*1 BARNA, Jr., Petitioner Zori V. BOARD

PENNSYLVANIA AND PROBATION

PAROLE, Respondent. Pennsylvania. Court

Commonwealth Aug. on Briefs

Submitted 27, 2010.

Decided Oct. Schaffer, Asst. Pub- Spangler

Maribeth Defender, Ebensburg, petitioner. for lic Robinson, Asst. Alan M. Counsel Counsel, Laub, Har- Acting J. Chief Linda risburg, respondent. for PELLEGRINI, Judge, and BEFORE: BUTLER, McCULLOUGH, Judge, and Judge.

371 Court, Judge appeal OPINION BY McCULLOUGH. On to this Barna first argues by that the Board erred determin Barna, Jr., petitions Zori for review V. ing he parole that was a convicted 9, 2009, of the December order of the guilty because he was found of the sum Pennsylvania Board of Probation and Pa- harassment, mary charge of deprived was (Board), role which denied his administra- trial, a jury of and was not informed of his reasons, following For the tive option to have the trial sit as an affirm. acting justice. disagree. We 18, 1997, September On or about Barna period was sentenced to a of incarceration 21.1a(a) Section of the Parole Act1 eight twenty years of to for the of crimes authorizes the Board to recommit a parol (Certified robbery and kidnapping. Rec- ee as a convicted parole violator when the (C.R.) 1-2.) granted ord at The Board crime at is punishable by issue imprison 25, 2008, parole February Barna on and he ment the and conviction in occurs a court prison May was released from on of record. Jackson v. Pennsylvania (C.R. 12-15.) later, at days Eleven on Parole, Board Probation and of 12, 2008, May reported a female to the (Pa.Cmwlth.2008). Although parol Board that Barna had attacked and threat- may ee be recommitted as a convicted (C.R. 20.) her. at day, ened The same parole violator based on a conviction for a the Board issued a warrant to commit and offense, summary Lewis v. Barna, parole supervision detain and staff Bd. Probation & 74 Pa.Cmwlth. of parole. arrested Barna for violation of his (1983), 459 A.2d 1339 a summary of (C.R. 22.) at fense by magisterial conviction 13, 2008, On Upper the Moreland judge is not a in conviction Department charged Police Barna with record within the of meaning Section 21.1 assault, threats, simple terroristic and a(a) Act, of the Parole and the Board is not (C.R. 57.) harassment. at January On authorized to recommit parolee as a con 12, 2009, Judge Carpenter William R. of victed parole violator for such a conviction. of Montgom- Court Common Pleas of v. Pennsylvania Goodwine Pro of ery County found Barna guilty of harass- (Pa. bation and ment, and him ninety days sentenced to Cmwlth.2008). Moreover, when a common incarceration in a state correctional institu- pleas judge elects to sit as a (C.R. 24.) tion. at a parolee convicts The Board parole conducted a revoca- parolee is not con hearing April tion on 2009. Based on record, victed in a court of and the Board the certified court record of the harass- parolee not recommit the aas convict conviction, ment the Board issued a deci- parole ed violator. Jackson. 10, 2009, sion on June recommitting Barna Here, as a convicted Barna does not parole dispute violator to serve six that he (C.R. months was guilty by backtime when available. at found of harassment 103.) Barna ap- Carpenter filed an administrative of Court Common Pleas (Barna’s peal, which the Board on Montgomery County, denied December brief at (C.R. 139.) 9,2009. 9), at and the record establishes that Barna 6, 1941, amended, revocation, August 1. Act subsequently repealed P.L. was section, 331.21a(a). 11(b) formerly § August 61 P.S. section of the Act of which language was the law at the time of Barna's P.L. 147. Similar is now codified at arrest, 6138(a)(1). charges, trial on new criminal 61 Pa.C.S. police between the conspiracy prison. proper ninety days sentenced was board. and the 24.) (C.R. pleas courts at The has not been ex- 821 of this matter section Because are courts *3 hearing, Petitioner 821, proper at a Code, plored and noth- 42 Pa.C.S. Judicial for a be remanded that this matter asks that Car- in the record indicates ing in matter. hearing this magisterial district sitting as a penter was Therefore, that Barna added.) we conclude judge. 10.) (Barna’s (Emphasis at brief record and was convicted before merit. is without argument recommit authorized to that the Board was evi party a fabricated A claim that violator.2 him as a to in engaged conspiracy in a dence and on person a cannot be based carcerate the Commonwealth argues Barna also allegations, or bald conjecture, speculation, trial and failed to jury him of a deprived supported by be material but rather must have opportunity to inform him Norris, Pa.Super. facts. See Oatess v. 431 acting magister- an Judge Carpenter sit as (1994) 599, (holding that a 637 A.2d 627 However, it is well set- judge. ial district or con- merely cannot make broad plaintiff collaterally attack may not tled that Barna concerning the exis elusory allegations validity of his challenge the or otherwise only that a a or show conspiracy tence of in this Com- criminal conviction was, official took some action which state ex rel. Davis v. monwealth him, to but rath way, in some unfavorable 157, Pa. and 484 particularity allege er must with sufficient (1979); Pennsylvania Board Miller v. 992 material facts that specific and show with and 78 Pa.Cmwlth. Probation of understanding or parties the reached some (1983). 26, 466 A.2d 1110 con plotted, planned or and agreement, Next, following the Barna raises together deprive plaintiff to the of spired entirety: quote in its argument, which Here, allegations of con right). Barna’s the Board’s Petitioner contends that fabrication are based and evidence spiracy and detain was erro detaining warrant to commit him on the Board’s act of on The warrant police’s filing neous and was and the act of May fabricated. May May on charges day to commit and detain was issued one later on criminal events, 12, 2008, however, file police timing the did not The of those without more, until that the charges against Petitioner is insufficient to show criminal that reached some under police 2008. Petitioner maintains Board and the plotted, or history. standing agreement, in or supervisory this is evident his evi- conspired and to fabricate planned, that there is an im- Petitioner contends Transportation, Department Bureau appeal that raised. does not contend this 2. Barna Boros, regarding summary Licensing law Pa. 620 the distinction in the Driver of A.2d 1139 (1993). convictions before principle offense The that a court pleas judges, or the dis- judges and common preserved will consider the controversies and courts courts of record tinction between allegations litigants applies to even right violates his constitutional not of Area School constitutional error. Danville argue that equal protection. Nor does he Associa- v. Danville Area Education District preceding no rational basis for the there is tion, PSEA/NEA,562 Pa. dissenting opinion raises distinctions. The Nevertheless, (2000). we note that had this however, sponte; an intermedi- this issue sua developed, the properly been raised and issue passing upon appellate is limited to ate court appeal might dif- this have been outcome of it legal questions that come before ferent. never questions review that were not liberty. Barna of his deprive equal protection dence and tion of Petitioner’s rights. Therefore, reason, we conclude that Barna’s alle- For that I respectfully dissent. speculative conjectural, are gations Petitioner was recommitted as a convict- and that there is no basis to remand this ed violator on the basis that Judge hearing. case to the Board for a William R. Carpenter of the Court Com- mon Pleas of Montgomery County had Finally, Barna contends that harassment, found Petitioner guilty of Board’s June decision failed to following a bench trial consider credit owed to him and created a him. before This case was tried before a period representing peri of “dead time” *4 pleas judge only common 22, 2008, 12, because Petition- 2009, January od from er had also been with charged simple as- when he was incarcerated and unable to sault, misdemeanor, a However, but charge this had post bail. the Board’s June been dropped prior to trial. If Petitioner order did not recalculate Barna’s only had been charged originally with eligibility sentence or determine his for harassment, he would credit, have been tried be- but rather ordered Barna recom- fore a magisterial district judge. Had Pe- mitted a parole as convicted violator when titioner been tried before a magisterial available. The Board informs us that it judge district or Judge Carpenter had subsequently calculated a new act- parole viola- capacity ed in the order, magisterial by tion maximum date district separate judge, he could not have 31, 2009, been July recommitted mailed on which is not the parole as a convicted Therefore, violator. subject of this this is- properly sue is not before us. 21.1a(a) Section of the Parole Act1 pro- Accordingly, Board’s order is af- vides that the may Board recommit pa- a firmed. rolee as a parole convicted violator if

the crime at issue punishable by is impris- ORDER onment and the conviction occurs in a court of pleas record. A common court is NOW, October, AND 27th day this while proceeding a be- 9, 2009, the December order of the magisterial fore a judge district A is not. Pennsylvania Board of Probation and Pa- judge on a pleas may common court sit as hereby role is AFFIRMED. magisterial a judge, district in which ease pleas court is not a court of DISSENTING OPINION BY record. See v. Pennsylvania Goodwine PELLEGRINI. Board Probation and it undisputed Because is that Zori V. (Pa.Cmwlth.2008); Jackson Penn- (Petitioner) Barna, Jr. was recommitted as sylvania Probation and solely for the (Pa.Cmwlth.2008). accidental and fortuitous reason that he was tried before a common pleas judge Our holding and rationale in Goodwine rather than a magisterial judge, particularly is instructive in this case. In Goodwine, Board of Probation and the issue was whether a com- (Board) Parole’s decision to him pleas may recommit mon judge choose to sit as a magisterial as a convicted violator was a viola- without the ex- 6, 1941, amended, August 11(b) repealed 1. Act of August P.L. Section of the Act of section, 331.21a(a). § 61 P.S. language which P.L. 147. Similar is now case, governs 6138(a)(1). subsequently Petitioner’s was codified at 61 Pa.C.S. judge of president of the permission press HOLTZ, pleas Appeal of Johna et al In that a common In Re: holding court.

his own to sit as Ridgway decide on his Decision of the Bor from explained: judge, ough Zoning Hearing Board power inherent judges have the Because justices for a criminal as district to sit Holtz, Appeal Johna Michael and of: matter, felony once misdemeanor (a/ Caggeso Caggeso, Barbara John S. resolved, common charges have been Caggeso) Cagge Steve and Joanne k/a jus- judges can then sit as district

pleas and Ann Devlin. so and William remaining sum- disposing tices To mary charges, omitted] Pennsylvania. [citations Court of Commonwealth con- raise serious hold otherwise would Sept. 2010. Argued questions process of due stitutional in- involving liberty equal protection Decided Nov. it mean that a terest because would *5 summary guilty found of- parolee judge would pleas

fense years parolee of street time while a

lose by a would guilty justice

found

not. equally applies

Id. at 188. rationale situations, one, present such pleas judge a common either is not

where magis- or does not as a

asked choose to sit the identical

terial because Otherwise, result one

irrational follows. offense, summary convicted of a

parolee

solely by virtue of his case heard having pleas a common be judge,

before would

recommitted as a convicted time, parolee,

and lose street while another summary of the offense

convicted same magis-

but who has his case heard before a judge,

terial district would not. such, equal protection requires

As that

in all cases in which a is convicted parolee before whether or a common judge, that cannot

pleas conviction alone as a to recommit a

serve sufficient basis as a violator. For

parolee reason, I the decision

that would reverse Board.