The opinion of the court was delivered by: Judge McGINLEY
Submitted: December 31, 2009
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE JIM FLAHERTY, Senior Judge.
Brian Butler (Butler) petitions for review from a final determination of the Pennsylvania Board of Probation and Parole (Board) that recommitted him to serve his unexpired term of three years, one month, twenty-nine days as a convicted and technical parole violator.*fn1
Butler was effectively sentenced on October 19, 1990, to a term of one year three months to four years eleven months for robbery with threat of serious injury. Butler was paroled on July 20, 1992. The Board declared Butler delinquent effective July 21, 1992. On August 3, 1992, Butler was arrested by the Tredyffrin Township Police Department and was charged with criminal conspiracy, terroristic threats, simple assault, disorderly conduct, and harassment.
On May 13, 1993, Butler was arrested in the State of Delaware and charged with seven counts of first degree robbery, felony theft, five counts of possession of a deadly weapon during the commission of a felony, five counts of possession of a deadly weapon by a person prohibited, and six counts of misdemeanor theft. On July 21, 1994, pursuant to a plea agreement, Butler was convicted of four counts of robbery and three counts of possession of a deadly weapon during the commission of a felony. He was sentenced to a term of fifteen years.
On October 30, 1995, Butler pled guilty to terroristic threats and conspiracy on the Tredyffrin Township charges. The Court of Common Pleas of Chester County sentenced Butler to a term of two years six months to five years to run concurrent with the sentence he received in the State of Delaware.
On February 27, 2003, Delaware transferred Butler to the State Correctional Institution (SCI) at Huntington in Pennsylvania to serve the remainder of his Delaware sentence in Pennsylvania pursuant to the Interstate Corrections Compact (Compact).*fn2 Butler was transferred to Pennsylvania for his own safety. On May 25, 2005, Arthur R. Thomas (Thomas), assistant counsel for the Board, determined in a memorandum (Thomas Memorandum) that Butler was not available for a revocation hearing until he was returned to a Pennsylvania state correctional facility after he was no longer confined subject to the jurisdiction of the state of Delaware.
On September 24, 2008, Butler finished serving his Delaware sentence and remained incarcerated in a Pennsylvania SCI. On November 5, 2008, the Board held a revocation hearing. Butler objected to the timeliness of the revocation hearing because he had been incarcerated in a state correctional institution since 2003.*fn3 Supervisor Slowitzky presented evidence of the Chester County convictions and a packet of information from Delaware concerning the Delaware convictions. Butler admitted to the technical violation of failure to report.
In a decision recorded January 30, 2009, and mailed February 5, 2009, the Board recommitted Butler as a technical parole violator to serve his unexpired term of three years, one month, twenty-nine days and as a convicted parole violator to serve his unexpired term concurrent with the technical violation. The Board established a new maximum date of January 5, 2012.
Butler petitioned for administrative review and contended that the revocation hearing was untimely, the recommitment as a technical violator was beyond the presumptive range, the Thomas Memorandum was inadmissible, and the Board erred when it established his new maximum date.
The Board denied the request for administrative relief and stated:
The Board determined that the November 5, 2008 revocation hearing was timely. The appeal panel agrees. Specifically, the panel determined that the Board was required to hold the hearing within 120 days of the date Mr. Butler was returned to the jurisdiction of the Pennsylvania Department of Corrections.... Here, Mr. Brooks [sic] was returned to a Pennsylvania State Correctional Institution in February 2003 under the Interstate Corrections Compact.... However, he was not under the jurisdiction of the Pennsylvania Department of Corrections until he completed his sentence from the State of Delaware on September 24, 2008. Thus, the November 5, 2008 revocation hearing was timely because it was held only 42 days after Mr. Butler was returned to the jurisdiction of the Pennsylvania Department of Corrections. Moreover, the panel has determined that evidence presented in support of the aforementioned facts was not hearsay.
Additionally, the presumptive recommitment range for Mr. Butler's violation of condition #3A of his parole is three to six months.... Thus, the decision to recommit him to serve his unexpired term of 3 years, 1 month and 29 days (i.e. until 01/05/2012) does exceed the presumptive range for that violation. However, this error is de minimus, because Mr. Butler was also recommitted to serve his unexpired term for his new convictions of Robbery (4 counts), Possession of a Deadly Weapon in Commission of a Felony (3 counts) and Criminal Conspiracy-Terroristic Threats. The total presumptive range for those offenses is 24 to 238 ...