Submitted: April 12, 2013
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
JAMES GARDNER COLINS, Senior Judge
James Burno (Burno) petitions this Court for review of the July 17, 2012 order of the Pennsylvania Board of Probation and Parole (Board), which dismissed as untimely Burno's objection to the Board's revocation decisions of January 17, 2007 and April 6, 2007 and affirmed its recalculation decision of May 15, 2012. Finding no error, we affirm.
On December 12, 2001, the Board paroled Burno from a four-to-ten year prison sentence. (Record Item (R. Item) 5, Release Order, November 16, 2001, Certified Record (C.R.) at 18-21.) The maximum term expiry date for Burno's paroled sentence was October 24, 2007, leaving 2, 142 days remaining on his sentence at the time of his parole. (R. Item 5, C.R. at 21; R. Item 15, Board Order to Recommit, May 8, 2012, C.R. at 125.) Federal prosecutors indicted Burno on new criminal charges in the United States District Court for the Middle District of Pennsylvania on October 19, 2005. (R. Item 11, Transcript of December 8, 2006 Revocation Hearing, State Ex. 2, C.R. at 78, 80-81.) Burno was arrested by federal authorities on November 1, 2005 and posted bail the following day. (R. Item 11, C.R. at 80-81; R. Item 13, Request for Administrative Relief, January 30, 2007, C.R. at 111.) On November 3, 2005, Burno was picked up by the Board on parole violations and detained in the State Correctional Institution at Camp Hill (SCI Camp Hill). (R. Item 6, Warrant to Commit and Detain, C.R. at 24.) By a decision mailed March 29, 2006, the Board recommitted Burno as a technical parole violator to serve 9 months backtime when available. (R. Item 8, C.R. at 26-27.)
Burno pleaded guilty to the federal charges on April 12, 2006, and he was sentenced in federal court on September 1, 2006 to a term of 96 months to run consecutive with any other term he was serving. (R. Item 11, State Ex. 1, Def. Exs. 1, 2, C.R. at 99-101, 72-73.) Parole supervision staff received documentation from the federal court concerning Burno's guilty plea and sentencing on October 3, 2006. (R. Item 11, C.R. at 59, 63, 72.) While he remained in state custody at SCI Camp Hill, Burno was transferred to federal custody to enter his guilty plea, for sentencing and on two other occasions. (R. Item 15, Department of Corrections Moves Report, May 8, 2012, C.R. at 124.) After each of these transfers, he was returned to SCI Camp Hill the same day. (Id.)
A parole revocation hearing was held on December 8, 2006, at which Burno argued that his hearing was not held within 120 days of his guilty plea on April 12, 2006 in violation of Board regulations. (R. Item 11, C.R. at 49.) The Board issued a decision on January 17, 2007 recommitting Burno as a convicted parole violator based on the federal charges to serve 18 months concurrent with his 9-month technical parole violation backtime. (R. Item 12, C.R. at 104-05.)
Burno petitioned for administrative relief from the January 17, 2007 Board decision. Before he received a response, however, the Board issued another decision on April 6, 2007 modifying its decision of March 29, 2006 that had recommitted Burno as a technical parole violator, to remove one of the technical parole violations included in the earlier decision. (R. Item 13, C.R. at 117.) Burno also petitioned for administrative relief from this decision. (R. Item 14, C.R. at 119-20.) The Board issued administrative responses denying the petitions for administrative relief from the January 17, 2007 and April 6, 2007 decisions, on May 14, 2007 and August 28, 2007, respectively. (R. Item 13, C.R. at 118; R. Item 14, C.R. at 123.)
Burno was transferred from SCI Camp Hill to federal custody on April 18, 2007, and he completed the federal sentence on April 27, 2012. (R. Item 15, C.R. at 124; R. Item 1, Bureau of Prisons Final Release Notice, January 31, 2012, Supplemental Certified Record (S.C.R.) at 1a.) The United States Bureau of Prisons (BOP) gave Burno credit on his federal sentence from the day of his arrest until he posted bail the next day (November 1 to November 2, 2005) and from September 1, 2006, the date of his federal sentencing, until the sentence was completed. (R. Item 1, S.C.R. at 3a.)
Following Burno's return from federal custody on May 7, 2012, the Board issued a decision on May 15, 2012 recalculating his parole violation maximum date to May 11, 2017. (R. Item 15, C.R. at 127.) The recalculated maximum date includes the period from Burno's original parole date of December 21, 2001 through the original maximum date of October 24, 2007, less 302 days of backtime credit for the period from November 3, 2005, the date Burno was picked up on parole violation detention, through the date of Burno's federal sentencing, September 1, 2006. (R. Item 15, C.R. at 125.)
Burno petitioned for administrative relief from the May 15, 2012 recalculation decision, along with the January 17, 2007 and April 6, 2007 decisions of the Board. (R. Item 16, C.R. at 128-32.) In its response of July 17, 2012, the Board dismissed Burno's challenges to the 2007 decisions because they were not received within 30 days of the mailing of those decisions. (R. Item 16, C.R. at 134.) The Board also affirmed its decision to recalculate the maximum sentence to May 11, 2017 (R. Item 16, C.R. at 135.) With regard to the period Burno spent in state custody after he was sentenced on the federal charges but before he was transferred to federal custody, the Board found Burno not entitled to any credit for this period because the federal sentence was not imposed to run concurrent with the original state sentence. (Id.)
On appeal to this Court, Burno makes two arguments. First, he argues that the Board's revocation hearing was untimely because it was not held within 120 days of his return to state custody after he pleaded guilty in federal court on April 12, 2006. 37 Pa. Code § 71.4(1). Though the Board, in its July 17, 2012 administrative response, dismissed as untimely Burno's objection to the timeliness of the revocation hearing, the Board now concedes that it erroneously sent its administrative response to Burno's petition for administrative review of the January 17, 2007 decision to an incorrect address, and Burno's challenge to the timeliness of the revocation hearing should now be addressed on the merits. See Respondent's Brief at 8. Second, Burno contends that the Board failed to credit the period spent in SCI Camp Hill after his federal sentencing on September 1, 2006 against his parole violation maximum date, and instead he should have continued receiving credit until his transfer to a federal facility on April 18, 2007. We find neither of these arguments availing.
When a parolee asserts that the Board held a revocation hearing beyond the 120 days allowed by regulations, the Board bears the burden of proving by a preponderance of the evidence that the hearing was timely. Taylor v. Pennsylvania Board of Probation and Parole, 931 A.2d 114, 116 (Pa. Cmwlth. 2007) (en banc). If the Board fails to meet its burden in demonstrating the timeliness of the hearing, the appropriate remedy is dismissal of the parole violation charges with prejudice. Id.
Board regulations require that a parole revocation hearing generally must be held within 120 days of the Board's receipt of the "official verification" of a guilty or nolo contendere plea or of a guilty verdict. 37 Pa. Code § 71.4(1). Official verification is defined in the regulations 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 § 61.1. At the parole revocation hearing, Burno's parole officer testified that his office received the certified notice of the judgment against Burno from the federal court after Burno's sentencing on September 1, 2006, and it was stamped as received by the Williamsport parole office on October 3, 2006. (R. Item 11, C.R. at 59, 63.) The notice was included as an exhibit to the parole revocation hearing and included in the certified ...