Hudson v. Commonwealth
Hudson v. Commonwealth
Opinion of the Court
Opinion by
Steven Hudson (Petitioner) has appealed from a denial of administrative relief by the Pennsylvania Board of Probation and Parole (Board). Petitioner challenges the timeliness of his violation and revocation hearing and contends that an excessive amount of backtime was imposed in his case. We affirm.
Since the chronology of events in this case is quite lengthy, we will attempt to limit our discussion to those dates which are essential to our analysis. While on parole from a sentence of seven to fifteen years for a conviction of five counts of robbery,
The first issue raised by Petitioner is whether the February 14, 1985 hearing was timely. Petitioner contends that the duration of his first requested continuance of October 24, 1983 should have ended on December 5, 1983 when he was convicted and sentenced in Chester County, thus commencing the 120-day time limit for his Board hearing. Since the hearing was not held until February 14, 1985, Petitioner contends that the hearing was untimely as to the Chester County convictions and the technical violations.
We cannot agree with Petitioners argument since we think that Petitioners second request for a continuance made, on January 4, 1984 had the effect of again continuing the violation and revocation hearing, this time pending disposition of the newly filed charges in Philadelphia. Petitioners January 4, 1984 request was that the “revocation and violation hearing” be continued pending “the outcome of other charges in Philadelphia.”
Petitioner argues in the alternative, however, that even if the January 4 request resulted in the continuance of the entire matter pending resolution of the Philadelphia charges, the ultimate hearing was nevertheless untimely. Petitioner contends in this regard that the Philadelphia charges were resolved on July 16, 1984 when he was convicted and that his hearing should have been held within 120 days of that date. Petitioner argues that the Board erred in waiting until after he was sentenced on the Philadelphia convictions on November 27, 1984 to schedule his hearings. Again, we must disagree.
Pertinent Board regulations provide as follows regarding revocation hearings:
The hearing shall be held within 120 days from the date the Board received official verification of the plea of guilty or nolo contendere of the guilty verdict at the highest trial court level except as follows:
*570 (ii) If the parolee requests a continuance of a revocation hearing which is granted by the Board, the Board will make reasonable efforts to reschedule the revocation hearing at the earliest opportunity consistent with the request of the parolee for a continuance.
37 Pa. Code §71.4(2)(ii) (emphasis added). Thus, commencement of the 120-day period is normally triggered by official verification of a conviction, rather than sentencing on that conviction. Ganter v. Pennsylvania Board of Probation and Parole, 45 Pa. Commonwealth Ct. 367, 405 A.2d 989 (1979). Where a continuance is involved, however, 37 Pa. Code §71.4(2)(ii) directs that the hearing must be scheduled in a manner “consistent with the request of the parolee.” We must, accordingly, interpret Petitioners January 4, 1984 request which was for a continuance “pending the outcome” of the Philadelphia charges. (Emphasis added.) Recognizing the lack of precision in the term “outcome,” we think the Boards interpretation of this request to include sentencing on the Philadelphia convictions was a reasonable one. In so doing, we note particularly that Petitioner has alleged no prejudice from any scheduling delay, and we have found no indication of prejudice from our review of the record. See Blair v. Pennsylvania Board of Probation and Parole, 47 Pa. Commonwealth Ct. 636, 408 A.2d 907 (1979), cert. denied, 466 U.S. 977 (1984). We, accordingly, conclude that the February 14, 1985 hearing was timely.
Petitioners next contention is that the 48 months of backtime ordered by the Board for Petitioners criminal convictions is excessive because it is based, in part, on additional convictions of Petitioner in federal court which arose from the same incident as that involved in the Chester County convictions. It is difficult to discern from the record before us whether Petitioners charac
Petitioners final argument is that the Board exceeded the presumptive range for credit card fraud when it imposed twelve months of backtime for Petitioners federal conviction on that charge. This issue was not raised in Petitioners request for administrative relief and has, therefore, been waived. Pa. R.A.P. 1551(a). We observe, however, that even if the presumptive range was exceeded, we believe such action is adequately supported by the Boards reference to Petitioners “emerging pattern of fraudulent offenses” as an additional basis for its imposition of backtime. Certified Record at 16.
Order affirmed.
Order
The order of the Pennsylvania Board of Probation and Parole in the above-captioned matter is hereby affirmed.
18 Pa. C. S. §3701.
18 Pa. C. S. §3922.
18 Pa. C. S. §4101.
The hearing was originally scheduled for December 18, 1984 in Philadelphia County Prison. The hearing was rescheduled twice: once, due to Petitioners transfer to SCI-Graterford and a second time due to Petitioners request for another continuance.
On January 17, 1986, Petitioner pled guilty in United States District Court for the Eastern District of Pennsylvania to “conspiracy to obtain from Banks and Retail Stores money by means of felse and fraudulent pretenses; in violation of Title 18 U.S.C. §371 as charged in Count One. Credit Card Fraud and aiding and abetting; in violation of Title 15 U.S.C. §1644(a) and Title 18 U.S.C. §2 as charged in Count 20.” Certified Record at 110.
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