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Kenneth Cordell v. Pennsylvania Board of Probation and Parole

April 24, 2011

KENNETH CORDELL, PETITIONER
v.
PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



The opinion of the court was delivered by: James Gardner Colins, Senior Judge

Submitted: February 2, 2012

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY SENIOR JUDGE COLINS

Kenneth Cordell (Cordell) petitions this Court for review of the August 3, 2011 determination of the Pennsylvania Board of Probation and Parole (Board) that denied his claim that the March 1, 2011 parole revocation hearing was untimely. Finding no error in the determination and that it is supported by substantial evidence, we affirm.*fn1

Cordell is serving a 21/2 - to 15-year sentence as a result of a conviction for criminal attempt to commit homicide, with original minimum and maximum sentence dates of July 31, 1981, and January 31, 1994. (R. Item 1, Initial Sentence Status Report, Certified Record (C.R.) at 1.) The Board paroled Cordell and released him on August 25, 1984, subject to an approved parole plan. (R. Item 3, C.R. at 8.)

Following his release from Pennsylvania custody, Cordell was arrested and convicted of various criminal offenses between 1985 and 1988 in the states of Georgia, Nevada, and Florida.*fn2 He would eventually serve a 17-year sentence in Florida and, upon completion of that term, on August 1, 2004, Florida authorities released him to Georgia authorities to finish a 20-year sentence there.

(R. Item 14, March 1, 2011 Hearing Transcript (H.T.) at 27, C.R. at 82.)

The Pennsylvania Board issued the operative warrant against Cordell on May 16, 1988. (R. Item 4, Warrant, C.R. at 12.) The Board faxed the warrant to the Georgia Department of Corrections on October 29, 2004.*fn3 (R. Item 14, H.T. at 25, C.R. at 80; R. Item 8, Supervision History, Form PBPP-257-H, Aug. 24, 2010, C.R. at 38.) The Georgia Department of Corrections, by its letter to the Pennsylvania Board dated October 29, 2004, recognized the Pennsylvania detainer, filed it against Cordell, and instructed the warden with physical custody of Cordell to notify Cordell of the Pennsylvania detainer. (R. Item 14, Oct. 29, 2004 letter from Calvin J. Brown to Audrey M. Reiber, C.R. at 132.) The letter also stated the following: "Our files have been marked to show that you [the Pennsylvania Board] are to be advised approximately thirty (30) days in advance of this inmate's release date so that you may arrange to take custody of him." (Id.) Georgia officials provided a copy of the letter to Cordell and notified him of the Pennsylvania detainer in 2004. (R. Item 14, H.T. at 27-28, C.R. at 82-83.)

On December 4, 2008, the Georgia Department of Corrections sent a letter (the Release Notice) to the sheriff's office in Clarke County, Georgia, which also had filed a detainer against Cordell. The Release Notice informed the sheriff's office that the Department of Corrections intended to release Cordell on December 7, 2008, and requested that the sheriff's office assume custody of Cordell at that time. (R. Item 14, Dec. 4, 2004 letter from Patti Foster to Donnis Simmons, Clarke County Sheriff, C.R. at 131.) The Release Notice expressly acknowledged there was a Pennsylvania detainer filed against Cordell: "Other Agencies with Detainers: C/WEALTH/PA. BD. PROB/PAR., 1101 S. FRONT ST. STE 5800, HARRISBURG, PA." (Id.) The Release Notice is unambiguously addressed to the Clarke County Sheriff and contains the following "CC" line: "State Board of Pardons and Paroles." (Id.) The parties disputed at the revocation hearing whether Georgia officials sent a copy of the Release Notice to the Pennsylvania Board. The Hearing Examiner concluded that they did not. (R. Item 14, H.T. at 21-24, C.R. at 76-79.)

On December 7, 2008, the Georgia Department of Corrections transferred Cordell to Clarke County. On December 10, 2008, in spite of the May 16, 1988 Pennsylvania detainer, Clarke County authorities released Cordell from custody.

Cordell testified at the revocation hearing that, approximately a week and a half before his transfer to Clarke County, he met with his counselor at Hays State Prison. (R. Item 14, H.T. at 28, C.R. at 83.) According to Cordell, his counselor wanted him to sign certain papers regarding his release. (Id.) Cordell provided his counselor with a copy of the Pennsylvania detainer, and his counselor said that he would search for the detainer in the National Crime Information Center (NCIC) index. (Id.) They met again and, according to Cordell, the counselor informed him that there was no warrant or detainer on the NCIC index and that "he had contacted Pennsylvania and they did not want me and to sign the [release] papers." (Id.) Cordell testified that after his transfer to Clarke County, he appeared in county court, where the charges against him there were dismissed because the statute of limitations had run. (R. Item 14, H.T. at 29, C.R. at 84.) He testified that he was next sent to county jail where authorities once more searched the NCIC index, found no Pennsylvania detainer, and set him free on December 10, 2008. (Id.)

After his release from prison in Georgia, Cordell moved to Arkansas to find work with a cousin. On August 5, 2010, following a traffic stop, he was apprehended by Arkansas police, who searched the NCIC index and learned of the Pennsylvania detainer. Cordell waived extradition and he was returned to the Board's custody on August 21, 2010, at the State Correctional Institution (SCI) at Pittsburgh.*fn4

The Board scheduled a revocation hearing for December 14, 2010, 115 days after Cordell's return to a Pennsylvania correctional facility. Cordell continued that hearing to the next available date due to the unavailability of his counsel, and the hearing was held on March 1, 2011.

Cordell objected to the timeliness of the hearing pursuant to 37 Pa. Code ยง 71.4(1), claiming that it was not held within 120 days of the date he became available to the Board, which he asserted was December 10, 2008, the day he was released from incarceration in Georgia. The Board ruled on May 3, 2011, that Cordell was a convicted parole violator and recommitted him to serve 30 months of backtime. Cordell filed a Petition for an Administrative ...


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