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Lawson v. Pennsylvania Board of Probation and Parole

IN THE COMMONWEALTH COURT OF PENNSYLVANIA


June 18, 2009

RUFUS LAWSON, PETITIONER
v.
PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT

The opinion of the court was delivered by: Judge LEAVITT*fn1

Submitted: January 9, 2009

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION

Rufus Lawson (Lawson) petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) that denied Lawson's administrative appeal from the Board's decision recommitting him as a convicted parole violator. Lawson argues that the parole violation charge against him should have been dismissed because the Board's parole revocation hearing, conducted 61 days after it received official verification of Lawson's conviction, was not timely. Lawson contends that the hearing was not timely because the Board failed to exercise due diligence to obtain official verification of his conviction in a prompt manner. Because there is no due diligence requirement in the applicable regulation, we will affirm the Board's order.

On October 4, 2006, while on parole, Lawson was arrested and charged with several violations of the Pennsylvania Uniform Firearms Act of 1995, 18 Pa. C.S. §§6101 -- 6187. The Board issued a detainer against Lawson and on November 8, 2006, after Lawson waived his rights to a detention hearing and a hearing before a Board panel, the Board ordered Lawson detained pending the disposition of the new criminal charges. Lawson pled guilty to the new offenses on February 15, 2007, and was sentenced to a term of imprisonment of 30 to 60 months on April 18, 2007.

The Board conducted a parole revocation hearing on January 28, 2008, at which Lawson objected to the timeliness of the hearing. In support, Lawson testified that he pled guilty to the new charges on February 15, 2007, and that the Department of Corrections filed a new sentence status sheet with the Board on May 3, 2007. Notes of Testimony, January 28, 2008, at 5, 8 (N.T. __); Certified Record at 36, 39 (C.R. __). Parole Agent Adrian Rubio testified on behalf of the Board that he received official verification of Lawson's new convictions on November 29, 2007. Agent Rubio also testified that he had requested verification of the convictions in June 2007; he attributed the delay between June and November to "[s]ome problem with the courts." N.T. 6; C.R. 37.

Based upon Agent Rubio's testimony, the hearing examiner denied Lawson's objection, holding that the revocation hearing was timely because the hearing occurred within 120 days of November 29, 2007, the date on which the Board received official verification of Lawson's convictions. On April 2, 2008, the Board issued a decision recommitting Lawson as a convicted parole violator to serve 18 months backtime, when available. Lawson filed a petition for administrative review, again asserting that the January 28, 2008, revocation hearing was untimely. On August 20, 2008, a three-member panel of the Board rejected Lawson's challenge, denied Lawson's petition and affirmed the revocation panel's decision. Lawson now petitions this court for review.*fn2

Before this Court, Lawson argues that the Board erred in determining that his January 28, 2008, revocation hearing was timely. Lawson contends that when a "significant period of time" elapses between a new conviction and the parole agent's receipt of official verification of that conviction, the Board must establish that its agent exercised due diligence in obtaining the verification. It is this "common law" burden that Lawson asserts the Board failed to satisfy in this case.*fn3

When a parolee alleges that the Board failed to hold a timely revocation hearing, the Board bears the burden of proving that the hearing was timely. Taylor v. Pennsylvania Board of Probation and Parole, 931 A.2d 114, 116 (Pa. Cmwlth. 2007), appeal denied, 596 Pa. 750, 946 A.2d 690 (2008). Determining whether a revocation hearing was timely is a straightforward inquiry that is governed by Board regulation. The pertinent regulation states that [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 .. 37 Pa. Code §71.4(1). For purposes of the regulation, "official verification" is [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.

Applying the regulation to the facts in this case, there is no doubt that Lawson's parole revocation hearing was timely. According to Agent Rubio's credited testimony, he received official verification of Lawson's new convictions on November 29, 2007. The Board conducted Lawson's revocation hearing 61 days later, on January 28, 2008, well within the 120-day time period mandated by 37 Pa. Code §71.4(1).

Lawson acknowledges the Board's well-settled burden under 37 Pa. Code §71.4(1). He maintains, however, that when "a significant period of time" has elapsed between a parolee's new conviction and the parole agent's receipt of official verification, the Board must also establish that it exercised due diligence in obtaining official verification of the conviction. Lawson argues that the nine months that elapsed between his new convictions and Agent Rubio's receipt of official verification of those convictions was just such a "significant period of time," and that Agent Rubio failed to establish that he exercised "due diligence." Lawson relies primarily upon two decisions of this Court as authority for the "due diligence" requirement: Ramos v. Pennsylvania Board of Probation and Parole, 954 A.2d 107 (Pa. Cmwlth. 2008) and Fitzhugh v. Pennsylvania Board of Probation and Parole, 623 A.2d 376 (Pa. Cmwlth. 1993). We reject Lawson's interpretation and application of our precedent.

In Fitzhugh, the parolee pleaded guilty to new criminal charges in July 1991, but his revocation hearing was not held until February 1992. The parolee argued that the Board had employees in the court system whose sole function was to retrieve conviction records, which were normally available within a few days after sentencing. The parolee also argued that the Board had instructed agents not to obtain the court records until it was convenient for the Board to schedule a hearing. This Court expressed concern that if the Board was aware of the conviction but decided not to retrieve available conviction records, there was a possibility of "an unreasonable and unjustifiable delay." Fitzhugh, 623 A.2d at 379. In order to dispel that concern, the majority in Fitzhugh remanded the matter to the Board to establish facts relating to the delay between the conviction and the Board's receipt of the conviction records. Fitzhugh did not establish the broad principle that the Board has an obligation to retrieve conviction records.*fn4

Turning to Ramos, it is true, as Lawson points out, that this Court cited Fitzhugh for the proposition that "if there is a delay between the time the Board has notice of the conviction and the time when the Board receives official verification of the conviction, the Board has the burden of proving that the delay was not unreasonable and unjustifiable." Ramos, 954 A.2d at 109 (citing Fitzhugh, 623 A.2d 376) (emphasis added). This quoted language does not relate to the central issue in Ramos, which was one of evidence, i.e., whether the Board could take official notice of statements in the parole agent's report that she attempted to obtain verification on three occasions and otherwise acted appropriately. This Court held that the Board could not take official notice of such statements, which were inadmissible hearsay. The characterization of the Fitzhugh holding in Ramos was not relevant to the holding and was, therefore, dicta.

In summary, the timeliness of a parole revocation hearing is governed by statute and regulation, not the "common law." Neither statute nor regulation places a burden on the Board to demonstrate that it exercised due diligence in obtaining official verification of a parolee's new conviction.*fn5 The Board's duties are set by the Parole Act and its implementing, duly promulgated regulation at 37 Pa. Code §71.4(1). Indeed, two cases cited by Lawson illustrate the straightforward nature of the inquiry into whether a parole revocation hearing was timely.

In Vanderpool v. Pennsylvania Board of Probation and Parole, 874 A.2d 1280 (Pa. Cmwlth. 2005), the parole agent received official verification of the conviction on September 4, 2004, and the hearing was held on September 21, 2004, well within the 120-day period. On that basis, we rejected Vanderpool's contention that he did not have a timely hearing. It is true that the Board, in refuting Vanderpool's untimeliness claim, pointed out the confusion created by his use of aliases, but that observation was nothing more than an aside that was irrelevant to the Board's adjudication. The real import of Vanderpool was this Court's reiteration of the analysis in Lee v. Pennsylvania Board of Probation and Parole, 596 A.2d 264 (Pa. Cmwlth. 1991):

Moreover, considering the logistical problems the Board would face in discovering when a parolee was convicted, it is also reasonable for a parole agent to wait for official verification even if the agent is aware that charges are, or may be, pending. And finally, we hold as a matter of law, that if the parole revocation hearing is held within 120 days after the receipt of the certified charges, that also is reasonable for the purposes of due process.

Vanderpool, 874 A.2d at 1284 (quoting Lee, 596 A.2d at 265) (emphasis added).

Our analysis was the same in Taylor v. Pennsylvania Board of Probation and Parole, 931 A.2d 114 (Pa. Cmwlth. 2007), appeal denied, 596 Pa. 750, 946 A.2d 690 (2008). There, the Board received official verification on September 27, 2005, and held the revocation hearing on December 14, 2005. The parole agent's testimony that certain court files were unavailable to her due to a court backlog was irrelevant to the outcome. As in Vanderpool, we again relied upon Lee and affirmed the Board's denial of administrative relief "for the simple reason that Taylor's hearing was held within 120 days of the official verification of Taylor's conviction." Id. at 119-120.

Under Vanderpool and Taylor, it was the Board's receipt of official verification that decided the timeliness issue. This Court distinguished Fitzhugh in both cases as inapplicable. This was appropriate because Fitzhugh is limited to its facts. The regulation at 37 Pa. Code §71.4(1) sets a clear timeline for a revocation hearing, and in doing so it strikes a balance between a parolee's right to due process and the Board's ability to obtain information, as this Court explained in Lee and its progeny. For a long time, this Court treated Fitzhugh as sui generis and followed Lee's bright line test as the way to resolve a timeliness challenge to a revocation hearing. Today we reaffirm the wisdom of Lee.

ORDER

AND NOW, this 18th day of June, 2009, the order of the Pennsylvania Board of Probation and Parole in the above-captioned matter, dated August 20, 2008, is hereby AFFIRMED.

MARY HANNAH LEAVITT, Judge

SENIOR JUDGE FRIEDMAN

The majority concludes that, even where there is a significant delay between the time the Pennsylvania Board of Probation and Parole (Board) has notice of a parolee's conviction and the time when the Board receives official verification of the conviction, the Board is not required to establish that the delay was reasonable and justifiable in order to prove that its revocation hearing was timely. Rather, according to the majority, so long as the Board shows that the revocation hearing was held within 120 days of the Board's receipt of official verification of the parolee's new conviction, the Board satisfies its burden of proving that the hearing was timely. I disagree and, therefore, respectively dissent.

As the majority correctly states, where, as here, a parolee challenges the timeliness of a revocation hearing, the Board bears the burden of proving by a preponderance of the evidence that the hearing was timely. Ramos v. Pennsylvania Board of Probation and Parole, 954 A.2d 107 (Pa. Cmwlth. 2008). Pursuant to the Board's regulation, 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.." 37 Pa. Code §71.4(1). Official verification is the actual receipt by a parolee's supervising parole agent of a direct written communication from a court in which the parolee was convicted of a new criminal charge attesting that the parolee was so convicted. 37 Pa. Code §61.1. There is no question that Rufus Lawson's (Lawson) parole revocation hearing on January 28, 2008, was less than 120 days after Agent Rubio received official verification of Lawson's new conviction on November 29, 2007.

Nevertheless, Lawson relies on Ramos and Fitzhugh v. Pennsylvania Board of Probation and Parole, 623 A.2d 376 (Pa. Cmwlth. 1993), on appeal for the proposition that, even where a parole revocation hearing is held within 120 days of the Board's receipt of official verification, "if there is a delay between the time the Board has notice of the conviction and the time when the Board receives official verification of the conviction, the Board has the burden of proving that the delay was not unreasonable and unjustifiable." Ramos, 954 A.2d at 109 (citing Fitzhugh) (emphasis added). The majority concludes that the "common law" setting forth the "unreasonable and unjustifiable delay" rule, i.e., the "due diligence" rule, no longer applies to whether a parole revocation hearing is timely.

The majority states:

In summary, the timeliness of a parole revocation hearing is governed by statute and regulation, not the "common law." Neither statute nor regulation places a burden on the Board to demonstrate that it exercised due diligence in obtaining official verification of a parolee's new conviction. The Board's duties are set by the Parole Act and its implementing, duly promulgated regulation at 37 Pa. Code §71.4(1).

(Majority op. at 6.) However, the "due diligence" rule prevents the Board from violating the due process rights of prisoners. Williams v. Pennsylvania Board of Probation and Parole, 579 A.2d 1369 (Pa. Cmwlth. 1990). Neither the statute nor the regulation is valid if applied in such a manner as to violate due process. By ignoring the underlying basis for the "common law" rule prohibiting the Board from delaying unreasonably and unjustifiably in obtaining official verification of a conviction, the majority sanctions the violation of prisoner due process rights.

Moreover, to the extent that the majority dismisses Ramos and Fitzhugh as irrelevant and characterizes the requirement that the Board explain the reason for such a delay as mere dicta, I believe the majority errs.

The majority concludes that the unreasonable and unjustifiable delay language in Ramos "does not relate to the central issue in Ramos, which was one of evidence, i.e., whether the Board could take official notice of statements in the parole agent's report that she attempted to obtain verification on three occasions and otherwise acted appropriately." (Majority op. at 5.) I strongly disagree. The very question in Ramos, as here, was "whether the Board offered sufficient evidence that the delay in receiving the official verification evidence was reasonable and justifiable." Ramos, 954 A.2d at 109. The court concluded that, because the only evidence offered by the Board to demonstrate that the parole agent acted with due diligence was inadmissible hearsay, "the Board failed to meet its burden that the delay was reasonable or justifiable.." Id. at 110. Thus, Ramos supports Lawson's position that the Board has to offer evidence establishing that the delay was reasonable or justifiable in order for the Board to satisfy its burden of proving a timely revocation hearing.

With regard to Fitzhugh, the majority states, "Fitzhugh did not establish the broad principle that the Board has an obligation to retrieve conviction records." (Majority op. at 5.) Contrary to the majority's position, the court in Fitzhugh rejected the notion that a parolee must be forced to wait for an unreasonable period of time until the Board chooses to act upon its knowledge that a conviction has occurred. In so concluding, the court recognized that, where there is the possibility of an unjustifiable and unreasonable delay, the Board must offer evidence justifying the extended delay in obtaining official notification of a known conviction. Accordingly, it is clear under Fitzhugh that, if there is an allegedly unreasonable delay between the time the Board has knowledge of a parolee's conviction and the time the Board acts upon that knowledge to obtain the official verification, the Board must offer evidence to justify that delay.

Because I conclude that Ramos and Fitzhugh are applicable here, I do not believe that the Board satisfied its burden to prove a timely hearing merely because that hearing was held within 120 days of receipt of official verification of a new conviction. Rather, the Board also had the obligation to present evidence establishing that the five-month delay between the date on which the Board learned of Lawson's new conviction and the date on which the Board received official verification of that new conviction was not unreasonable or unjustifiable. I agree with Lawson that Vanderpool v. Pennsylvania Board of Probation and Parole, 874 A.2d 1280 (Pa. Cmwlth. 2005), and Taylor v. Pennsylvania Board of Probation and Parole, 931 A.2d 114 (Pa. Cmwlth. 2007), appeal denied, 596 Pa. 750, 946

A.2d 690 (2008), support his argument that the Board did not meet that obligation.

In Vanderpool, the parolee relied on Fitzhugh to argue that there was an unreasonable and unjustifiable delay; however, we rejected that argumentbecause the Board established the reason for delay through the parole agent's specific testimony that she had difficulty in obtaining official verification due to the confusion caused by the parolee's use of numerous aliases. Similarly, in Taylor, the parolee relied on Fitzhugh to argue that there was no valid reason for the delay between the parole agent's request for proof of the parolee's convictions and the receipt of official verification; however, we rejected that argument, finding Fitzhugh distinguishable because the parole agent explained that the delay was the result of the unavailability of court files due to a court backlog and that she took affirmative steps to obtain the official verification.*fn6 In contrast, in McDonald v. Pennsylvania Board of Probation and Parole, 673 A.2d 27 (Pa. Cmwlth. 1996), and Williams v. Pennsylvania Board of Probation and Parole, 602 A.2d 434 (Pa. Cmwlth.), appeal denied, 533 Pa. 616, 618 A.2d 405 (1992), we held that the Board could not prove that the delay was reasonable and justifiable where it failed to offer an explanation for the delay.

Unlike the specific testimony offered by the parole agents in Vanderpool and Taylor, Agent Rubio did not describe his efforts to obtain the official verification or explain the delay in obtaining that verification. Instead, Agent Rubio stated, "Yeah, we tried to -- well we requested original back in June -- around June of '07. We weren't able to get it. Some problem with the courts. I don't know." (C.R. at 36-38) (emphasis added). Because Agent Rubio testified that he did not know why there was a five-month delay between his request for official verification and the receipt of that verification, his testimony cannot provide substantial evidence that the delay was reasonable and justifiable. Thus, I do not believe that the Board met its burden of proving that Lawson's revocation hearing was timely, and, accordingly, I would reverse the Board's revocation.

ROCHELLE S. FRIEDMAN, Senior Judge


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