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Jackson v. Pennsylvania Board of probation and Parole

Commonwealth Court of Pennsylvania

August 23, 2017

Abdu Jackson, Petitioner
v.
Pennsylvania Board of Probation and Parole, Respondent

          Submitted: March 24, 2017

          BEFORE: HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE JOSEPH M. COSGROVE, Judge

          OPINION

          ANNE E. COVEY, JUDGE.

         Abdu Jackson (Jackson) petitions this Court for review of the Pennsylvania Board of Probation and Parole's (Board) August 11, 2016 order denying his request for administrative relief. There are three issues before this Court: (1) whether the Board properly required Jackson to be evaluated for participation in a sexual offenders' treatment program and determined that he had violated his parole for his failure to do so; (2) whether Jackson failed to exhaust his administrative remedies; and, (3) whether the Board coerced Jackson to agree to adhere to a sexual offender evaluation and treatment condition in order to be released on parole. After review, we affirm.

         Jackson was sentenced to a 12 to 30-year sentence for burglary and aggravated assault. On January 28, 2010, the Board denied Jackson parole based, in part, on Jackson's "need to participate in and complete additional institutional programs." Notice of Board Decision (Notice), January 28, 2010, Certified Record (C.R.) at 4. The Board further stated: "At your next interview, the Board will review your file and consider: [w]hether you have successfully participated in/successfully completed a treatment program for sex offenders and violence prevention." Id.

         On September 22, 2010, the Board again denied Jackson parole. In its Notice of Board Decision, the Board explained that it did so due to, among other things, Jackson's institutional behavior, his level of risk to the community, his minimization of the nature and circumstances of his offenses, his lack of remorse, his failure to accept "responsibility for [his] extensive antisocial behavior[, ]" and his apparent lack of "benefit from program participation." Notice, September 22, 2010, C.R. at 6. The Board also related that "[a]t your next interview, the Board will review your file and consider: . . . [the a]ffidavit of probable cause on [your] corruption of minors/indecent assault conviction of June 1995 . . . ." C.R. at 7 (emphasis added).

         On November 2, 2011, the Board granted Jackson parole to a Community Corrections Residency, subject to the special condition that he participate in out-patient drug, alcohol and sex offender treatment until the treatment facility or parole supervision staff determine it is no longer necessary.

         On March 14, 2014, [1] Jackson signed conditions governing parole. Jackson was again informed that "out-patient drug/alcohol/sex offender treatment is a special condition of [his] parole supervision until the treatment source and/or parole supervision staff determine it is no longer necessary." C.R. at 13. Jackson also signed a condition challenge provision which stated:

If you believe the above Special Conditions are inappropriate, you may submit a timely complaint in writing, first to the supervisor of the district office under which you are being supervised. If your complaint is not resolved to your satisfaction, you may then submit your complaint in writing to the Director of Supervision.

C.R. at 12 (Condition Challenge Provision). On March 17, 2014, Jackson was released on parole. Jackson attended sex offender treatment but was unsuccessfully discharged from the program on February 23, 2015, for failing to complete an intake evaluation and attend scheduled appointments.

         On February 26, 2015, the Board issued a warrant to commit and detain Jackson. On the same date, Jackson waived a violation hearing and admitted to a technical parole violation for an "[u]nsuccessful discharge [on February 23, 2015] from sex offender treatment[.]" C.R. at 17. The Board's hearing report includes factual findings that "[p]lacement in [state correctional institution (]SCI[)] . . . [is] appropriate due to: [a v]iolation [] sexual in nature . . .; [t]he parolee [] demonstrating unmanageable behavior, which makes him . . . not amendable [sic] to diversion; [n]ot complying with [sexual offender] treatment in last year by missing meetings[; and being] deceptive on polygraphs and den[ying his] offense." C.R. at 23. On March 25, 2015, the Board recommitted Jackson for 6 months as a technical parole violator and directed Jackson be reparoled automatically on August 26, 2015. On April 14, 2015, the Board issued a decision rescinding the March 25, 2015 Board action "due to [the] withdrawal of waiver, " and again recommitted Jackson as a technical parole violator for 6 months for "failure to successfully complete sex offender treatment." C.R. at 46.

         On April 15, 2015, Jackson filed an administrative appeal from the Board's recommitment order. In his appeal, Jackson denied that he had missed appointments, represented that he had requested to change the time of treatment due to his work schedule, and alleged that his parole officer agreed to seek funding for his sexual offender treatment, but failed to do so. Jackson further asserted that he was not a threat to the community since the special condition mandating the sexual offender treatment "now imposed on [Jackson] stem[s] from a 1995 charge[] that was served[] in which [Jackson] underwent evaluations, prior to maxing out that sentence." C.R. at 85. In his appeal, Jackson did not challenge the Board's authority to impose the special condition. On July 7, 2015, the Board reaffirmed Jackson's April 14, 2015 recommitment.

         On August 25, 2015, Jackson signed conditions governing parole and special conditions for sex offenders which, in part, mandated that he obtain a sex offender evaluation from an approved sex offender treatment provider and complete all recommended treatment (Sexual Offender Condition). Jackson was also instructed that he must report to the York Community Corrections Center (York CCC) and "enter into and actively participate in the Community Corrections Program until successfully discharged by the parole supervision staff." C.R. at 51. Jackson again acknowledged the Condition Challenge Provision. Jackson was released on parole on August 26, 2015.

         On October 13, 2015, the Board declared Jackson delinquent as of October 9, 2015 and, on January 28, 2016, [2] issued a warrant for his arrest for, inter alia, absconding from the York CCC and failing to complete sex offender treatment. On February 12, 2016, Jackson waived a hearing and admitted the violations. On March 14, 2016, the Board recommitted Jackson for 9 months based on multiple technical parole violations, including changing residences without permission, failing to successfully complete sex offender treatment, and failing to complete the York CCC program.

         On March 25, 2016, Jackson filed an administrative appeal, wherein he argued, inter alia, that he absconded to return to school to better himself, and that he attended the sexual offenders group but was financially unable to continue. Jackson further explained that he did not receive the assistance his parole officer offered, and he disputed that he was ever directed to be enrolled in a domestic violence treatment program. Notably, Jackson did not raise the issue of the Board's authority to impose the Sexual Offender Condition, or its validity.

         On August 11, 2016, the Board denied Jackson's appeal, stating:

1. You [were] released on parole on March 14, 2014.
2. You were recommitted to a [SCI]/contracted county jail on March 25, 2015.
3. You were released on parole on August 26, 2015.
4. You were declared delinquent on October 13, 2015, after you absconded ...

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