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Jefferson Davidson v. Pennsylvania Board of Probation and Parole

October 19, 2011

JEFFERSON DAVIDSON, PETITIONER
v.
PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



The opinion of the court was delivered by: Rochelle S. Friedman, Senior Judge

Submitted: August 12, 2011

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY SENIOR JUDGE FRIEDMAN

Jefferson Davidson, a.k.a. Derrick Roberts (Petitioner),*fn1 petitions for review of the March 24, 2010, order of the Pennsylvania Board of Probation and Parole (Board), which recommitted Petitioner as a convicted parole violator to serve thirty months' backtime at a state correctional institution. Subsequently, the Board filed a motion to suppress Petitioner's nonconforming brief. We deny the Board's motion to suppress and affirm.*fn2

On January 4, 2000, the Board paroled Petitioner from an aggregated twelve-year prison sentence with a maximum term expiration date of July 28, 2003, to an Immigration and Naturalization Service (INS) detainer, to be supervised by the State of New York.

On April 13, 2001, while Petitioner was under parole supervision in New York, agents from the United States Drug Enforcement Agency (DEA) notified the Board that they had arrested Petitioner in Pennsylvania under the name Derrick Roberts for: (1) a federal drug offense (possession of crack cocaine with intent to distribute); and (2) three federal firearm offenses (possession of firearm by convicted felon, possession of firearm with obliterated serial number and carrying a firearm during and in relation to drug trafficking). Petitioner was held at a federal detention center. Following Petitioner's guilty pleas on all four federal charges in the United States District Court for the Eastern District of Pennsylvania, Petitioner was sentenced on January 6, 2003, to serve a new 130-month term in a federal prison.

On January 21, 2003, the Board completed a Criminal Arrest and Disposition Report, which set forth that the Board was notified on April 17, 2001, of Petitioner's arrest, that Petitioner was being held at a federal detention center on new criminal charges and that bail was not posted. The report further set forth that the Board's initial recommendation was to detain Petitioner pending disposition of the new criminal charges; Petitioner was found guilty of the new criminal charges and was sentenced to 130 months in federal prison; and the Board's final recommendation was to monitor the case until Petitioner became available.

On July 17, 2003, the Board issued an arrest warrant to commit, detain and return Petitioner to the Board's custody. On December 29, 2009, the United States Bureau of Prisons released Petitioner from his federal sentences in Pecos, Texas, at which time he was eligible for return to the State Correctional Institution at Graterford (SCI-Graterford). (Recommitment Order, 3/16/2010, at 1.) On January 3, 2010, Petitioner was returned to SCI-Graterford. (Board Moves Report at 1.)

The Board held a revocation hearing concerning Petitioner's federal guilty pleas on February 9, 2010, thirty-seven days after his return to Pennsylvania. At his revocation hearing, Petitioner did not present any evidence regarding his detention pending disposition of his federal criminal charges or his conviction.

By a combined revocation decision and recalculation order of March 24, 2010, the Board recommitted Petitioner as a convicted parole violator, to serve thirty months' backtime, and recalculated his maximum term expiration date as July 22, 2013, for his aggregated twelve-year state prison sentence.

On April 12, 2010, Petitioner filed an administrative appeal of the combined revocation decision and recalculation order, which, by a determination mailed August 3, 2010, the Board affirmed. This appeal followed.*fn3

Initially, Petitioner contends that the Board failed to notify Petitioner of its decision to detain him, as required by 37 Pa. Code §71.3(5). We disagree.

The Board did not err in failing to apply 37 Pa. Code §71.3, entitled "Return for a new criminal charge," which provides that:

The following procedures shall be followed if a parolee, not already detained after appropriate hearings for other criminal charges or technical violations, has ...


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