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Barna v. Pennsylvania Board of Probation and Parole

October 27, 2010

ZORI V. BARNA, JR., PETITIONER
v.
PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



The opinion of the court was delivered by: Judge McCULLOUGH

Submitted: August 6, 2010

BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE JOHNNY J. BUTLER, Judge.

OPINION

Zori V. Barna, Jr., petitions for review of the December 9, 2009, order of the Pennsylvania Board of Probation and Parole (Board), which denied his administrative appeal. For the following reasons, we affirm.

On or about September 18, 1997, Barna was sentenced to a period of incarceration of eight to twenty years for the crimes of robbery and kidnapping. (Certified Record (C.R.) at 1-2.) The Board granted Barna parole on February 25, 2008, and he was released from prison on May 1, 2008. (C.R. at 12-15.) Eleven days later, on May 12, 2008, a female reported to the Board that Barna had attacked and threatened her. (C.R. at 20.) The same day, the Board issued a warrant to commit and detain Barna, and parole supervision staff arrested Barna for violation of his parole. (C.R. at 19, 22.)

On May 13, 2008, the Upper Moreland Police Department charged Barna with simple assault, terroristic threats, and harassment. (C.R. at 20, 57.) On January 12, 2009, Judge William R. Carpenter of the Court of Common Pleas of Montgomery County found Barna guilty of harassment, and sentenced him to ninety days incarceration in a state correctional institution. (C.R. at 24.)

The Board conducted a parole revocation hearing on April 24, 2009. Based on the certified court record of the harassment conviction, the Board issued a decision on June 10, 2009, recommitting Barna as a convicted parole violator to serve six months backtime when available. (C.R. at 103.) Barna filed an administrative appeal, which the Board denied on December 9, 2009. (C.R. at 139.)

On appeal to this Court, Barna first argues that the Board erred by determining that he was a convicted parole violator because he was found guilty of the summary charge of harassment, was deprived of a jury trial, and was not informed of his option to have the trial judge sit as an acting district justice. We disagree.

Section 21.1a(a) of the Parole Act*fn1 authorizes the Board to recommit a parolee as a convicted parole violator when the crime at issue is punishable by imprisonment and the conviction occurs in a court of record. Jackson v. Pennsylvania Board of Probation and Parole, 951 A.2d 1238 (Pa. Cmwlth. 2008). Although a parolee may be recommitted as a convicted parole violator based on a conviction for a summary offense, Lewis v. Pennsylvania Bd. of Probation & Parole, 459 A.2d 1339 (Pa. Cmwlth. 1983), a summary offense conviction by a magisterial district judge is not a conviction in a court of record within the meaning of Section 21.1a(a) of the Parole Act, and the Board is not authorized to recommit a parolee as a convicted parole violator for such a conviction. Goodwine v. Pennsylvania Board of Probation and Parole, 960 A.2d 184 (Pa. Cmwlth. 2008). Moreover, when a common pleas judge elects to sit as a magisterial district judge and convicts a parolee of a summary offense, the parolee is not convicted in a court of record, and the Board may not recommit the parolee as a convicted parole violator. Jackson.

Here, Barna does not dispute that he was found guilty of harassment by Judge Carpenter of the Court of Common Pleas of Montgomery County, (Barna's brief at 9), and the record establishes that Barna was sentenced to ninety days in prison. (C.R. at 24.) The common pleas courts are courts of record, section 321 of the Judicial Code, 42 Pa. C.S. §321, and nothing in the record indicates that Judge Carpenter was sitting as a magisterial district judge. Therefore, we conclude that Barna was convicted before a court of record and that the Board was authorized to recommit him as a convicted parole violator.*fn2

Barna also argues the Commonwealth deprived him of a jury trial and failed to inform him of the opportunity to have Judge Carpenter sit as an acting magisterial district judge. However, it is well settled that Barna may not collaterally attack or otherwise challenge the validity of his criminal conviction in this appeal. Commonwealth ex rel. Davis v. Pennsylvania Board and Parole, 484 Pa. 157, 398 A.2d 992 (1979); Miller v. Pennsylvania Board of Probation and Parole, 466 A.2d 1110 (Pa. Cmwlth. 1983).

Next, Barna raises the following argument, which we quote in its entirety:

Petitioner contends that the Board's warrant to commit and detain was erroneous and was fabricated. The warrant to commit and detain was issued on May 12, 2008, however, the police did not file criminal charges against Petitioner until May 13, 2008. Petitioner maintains that this is evident in his supervisory history. Petitioner contends that there is an improper conspiracy between the police and the parole board.

Because this matter has not been explored at a proper hearing, Petitioner asks that this matter be remanded ...


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