79 Pa. Commw. 134 | Pa. Commw. Ct. | 1983
Opinion by
Petitioner Curtis Lee Woods has requested this Court to overturn the idecision of the Pennsylvania Board of Probation and Parole (Board) recommitting him to prison as a technical and convicted parole violator.-
The record in this case consists cheifly of a document entitled “Certificate of the Chairman of the Pennsylvania Board of Probation and Parole.”
On June 6, 1977, petitioner was released on parole from a seven to twenty year sentence imposed on a second degree murder conviction. On February 24, 1979, while still on parole, Woods was arrested in Philadelphia and charged with various related weapons offenses. He was released on bail, but on June 1,1979, was arrested in Dauphin County on charges of theft and theft by receiving stolen property. On that same date, criminal charges were filed against him in Lancaster County. Also on June 1,1979, the Board filed a parole violation warrant against him, citing the new criminal charges and the violation of certain conditions of his parole.
On September 18,1979, Woods was found guilty of forgery, theft, and receiving stolen property by the Lancaster County Court of Common Pleas, and was sentenced to a term of eight to twenty-three months, to be served at the Lancaster County prison. He was found guilty of theft by receiving stolen property by the Dauphin County court on October 16, 1979, and on January 7, 1980, was sentenced on those charges to serve a term of one to seven years in a state correctional institution. The record, such as it is, does not reveal the disposition of the charges brought against petitioner in Philadelphia.
Petitioner was granted parole on the Lancaster County sentence on March 6, 1980, and was transferred to the State Correctional Institution at Graterford on March 20,1980. He was afforded both a hearing on the violation of the conditions of his parole and a revocation hearing on the new convictions before the Full Board on May 21, 1980; on June 11, 1980, the Board rendered its decision recommitting him to prison for thirty-six months as a technical and convicted parole violator. Thereafter, pursuant to 37 Pa. Code §71.5
The Board’s regulations provide that, where a parolee has been convicted of a new criminal offense, a parole revocation hearing must be held within 120 days of the date the Board receives official verification of that conviction. 37 Pa. Code §71.4(2). However, if the parolee is confined outside the jurisdiction of the Pennsylvania Bureau of Correction, such as in a county correctional institution, and the parolee does not waive his right to a Full Board revocation hearing,
Following his September 18, 1979, conviction for forgery, theft, and receiving stolen property, petitioner was confined at the Lancaster County Prison until March 20, 1980, when he was transferred to the State Correctional Institution at Crater-ford. Woods did not waive his right to a Full Board revocation hearing while incarcerated at the county facility, and therefore, pursuant to 37 Pa. Code 71.4(2) (i), the Board was required to -afford him such a hearing within 120 days of March 20, 1980. Petitioner’s hearing was held on May 21, 1980, well within the prescribed -time limitation.
Woods does not dispute that he received a timely Full Board revocation hearing, but advances an -equal
It is true that county-confined parolees who do not give up their right to a Full Board revocation hearing must often wait longer: this is -so because the 120-day period does not commence during county confinement, but begins later, when such parolees are received at a state correctional institution. However, the Board has no responsibility to or for a parole violator until it has jurisdiction over him, see Brown v. Pennsylvania Board of Probation and Parole, 70 Pa. Commonwealth Ct. 597, 453 A.2d 1068 (1982), and iSection 71.4(2) (i) merely provides two different mechanisms by which the Board may obtain the jurisdiction necessary for its hearings and determinations to have validity. As such, it is not violative of the right to equal protection.
The petitioner next asserts that the hearing -on the violation of the conditions of his parole was not timely held, and that, therefore, the charges of technical parole violations brought against him must be dismissed with prejudice. Where a parolee is charged with violating the conditions -of his parole, the Board is required to hold a preliminary hearing within 15 days of either the arrest of the parolee on a Board warrant, or the lodging of the warrant as a detainer at the facility where the parolee is confined. 37 Pa. Code §71.2(3).
As we have noted above, the parties agree that Woods was afforded a violation hearing on May 21, 1980. We are unable to determine whether this hearing was timely held, however, because of the following factual disputes, which we cannot resolve due to the inadequacy of the record. First, the petitioner states in his brief that his preliminary hearing was held on June 25, 1979. In the Certificate of the Chairman, however, it is noted that Woods appeared before a hearing examiner for his preliminary hearing on June 12, 1979.
We are confronted by an additional factual dispute which cannot be resolved on the basis of this record. The petitioner asserts that he was denied his right to representation by counsel at his violation and revoea
We have been asked to review an order of a government unit, and Pa. R.A.P. 1951(a) provides that the record to be ¡certified to the Court for such review shall consist of:
(1) The order or other determination of the government unit sought to be reviewed.
• (2) The findings or report on which .such order or other determination is based.
(3) The pleadings, evidence and proceedings before the government unit.
We have before us, however, only the Board’s re-commitment order, its decision denying petitioner’s request for administrative relief, Woods’ petition for review, and the Certificate of the Chairman. In the absence of transcripts or documentary evidence, we are unable to determine the date on which petitioner’s preliminary hearing was held, and whether he requested continuances of his violation hearing when he allegedly appeared before the Board for the .same on August 23, 1979, and on January 29, 1980. Likewise, without documentary evidence of record or a verbatim transcript, we have no way of knowing whether Woods signed a waiver of his right to counsel, or whether he was denied that right at his May 21,1980 violation and revocation hearings. Accordingly, we are constrained to remand this case to the Board with directions to transmit the complete record, including the above-stated transcripts and documentary evidence.
And Now, the 16th day of December, 1983, this case is hereby remanded to the Pennsylvania Board of Probation and Parole with directions to transmit a complete record in accordance with this opinion. Jurisdiction retained.
The other documents contained in the record are the Board’s recommitment -order, the petitioner’s application for administrative review.of that order, and the Board’s response to the application.
See Commonwealth ex rel. Rambeau v. Randle, 455 Pa. 8, 314 A.2d 842 (1973).
The Certificate of the Chairman also states that Woods waived •his right to a preliminary hearing at that time. If this is what actually occurred, the Board would still be required to conduct a violation hearing within 120 days of the date petitioner appeared for .the preliminary hearing and executed the waiver.
