“The Board’s regulation is clear. So long 5 as a parolee is in federal custody, the Board’s duty to hold a revocation hearing is deferred until the parolee is returned to state custody, regardless of when the Board received official verification of his new conviction.”
How later courts described this case
- “The Board’s regulation is clear. So long 5 as a parolee is in federal custody, the Board’s duty to hold a revocation hearing is deferred until the parolee is returned to state custody, regardless of when the Board received official verification of his new conviction.”
- “[d]etermining whether a revocation hearing was timely is a straightforward inquiry that is governed by Board regulation”
- reversing the decision of the Board and dismissing the parole violation charges with prejudice because the revocation hearing was untimely
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael Daniels, :
Petitioner :
: No. 520 C.D. 2023
v. :
: Submitted: July 5, 2024
Pennsylvania Parole Board, :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION BY
JUDGE DUMAS FILED: October 4, 2024
Michael Daniels (Petitioner), pro se, has petitioned this Court to review
a decision of the Pennsylvania Parole Board (Board), mailed April 21, 2023, denying
his request for administrative relief. Petitioner challenges the timeliness of his
parole revocation hearing. Upon review, we reverse and dismiss Petitioner’s parole
violation charges with prejudice.
I. BACKGROUND1
Petitioner was serving a two and one-half to five-year sentence with a
maximum sentence date of December 18, 2019. He was paroled on June 18, 2017,
with 913 days of his original sentence remaining. On September 11, 2018, he was
arrested for new criminal charges related to sexual contact with a minor and confined
in Philadelphia County. On the same day that bail was set, the Board’s detainer was
1
Unless otherwise stated, we base the recitation of the facts on the Board’s response, mailed
April 21, 2023, to Petitioner’s correspondence that was considered an administrative appeal. See
Bd.’s Response, 4/21/23.
lodged against Petitioner. Petitioner remained confined pending the new charges
past his original maximum sentence date. At the expiration of Petitioner’s maximum
sentence date, the Board lifted the detainer and found Petitioner delinquent for
control purposes. Eventually, on February 21, 2020, after the Board’s detainer was
lifted, Petitioner posted bail and was released from custody.
On March 17, 2022, Petitioner was convicted of some of the offenses
charged. The Board received official verification of Petitioner’s conviction on April
1, 2022. Criminal Arrest and Disposition Report, 10/7/22, at 2. On June 29, 2022,
Petitioner was sentenced to a term of county incarceration and paroled that same
day. Petitioner was contacted by his parole agent on July 12, 2022, and informed
that he had to turn himself in. Supervision History, 10/7/22, at 2. However,
Petitioner did not surrender to the Board until August 9, 2022. Id.2 At that time, the
Board re-lodged its detainer and took custody of Petitioner.
The Board held a revocation hearing on November 10, 2022, and
recommitted Petitioner as a convicted parole violator (CPV). The Board
recalculated his maximum sentence date from December 18, 2019, to February 7,
2025.
Petitioner filed an administrative appeal, challenging the timeliness of
the Board’s revocation hearing. An administrative appeal panel affirmed the
Board’s decision, concluding that the hearing was timely held, and that Petitioner’s
2
The events in the period between Petitioner being contacted by his parole agent and turning
himself in were recounted in the Supervision History, which was adopted by the Board. See Bd.
Dec., 11/30/22, at 1; Supervision History, 10/7/22, at 2. Petitioner’s state parole agent contacted
him on July 12, 2022, and told Petitioner to turn himself in by July 14, 2022. Supervision History,
10/7/22, at 2. Petitioner failed to report and informed his parole agent that he was caring for his
elderly mother. Id. Petitioner was then given until July 18, 2022, to report but failed to do so. Id.
On July 20, 2022, a warrant was issued for Petitioner. Id. On July 26, 2022, Petitioner informed
his parole agent that he had COVID-19 and would turn himself in when he recovered. Id.
Thereafter, Petitioner turned himself in on August 9, 2022.
2
maximum sentence date was correctly calculated. Thereafter, Petitioner pro se
petitioned this Court for review.3
II. ISSUE
Petitioner raises a single issue for our review.4 The parties dispute
whether 37 Pa. Code § 71.4(1) or 37 Pa. Code § 71.4(1)(i) is the applicable regulation
to determine whether Petitioner’s revocation hearing was timely.
III. DISCUSSION5
Petitioner asserts that the Board committed an error of law and violated
his due process rights by failing to provide a timely revocation hearing. Pet’r’s Br.
at 13-14. Specifically, according to Petitioner, the Board must hold a revocation
hearing within 120 days of receiving official verification of a parolee’s conviction.
Id. at 16-18, 22-23. Thus, Petitioner submits, the Board erred in reasoning that it
had 120 days from the date that Petitioner returned to a state correctional facility.
Id. In response, the Board maintains that the 120-day period did not begin until
Petitioner was back in custody at a state correctional facility; thus, his revocation
hearing was timely. Bd.’s Br. at 10-12.
“It has long been established that due process requires that parolees
receive a hearing within a reasonable time after they are taken into custody for a
parole violation.” Taylor v. Pa. Bd. of Prob. & Parole, 931 A.2d 114, 117 (Pa.
Cmwlth. 2007) (en banc) (citing Morrissey v. Brewer, 408 U.S. 471 (1972)). To
satisfy due process, the Board has issued regulations concerning the timeliness of a
3
Although Petitioner filed his petition for review pro se, his brief was prepared by counsel.
4
In his petition, Petitioner also asserted that the Board improperly recalculated his maximum
sentence date. Pet., ¶ 7. However, Petitioner does not address this issue in his brief. See generally
Pet’r’s Br. Thus, we decline to address it.
5
Our standard of review is limited to determining whether the Board committed an error of
law, whether its findings are supported by substantial evidence, and whether its decision violated
constitutional rights. Fisher v. Pa. Bd. of Prob. & Parole, 62 A.3d 1073, 1075 n.1 (Pa. Cmwlth.
2013); see also Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.
3
parole revocation hearing. See Lawson v. Pa. Bd. of Prob. & Parole, 977 A.2d 85,
87 (Pa. Cmwlth. 2009) (“[d]etermining whether a revocation hearing was timely is
a straightforward inquiry that is governed by Board regulation”).
For example, when a parolee is convicted of a new criminal offense,
the Board must hold a revocation hearing within 120 days from the date the Board
received official verification of that disposition.6 37 Pa. Code § 71.4(1). The general
rule is subject to the following, relevant exception:
(i) If a parolee is confined outside the jurisdiction of the
Department of Corrections [(DOC)], such as confinement
out-of-State, confinement in a Federal correctional
institution or confinement in a county correctional
institution where the parolee has not waived the right to a
revocation hearing by a panel in accordance with
Commonwealth ex rel. Rambeau v. Rundle, [] 314 A.2d
842 ([Pa.] 1973), the revocation hearing shall be held
within 120 days of the official verification of the return of
the parolee to a State correctional facility.
37 Pa. Code § 71.4(1)(i). “This [custodial exception] is based upon the principle
that the 120[-]day period does not begin to run until the Board acquires jurisdiction
over the parolee.” Barnes v. Pa. Bd. of Prob. & Parole, 203 A.3d 382, 387 (Pa.
Cmwlth. 2019) (citation omitted).
Once a parolee challenges the timeliness of a revocation hearing, the
Board bears the burden to prove by a preponderance of the evidence that the hearing
was timely. Burno v. Pa. Bd. of Prob. & Parole, 67 A.3d 1280, 1283 (Pa. Cmwlth.
2013). “If the Board does not present substantial evidence to establish the timeliness
of a revocation hearing, the parole violation charges are dismissed with prejudice.”
Brown v. Pa. Bd. of Prob. & Parole, 184 A.3d 1021, 1025 (Pa. Cmwlth. 2017)
6
“Official verification” is defined as “[a]ctual 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.
4
(citation omitted). Additionally, when the Board fails to produce evidence that it
had the burden to produce, it “does not have the right to a second hearing to make
the case it should have made in the first instance.” Gair v. Pa. Bd. of Prob. & Parole,
948 A.2d 884, 889 (Pa. Cmwlth. 2008); see also Mack v. Pa. Bd. of Prob. & Parole,
654 A.2d 129, 131 (Pa. Cmwlth. 1995) (reversing the decision of the Board and
dismissing the parole violation charges with prejudice because the revocation
hearing was untimely).
In finding that Petitioner’s revocation hearing was timely, the Board
interpreted its own regulations. We generally defer to the Board’s interpretation
provided it is consistent with statutory authority and not clearly erroneous. Jackson
v. Pa. Bd. of Prob. & Parole, 885 A.2d 598, 601 (Pa. Cmwlth. 2005). Here, the
Board interpreted 37 Pa. Code § 71.4(1)(i) to mean that it had 120 days from the
date that Petitioner returned to state custody. However, this custodial exception
applies only “[i]f a parolee is confined outside the jurisdiction of the [DOC] . . . .”
37 Pa. Code § 71.4(1)(i) (emphasis added). It is typically applicable in cases where
the parolee is transferred to the DOC’s custody after serving a period of incarceration
in another jurisdiction.
For example, in Dill v. Pennsylvania Board of Probation and Parole,
186 A.3d 1040, 1042 (Pa. Cmwlth. 2018), a parolee was convicted of charges in
federal court. Shortly after sentencing, the Board received official verification of
the parolee’s federal conviction. Id. at 1042. About 20 years later, the parolee was
released from federal prison to the Board’s detainer. Id. at 1043. The parolee’s
revocation hearing was held within 120 days of the parolee returning to a state
correctional facility. Id. Upon review, this Court held that the hearing was timely
because the parolee’s federal confinement placed him outside of the DOC’s
jurisdiction. Id. at 1046; see id. at 1045 (“The Board’s regulation is clear. So long
5
as a parolee is in federal custody, the Board’s duty to hold a revocation hearing is
deferred until the parolee is returned to state custody, regardless of when the Board
received official verification of his new conviction.”).
Similarly, in Barnes, 203 A.3d at 387, the official verification of a
parolee’s conviction preceded his return to a state correctional facility. However,
the 120-day period commenced upon his return because the parolee had been
confined in a county correctional institution. See id. (citing 37 Pa. Code §
71.4(1)(i)).7 Therefore, the parole revocation hearing was timely.
Conversely, in the instant case, Petitioner was not confined in another
jurisdiction. Rather, after receiving new charges, Petitioner was released from his
pretrial detention on February 21, 2020. This was after his original maximum
sentence expired on December 18, 2019. Thereafter, following his conviction, the
trial court granted Petitioner credit for time served and immediately paroled him.
Petitioner was not detained at this time and did not return to the DOC’s custody until
his surrender on August 9, 2022. The Board has not cited, and we are unaware of
any case in which 37 Pa. Code § 71.4(1)(i) has applied under similar circumstances.
We therefore conclude that it does not control here.
Absent an applicable exception, the general rule applies. Thus, the
Board was required to establish that it held a revocation hearing within 120 days of
receiving official verification of Petitioner’s conviction. Burno, 67 A.3d at 1283; 37
Pa. Code § 71.4(1). It failed to do so in this case. Here, the Board received official
verification of Petitioner’s conviction on April 1, 2022. See C.R. at 21, 77. The
revocation hearing was held 223 days later, on November 10, 2022. On this record,
7
We note that “this regulation is not applicable where the parolee is at all times within the
jurisdiction of the Board and is being held in a county institution, not at the request of the county
authorities but at that of the Board itself.” Murray v. Jacobs, 512 A.2d 785, 789 (Pa. Cmwlth.
1986) (cleaned up).
6
we are constrained to conclude that the Board was unable to prove that it timely held
Petitioner’s revocation hearing.8 Further, the Board is not entitled to a second
opportunity to establish the timeliness of the hearing. See Gair, 948 A.2d at 889.
IV. CONCLUSION
In this case, the Board’s interpretation of its regulations was clearly
erroneous. Here, the custodial exception set forth in 37 Pa. Code § 71.4(1)(i) is
inapplicable because Petitioner was not confined outside the jurisdiction of the DOC.
Per the general rule, the Board was required to establish that it held a revocation
hearing within 120 days of receiving official verification of Petitioner’s conviction.
See Burno, 67 A.3d at 1283. It did not. Consequently, the Board’s order is reversed,
and Petitioner’s parole violation charges are dismissed with prejudice. See Gair,
948 A.2d at 889; Brown, 184 A.3d at 1025.
______________________________
LORI A. DUMAS, Judge
8
The Board had confined its arguments to an erroneous interpretation of the custodial
exception; it does not argue on appeal that the hearing was timely held within 120 days of receiving
official verification of Petitioner’s conviction. See Bd.’s Br. at 7-12. Nevertheless, for the sake
of completeness, we note the following. A revocation hearing that occurs beyond the 120-day
period may be deemed timely if certain dates are excluded from the time calculation. Most notably,
dates are excluded when a delay is attributable to “[t]he unavailability of a parolee[.]” 37 Pa. Code
§ 71.5(c)(1). In our review of the record, we discern that Petitioner may have been “unavailable”
to the Board for 28 days – from July 12, 2022, when Petitioner’s parole agent directed Petitioner
to turn himself in, until August 9, 2022, when he eventually did so. See Supervision History,
10/7/22, at 2 (detailing these events). However, even excluding these 28 days, the revocation
hearing was not timely.
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael Daniels, :
Petitioner :
: No. 520 C.D. 2023
v. :
:
Pennsylvania Parole Board, :
Respondent :
ORDER
AND NOW, this 4th day of October, 2024, the Pennsylvania Parole
Board’s order, entered on April 21, 2023, is REVERSED. Petitioner’s parole
violation charges are DISMISSED WITH PREJUDICE.
______________________________
LORI A. DUMAS, Judge