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Hubler v. Pennsylvania Board of Probation and Parole

April 28, 2009

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



The opinion of the court was delivered by: Judge Butler

Argued: March 31, 2009

BEFORE: HONORABLE DORIS A. SMITH-RIBNER, Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE JIM FLAHERTY, Senior Judge.

OPINION

Michael A. Hubler (Hubler) petitions this Court for review of the June 2, 2008 order of the Pennsylvania Board of Probation and Parole (Board) denying his request for administrative relief. Hubler presents one issue for this Court's review: whether the Board erred when it recommitted him for nine months as a technical parole violator on the basis that he possessed pornography and failed to successfully complete the Harrisburg Community Correction Center (HCCC) program, in violation of the conditions of his parole. For reasons that follow, we reverse the Board's order.

On October 22, 2007, Hubler was paroled from two concurrent 6 to 24-year state prison sentences and a concurrent 2 to 11-year state sentence to a community corrections facility. As conditions of his parole, Hubler agreed to the Board's requirements that he submit to an evaluation for sex offender treatment/service, obey the rules of the sex offender treatment program,*fn1 and avoid being removed from HCCC. He also agreed to comply with special conditions imposed by the parole supervision staff. On October 24, 2007, Hubler agreed to additional special conditions imposed by his parole agent which "prohibited [him] from owning, possessing, or having in [his] constructive possession any pornographic literature, photographs, magazines, or books. . . . Pornography is defined in this Special Condition as including, but not limited to, pictures of nude or partially nude males or females . . . ." Certified Record (C.R.) at 99-101.

When he entered the facility, Hubler was made aware that HCCC residents are required to submit pre-approved destination forms to staff by Monday morning of each week. Unless the forms are approved, residents are not permitted to leave the facility. On more than one occasion, Hubler failed to timely submit his pre-approved destination forms. On Monday, December 3, 2007, Hubler again failed to timely submit his pre-approved destination form, having submitted it at noon that day.

On Sunday, December 2, 2007, Hubler approached an HCCC monitor, and showed him two drawings of women he had in his possession since he arrived at HCCC. The monitor told Hubler to show the drawings to his counselor, as he was not sure Hubler was permitted to have them. After the monitor determined that Hubler failed to show the drawings to his counselor as instructed, the monitor searched Hubler's locker and located the drawings in a notebook.

On December 4, 2007, Hubler was discharged from HCCC for his untimely submission of paperwork and for having pictures in violation of HCCC's sex offender protocol. A detainer was then issued by the Board. On February 1, 2008, following a revocation hearing, the Board recommitted Hubler to nine months in a state correctional facility as a technical parole violator. On February 25, 2008, Hubler filed a timely petition for administrative review which was denied by the Board on June 2, 2008. Hubler then petitioned for review by this Court.*fn2

Hubler explains that what he had in his possession at HCCC was two hand-drawn pictures depicting clothed women. It was artwork Hubler intended for creation of tattoos on his person at some point in the future. No sexual references or acts were detailed in the drawings, and they were not obscene. Hubler argues, therefore, that he did not possess pornography in violation of the conditions of his parole. We agree.

The essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abide by certain rules during the balance of the sentence. Parolees are in a position different from the general population because they are still subject to an extant term of imprisonment and are the focus of society's rehabilitative efforts. Accordingly, parolees are subjected to certain conditions which restrict their activities substantially beyond the ordinary restrictions imposed by law on private citizens. Although the offender's freedom may be substantially restricted, the [Board] is vested with broad powers to fashion appropriate conditions of parole where they are intended to effectuate his rehabilitation and reintegration into society as a law-abiding citizen.

Lee v. Pennsylvania Bd. of Prob. and Parole, 885 A.2d 634, 638 (Pa. Cmwlth. 2005) (citations and quotations omitted).

Section 63.5 of the Board's Regulations, 37 Pa. Code § 63.5, states that "[p]arolees shall comply with special conditions which are imposed by the Board or which are subsequently imposed by the parole agent." Section 67.3 of the Board's Regulations, 37 Pa. Code § 67.3, requires that

[e]very parolee shall acknowledge the following:

(1) That he has read, or has had read to him, the ...


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