70 Pa. Commw. 597 | Pa. Commw. Ct. | 1982
Opinion by
On November 20, 1980, Mr. Elijah Brown’s parole was revoked by the Board of Probation and Parole (Board) because of new convictions and the violation of certain conditions of his parole. In his amended petition for review in our appellate jurisdiction, Mr. Brown contends that the Board’s order should be set aside because 1) he was not represented by counsel at the revocation or violation hearings notwithstanding the fact that he requested counsel and 2) both his violation and revocation hearings were untimely held.
A parolee’s right to counsel at parole violation and revocation hearings is now settled. Rambeau v. Rundle, 455 Pa. 8, 17, 314 A.2d 842, 847 (1973); Commonwealth v. Tinson, 433 Pa. 328, 334, 249 A.2d 549, 552 (1969).
Initially, we are confronted by a factual dispute which we cannot resolve because we have an inadequate record. It appears that Mr. Brown was given a revocation hearing and a preliminary violation hearing on July 24, 1980. Item 9 of the Chairman’s certificate .states that Mr. Brown was represented by counsel at that hearing. Mr. Brown’s brief states that he was not. In the absence of a transcription of what actually occurred at that hearing, we cannot provide meaningful review. Only a remand for a rehearing will .supply the deficiency.
Concerning the violation hearing on October 23, 1980, we are well satisfied that the Board’s action in
With respect to the entire issue of lack of counsel, the Board notes that in his request for an administrative hearing, Mr. Brown did not mention the absence of counsel as a reason in support of that request. It is true that the absence of counsel is not mentioned in that request. The Board argues, therefore, that this issue has been waived.
Mr. Brown’s second issue concerns the timeliness of his hearings. The Board has adopted regulations pertinent to the proceedings now before us. 37 Pa. Code §71.2 sets forth the procedures applicable where a violation of parole conditions is alleged; 37 Pa. Code §71.3 sets forth the procedures where there has been an arrest for a new criminal offense; and 37 Pa. Code §71.4 sets forth the procedures where there has been a conviction for a new criminal offense. In dealing with the issue raised by Mr. Brown we are not severely handicapped by the lack of an adequate record because the .statement of facts in Mr. Brown’s brief is substantially the same as the events chronicled in the Chairman’s certificate.
Very briefly, it appears that Mr. Brown was paroled on March 27, 1976 from his original sentences. He was arrested on new charges in Delaware County and in Philadelphia in 1978 but posted bail in each case. In June of 1978 he was arrested on new charges in South Carolina but again was released on bond. In August of 1978 he was arrested in South (Carolina on the Board’s warrant. He pled guilty to the South Carolina charges in November of 1978 and was returned to the Delaware County Prison on March 24, 1979. He pled guilty on the Delaware County charges and was returned to South Carolina on June 25, 1979 to complete 'his sentence there. He was not returned to a state correctional institution in Pennsylvania
Concerning revocation hearings where there has been a conviction for a new offense, the appropriate regulation is 37 Pa. Code §71.4(2) which provides that such hearing .shall be held within 120 days from the date the Board verifies the conviction unless the parolee is confined outside the jurisdiction of the Bureau of Corrections in which event, the 120 day period commences when the parolee has been returned to a state correctional facility. It readily appears in the instant case that the Board did conduct a timely revocation hearing on the Delaware County and South Carolina convictions when the time Mr. Brown was in South Carolina is excluded.
Mr. Brown’s equal protection argument also references the Board’s regulations. 37 Pa. Code §71.4(2) (i) excludes the time a parolee is confined in an out of state institution or a county correctional institution in determining when the 120 day limitation shall commence. It is argued that this procedure differs from that afforded parolees who are not so confined. Of course it does, and it should. A parole violator’s loss of liberty does not occur until the parolee is taken into custody under a parole violator’s warrant. Moody v. Daggett, 429 U.S. 78 (1976). Where a parolee is confined pursuant to -the warrant of another jurisdiction, county or out of state, then the parolee’s liberty has not been revoked by action of the Board. Where a parole violator is arrested on a Board’s warrant but the violator is beyond the jurisdiction of the Board, as in the instant case, the Board cannot be penalized for failure to exercise its jurisdiction. The Board has no responsibility to or for the violator until it has jurisdiction over him in a state correctional facility. Harris v. Pennsylvania Board of Probation and Parole, 38 Pa. Commonwealth Ct. 391, 393 A.2d 510 (1978). This does not constitute unequal protection of the laws; rather, the procedures recognize the jurisdictional prerogatives of all those governmental units who may be interested in the parole violator without prejudicing the rights of the violator. The violator has no constitutional right to compel different units of government to act upon his transgressions when they lack jurisdiction to do so.
Order
It is ordered that the order of the Board of Probation and Parole revoking the parole of Elijah Brown be vacated and remanded for a re-hearing provided, nevertheless, that insofar as the Board’s order upholds the timeliness of its hearings on July 24, 1980 and October 23,1980, the same is affirmed.
Canonshurg General Hospital v. Department of Health, 492 Pa. 68, 422 A.2d 141 (1980), cited by the Board, is inadequate to support that argument.
The calculations are as follows:
Conviction in South. Carolina November 16, 1978 but not returned to Pennsylvania until March 24, 1979. Returned to South Carolina June 25, 1979. Returned to State Correctional Institution in Pennsylvania July 9, 1980. Hearing July 24,1980.
March 24, 1979 to June 25, 1979 = 93 days
July 9, 1980 to July 24, 1980 = 15 days
108 days
Conviction in Delaware County April 23, 1979. Returned to South Carolina June 25, 1979. Returned to State Correctional Institution in Pennsylvania July 9, 1980. Hearing July 24,1980.
April 23, 1979 to June 25, 1979 = 63 days
July 9, 1980 to July 24, 1980 = 15 days
78 days