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.
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 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 ...