Fumea v. Pennsylvania Board of Probation & Parole
147 A.3d 610
| Pa. Commw. Ct. | 2016Background
- Fumea was paroled from a 1995 state sentence (max date Dec. 13, 2009) and later indicted on federal wire‑fraud/conspiracy charges; he posted bond after his 2008 arrest.
- On Nov. 21, 2011, a federal jury convicted Fumea and the federal court sentenced him the same day to 41 months; the Board issued a warrant to commit and detain on the sentencing date and a Board representative attended the sentencing.
- Despite the warrant and the Board agent’s presence, Fumea went into federal custody and served his federal sentence; the Board did not take him into state custody until Dec. 24, 2014 when he was released from federal prison.
- The Board held a parole revocation hearing 62 days after his return (Feb. 24, 2015) and recommitted him as a convicted parole violator for 12 months backtime, recalculating his max date to Mar. 17, 2023.
- Fumea argued the Board violated 61 Pa. C.S. § 6138(a)(5.1) (requiring a parolee to serve remaining state time before a new federal term) and that the revocation hearing was untimely because the Board had notice and an opportunity to assert custody at sentencing.
- The Commonwealth Court concluded the Board had notice (agent present; warrant issued), offered no adequate explanation for not taking custody, and therefore failed to timely hold the revocation hearing; the Board’s decision was reversed and the parole violation charges were ordered dismissed with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the revocation hearing was timely under 37 Pa. Code § 71.4(1)(i) | Fumea: 120‑day period should have begun at conviction/sentencing because Board had notice and an agent present; Board should have asserted custody so state backtime would precede federal term per § 6138(a)(5.1). | Board: Hearing was timely because Fumea was confined outside DOC (federal custody) and the 120‑day period properly ran from his return to a state facility on Dec. 24, 2014. | Court held hearing untimely: Board had notice and no adequate explanation for failing to take custody; charges dismissed. |
| Whether § 6138(a)(5.1) required the Board to assert custody at sentencing | Fumea: Section 6138(a)(5.1) mandates serving state backtime before federal term and became effective before his conviction, so Board had duty to enforce order of service when it had opportunity. | Board: Implicitly contended it could not act while BOP had custody; its action of waiting for return was appropriate. | Court held § 6138(a)(5.1) applied and, given Board’s notice/agent presence, its inaction frustrated statute’s purpose; Board should have acted. |
| Whether "official verification" requirement excuses delay when Board had actual notice | Fumea: Actual notice (agent at sentencing; warrant issued) sufficed to start timing; Board cannot hide behind formality of written verification to justify unreasonable delay. | Board: Regulations require receipt of written "official verification" before 120‑day clock starts; it acted when it obtained such verification and on return to custody. | Court held that in these unique facts actual notice + agent presence made delay unreasonable; the Board failed burden to show timeliness. |
| Remedy for untimely revocation hearing | Fumea: Dismissal of parole violation charges with prejudice. | Board: Maintained hearing and recommitment proper. | Court held remedy is dismissal of parole violation charges; Board decision reversed and case remanded for dismissal. |
Key Cases Cited
- Baasit v. Pennsylvania Bd. of Prob. and Parole, 90 A.3d 74 (Pa. Cmwlth.) (interpreting § 6138(a)(5.1) and order of service for state vs. federal sentences)
- Jacobs v. Pennsylvania Bd. of Prob. and Parole, 24 A.3d 1074 (Pa. Cmwlth.) (Board must explain delays between notice and official verification; actual notice can trigger duty)
- Burgess v. Lindsey, 395 F. Supp. 404 (E.D. Pa. 1975) (Board must hold revocation hearing within a reasonable time after conviction; waiting until sentencing is unreasonable)
- McDonald v. Pennsylvania Bd. of Prob. and Parole, 673 A.2d 27 (Pa. Cmwlth.) (if Board cannot prove timeliness, remedy is dismissal of charges)