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Matthew Chesson, A/K/A Tyrone White v. Pennsylvania Board of Probation and Parole

June 14, 2012

MATTHEW CHESSON, A/K/A TYRONE WHITE, PETITIONER
v.
PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



The opinion of the court was delivered by: Patricia A. McCULLOUGH, Judge

Submitted: January 27, 2012

BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge

OPINION BY JUDGE McCULLOUGH

Matthew Chesson, a/k/a Tyrone White (Petitioner), petitions for review of the February 18, 2011, order of the Pennsylvania Board of Probation and Parole (Board), which denied his administrative appeal and affirmed its previous decision to recommit Petitioner as a convicted parole violator. We now reverse and remand.

Petitioner has an extensive criminal history which need not be set forth here. Suffice it to say, on January 7, 2008, the Board paroled Petitioner from his sentence of six years, two months to twelve years, four months for robbery and related offenses. At that time, Petitioner's parole violation maximum sentence date was September 5, 2011. On October 16, 2009, Petitioner was arrested by the Philadelphia Police Department and charged with aggravated assault, simple assault, and recklessly endangering another person. That same day, the Board issued a warrant to commit and detain Petitioner. On March 25, 2010, Petitioner pled guilty before the Municipal Court of Philadelphia County (Municipal Court) to the summary offense of disorderly conduct - engaging in fighting. Petitioner was sentenced to pay court costs, but he received no further penalty. (Certified Record (C.R.) at 33-39, 54-58.)

On June 23, 2010, the Board conducted a revocation hearing relating to Petitioner's new conviction. Petitioner was represented by counsel from the Montgomery County Public Defender's Office. Mark Thompson, an agent for the Board, testified regarding Petitioner's new conviction and presented certified copies of the sentencing order and criminal docket entries of the Municipal Court detailing Petitioner's negotiated guilty plea and subsequent conviction. Although Petitioner acknowledged this conviction, his counsel argued that the conviction was not by a court of record and, hence, Petitioner could not be recommitted as a convicted parole violator.*fn1 More specifically, counsel argued that, at the time of Petitioner's conviction, the Municipal Court judge was sitting as a magisterial district judge in order to resolve Petitioner's only remaining charge, a summary offense.*fn2 (C.R. at 62-105.)

On October 7, 2010, the Board issued a decision recommitting Petitioner as a convicted parole violator and recalculating Petitioner's parole violation maximum sentence date to June 14, 2013. Citing the testimony of Agent Thompson, the certified exhibits, and Petitioner's acknowledgment, the Board concluded that Petitioner was convicted of a new offense in a court of record. At the same time, the Board directed that Petitioner be immediately re-paroled to a community corrections center. Petitioner filed a pro se petition for administrative review reiterating his allegation that, in convicting him of a summary offense, the Municipal Court judge was sitting as a magisterial district judge and, hence, his conviction was not by a court of record and he could not be recommitted as a convicted parole violator. Petitioner also alleged that to hold otherwise would violate his rights to due process and equal protection because a parolee convicted of a summary offense by a Municipal Court judge would lose valuable street time, whereas a parolee convicted by a magisterial district judge would not. By decision mailed February 18, 2011, the Board affirmed its October 7, 2010, decision, concluding that the Municipal Court was a court of record.*fn3 (C.R. at 102-112.)

Petitioner thereafter filed a petition for review with this Court, reiterating his allegation that the Municipal Court was not a court of record.*fn4 Petitioner also alleged that, to the extent that his prior counsel failed to introduce evidence that the Municipal Court judge was sitting as a magisterial district judge, counsel was ineffective and Petitioner was entitled to a new hearing.*fn5 On April 25, 2011, Petitioner's counsel filed a petition with this Court for the appointment of substitute appellate counsel, indicating that Petitioner was no longer confined in Montgomery County, but instead was confined to an inpatient treatment program in Philadelphia County. Petitioner's counsel noted that the Defender Association of Philadelphia (DAP) acts as the public defender for Philadelphia County.

By order dated April 26, 2011, this Court struck the appearance of the Montgomery County Public Defender's Office, appointed DAP to act as counsel for Petitioner, directed DAP to file an entry of appearance within 30 days, and allowed DAP 30 days to file an amended petition for review. On May 9, 2011, the Board filed the certified record with this Court.*fn6 On May 17, 2011, DAP filed an entry of appearance on Petitioner's behalf. By letter dated May 23, 2011, DAP requested a copy of the certified record from the Board. DAP did not receive this copy until May 31, 2011, five days after the deadline imposed by our previous order for the filing of an amended petition for review. Upon review of the record, DAP discovered that Petitioner's previous counsel failed to include Petitioner's due process/equal protection argument raised before the Board. Nevertheless, DAP did not file a petition seeking to amend the petition for review to include this argument until August 15, 2011. By single-judge order dated September 20, 2011, DAP's petition was denied. The parties thereafter filed their respective briefs with this Court. In his brief, Petitioner argues that the Board erred in failing to conclude that the Municipal Court was not a court of record, that this Court erred in denying his petition to amend his petition for review, and that the Board's recommitment of him as a convicted parole violator infringes upon his right to equal protection.*fn7

However, before we reach the merits of these arguments, we must address the Board's allegation that all of Petitioner's arguments have been waived. The law is well settled that issues not raised before the Board either at the revocation hearing or in the petitioner's administrative appeal are waived and cannot be considered for the first time on appeal. Jacobs v. Pennsylvania Board of Probation and Parole, 958 A.2d 1110 (Pa. Cmwlth. 2008); Newsome v. Pennsylvania Board of Probation and Parole, 553 A.2d 1050 (Pa. Cmwlth. 1989). The law is equally well settled that issues not raised in a petition for review are waived and will not be addressed by this Court. Rackley v. Pennsylvania Board of Probation and Parole, 881 A.2d 69 (Pa. Cmwlth. 2005); Siers v. Pennsylvania Board of Probation and Parole, 725 A.2d 220 (Pa. Cmwlth.), appeal denied, 562 Pa. 678, 753 A.2d 822 (1999).

The Board first alleges that Petitioner waived the issue of whether or not the Municipal Court is a court of record. More specifically, the Board alleges that Petitioner argued in his petition for review that the Municipal Court judge was, as a matter of fact, sitting as a magisterial district judge at the time of his conviction, whereas Petitioner argued in his brief to this Court that the Municipal Court was, per se, not a court of record. We disagree with the Board's interpretation as well as its argument of waiver. In his petition for review, Petitioner alleged that the Board erred in denying his administrative appeal for the following reasons:

a. Petitioner Chesson was convicted of the summary offence in the Municipal Court.;

b. Judges of the Municipal Court.have the inherent power to sit as committing magisterial district judges;

c. While the Municipal Court.is a court of record, where a municipal court judge sits as a magisterial district judge in a summary case, the Municipal Court.is not a court of ...


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