584 A.2d 1092 | Pa. Commw. Ct. | 1990
Kyung J. Choi (Petitioner) appeals an order of the Pennsylvania Board of Probation and Parole (Board) denying him administrative relief from a parole revocation order which recommitted Petitioner as a convicted parole violator to a state correctional institution, when available, to serve 30 months backtime. We affirm.
While on parole from several sentences for retail theft, Petitioner plead guilty to armed robbery in the Superior Court of Bergen County, New Jersey. On August 11, 1989 he was sentenced to seven years imprisonment for armed robbery, said sentence to run concurrently with other sentences he was then serving in Pennsylvania.
The Board received a sentence status change report (report) from a record officer of the Pennsylvania Department of Corrections on October 6, 1989, informing the Board of the above sentence.
The issues presented are 1) whether the report received by the Board on October 6, 1989, constituted official verification of the New Jersey conviction under the Board’s regulations; and 2) whether the Board granted Petitioner a timely hearing.
On appeal,
We note that when a parolee alleges that the Board held a revocation hearing beyond the 120 day period, the Board bears the burden of proving, by a preponderance of the evidence, that a timely revocation hearing was held. Saunders v. Pennsylvania Board of Probation and Parole, 130 Pa.Commonwealth Ct. 612, 568 A.2d 1370 (1990). In the case at bar, the Board presented evidence that the sentencing order of the New Jersey court was received by the Board on December 8, 1989. The Board alleges in its
Official verification — Actual receipt by a parolee’s supervising parole agent of a direct written communication from a court in which a parolee was convicted of a new criminal charge attesting that the parolee was so convicted.
37 Pa.Code 61.1.
According to the plain language of the regulation, the October 6, 1989 report from the Board of Corrections could not be an official verification of the conviction. It contained no written communication from the New Jersey Court.
As to the second issue, it is clear that the revocation hearing was timely because it was held 103 days from the date official verification was received. We conclude, therefore, that substantial evidence supports the Board’s finding. Accordingly, we affirm the order of the Board.
ORDER
AND NOW, December 21, 1990, the order of the Pennsylvania Board of Probation and Parole in the above-captioned matter is affirmed.
. Apparently, the Petitioner himself informed the record officer about the arrest and conviction in New Jersey. N.T. at 50-51.
. It is not clear from the record what prompted Petitioner’s request for a hearing, or why the request preceded the Board’s notice to Petitioner of a revocation hearing.
. 37 Pa.Code 71.4 states the following in pertinent part:
The following procedures shall be followed before a parolee is recommitted as a convicted violator:
(1) A revocation hearing shall be held within 120 days from the date the Board received official verification of the plea of guilty or nolo contendere or of the guilty verdict at the highest trial court level ...
. Our scope of review of a Board decision is limited to determining whether constitutional rights were violated, an error of law was committed or findings of fact are supported by substantial evidence. Carter v. Pennsylvania Board of Probation and Parole, 117 Pa.Commonwealth Ct. 635, 544 A.2d 107 (1988).