NOW, July 12, 2011, it is ordered that the above-captioned Memorandum Opinion, filed May 9, 2011, shall be designated OPINION and shall be REPORTED.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John Scott Jacobs, : : Petitioner : : v. : : Pennsylvania Board of Probation and : Parole, : Respondent :
No. 1422 C.D. 2008 No. 115 C.D. 2010
BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE JOHNNY J. BUTLER, Judge HONORABLE KEITH B. QUIGLEY, Senior Judge
OPINION BY JUDGE COHN JUBELIRER
John Scott Jacobs (Jacobs) petitions for review of the determination of the Pennsylvania Board of Probation and Parole (Board) mailed on August 27, 2009, in which the Board determined, on remand from this Court, that Jacobs' May 9, 2007 parole revocation hearing was timely pursuant to the Board's regulation at 37 Pa. Code § 71.4. As a result of the May 9, 2007 hearing, the Board issued an Order revoking Jacobs' parole and recommitting him as a convicted parole violator. Jacobs argues that the Board's determination that this revocation hearing was timely is not supported by substantial competent evidence.
In Jacobs v. Pennsylvania Board of Probation and Parole, 958 A.2d 1110 (Pa. Cmwlth. 2008) (Jacobs I), our Court remanded this matter to the Board for an evidentiary hearing and determination on the merits of the issue of whether Jacobs' revocation hearing was timely. In that opinion, we described the relevant facts as follows:
On December 15, 2003, Jacobs was paroled from his original 12 to 27-year sentence. At that time, Jacobs' maximum sentence date was November 20, 2017.
On January 12, 2005, Jacobs was arrested and charged with attempted burglary, criminal trespass, and possession of an instrument of crime. As a result, the Board lodged a warrant to commit and detain Jacobs for violating the terms of his parole. By decision dated February 23, 2005, the Board directed that Jacobs be detained pending the disposition of his criminal charges. Thereafter, by decision dated May 19, 2005, the Board recommitted Jacobs as a technical parole violator to serve nine months backtime, when available.
On July 6, 2005, Jacobs was found guilty of attempted burglary and possession of an instrument of crime. Jacobs was confined in a state correctional institution beginning on July 15, 2005. Jacobs was later granted a new trial [and his July 6, 2005 conviction was vacated]; however, on February 9, 2006, Jacobs was again found guilty of attempted burglary and possession of an instrument of crime.
On May 9, 2007, the Board held a parole revocation hearing during which Jacobs, who was unrepresented by counsel, did not object to the timeliness of the hearing. By decision dated July 18, 2007, the Board recommitted Jacobs as a convicted parole violator to serve a total of 15 months backtime, and the Board recalculated Jacobs' maximum sentence date as June 20, 2019.
Jacobs, after obtaining counsel, subsequently filed an administrative appeal in which he asserted, for the first time, that the Board did not hold his parole revocation hearing within 120 days of the official verification date of his conviction. By decision dated January 28, 2008, the Board affirmed Jacobs' recommitment as a convicted parole violator.
Jacobs I, 958 A.2d at 1111-12 (footnote omitted). In Jacobs I, the Board argued that because Jacobs did not object to the timeliness of his revocation hearing at the revocation hearing, but only raised the issue in his administrative appeal to the Board, he waived the timeless issue. Id. at 1112. We disagreed and held that Jacobs preserved the issue by raising it in his administrative appeal to the Board. Id. at 1117. Jacobs also argued that a "docket sheet entered into the record by the prosecuting agent establishes that the Fayette County Clerk of Courts notified the Board of Jacobs' new conviction on May 22, 2006," more than 120 days before Jacobs' revocation hearing on May 9, 2007. Id. at 1112. With respect to this argument, we stated: we disagree that the docket sheet entered into the record by the prosecuting agent establishes that Jacobs' parole revocation hearing was untimely. Before a parolee who is confined within the jurisdiction of the Department of Corrections is recommitted as a convicted parole violator, the Board must hold "a revocation hearing . . within 120 days from the date the Board received official verification of the plea of guilty or nolo contendere or of the guilty verdict at the highest court level." 37 Pa. Code § 71.4(1). "Official verification" is defined as "[a]ctual receipt by a parolee's supervising parole agent of a direct written communication from a court in which a parolee was convicted of a new criminal charge attesting that the parolee was so convicted." 37 Pa. Code § 61.41. Here, as the Board correctly asserts, the docket sheet entered into the record by the prosecuting agent does not establish when the parolee's supervising agent actually received a direct written communication from the Court of Common Pleas of Fayette County attesting to Jacobs' new conviction.
Id. at 1117 (alteration in original) (omission in original) (emphasis in original). Therefore, this Court remanded the matter to the Board to hold an evidentiary hearing on the ...