Fumea v. Pennsylvania Board of Probation & Parole

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Wayne Fumea, :

Petitioner :

:

v. : No. 1551 C.D. 2015

: Argued: June 6, 2016

Pennsylvania Board of Probation :

and Parole, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION

BY JUDGE COHN JUBELIRER FILED: September 16, 2016

Wayne Fumea (Fumea) petitions for review of the August 11, 2015 Decision

of the Pennsylvania Board of Probation and Parole (Board), which denied his

administrative appeal and affirmed the decision recommitting him to serve 12

months backtime as a convicted parole violator (CPV) and recalculating his

maximum date as March 17, 2023. On appeal, Fumea argues that the Board erred

by not complying with Section 6138(a)(5.1) of the Prisons and Parole Code (Parole

Code),1 61 Pa. C.S. § 6138(a)(5.1), which requires that he serve the balance of his

original state sentence before serving his new federal sentence. As a result of the

Board’s violation of that section, he argues that his parole revocation hearing was

1

Prisons and Parole Code, 61 Pa. C.S. §§ 101-6309, effective October 13, 2009,

amended by, Section 20 of the Act of October 27, 2010, P.L. 931, No. 95, immediately effective,

amended by, Section 15 of the Act of July 5, 2012, P.L. 1050, No. 122.

untimely. On the date of his federal sentencing, a warrant to commit and detain

was issued and a representative of the Board attended his sentencing, yet did not

take Fumea into custody, resulting in his serving his federal sentence before

serving his original state sentence. Because we conclude that the Board did not

comply with Section 6138(a)(5.1) of the Parole Code, and that, as a result, the

revocation hearing was not timely held, we reverse and remand to the Board.

I. Background

On July 31, 1995, Fumea was sentenced to serve 5 to 10 years in a state

correctional institution (SCI) after being found guilty of 3 counts of drug

manufacture, sale, delivery, or possession with intent to distribute, with a

maximum date set at December 13, 2009. (C.R. at 1.) Fumea was released on

parole from SCI-Greensburg on December 13, 1999. (C.R. at 8.) On January 29,

2008, Fumea was arrested by federal authorities and indicted for wire fraud.

Fumea posted unsecured bond the same day. (C.R. at 34.) The Board issued a

warrant to commit and detain on March 5, 2008, pending the disposition of the

new criminal charges. (C.R. at 10.) The Board detained Fumea pending

disposition of the new criminal charges until his original maximum date of

December 13, 2009, at which time he was released and the Board warrant was

lifted. (C.R. at 17.) For control purposes, the Board declared Fumea delinquent

effective January 29, 2008. (C.R. at 22.)2

2

Declaring Fumea delinquent for control purposes is apparently an administrative

procedure to mark Fumea’s case for close review when the outstanding charges are disposed.

Passaro v. Pa. Bd. of Prob. and Parole, 499 A.2d 725, 726 (Pa. Cmwlth. 1985).

2

Following a federal jury trial, the jury found Fumea guilty of conspiracy on

July 8, 2011. (C.R. at 42.) On November 21, 2011, a federal judge sentenced

Fumea to 41 months imprisonment in the custody of the United States Bureau of

Prisons (BOP), with 3 years of supervised release. (Judgment in a Criminal Case,

C.R. at 27; Federal Criminal Docket, C.R. at 43.) The same day, the Board issued

a warrant to commit and detain Fumea. (C.R. at 23.) The judge remanded Fumea

to the custody of the United States Marshal. (C.R. at 43.) The Board obtained

“official verification” of Fumea’s conviction on December 7, 2011, and issued an

arrest warrant on December 9, 2011. (C.R. at 46.) The Board did not take Fumea

into custody until December 24, 2014, when he was released from federal custody.

A revocation hearing was held 62 days later on February 24, 2015. (Hearing

Report, C.R. at 51.)

At the hearing, Fumea, through counsel, objected to the timeliness of the

hearing and cited to Section 6138(a)(5.1) of the Parole Code regarding the order of

service of sentences. Fumea testified, and the Board did not dispute, that an agent

of the Board was present at the sentencing, the federal sentencing judge was

prepared to issue a report date sometime in the middle of January 2012, and that he

entered into federal custody after sentencing instead. (Hr’g Tr. at 13-14.) Fumea

argued that he was available to the Board on the date of his sentencing, and that the

Board did not take him into custody despite the presence of an agent of the Board

at the sentencing. Fumea also argued that he was prejudiced by the Board’s failure

to follow Section 6138(a)(5.1) because of the outstanding Board detainer, and as a

result, the BOP treated him adversely. Fumea contends that as a result of his

serving his federal sentence before his original state sentence, while the Board had

a detainer on him, he was disadvantaged because, had the Board followed Section

3

6138(a)(5.1), he would have served his federal sentence after his state sentence and

free of a Board detainer. As such, Fumea argues, he would have been able to

participate in federal rehabilitative efforts, such as home confinement and outside

work, and he would have been eligible for reparole in 2011, given the credit for

time he spent in state custody prior to the expiration of his maximum sentence.

(Hr’g Tr. at 16.) Instead, he was precluded from all of these.

By decision mailed June 15, 2015, the Board overruled Fumea’s objection to

the timeliness of the hearing and recommitted him “to a State Correctional

Institution as a convicted parole violator to serve 12 months backtime” for his new

criminal conviction. (Board Decision, C.R. at 89.) The Board recalculated

Fumea’s new maximum date as March 17, 2023, based on a return to custody date

of December 24, 2014. (Order to Recommit, C.R. at 91.) The decision also stated

that Fumea would be interviewed for reparole on the next available docket.3

On June 18, 2015, Fumea filed a timely administrative appeal of the Board’s

June 15, 2015 decision presenting the same arguments as those raised at the

hearing. Fumea asserted that after sentencing, “[t]he Sentencing Court was

prepared to permit [Fumea] to remain free on bail pending his appeal until his State

Parole Agent informed that Court that the Board was not prepared to take custody

of him.” (C.R. at 102, ¶ 7.) Fumea continued to maintain that the 120-day period

within which to hold his parole revocation hearing should have commenced no

3

At oral argument on June 6, 2016, Fumea’s counsel advised the Court that Fumea had

been released on reparole by the Board. The issue of the timeliness of Fumea’s parole

revocation hearing is not moot because he would not currently be on parole in accordance with

the decision recalculating his maximum date as March 17, 2023 in the absence of the parole

revocation charge, which forms the basis of that decision.

4

later than the date the Board issued the arrest warrant, December 9, 2011. (Id. at ¶

10.)4

By Decision dated August 11, 2015, the Board denied Fumea’s

administrative appeal. The Board held that Fumea’s hearing was timely because

he was released from federal custody and returned to a SCI on December 24, 2014,

and the Board held the hearing 62 days later on February 24, 2015, pursuant to 37

Pa. Code § 71.4(1)(i). (Board Decision at 1, C.R. at 105.) Fumea now petitions

this Court for review of the Board’s denial.5

II. Discussion

A. Argument

Fumea argues that his parole revocation hearing was not timely because,

pursuant to the order of service of sentences set forth in Section 6138(a)(5.1) of the

Parole Code, he was required to serve his state sentence prior to his new federal

sentence. He contends that the Board’s agent was present at his federal sentencing,

there was a warrant issued that same day by the Board, and the Board should have

taken custody of him prior to his serving his federal time. The Board’s failure to

do so denied Fumea due process, caused him to serve his federal sentence with the

state detainer on him, which prevented him from being able to participate in

federal rehabilitative efforts, such as home confinement and outside work, and

4

Fumea also argues that he “already served nearly twice the standard range for the

violation . . .” based upon his time spent in state custody prior to the expiration of his maximum

date. (C.R. at 103, ¶ 12.)

5

Our review is limited to determining whether constitutional rights were violated,

whether the adjudication was in accordance with law, and whether necessary findings were

supported by substantial evidence. Miskovitch v. Pa. Bd. of Prob. and Parole, 77 A.3d 66, 70 n.4

(Pa. Cmwlth. 2013), appeal denied, 87 A.3d 322 (Pa. 2014).

5

delayed his opportunity to make parole. He cites this Court’s holding in Baasit v.

Pennsylvania Board of Probation and Parole, 90 A.3d 74, 82-83 (Pa. Cmwlth.

2014), in support of his interpretation of Section 6138(a)(5.1) of the Parole Code.

The Board argues that it complied with Section 71.4(1)(i) of its regulations,

37 Pa. Code § 71.4(1)(i), because “Fumea was confined outside of the jurisdiction

of the Department of Corrections at the time of his conviction because he was not

returned to a SCI prior to his conviction.” (Board’s Br. at 7.) Because Fumea was

returned to a SCI on December 24, 2014, and the Board conducted his revocation

hearing 62 days later, on February 24, 2015, the Board argues that the hearing was

timely. The Board argues there is no basis on which to find that it improperly

delayed Fumea’s return to a SCI, and the fact that the BOP kept custody of Fumea

instead of returning him to a SCI, so that he could serve his original sentence first,

does not mean that the Board failed to conduct a timely revocation hearing.

Essentially, the Board argues that the BOP had custody of Fumea at the time of his

arrest and conviction and then “chose to keep Fumea to serve his new federal

sentence.” (Board’s Br. at 9.)6 Thus, the Board argues that it did the only thing it

could do – wait for Fumea’s return.

B. Analysis

When a parolee challenges the timeliness of a revocation hearing, “the

Board has the burden of proving . . . that the hearing was, in fact, timely.”

Williams v. Pa. Bd. of Prob. and Parole, 602 A.2d 434, 436 (Pa. Cmwlth. 1992).

Here, the Board relies on Section 71.4(1)(i) of its regulations, 37 Pa. Code §

6

It is unclear whether this is factually correct. It appears that Fumea posted bond for the

federal charges and was released the same day following his arrest.

6

71.4(1)(i), to support its contention that the hearing was timely held. Section

71.4(1), and subsection (i), of the Board’s regulations provide that:

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[7] 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 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, 455 Pa. 8, 314 A.2d 842

(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) (emphasis added). “Where . . . the Board fail[s] to meet

its burden of establishing the timeliness of the revocation hearing, the appropriate

remedy is dismissal of the parole violation charges with prejudice.” McDonald v.

Pa. Bd. of Prob. and Parole, 673 A.2d 27, 30 (Pa. Cmwlth. 1996).

Fumea argues that his revocation hearing was not timely based upon his

reading of the order of service of sentences provision of the Parole Code. Section

6138(a)(1) of the Parole Code sets forth the Board’s authority to recommit a

parolee who commits a crime punishable by imprisonment, as follows:

7

The Board’s regulations define “official verification” 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.

7

(a) Convicted violators.--

(1) A parolee under the jurisdiction of the board released from a

correctional facility who, during the period of parole or while

delinquent on parole, commits a crime punishable by imprisonment,

for which the parolee is convicted or found guilty by a judge or jury

. . . may at the discretion of the board be recommitted as a parole

violator.

61 Pa. C.S. § 6138(a)(1) (emphasis added). “It is well-settled law that the Board

retains jurisdiction to recommit an individual as a parole violator after the

expiration of the maximum term, so long as the crimes that lead to the conviction

occurred while the individual is on parole.” Miskovitch v. Pa. Bd. of Prob. and

Parole, 77 A.3d 66, 73 (Pa. Cmwlth. 2013) (citations omitted), appeal denied, 87

A.3d 322 (Pa. 2014); see also 61 Pa. C.S. § 6138(a)(1).

With regard to the order of service of sentences, Section 6138(a)(5.1) of the

Parole Code provides that:

(5.1) 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) (emphasis added).

In this case, there is no question that Section 6138(a)(5.1) prescribes the

proper order in which Fumea must serve his sentences. Instead, this case involves

differing versions of the facts and the Board’s responsibilities based on those facts.

Fumea essentially argues that the Board agent’s presence at his sentencing, and the

agent’s discussion with the federal judge at the sentencing, provided the Board

8

with verification of his guilty verdict and created an obligation under the Parole

Code requiring the Board to assert its jurisdiction over him. Fumea contends that

he was not in federal custody at the time he committed the federal offense or at any

time up to and through his federal sentencing, as he posted bond at the time of his

arrest. (Fumea’s Br. at 18.) Fumea thus argues that the Board’s findings that he

was in federal custody at the relevant times are not supported by substantial

evidence. The Board does not address whether these facts would create a duty,

under Section 6138(a)(5.1) of the Parole Code, for it to assert its jurisdiction over

Fumea at or before his sentencing and take him into state custody. We are

therefore tasked with deciding whether Section 6138(a)(5.1) imposes such duty

upon the Board to assert its jurisdiction over a parolee who, upon his conviction in

federal court, becomes a convicted parole violator but who is not yet in federal

custody under these circumstances.

Pursuant to Section 6138(a)(1), because Fumea was convicted for a crime

that he committed while on parole, the Board retained jurisdiction to recommit him

even after the expiration of his maximum date and his release from state custody.

Fumea posted bond on the federal charges and was, thus, not under the jurisdiction

of the BOP either. In addition, he was required to serve the balance of his state

sentence before serving his new federal sentence, in accordance with Section

6138(a)(5.1), which became effective immediately when it was enacted on October

27, 2010. Fumea relies on Baasit, in which this Court thoroughly examined

Section 6138(a)(5.1) in its historical context. This section changed the previous

order of service of sentences, and “constituted a significant change in legislative

policy regarding the order of service of sentences where the convicted parole

9

violator received a new sentence in a federal court or a court of another

jurisdiction.” Baasit, 90 A.3d at 82.

In Baasit, the inmate was arrested while on parole for new state charges,

which were later dismissed. However, before the charges were dismissed, the

inmate was arrested by federal authorities and subsequently confined in federal

custody pending trial on the federal criminal charges. Essentially, he had been

held in state and federal custody. The inmate pleaded guilty to the federal charges

in August 2010 and, before sentencing, in November 2010, the Board held a

revocation hearing, which resulted in the inmate’s recommitment as a convicted

parole violator “when available” pending sentencing on the new convictions. The

inmate was subsequently sentenced on August 27, 2012. The federal court

directed that the parole violator’s federal sentence run consecutive to any sentence

he “is now serving or for which he is being held.” Baasit 90 A.3d at 80 (emphasis

omitted). On August 28, 2012, the inmate was returned to state custody. Baasit

involved the appropriate allocation of credit between the state and federal

sentences, and this Court held that the Board did not take Section 6138(a)(5.1) into

consideration when it denied the inmate credit against his original state sentence

for confinement before his new federal sentence was imposed. Id. at 83. The

Court therefore remanded to the Board to address the issue.

In Thomas v. Pennsylvania Board of Probation and Parole, (Pa. Cmwlth.,

No. 279 C.D. 2015, filed March 7, 2016), slip op. at 1,8 this Court again considered

Section 6138(a)(5.1). The parolee (Thomas) was paroled and subsequently

8

Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, an unreported

panel decision issued by this Court after January 15, 2008, may be cited “for its persuasive value,

but not as binding precedent.” 210 Pa. Code § 69.414(a).

10

arrested by federal officials. The Board lodged a detainer the same day. Thomas

was thereafter held in federal prison on both federal and Board detainers from the

date of his arrest on federal charges until sentencing, which occurred on June 25,

2010. Thomas went on to serve his federal sentence before his backtime. In his

appeal to this Court, Thomas argued that he became available to Pennsylvania

authorities when he was sentenced on the federal charges on June 25, 2010. In

response, the Board argued that Thomas was not available to serve his original

state sentence until his release from federal custody on June 24, 2014. The Board,

in its brief, conceded that “‘typically,’ Thomas would have become ‘available’ to

the Board to serve his backtime on the date of sentencing on the federal charges.”

Thomas, slip op. at 5. This Court also stated that “[u]nder Baasit, Thomas became

‘available’ when he was convicted on the federal docket.” Thomas, slip op. at 6;

see Baasit, 90 A.3d at 76. However, this Court rejected Thomas’ argument that

Section 6138(a)(5.1) constituted grounds for vacating the Board’s decision

recalculating his maximum sentence date because that section was not yet in effect

at the time Thomas was sentenced. Thomas, slip op. at 6. Thomas was sentenced

four months before the enactment of Section 6138(a)(5.1). Therefore, the Court

concluded, Thomas did not become available to the Board until his release from

federal custody. Thomas, slip op. at 4. However, in the instant matter, Section

6138(a)(5.1) was in effect.

Here, the Board issued a warrant to commit and detain Fumea on November

21, 2011, the date of his sentencing. Based on Baasit and Thomas, Fumea became

available to the Board upon his conviction in federal court, at which time he was

not yet confined by either state or federal authorities. As discussed above, the

Board retained its jurisdiction to recommit Fumea based on that conviction. It is

11

unclear why the Board issued the warrant to commit and detain on the date of

Fumea’s sentencing but did not act to obtain custody of Fumea while he was still

available on that date and despite its agent’s presence at the sentencing hearing.

The Board does not offer any clear explanation for its failure to assert its

jurisdiction over Fumea. Based on these facts, Fumea argues that his revocation

hearing was not timely because the 120 days should have started to run from either

the date of his sentencing or the date the arrest warrant was issued, and not upon

his return to a SCI, while the Board relies on the alleged fact that Fumea was

confined outside the jurisdiction of the Department of Corrections at the time he

was sentenced.9

In Jacobs v. Pennsylvania Board of Probation and Parole, 24 A.3d 1074,

1079 (Pa. Cmwlth. 2011), this Court reviewed the history of case law relating to

official verification of convictions for the purposes of Section 71.4 of the Board’s

regulations and the Board’s duty to hold timely revocation hearings. We stated the

following:

In Morrissey v. Brewer, 408 U.S. 471, 481 (1972), the United States

Supreme Court held that the procedures to revoke parole must meet

the standards of due process. In United States ex rel. Burgess v.

Lindsey, 395 F.Supp. 404 (E.D.Pa.1975), the United States District

Court for the Eastern District of Pennsylvania (Federal District Court)

held that it is proper, in the case of a parolee facing revocation as a

convicted parole violator, for the Board to hold the revocation hearing

after the parolee’s conviction on the new criminal charge. Id. at 410–

11. However, the Federal District Court held that it was not

reasonable within the bounds of due process for the Board to wait to

hold the parolee’s revocation hearing until after sentencing on the new

9

Fumea points out that the record is silent as to whether the Board’s warrant to commit

and detain was issued before or after his federal sentencing on November 21, 2011. (Fumea’s

Br. at 18.)

12

criminal charge, which took place approximately nine months after

the conviction. Id. at 411.[10] As a result of an unpublished order by the

Federal District Court in the Burgess case, the Board promulgated

Section 71.4. Gaito v. Pennsylvania Board of Probation and Parole,

488 Pa. 397, 402 n.4, 412 A.2d 568, 570 n.4 (1980). As discussed

above, Section 71.4 sets out a general rule that “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.” 37 Pa. Code § 71.4. The

Board’s regulations define “official verification” 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.

....

It is extremely troubling if the Board actually received notice of

Jacobs’ new conviction, albeit not “official verification” as defined

by the Board’s own regulations, but failed to act on that notice for

nearly one year.

Jacobs, 24 A.3d at 1079-80 (emphasis added). We recognized that “[i]n

interpreting the [ Board’s] regulations, this Court has attempted to strike a balance,

10

Judge Higginbotham of the Federal District Court in Burgess, stated:

I prefer to give the term ‘conviction’ its ordinary meaning, namely, a verdict or

plea of guilty. That is also the meaning that the Pennsylvania Legislature gave the

term when it authorized the Board to recommit ‘convicted parole violators.’ A

verdict or plea of guilty provides the Board with all the information it needs

to begin the parole revocation process, for it establishes the fact of a parole

violation. It is then the Board’s responsibility to determine whether or not

revocation is justified. The Board has presented no compelling reason for

waiting until after sentencing to make this determination. Accordingly, I hold that

the Board must afford a convicted parole violator a final parole revocation hearing

within a reasonable time after his guilt is established.

Burgess, 395 F. Supp. at 411 (emphasis added) (citation omitted).

13

adhering to the letter of the regulations while remaining cognizant of the due

process concerns that drove the promulgation of Section 71.4.” Id. at 1080.

The Board in Jacobs argued that the sentence proceeding “would not have

necessarily notified the Board of Jacobs’ new conviction.” Id. at 1081. This Court

thereafter considered the language of the sentencing order, relied upon by the

parole agent as official verification of the new conviction, and compared it to what

the trial court stated on the record at the sentence proceeding. This Court held that

“[g]iven the identical language, the sentence proceeding should have made the

Board as aware of Jacobs’ new conviction as the Board argues the sentence order

did.” Id. at 1081. The Court considered:

whether, when apparently supplied with actual notice that a parolee

has been convicted, which notice is worded identically to the “official

verification” eventually obtained by the parolee’s supervising parole

agent, the Board may refrain from conveying that information to the

supervising parole agent and wait an indeterminate amount of time

before the parole agent is somehow notified of the new conviction so

that he may formally retrieve “official verification” before the time

within which a revocation hearing begins to run.

Id. at 1082.

Though the facts of Jacobs differ from the instant case in some respects, its

reasoning is helpful. As in Jacobs, here it is also troubling that the Board had

notice of Fumea’s conviction, but failed to act on that notice, despite the

representative of the Board actually in attendance at his sentencing and the warrant

issued on the date of his sentencing. It is, therefore, evident, as in Jacobs, that the

Board received notice of Fumea’s new conviction before it obtained “official

verification” of that conviction and before Fumea entered into federal custody

following the sentencing hearing. Instead of asserting its jurisdiction over Fumea

14

prior to his sentencing or at the sentencing hearing so that he would serve his

sentences in the order statutorily prescribed, the Board made no effort to comply

with Section 6138(a)(5.1). Had the Board done so, Fumea would have been

returned to the Board’s custody, and the revocation hearing would have been held

before, instead of after, he served his entire federal sentence. The only justification

given by the Board for not treating the notice it received as an “official

verification” is the definition of that term in its regulation, 37 Pa. Code § 61.1.

The rules and regulations for Arrest and Hearing for Parole Violators were

adopted in 1972. In 1977, the Board amended Section 71.4, which had previously

provided that “[t]he hearing shall be held within thirty days of notification of

imposition of sentence,”11 to instead require that a parole revocation hearing “be

held within 120 days from the date the Board received official verification of . . .

the guilty verdict . . . .” See 7 Pa. B. 490 (Feb. 19, 1977). The definition for

“official verification” was added to Section 61.1 when the title of that section was

changed from “Definition of ‘Board’” to “Definitions.” See Proposed

Rulemaking, 17 Pa. B. 3890-91 (Oct. 3, 1987). Defense attorneys suggested that

the definition of “official verification” should include written notice from the

parolee’s counsel that the parolee has been convicted. 18 Pa. B. 251 (Jan. 16,

1988). However, the Board responded that “such notice would not constitute

proof of the conviction,” and that, “if written notice from the parolee’s counsel

triggered the 120-day period, the Board would be required in some cases to hold

a revocation hearing before it could acquire the court documents needed to

prove the conviction.” Id. (emphasis added).

11

Board Rules for Arrest and Hearing for Parole Violators, Section IV., A. (adopted

1972); see 2. Pa. B. 1468. Section IV., A. subsequently became 37 Pa. Code § 71.4.

15

Echoing this concern, this Court subsequently explained that:

it is reasonable for the 120-day period . . . to begin to run on the date

that the Board receives official verification of a parolee’s conviction,

because, to hold otherwise, would impose on the Board the

Herculean task of searching the dockets of every court of record

in the United States on a daily basis to discover when a parolee

was convicted.

Lee v. Pa. Bd. of Prob. and Parole, 596 A.2d 264, 265 (Pa. Cmwlth. 1991)

(emphasis added). The regulations were thus intended to protect the due process

rights of a parolee without overburdening the Board with the task of manually

searching dockets for the necessary proof of conviction, an understandably

Herculean task before the age of email, digital documents and online dockets.12

Importantly, in 2010, the General Assembly enacted Section 6138(a)(5.1),

which now provides that new terms of total confinement ordered by Federal courts

and courts of other jurisdictions shall be served after a parolee first serves his

backtime. Now, the Board’s delay in acquiring the “official verification” or its

inaction at a parolee’s sentencing, as occurred here, can render Section

6138(a)(5.1) a nullity, thus defeating the legislative intent.

We have, in the past, interpreted and applied the regulation as necessary to

protect the due process rights of parolees without overburdening the Board. See,

e.g., Jacobs, 24 A.3d at 1079-80 (holding that revocation hearing not timely held

12

However, in this case, it is beyond dispute that the Board’s agent was notified of

Fumea’s new conviction and even personally attended the sentencing proceeding associated with

that conviction. Thus, in this case, the concerns about the burden on the Board, which justified

the definition of “official verification,” are not present. Moreover, we note that technological

advances allow for the electronic acquisition of court documents at one’s computer.

16

where the Board had actual notice of the conviction before sentencing, but could

not explain the delay between conviction and receipt of official verification);

Ramos v. Pa. Bd. of Prob. and Parole, 954 A.2d 107, 109 (Pa. Cmwlth. 2008)

(stating 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”); Fitzhugh v. Pa Bd. of Prob. and Parole, 623 A.2d

376, 380 (Pa. Cmwlth. 1993) (rejecting “the notion that a parolee convicted of a

new offense may be forced to wait for an unreasonable period for a revocation

hearing until the Board chooses to retrieve his records, even though the Board has

actual notice of the new conviction”); Williams v. Pa. Bd. of Prob. and Parole, 579

A.2d 1369, 1371-72 (Pa. Cmwlth. 1990) (holding that where there is no official

verification, the 120-day period begins to run from the time the Board could have

obtained official verification). Creating an exception to the requirement of receipt

of “official verification” of a conviction, under these unique facts, similarly

effectuates both the purposes of the regulations and the General Assembly’s intent

as set forth in Section 6138(a)(5.1) of the Parole Code.

Because the Board has offered no clear explanation supported by substantial

evidence of record as to why it failed to take custody of Fumea while Fumea was

still available to the Board at or before his federal sentencing, when it was

undeniably aware of the conviction, an agent attended his sentencing, and the

Board issued its detainer on the date of sentencing, we conclude that Fumea’s

17

revocation hearing was not timely held, the appropriate remedy for which is

dismissal of the parole violation charges.13

Accordingly, the Decision of the Board is reversed, and the case is remanded

to the Board for dismissal of Fumea’s parole violation charges.

________________________________

RENÉE COHN JUBELIRER, Judge

13

In Jacobs, we reiterated that “[u]nreasonable and unjustifiable delays which are not

attributable to the parolee or his counsel do not toll the running of the 120 days.” Jacobs, 24

A.3d at 1080 (quoting Williams v. Pa. Bd. of Prob. and Parole, 579 A.2d 1369, 1372 (Pa.

Cmwlth. 1990)).

18

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Wayne Fumea, :

Petitioner :

:

v. : No. 1551 C.D. 2015

:

Pennsylvania Board of Probation :

and Parole, :

Respondent :

ORDER

NOW, September 16, 2016, the August 11, 2015 Decision of the

Pennsylvania Board of Probation and Parole, entered in the above-captioned

matter, is hereby REVERSED, and the case is REMANDED to the Board for

dismissal of Wayne Fumea’s parole violation charges with prejudice.

Jurisdiction relinquished.

________________________________

RENÉE COHN JUBELIRER, Judge