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Hibeeb Hufmen v. Board of Probation and Parole

December 4, 2012

HIBEEB HUFMEN, PETITIONER
v.
BOARD OF PROBATION AND PAROLE, RESPONDENT



The opinion of the court was delivered by: Dan Pellegrini, President Judge

Submitted: November 14, 2012

BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge

OPINION BY

PRESIDENT JUDGE PELLEGRINI

Hibeeb Hufmen (Petitioner) petitions for review of the Pennsylvania Board of Probation and Parole's (Board) denial of his request for administrative relief from its previous order recommitting him as a convicted parole violator to serve six months backtime for pleading guilty to a summary charge of retail theft. Because a conviction of only a summary offense, whether before a magisterial district judge or a common pleas judge, is not alone a sufficient basis to recommit a parolee as a convicted parole violator, we reverse the Board's order.

On September 12, 2007, the Board paroled Petitioner from a three to six-year sentence forpossession of a controlled substance with intent to deliver. The sentence had a minimum release date of December 5, 2008, and a maximum release date of December 5, 2011. Petitioner was assigned to reside in the Philadelphia parole district. On January 9, 2011, Petitioner was arrested by the Radnor Township Police Department and charged with retail theft, conspiracy to commit retail theft and resisting arrest, a second degree misdemeanor.

After several continuances, a preliminary hearing was held before a magisterial district judge on March 29, 2011. Neither Petitioner nor his counsel attended the preliminary hearing. The magisterial district judge held Petitioner for court on the charges and transferred the case to the Court of Common Pleas of Delaware County (trial court). On June 14, 2011, Petitioner, under the alias "Karrien

A. Sweet," entered a guilty plea in the trial court before the common pleas judge to one count of retail theft graded as a summary offense*fn1 and was sentenced to no further penalty.

On July 22, 2011, Petitioner signed a "Waiver of Revocation Hearing and Counsel/Admission Form" (waiver form) waiving his revocation hearing with the Board. Petitioner acknowledged in writing on the waiver form that he pled guilty in the trial court to the summary charge of retail theft. However, Petitioner also wrote the following on the waiver form: "When I plead guilty I was under the impression that this was my preliminary hearing. It was stated on the Record." (Certified Record at 18). By a revocation decision mailed September 22, 2011, the Board recommitted Petitioner as a convicted parole violator to serve six months backtime based on his waiver of the revocation hearing and admission of his guilty plea of the summary offense of retail theft.*fn2

Petitioner filed a pro se administrative appeal in which he claimed that the Board erred in recommitting him as a convicted parole violator. Specifically, he argued that the common pleas judge was acting as a magisterial district judge when she accepted his guilty plea and, therefore, he was not convicted in a court of record. The Board denied his request for administrative relief and affirmed its September 16, 2011 decision, explaining:

The record reflects that you waived your right to a revocation hearing and admitted to being convicted of Retail Theft in a court of record and in violation of your parole via a form executed on July 22, 2011. The waiver/admission form specifically indicates that you chose to take said action of your own free will, without promise, threat or coercion. You also failed to withdraw the waiver/admission within the prescribed ten-day grace period. Moreover, nothing in the record supports your contention that [the common pleas judge] was sitting as a magistrate when she accepted your guilty plea.

(Certified Record at 54). This appeal followed.*fn3

On appeal, Petitioner contends that the common pleas judge was sitting as a magisterial district judge when she accepted his guilty plea for retail theft, pointing to the fact that no stenographic record of the proceeding was made or required to be made. Therefore, he argues, his guilty plea did not constitute a conviction in a court of record and, accordingly, the Board was not authorized to recommit him as a convicted parole violator.*fn4

Summary offenses are normally disposed of by district magistrates, which are not courts of record. Chapter 4 of the Pennsylvania Rules of Criminal Procedure (Criminal Rules). However, when a summary offense is just one charge arising out of a single criminal episode in which misdemeanors and felonies are also charged, the district magistrate does not adjudicate the summary conviction because double jeopardy may attach to the other charges. See Commonwealth v. Campana, 455 Pa. 622, 626-28, 314 A.2d 854, 856-57, cert. denied, ...


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