Lead Opinion
OPINION BY
Rufus Lawson (Lawson) petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) that denied Lawson’s administrative appeal from the Board’s decision recommitting him as a convicted parole violator. Lawson argues that the parole violation charge against him should have been dismissed because the Board’s parole revocation hearing, conducted 61 days after it received official verification of Lawson’s conviction, was not timely. Lawson contends that the hearing was not timely because the Board failed to exercise due diligence to obtain official verification of his conviction in a prompt manner. Because there is no due diligence requirement in the applicable regulation, we will affirm the Board’s order.
On October 4, 2006, while on parole, Lawson was arrested and charged with several violations of the Pennsylvania Uniform Firearms Act of 1995, 18 Pa.C.S. §§ 6101-6187. The Board issued a detain-er against Lawson and on November 8, 2006, after Lawson waived his rights to a detention hearing and a hearing before a Board panel, the Board ordered Lawson detained pending the disposition of the new criminal charges. Lawson pled guilty to the new offenses on February 15, 2007, and was sentenced to a term of imprisonment of 80 to 60 months on April 18, 2007.
The Board conducted a parole revocation hearing on January 28, 2008, at which Lawson objected to the timeliness of the hearing. In support, Lawson testified that he pled guilty to the new charges on February 15, 2007, and that the Department of Corrections filed a new sentence status sheet with the Board on May 3, 2007. Notes of Testimony, January 28, 2008, at 5, 8 (N.T._); Certified Record at 36, 39 (C.R_). Parole Agent Adrian Rubio testified on behalf of the Board that he received official verification of Lawson’s new convictions on November 29, 2007. Agent Rubio also testified that he had requested verification of the convictions in June 2007; he attributed the delay between June and November to “[s]ome problem with the courts.” N.T. 6; C.R. 37.
Based upon Agent Rubio’s testimony, the hearing examiner denied Lawson’s objection, holding that the revocation hearing was timely because the hearing occurred within 120 days of November 29, 2007, the date on which the Board received official verification of Lawson’s convictions. On April 2, 2008, the Board issued a decision recommitting Lawson as a convicted parole violator to serve 18 months backtime, when available. Lawson filed a petition for administrative review, again asserting that the January 28, 2008, revocation hearing was untimely. On August 20, 2008, a three-member panel of the Board rejected Lawson’s challenge, denied Lawson’s petition and affirmed the revocation panel’s decision. Lawson now petitions this court for review.
Before this Court, Lawson argues that the Board erred in determining that his January 28, 2008, revocation hearing was timely. Lawson contends that when a
When a parolee alleges that the Board failed to hold a timely revocation hearing, the Board bears the burden of proving that the hearing was timely. Taylor v. Pennsylvania Board of Probation and Parole,
[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....
37 Pa.Code § 71.4(1). For purposes of the regulation, “official verification” is
[a]dual 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.
Applying the regulation to the facts in this case, there is no doubt that Lawson’s parole revocation hearing was timely. According to Agent Rubio’s credited testimony, he received official verification of Lawson’s new convictions on November 29, 2007. The Board conducted Lawson’s revocation hearing 61 days later, on January 28, 2008, well within the 120-day time period mandated by 37 Pa.Code § 71.4(1).
Lawson acknowledges the Board’s well-settled burden under 37 Pa.Code § 71.4(1). He maintains, however, that when “a significant period of time” has elapsed between a parolee’s new conviction and the parole agent’s receipt of official verification, the Board must also establish that it exercised due diligence in obtaining official verification of the conviction. Lawson argues that the nine months that elapsed between his new convictions and Agent Rubio’s receipt of official verification of those convictions was just such a “significant period of time,” and that Agent Rubio failed to establish that he exercised “due diligence.” Lawson relies primarily upon two decisions of this Court as authority for the “due diligence” requirement: Ramos v. Pennsylvania Board of Probation and Parole,
In Fitzhugh, the parolee pleaded guilty to new criminal charges in July 1991, but his revocation hearing was not held until February 1992. The parolee argued that the Board had employees in the court system whose sole function was to retrieve conviction records, which were normally available within a few days after sentencing. The parolee also argued that the Board had instructed agents not to obtain the court records until it was convenient
Turning to Ramos, it is true, as Lawson points out, that this Court cited Fitzhugh for the proposition that “if there is a delay between the time the Board has notice of the conviction and the time when the Board receives official verification of the conviction, the Board has the burden of proving that the delay was not unreasonable and unjustifiable.” Ramos,
In summary, the timeliness of a parole revocation hearing is governed by statute and regulation, not the “common law.” Neither statute nor regulation places a burden on the Board to demonstrate that it exercised due diligence in obtaining official verification of a parolee’s new conviction.
In Vanderpool v. Pennsylvania Board of Probation and Parole,
Moreover, considering the logistical problems the Board would face in discovering when a parolee was convicted, it is also reasonable for a parole agent to wait for official verification even if the agent is aware that charges are, or may be, pending. And finally, we hold as a matter of law, that if the parole revocation hearing is held within 120 days after the receipt of the certified charges, that also is reasonable for the purposes of due process.
Vanderpool,
Our analysis was the same in Taylor v. Pennsylvania Board of Probation and Parole,
Under Vanderpool and Taylor, it was the Board’s receipt of official verification that decided the timeliness issue. This Court distinguished Fitzhugh in both cases as inapplicable. This was appropriate because Fitzhugh is limited to its facts. The regulation at 37 Pa.Code § 71.4(1) sets a clear timeline for a revocation hearing, and in doing so it strikes a balance between a parolee’s right to due process and the Board’s ability to obtain information, as this Court explained in Lee and its progeny. For a long time, this Court treated Fitzhugh as sui generis and followed Lee’s bright line test as the way to resolve a timeliness challenge to a revocation hearing. Today we reaffirm the wisdom of Lee.
ORDER
AND NOW, this 18th day of June, 2009, the order of the Pennsylvania Board of Probation and Parole in the above-captioned matter, dated August 20, 2008, is hereby AFFIRMED.
Notes
. This case was reassigned to the authoring Judge on March 31, 2009.
. Our scope of review is limited to determining whether constitutional rights have been violated, whether an error of law has been committed or whether the necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.
. Assuming the existence of such a common law burden, Lawson does not offer any standards for determining what constitutes a "significant period of time” between a new conviction and the Board’s official verification of that conviction. Likewise, he offers no standards for measuring a parole agent's "due diligence” in trying to obtain the official verification.
. Nor was this principle established in Williams v. Pennsylvania Board of Probation and Parole,
. Lawson argues that Agent Rubio failed to exercise "due diligence” without providing an explanation of what more Agent Rubio should have done. Agent Rubio offered a reason for the "delay,” namely, there was a problem with the courts, the details of which he did not know. This suffices. Parole agents have a lot to do, and they do not have the time to chase down documents from court files, let alone investigate the specific reasons for a court’s failure to respond to their request for court documents.
Dissenting Opinion
DISSENTING OPINION BY
The majority concludes that, even where there is a significant delay between the time the Pennsylvania Board of Probation and Parole (Board) has notice of a parolee’s conviction and the time when the Board receives official verification of the conviction, the Board is not required to establish that the delay was reasonable and justifiable in order to prove that its revocation hearing was timely. Rather, according to the majority, so long as the Board shows that the revocation hearing was held within 120 days of the Board’s receipt of official verification of the parolee’s new conviction, the Board satisfies its burden of proving that the hearing was timely. I disagree and, therefore, respectively dissent.
As the majority correctly states, where, as here, a parolee challenges the timeliness of a revocation hearing, the Board bears the burden of proving by a preponderance of the evidence that the hearing was timely. Ramos v. Pennsylvania Board of Probation and Parole,
Nevertheless, Lawson relies on Ramos and Fitzhugh v. Pennsylvania Board of Probation and Parole,
The majority states:
In summary, the timeliness of a parole revocation hearing is governed by statute and regulation, not the “common law.” Neither statute nor regulation places a burden on the Board to demonstrate that it exercised due diligence in obtaining official verification of a parolee’s new conviction. The Board’s duties are set by the Parole Act and its implementing, duly promulgated regulation at 37 Pa.Code § 71.4(1).
(Majority op. at 88.) However, the “due diligence” rule prevents the Board from violating the due process rights of prisoners. Williams v. Pennsylvania Board of Probation and Parole,
Moreover, to the extent that the majority dismisses Ramos and Fitzhugh as irrelevant and characterizes the requirement that the Board explain the reason for such a delay as mere dicta, I believe the majority errs.
The majority concludes that the unreasonable and unjustifiable delay language in Ramos “does not relate to the central issue in Ramos, which was one of evidence, i.e., whether the Board could take official notice of statements in the parole agent’s report that she attempted to obtain verification on three occasions and otherwise acted appropriately.” (Majority op. at 88.) I strongly disagree. The very question in Ramos, as here, was “whether the Board offered sufficient evidence that the delay in receiving the official verification evidence was reasonable and justifiable.” Ram,os,
With regard to Fitzhugh, the majority states, “Fitzhugh did not establish the broad principle that the Board has an obligation to retrieve conviction records.” (Majority op. at 88.) Contrary to the majority’s position, the court in Fitzhugh rejected the notion that a parolee must be forced to wait for an unreasonable period of time until the Board chooses to act upon its knowledge that a conviction has occurred. In so concluding, the court recognized that, where there is the possibility of an unjustifiable and unreasonable delay, the Board must offer evidence justifying the extended delay in obtaining official notification of a known conviction. Accordingly, it is clear under Fitzhugh that, if there is an allegedly unreasonable delay between the time the Board has knowledge of a parolee’s conviction and the time the Board acts upon that knowledge to obtain the official verification, the Board must offer evidence to justify that delay.
Because I conclude that Ramos and Fitzhugh are applicable here, I do not believe that the Board satisfied its burden to prove a timely hearing merely because that hearing was held within 120 days of receipt of official verification of a new conviction. Rather, the Board also had the obligation to present evidence establishing that the five-month delay between the date on which the Board learned of Lawson’s new conviction and the date on which the Board received official verification of that new conviction was not unreasonable or unjustifiable. I agree with Lawson that Vanderpool v. Pennsylvania Board of Probation and Parole,
In Vanderpool, the parolee relied on Fitzhugh to argue that there was an unreasonable and unjustifiable delay; however, we rejected that argument because the Board established the reason for delay through the parole agent’s specific testimony that she had difficulty in obtaining official verification due to the confusion caused by the parolee’s use of numerous aliases. Similarly, in Taylor, the parolee relied on Fitzhugh to argue that there was no valid reason for the delay between the parole agent’s request for proof of the parolee’s convictions and the receipt of official verification; however, we rejected that argument, finding Fitzhugh distinguishable because the parole agent explained that the delay was the result of the unavailability of court files due to a court backlog and that she took affirmative steps to obtain the official verification.
Unlike the specific testimony offered by the parole agents in Vanderpool and Taylor, Agent Rubio did not describe his efforts to obtain the official verification or explain the delay in obtaining that verification. Instead, Agent Rubio stated, “Yeah, we tried to — well we requested original back in June — around June of '07. We weren’t able to get it. Some problem with the courts. I don’t know.” (C.R. at 36-38) (emphasis added). Because Agent Ru-bio testified that he did not know why there was a five-month delay between his request for official verification and the receipt of that verification, his testimony cannot provide substantial evidence that the delay was reasonable and justifiable. Thus, I do not believe that the Board met its burden of proving that Lawson’s revocation hearing was timely, and, accordingly, I would reverse the Board’s revocation.
. The majority asserts that Lawson's reliance on Vanderpool and Taylor to support his position is misplaced. I disagree.
According to the majority, the real import of Vanderpool was this court's reiteration of the analysis in Lee v. Pennsylvania Board of Probation and Parole,
Similarly, the majority concludes that, in Taylor, the court again relied on Lee to affirm the Board’s denial of administrative relief “for the simple reason that Taylor's hearing was held within 120 days of the official verification of Taylor’s conviction.” (Majority op. at 89, quoting Taylor,
Moreover, I believe that Lee is distinguishable from the case presently before the court because, there, the parolee claimed that his revocation was untimely because his parole agent "was on notice of the pending charges " against the parolee. Lee,