Brown v. Pa. Bd. of Prob. & Parole
184 A.3d 1021
| Pa. Commw. Ct. | 2017Background
- Brown was paroled from a Pennsylvania state sentence (max date May 12, 2013) and later arrested on state charges March 26, 2011; the Board issued a warrant to detain him as a technical parole violator.
- While in custody on related charges, Brown was indicted in federal court (May 2011), pled guilty April 1, 2013, and was sentenced November 21, 2013 to 64 months (later reduced); the Board received official verification of the federal conviction November 26, 2013.
- The Board issued a warrant for arrest and a Notice of Charges (January 27, 2014) but did not attempt to obtain Brown from federal custody; Brown remained in federal prison until his return to a State Correctional Institution (SCI) on or about October 31, 2015.
- Brown’s revocation hearing was scheduled and held February 18, 2016 (110 days after his return to SCI); the Board recommitted him as a convicted parole violator to six months concurrent with prior TPV time and recalculated his maximum date.
- Brown appealed administratively and then to this Court, arguing the revocation hearing was untimely because under 61 Pa. C.S. § 6138(a)(5.1) he was "available" at the time of his federal conviction/sentencing and the Board’s inaction forced him to serve his federal time first; the Board defended under its regulations delaying hearings while parolees are in federal custody.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Brown became "available" to the Board at the time of his federal conviction/sentencing so the 120-day revocation period began then | Brown: Under 61 Pa. C.S. § 6138(a)(5.1) he became available at conviction/sentencing and the Board should have acted then; delay was unreasonable | Board: Brown was in federal custody when convicted and the Board cannot obtain parolees from federal custody; regulations permit deferring hearing until return to SCI | Court: Brown was unavailable while in federal custody; 120-day period properly measured from his return to SCI, so hearing was timely |
| Whether Fumea (Board could have taken custody at sentencing) controls to make the Board’s inaction the cause of unavailability | Brown: Fumea shows the Board must act at conviction/sentencing where it can and failure to do so defeats § 6138(a)(5.1) | Board: Fumea is distinguishable — in Brown’s case the Board had no practical opportunity to obtain custody at sentencing because Brown was already in federal custody | Court: Distinguished Fumea; here Board had no ability to acquire Brown from federal custody, so Fumea does not apply |
| Whether Board regulations (37 Pa. Code § 71.4(1)(i), § 71.5) permitting deferral while parolee is in federal custody are superseded by § 6138(a)(5.1) | Brown: § 6138(a)(5.1) requires serving state time first and supports measuring timeliness from conviction when Board could/should act | Board: Regulations authorize lodging a detainer and deferring hearings until return to SCI; statutes do not give Board power to extract parolee from federal custody | Court: Regulations govern timeliness when parolee is confined outside DOC; absent authority for Board to obtain parolee from federal custody, § 71.4(1)(i) controls and hearing was timely |
Key Cases Cited
- Fumea v. Pennsylvania Board of Probation and Parole, 147 A.3d 610 (Pa. Cmwlth. 2016) (Board may be required to act at sentencing if parolee is available; Board inaction can render § 6138(a)(5.1) ineffective)
- Ramos v. Pennsylvania Board of Probation and Parole, 954 A.2d 107 (Pa. Cmwlth. 2008) (Board bears burden to prove revocation hearing timeliness by preponderance)
- Jacobs v. Pennsylvania Board of Probation and Parole, 24 A.3d 1074 (Pa. Cmwlth. 2011) (unreasonable delay not attributable to parolee does not toll the 120-day period)