# D. Moody v. PPB

> Commonwealth Court of Pennsylvania · November 8, 2024

URL: https://www.frixlaw.com/law-library/cases/10733602

## Case

- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** November 8, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Darryl Moody, :
Petitioner :
:
v. : No. 1277 C.D. 2023
: SUBMITTED: October 8, 2024
Pennsylvania Parole Board, :
Respondent :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: November 8, 2024

Darryl Moody petitions for review of an order of the Pennsylvania
Parole Board, which denied his administrative appeal of his recommitment as a
convicted parole violator (CPV) and the recalculation of his parole violation
maximum sentence date (maximum date). Also pending before the Court is an
application to expedite and Lucille A. Bongiovanni, Esquire’s motion to withdraw
as counsel, which was filed after the petition was fully briefed. For the following
reasons, we affirm the Board’s order, grant Counsel’s motion to withdraw, and
dismiss as moot the application to expedite.
In 2008, Moody was sentenced in Delaware County to 7 to 15 years of
imprisonment for two counts of manufacture/sale/delivery or possession with intent
to deliver drugs (original sentence). Certified Record (C.R.) at 1. The Department
of Corrections calculated Moody’s original minimum date as April 27, 2013, and his
maximum date as April 27, 2021. C.R. at 1-2. By decision recorded January 14,
2013, the Board granted Moody conditional parole, and he was released on parole
to a community corrections residence on April 29, 2013. C.R. at 4-7. Prior to his
release, Moody signed conditions governing his parole which included the
following:

If you are convicted of a crime committed while on
parole/reparole, the Board has the authority, after an
appropriate hearing, to recommit you to serve the balance
of the sentence or sentences which you were serving when
paroled/reparoled, with no credit for time at liberty on
parole.

C.R. at 8. Moody was subsequently paroled to an approved home plan on May 3,
2013. C.R. at 11-12.
On January 14, 2015, well before the expiration of his maximum date,
Moody was arrested by the Pennsylvania State Police and charged with multiple
drug and firearms offenses. C.R. at 20-21. Moody was detained at the Delaware
County prison (C.R. at 14, 22 and 75), and the Board lodged a warrant to commit
and detain him that same day (C.R. at 13). In May 2015, the new state charges
against Moody were nolle prossed and he was immediately recharged and detained
by federal authorities on similar offenses. C.R. at 22, 144; see United States v.
Moody (E.D. Pa., No. 2:15-CR-00191).
In October 2017, Moody pleaded guilty in the United States District
Court for the Eastern District of Pennsylvania (District Court) to possession with
intent to distribute 280 grams or more of cocaine base (“crack”) within 1,000 feet of
a school and possession of a firearm by a convicted felon. C.R. at 52, 147. The
District Court sentenced Moody to an aggregate term of 120 months of confinement
in the custody of the Federal Bureau of Prisons (Bureau) followed by 10 years of
supervised release, stating that he “shall receive credit for all time spent in custody

2
on these charges.” C.R. at 53. The District Court also “recommend[ed] that
[Moody]’s sentence run concurrently to any state court sentence imposed,” and
remanded him to the custody of the United States Marshal. Id. On November 28,
2017, the Board received official verification of Moody’s federal conviction. C.R.
at 21. The Board lodged a detainer against Moody based on his federal conviction
on December 4, 2017; however, he undisputedly remained in the Bureau’s custody.
C.R. at 15.
On January 23, 2023, at the completion of his federal sentence, Moody
was released to the Board’s detainer and transported to a State Correctional
Institution (SCI) to await his parole hearing. C.R. at 22, 34. The Board held a panel
revocation hearing on April 27, 2023, 94 days later, at which Counsel represented
Moody. C.R. at 18-19, 24-25. Counsel did not challenge the fact that Moody was
convicted in the District Court for federal offenses that occurred while he was on
parole. Rather, she argued, among other things, that Moody’s recommitment as a
CPV violates the order of service of sentences pursuant to the Prisons and Parole
Code (Parole Code), see 61 Pa.C.S. § 6138(a)(5.1);1 that Moody was available to the
Board at the time of his federal conviction and he should have been returned
immediately to the Board’s custody; that the Board violated Moody’s due process
rights by failing to detain him so that he could serve the balance of his original
sentence prior to his federal sentence; and that his parole revocation hearing was
untimely.
By decision with mailing date May 18, 2023, the Board rejected these
arguments, recommitted Moody as a CPV to serve 18 months based on his federal

1
Section 6138(a)(5.1), pertaining to violation of the terms of parole and CPVs, provides:
“If the [parolee] is sentenced to serve a new term of total confinement by a Federal court or by a
court of another jurisdiction because of a verdict or plea under paragraph (1), the [parolee] shall
serve the balance of the original term before serving the new term.” 61 Pa.C.S. § 6138(a)(5.1).

3
conviction, and recalculated his maximum date as January 21, 2031. C.R. at 155.
The Board did not award Moody credit for time spent at liberty on parole for the
stated reason that he “committed a new offense involving possession of a weapon[.]”
C.R. at 156. Counsel filed a timely administrative remedies form on Moody’s behalf
raising the same arguments as she did before the panel. C.R. at 158. By final
determination mailed on October 19, 2023, the Board denied Moody’s request for
administrative relief and affirmed its previous decision. C.R. at 301-02. Moody
then petitioned this Court for review.2
Moody argues that the Board violated the Parole Code requirement that
he serve the balance of his original state sentence prior to serving his new federal
sentence. See 61 Pa.C.S. § 6138(a)(5.1). According to Moody, the Board had
jurisdiction over him, and he was available to the Board at the time of his federal
conviction, and the Board’s failure to invoke its jurisdiction violated the Parole Code
and deprived him of due process. Finally, Moody argues that his revocation hearing
was untimely3 because it was not held within 120 days of when he first became

2
As indicated above, Counsel’s motion to withdraw was filed after the petition was fully
briefed and indicates: “It is [Moody]’s request to represent himself going forward in this matter[.]”
May 28, 2024 Motion ¶ 4. Because the motion is not based upon Counsel’s representation that the
appeal is frivolous, and because Counsel submitted a substantive brief on the merits prior to
seeking to withdraw, we do not review the motion under the standard adopted in Commonwealth
v. Turner, 544 A.2d 927 (Pa. 1988) (pertaining to procedures required when appointed counsel
seeks to withdraw based upon lack of merit).
3
Where, as here, “a parolee challenges the timeliness of a revocation hearing, the Board
has the burden of proving by a preponderance of the evidence that the hearing was, in fact, timely.”
Brown v. Pa. Bd. of Prob. & Parole, 184 A.3d 1021, 1025 (Pa. Cmwlth. 2017) (citation omitted).
The appropriate remedy when the Board fails to meet this burden is dismissal of the parole
violation charge, with prejudice. Id.; Fumea v. Pa. Bd. of Prob. & Parole, 147 A.3d 610, 620 (Pa.
Cmwlth. 2016). Moreover, “[a]n unreasonable and unjustifiable delay in holding a revocation
hearing, which is ‘not attributable to the parolee or his counsel do[es] not toll the running of the
120-days.’” Brown, 184 A.3d at 1025 [quoting Jacobs v. Pa. Bd. of Prob. & Parole, 24 A.3d
1074, 1080 (Pa. Cmwlth. 2011)].

4
available to the Board. Therefore, his parole revocation charge should be dismissed
with prejudice, and he should be immediately released.
The Board admits that, in general, Section 6138(a)(5.1) of the Parole
Code requires that parolees serve the balance of their original sentence prior to
serving a new federal sentence. However, the Board argues that Moody was
unavailable from the date he was arrested until he was returned to an SCI on January
23, 2023, because he was incarcerated throughout that time first at the Delaware
County prison and then in a federal facility. The Board maintains that it had no
ability to retake custody of Moody to serve his original sentence prior to his return
to an SCI. Moreover, Moody’s parole revocation hearing was timely because it was
held 94 days after he became available to the Board, well within the 120-day time
limitation provided by the Board’s regulations. We agree.
It is well established that “[d]ue process requires that a parolee receive
a timely hearing after he is taken into custody for a parole violation.” Dill v. Pa. Bd.
of Prob. & Parole, 186 A.3d 1040, 1044 (Pa. Cmwlth. 2018) (citations omitted). To
that end, Section 71.4(1)(i) of the Board’s regulations states, in relevant part:

The following procedures shall be followed before a
parolee is recommitted as a [CPV]:

(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 except as follows:

(i) If a parolee is confined outside the jurisdiction
of the Department of Corrections, such as
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

5
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) (emphasis added). Section 71.5 of the Board’s regulations
offers additional guidance, as it provides:

(a) If the parolee is . . . in Federal custody, the Board may
lodge its detainer but other matters may be deferred until
the parolee has been returned to a State correctional
facility in this Commonwealth.

....

(c) In determining the period for conducting hearings
under this chapter, there shall be excluded from the period,
a delay in any stage of the proceedings which is directly
or indirectly attributable to one of the following:

(1) The unavailability of a parolee or counsel.

37 Pa. Code § 71.5(a), (c)(1) (emphasis added).
This Court considered the interplay of Section 6138(a)(5.1) of the
Parole Code and the above regulations of the Board in the factually similar matter
of Brown v. Pennsylvania Board of Probation and Parole, 184 A.3d 1021 (Pa.
Cmwlth. 2017). Just like Moody, Brown was arrested on drug charges while on
parole and confined in a county jail, and the Board subsequently issued a detainer
against him. Id. at 1022. The state charges were ultimately withdrawn, Brown was
indicted on federal drug charges, and he was confined in a federal facility, as was
Moody. Id. Brown ultimately pleaded guilty, was sentenced to 64 months of
confinement with the Bureau, and was remanded into the custody of the United
States Marshal. Id. The Board received official verification of Brown’s federal
conviction five days after sentencing. Id. at 1022-23. He remained in federal
custody until the expiration of his federal sentence, at which time he returned to the

6
custody of the Board and a parole revocation hearing was held within 120 days
thereafter. Id. at 1023.
This Court rejected Brown’s argument that his parole revocation
hearing was untimely, holding that under the Board’s regulations,

when a parolee is in federal custody, confined in a federal
facility, or is otherwise unavailable, the Board’s duty to
hold a revocation hearing, or take other action beyond
issuing a detainer, is deferred until the parolee is returned
to a[n] SCI regardless of when the Board received official
verification of a parolee’s new conviction.

Id. at 1025. The Court also rejected Brown’s argument that the Board had the ability
to obtain him from federal custody based upon its detainer, explaining

Brown was already unavailable to the Board when he
ple[aded] guilty and was sentenced, as well as when it
received official verification of his conviction. The Board
could not have acquired Brown until after his release from
federal custody[.] Under these circumstances, we are not
persuaded by Brown’s argument that Section 71.4(1)(i) of
the regulations is inapplicable based on Section
6138(a)(5.1)[.]

Id. at 1027 (emphasis in original).
Notwithstanding Moody’s arguments, this matter is squarely on point
with Brown. Here, the record establishes that Moody was in federal custody both
before and after his federal sentencing, as well as when the Board received official
verification of Moody’s federal conviction, as was the case in Brown. “[T]he Board
does not have ‘the power to pluck a Pennsylvania parolee from a federal prison for
the purpose of recommitting him as a parole violator.’” Dill, 186 A.3d at 1046
(quotation omitted). Under the facts of this case, we find Brown to be controlling
and therefore reject Moody’s argument that he was available to the Board prior to

7
his release from the Bureau’s custody. See id.; see also Caldwell v. Pa. Parole Bd.
(Pa. Cmwlth., No. 882 C.D. 2022, filed Nov. 30, 2023); Hill v. Pa. Parole Bd. (Pa.
Cmwlth., No. 148 C.D. 2022, filed Feb. 22, 2023); Williams v. Pa. Parole Bd. (Pa.
Cmwlth., No. 152 C.D. 2021, filed Dec. 16, 2021).4 Further, because a panel
revocation hearing was held within 120 days of when Moody first became available
to the Board, we find that Moody’s timeliness argument lacks merit. Brown; Dill,
186 A.3d at 1045 (“The Board’s regulation [37 Pa. Code § 71.4(1)(i)] is clear. So
long 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.”).
Moody’s reliance on Fumea v. Pennsylvania Board of Probation and
Parole, 147 A.3d 610 (Pa. Cmwlth. 2016), is misplaced as that case is factually
distinguishable.5 There, the parolee was arrested and indicted by federal authorities
for wire fraud while he was on parole with the Board. Unlike Moody, however,
Fumea posted bond on his federal charges. Id. at 611. The Board subsequently
detained Fumea pending disposition of those charges, but he was released to the
community after the expiration of his maximum sentence. Id. Fumea remained on
bond through his federal jury trial in July 2011, at which he was found guilty of
conspiracy, until his sentencing in November 2011. While a Board agent was

4
These unreported panel decisions are cited for their persuasive value, as they are factually
similar to this matter, and all found Brown to be controlling. See Pa.R.A.P. 126(b)(1); 210 Pa.
Code § 69.414(a).
5
Also distinguishable is this Court’s recent decision in Daniels v. Pennsylvania Parole
Board, ___ A.3d ___ (Pa. Cmwlth., No. 520 C.D. 2023, filed Oct. 4, 2024). As in Fumea, the
Daniels Court found that the Board’s revocation hearing was not timely, and the custodial
exception found in 37 Pa. Code § 71.4(1)(i) did not apply, because the parolee was released from
his federal pretrial detention and therefore was not confined during the relevant time frame in
another jurisdiction. This Court’s decision in Daniels was issued after Moody’s petition had been
fully briefed.

8
present at Fumea’s sentencing and the Board issued a warrant to detain him that
same day, the Board failed to take him into custody, and he was instead remanded
to the custody of the United States Marshal. In December 2014, Fumea was released
from federal custody after serving his federal term and was returned to an SCI. The
Fumea Court held that, despite the expiration of his maximum date, the Board
retained jurisdiction to recommit Fumea as a CPV pursuant to Section 6138(a)(1) of
the Parole Code, and he became available to the Board upon his conviction in federal
court. Id. at 616.
This Court distinguished Fumea in Brown, noting that the Board had
“actual knowledge of [Fumea’s] conviction, as evidenced by the agent’s presence at
his sentencing hearing[.]” Brown, 184 A.3d at 1027. More importantly, Fumea was
not in federal custody from the time of his guilty verdict up until his sentencing
hearing, so he was available to the Board at that time. Id. Here, Moody undisputedly
remained in federal custody from the date he was charged until January 23, 2023,
when he returned to an SCI. Therefore, Moody was unavailable to the Board during
that time and Fumea is inapplicable. See Brown; Caldwell.
Accordingly, the order of the Board is affirmed, the motion to withdraw
as counsel is granted,6 and the application to expedite is dismissed as moot.

____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita

6
In her motion, Counsel avers that Moody has expressed his desire to represent himself
going forward and asked that Counsel file the motion to withdraw. Before filing her motion,
Counsel had fully briefed this appeal on the merits.

9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Darryl Moody, :
Petitioner :
:
v. : No. 1277 C.D. 2023
:
Pennsylvania Parole Board, :
Respondent :

ORDER

AND NOW, this 8th day of November, 2024, the order of the
Pennsylvania Parole Board is AFFIRMED. The motion to withdraw as counsel is
GRANTED and the application to expedite is DISMISSED as MOOT.

_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10733602. Public record. Not legal advice.