Submitted: October 9, 2009
John Anthony Gruff (Gruff), pro se, petitions for review of a determination of the Pennsylvania Board of Probation and Parole (Board) that rescinded his parole after he had been released from confinement and was at liberty on parole. Gruff argues that the Board erred in rescinding his parole for conduct that he engaged in prior to his parole and that he believes the Board was, or should have been, aware of when it granted him parole. The Board argues that the rescission was proper and that Gruff's petition for review should be quashed as being untimely.
Gruff was initially sentenced to a term of approximately five to twelve years for crimes including aggravated assault with serious bodily injury, violation of a court order not to possess or use firearms, and driving under the influence. On May 8, 2007, the Board granted Gruff release from SCI-Fayette on parole from this sentence. (Board Order, May 8, 2007, R. at 6.) On July 9, 2007, Gruff executed an acknowledgement of the conditions of parole which included, "that no evidence of past crimes . . . previously undiscovered, comes to light." (Order to Release on Parole/Reparole, R. at 10.) Gruff was released from custody that same day.
On October 9, 2007, the Pennsylvania Attorney General's Office filed new criminal charges against Gruff resulting from Gruff's filing of fraudulent Uniform Commercial Code (UCC) liens on or about March 30, 2005, while he was incarcerated. Gruff had filed the fraudulent UCC liens with the Department of State against: the Honorable Joseph Rehkamp of the Court of Common Pleas of Perry County; the Honorable Charles F. Chenot of the Court of Common Pleas of Perry County; Brenda Albright, Perry County Prothonotary; Jeffrey Beard, Secretary of the Department of Corrections; and Harry Wilson, Superintendent of SCI-Fayette.*fn1 On December 17, 2007, the Board received notice of these charges and promptly issued an order to commit and detain Gruff. (Supervision History Report, R. at 19.) On December 18, 2007, Harrisburg Police arrested and detained Gruff.
On January 31, 2008, the Board issued a Notice of Good Cause and Hearing (Notice), stating that it had good cause to rescind Gruff's parole based on his filing of fraudulent UCC liens and the Board's lack of awareness of this conduct at the time of Gruff's parole. In the Notice, the Board explained that, at the time of parole in May of 2007, it "was unaware of the alleged conduct." (Notice, R. at 22.)
As a result, the Board scheduled a rescission hearing for February 8, 2008, at 11:00 a.m., at SCI-Camp Hill.
At the hearing, an agent for the Board, George Mann, submitted into evidence a copy of the criminal complaint against Gruff and testified that, at the time of Gruff's parole, the Board was unaware of the charges against Gruff. In addition, Mr. Mann testified that the Board was made aware of the charges on December 17, 2007. (Rescission Hr'g Tr. at 10, R. at 35.) Gruff was represented by counsel and testified on his own behalf that there was no basis for the rescission of his parole since the charges were for conduct occurring prior to his release on parole and the statute of limitations had ended. (Rescission Hr'g Tr. at 11-12, R. at 36-37.) Counsel for Gruff also argued that the Board failed to present evidence proving that the Board was unaware of the charged behavior prior to paroling Gruff. (Rescission Hr'g Tr. at 8-10, R. at 33-35.)
The Board, thereafter, rescinded Gruff's parole on February 28, 2008, on the basis of good cause. (Notice of Board Decision (February 28, 2008 Decision), R. at 58.) The February 28, 2008 Decision, which the Board sent to Gruff, states in its entirety:
AS RECORDED ON FEBRUARY 28, 2008 THE BOARD OF PROBATION AND PAROLE RENDERED THE FOLLOWING DECISION IN YOUR CASE: RESCIND PAROLING BOARD ACTION RECORDED ON 05/08/07 AND MODIFIED ON 07/06/07, GOOD CAUSE ESTABLISHED. AND NOW.
LIST FOR REVIEW ON NEXT AVAILABLE DOCKET.
(Decision, R. at 58.) The February 28, 2008 Decision does not explain the Board's basis for determining that it had good cause to rescind Gruff's parole and contains no information regarding the right to, or method of taking, an appeal.
Gruff sent letters to the Board requesting administrative relief on January 28, 2008, March 14, 2008, and October 8, 2008. (Letter from Gruff to Board (January 28, 2008), R. at 49; Letter from Gruff to Board (March 14, 2008), R. at 59; Letter from Gruff to Board (October 8, 2008), R. at 69.) The Board responded twice to Gruff's letters, first on April 9, 2008, and then on November 7, 2008, stating that the regulations pertaining to administrative relief do not apply to decisions rescinding prior grants of parole and that no further action would be taken by the Board. (Letter from Board to Gruff (April 9, 2008), R. at 67; Letter from Board to Gruff (November 7, 2008), R. at 74.) On December 5, 2008, Gruff filed a petition for writ of mandamus*fn2 in this Court's original jurisdiction, docketed at 579 M.D. 2008, in which he sought to have his parole reinstated. In disposing of the Board's preliminary objection alleging lack of original jurisdiction, this Court issued an order transferring the case to our appellate jurisdiction. In a footnote, this Court noted the Board's failure to entertain Gruff's administrative appeal and inconsistent preliminary objection alleging that Gruff should have filed a timely appeal in this Court's appellate jurisdiction. Gruff v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth. No. 579 M.D. 2009, May 1, 2009) at 2 n.1. We now consider Gruff's petition for review from the Board's decision rescinding his parole.*fn3
Gruff argues that his conduct with regard to the fraudulent UCC liens cannot serve as the basis for rescission because the conduct occurred prior to his release and, therefore, the information was presumably available to the Board when it granted him parole. The Board, however, argues that Gruff did not file a timely appeal of the Board's rescission decision with this Court and that our Court should, therefore, quash Gruff's petition for review. Additionally, the Board argues that, on the merits, the Board did not abuse its discretion by rescinding parole after discovering that Gruff, while incarcerated, engaged in criminal conduct by filing fraudulent UCC liens ...