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Gibson v. Pennsylvania Board of Probation and Parole

IN THE COMMONWEALTH COURT OF PENNSYLVANIA


August 25, 2010

MARSHALL GIBSON, PETITIONER
v.
PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT

The opinion of the court was delivered by: Judge Leavitt

Submitted: February 5, 2010

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION

Marshall Gibson petitions for review of an adjudication of the Pennsylvania Board of Probation and Parole (Board) that recommitted Gibson as a convicted parole violator. Gibson argues that the Board's parole revocation hearing was untimely, even though it was conducted well within the time limits established in the Board's regulation. Gibson contends that the Board's failure to speed up the 30-day gap between the parole agent's request for Gibson's conviction records from the Philadelphia County Court of Common Pleas and their receipt rendered his hearing untimely. Finding Gibson's argument without merit, we affirm.

On August 28, 2006, Gibson was paroled from his four to eight year sentence for robbery, which was imposed in 2003. On April 30, 2008, Gibson was arrested in Philadelphia and charged with firearm and drug offenses. The Board detained Gibson that same day and on July 29, 2008, Gibson was returned to a state correctional facility. On December 17, 2008, Gibson was moved to a Philadelphia County correctional facility for trial on the above-listed new criminal charges. On December 18, 2008, he was convicted and, on December 30, 2008, returned to a state correctional facility. Gibson's parole agent requested a certified copy of the court record of Gibson's conviction on December 23, 2008, and he received the official conviction verification on January 22, 2009. On April 30, 2009, the Board conducted a parole revocation hearing. On June 10, 2009, the Board recommitted Gibson as a convicted parole violator.

Gibson petitioned for administrative relief on June 18, 2009, claiming that the Board's revocation hearing was not timely. Specifically, Gibson asserted that his agent did not explain the one month delay between the date he requested the official record of Gibson's conviction and its receipt. The Board denied Gibson's request for administrative relief. Because the Board conducted a revocation hearing 98 days after it received the official verification of Gibson's conviction, it concluded that this hearing was timely. It explained its decision as follows:

The Board determined that the April 30, 200[9] revocation hearing was timely. After review of this case, the appellate appeal panel agrees. Specifically, the panel determined that the Board was required to hold the hearing within 120 days of the official verification date because Mr. Gibson was returned to the jurisdiction of the Department of Corrections prior to his conviction. In this case, official verification of the conviction was received on January 22, 2009 and the hearing was held 98 days later on April 30, 2009. Moreover, the month delay between Mr. Gibson's conviction and the Board's receipt of official verification on its face establishes that the Board made a good faith effort to obtain official verification of the conviction despite the fact that there was no duty on the Board to do so.

Certified Record, Item No. 14, at 91 (internal citations omitted) (emphasis added). Gibson now petitions for this Court's review.

On appeal,*fn1 Gibson presents one issue for our consideration. Gibson contends that his parole agent was required to offer an explanation for the one-month delay between his request for a certified copy of Gibson's conviction and the receipt thereof. Gibson acknowledges that his position conflicts with this Court's holding in Lawson v. Pennsylvania Board of Probation and Parole, 977 A.2d 85 (Pa. Cmwlth. 2009), appeal denied, ___ Pa. ___, 992 A.2d 890 (2010). However, Gibson believes that Lawson was wrongly decided, noting that "photo-electronic devices called copiers . at the touch of a button exactly duplicate court orders." Gibson's Brief at 23. The Board counters that no statute or regulation requires parole agents to obtain conviction records; Lawson controls; and Gibson offers no cogent reason for this Court to reverse Lawson.

Gibson argues that our decision in Lawson is "seriously flawed" because it is at odds with Ramos v. Pennsylvania Board of Probation and Parole, 954 A.2d 107 (Pa. Cmwlth. 2008). He further argues that due process requires the Board to establish that it acted with due diligence to obtain the official verification of the conviction.

Again, as we did in Lawson, we review the case law relevant to the issue of what a parole agent must do to expedite transmittal of court records. The case law does not support Gibson's position here.

In Fitzhugh v. Pennsylvania Board of Probation and Parole, 623 A.2d 376 (Pa. Cmwlth. 1993), this Court ordered a remand for additional fact finding in a case where it appeared that the Board deliberately delayed the holding of a parole revocation hearing for over five months. Notably, Fitzhugh did not establish that a five-month delay between the date of conviction and receipt of official verification is per se unacceptable. Ramos also involved a five-month gap in time between the parole agent's request and receipt of parolee's conviction records. The Board found, as fact, that the parole agent had attempted on three occasions to obtain the official verification within that five-month period, which finding was based upon the parole agent's written notes in the record. This Court held in Ramos that the Board's factual finding was made in error because it could not take judicial notice of the parole agent's notes, as it purported to do in its adjudication.

In Lawson, the revocation hearing was held more than nine months after the parolee's new conviction, but within 61 days of receipt of the official verification of that conviction. The parole agent testified that a problem with the Philadelphia County Court of Common Pleas had caused the delay. Lawson argued that under Ramos, the agent had to explain the reason for the delay in the transmittal of the Court's conviction record in order for the Board's hearing to be timely.

We rejected Lawson's interpretation of Ramos and Fitzhugh. Specifically, we stated:

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." 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.

Lawson, 977 A.2d at 88 (internal citation omitted) (emphasis in original).

We concluded in Lawson that the timeliness of a parole revocation hearing is governed by the Parole Act and the regulation at 37 Pa. Code §71.4(1).*fn2

Neither places a burden on the Board to demonstrate that it exercised due diligence in obtaining official verification of a parolee's new conviction. Lawson, 977 A.2d at 88. Indeed, we explained this holding was consistent with our long-standing precedent. In Lee v. Pennsylvania Board of Probation and Parole, 596 A.2d 264 (Pa. Cmwlth. 1991), we specifically affirmed the logic of the Board's regulation at 37 Pa. Code §71.4(1), explaining that 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.

Lee, 596 A.2d at 265 (emphasis added).

Gibson argues, nevertheless, that the holdings in Lee and Lawson offend due process.*fn3 He argues that unless this Court imposes a burden upon parole agents to fetch the conviction records, the Board will delay revocation hearings. These arguments are unavailing.

First, Gibson's suggestion that the parole agent can obtain conviction records simply by sending a courier to the courthouse to photocopy the document or having it transmitted by facsimile or email reveals a lack of understanding of the rules of evidence. The condition precedent to the admission of a document into evidence is that it must be authenticated. PA. R.E. 901(a) ("requirement of authentication or identification as condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims").

The Judicial Code governs the authentication process for government records. It states:

An official record kept within this Commonwealth by any court, magisterial district judge or other government unit, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by that officer's deputy, and accompanied by a certificate that the officer has the custody. The certificate may be made by any public officer having a seal of office and having official duties with respect to the government unit in which the record is kept, authenticated by the seal of that office, or if there is no such officer, by:

(1) The Department of State, in the case of any Commonwealth agency.

(2) The clerk of the court of common pleas of the judicial district embracing any county in which the government unit has jurisdiction, in the case of any government unit other than a Commonwealth agency.

42 Pa. C.S. §6103(a) (emphasis added).

Gibson's parole agent promptly requested an official verification of conviction five days after Gibson's conviction. He could do no more because he lacked the means, or authority, to compel a court employee to provide the verification. Without that verification Gibson's conviction record was not admissible in a parole revocation hearing.

Second, Gibson's argument that Lawson must be reversed because the Board will resort to stalling tactics to delay parole revocation hearings is at odds with the well-established presumption of administrative regularity. Jefferson County Assistance Office, Department of Public Welfare v. Wolfe, 582 A.2d 425, 427 (Pa. Cmwlth. 1990). In the absence of contrary evidence, an agency is presumed to have performed its duties properly. Id.

The 120-day period for holding Gibson's parole revocation hearing began on January 22, 2009, the date that the parole agent received the official verification of Gibson's new conviction.*fn4 Gibson's revocation hearing, held 98 days later on April 30, 2009, was timely. Accordingly, we affirm the Board.

ORDER

AND NOW, this 25th day of August, 2010, the Order of the Pennsylvania Board of Probation and Parole, dated August 27, 2009, in the above-captioned matter is hereby AFFIRMED.

MARY HANNAH LEAVITT, Judge


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