did not meet its burden in proving that it was timely.*fn2 Specifically, he contends the official verification date was April 10, 2007, not June 5, 2007, as offered by the Board, thus his parole violation charges should have been dismissed.
Pursuant to 37 Pa. Code § 71.4(1), a revocation hearing 'shall be held within 120 days from the date the Board received official verification of the plea of guilty or nolo contendere or of the guilty verdict at the highest trial court level..' The Board's regulations define 'official verification' as '[a]ctual receipt by a parolee's supervising parole agent of a direct written communication from a court in which a parolee was convicted of a new criminal charge attesting that the parolee was so convicted.' 37 Pa. Code § 61.1. When the timeliness of a hearing is challenged, the Board bears the burden of proving by a preponderance of the evidence that the hearing was timely. Abbruzzese v. Pennsylvania Board of Probation and Parole, [524 A.2d 1049 (Pa. Cmwlth. 1987)]. If the Board fails to present substantial evidence demonstrating the timeliness of the revocation hearing, thereby failing to meet its burden of proof, the parole violation charges are dismissed with prejudice.
Johnson v. Pennsylvania Bd. of Prob. and Parole, 890 A.2d 45, 49 (Pa. Cmwlth. 2006) (emphasis deleted and footnote omitted).
In the instant case, the Board introduced Form 257C*fn3 as proof of the official verification of the guilty plea. According to Form 257C, the verification date was June, 5, 2007. Record (R.) at 17. As the revocation hearing was held September 21, 2007, the hearing was held within 108 days of the official verification and thus, timely.
Wiley argues, however, that Form 257C is inadmissible hearsay and the correct verification date should be the date of the Sentencing Order, ergo, April 10, 2007. R. at 52. Thus, the revocation hearing was held outside of the 120-day requirement and untimely.
Section 22 of the Act commonly referred to as the "Parole Act"*fn4 states in pertinent part that the Board, in revoking parole, "[m]ay act on report submitted to them by their agents and employes, together with any pertinent and adequate information furnished to them by fellow members of the [B]oard or by others."
Wiley argues that pursuant to Sanchez v. Pennsylvania Bd. of Prob. and Parole, 616 A.2d 1097 (Pa. Cmwlth. 1992), and Johnson,the Board cannot rely on Form 257C because the agent who wrote it did not appear at the hearing. However, the Court in Sanchez held "the [B]oard erred in relying on a continuance request form not admitted into evidence at the revocation hearing but contained in Sanchez' files, in proving matters necessary to the fact finding stages of the hearing." Id. at 1101 (emphasis added). And the Court in Johnson stated, "[w]hile the Board may, in certain circumstances, take official notice of documents contained in its own files, this court has held that the Board may not take official notice of documents in its file when such documents were not offered into evidence and pertained to a necessary factual determination." Id. at 49-50 (emphasis added) (citation omitted). In the instant case, Form 257C was accepted into evidence, and Wiley's counsel's objection as to its inadmissibility was specifically overruled. R. 28-29.
Moreover, in Taylor v. Pennsylvania Bd. of Prob. and Parole, 569 A.2d 368 (Pa. Cmwlth. 1989), this Court held "[t]he instant matter... involves an official form which was prepared by a board ...