Fisher v. Pennsylvania Board of Probation & Parole

62 A.3d 1073, 2013 Pa. Commw. LEXIS 51
CourtCommonwealth Court of Pennsylvania
DecidedFebruary 20, 2013
StatusPublished
Cited by110 cases

This text of 62 A.3d 1073 (Fisher v. Pennsylvania Board of Probation & Parole) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fisher v. Pennsylvania Board of Probation & Parole, 62 A.3d 1073, 2013 Pa. Commw. LEXIS 51 (Pa. Ct. App. 2013).

Opinion

OPINION BY

Judge COVEY.

Omar Fisher (Fisher) petitions this Court for review of the Pennsylvania Board of Probation and Parole’s (Board) May 18, 2012 denial of his petition for administrative appeal. There are four issues for this Court’s review: (1) whether by waiving his right to a revocation hear[1074]*1074ing, Fisher also waived his right to later allege that the Board violated his due process rights by not scheduling a revocation hearing within 120 days; (2) whether the Board retained jurisdiction over Fisher during the time he was housed in a federal correctional institution; (3) whether the Board violated Fisher’s due process rights by failing to schedule a revocation hearing ■within 120 days of his transfer back to a state correctional facility; and, (4) whether the Board abused its discretion by imposing a period of backtime exceeding the maximum presumptive range without providing sufficient written justification. We affirm.

Fisher was serving a 5 to 10-year sentence for robbery and criminal conspiracy when he was released on parole on May 15, 2001, with a maximum release date of December 29, 2005. On July 26, 2004, a parole officer discovered that Fisher had a large amount of money in his possession. During a search of Fisher’s home, an additional large amount of money, three handguns, and two plastic baggies containing small plastic baggies of a white chunky substance were discovered in his bedroom. Fisher was arrested by Philadelphia police on drug and firearm possession charges. On that same day, the Board arrested Fisher for parole violations, and he was detained at the State Correctional Institution (SCI) at Graterford pending disposition of the criminal charges. On July 19, 2005, federal authorities indicted Fisher for possession with intent to distribute more than 5 grams of cocaine base (crack), possession with intent to distribute cocaine, possession of a firearm in furtherance of a drug trafficking crime, and as a felon in possession of a firearm and ammunition.

The state criminal charges were dropped on July 28, 2005, in lieu of the federal charges. On August 11, 2005, Fisher was transferred from SCI-Grater-ford to a federal detention center and remained there until he was returned to state custody at SCI-Somerset on December 27, 2005. On that same date, the Board lifted its detainer, and Fisher was released from his state sentence.

On January 29, 2007, Fisher was found guilty in federal court of three of the four criminal charges against him. On April 23, 2007, Fisher was sentenced to serve 151 months in prison, with 10 years of supervised release. The Board received official verification of Fisher’s federal conviction on May 18, 2007. On October 22, 2008, while Fisher was serving his federal sentence, the Board issued a warrant to arrest and detain him as a convicted parole violator based on his federal convictions.

By October 26, 2011 notice, the Federal Bureau of Prisons notified the Board that Fisher’s federal sentence had been reduced, and that his September 14, 2014 release date was changed to November 1, 2011. The notice further provided that specific arrangements would have to be made to transfer custody since, despite the Board’s detainer, because Fisher was serving his federal sentence outside Pennsylvania, extradition requirements would not allow for Fisher to be released directly to the Board. On November 8, 2011, Fisher waived extradition and consented to be returned to state custody. He was returned to Pennsylvania on November 15, 2011.

On December 9, 2011, Fisher signed a Waiver of Revocation Hearing and Counsel/Admission Form (Form), thereby admitting that he committed and was convicted of the federal offenses while on parole, and waiving his right to a parole revocation hearing and counsel at the hearing, “[w]ith full knowledge and understanding” of his rights. Certified Record (C.R.) at 45. The Form reflects that Fish[1075]*1075er understood that his admission could be withdrawn within 10 calendar days. By notice issued March 15, 2012, the Board recommitted Fisher “as a convicted parole violator to serve his unexpired term of 3 years, 6 months, 29 days,” making his new parole maximum date June 1, 2015. C.R. at 50. Fisher filed an administrative appeal with the Board, arguing that he was not given a timely parole revocation hearing and that his recommitment term was excessive. On May 18, 2012, the Board denied his appeal and affirmed the Board’s decision. Fisher appealed to this Court.1

Fisher first argues that although he waived his right to a revocation hearing on December 9, 2011, he did not expressly waive his right to later allege that the Board failed to timely schedule a revocation hearing. We disagree.

Section 71.4 of the Board’s Regulations, 37 Pa. Code § 71.4, states in pertinent part:

(1) A revocation hearing shall be held within 120 days from the date the Board received official verification ... 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 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.

(Emphasis added). Based upon the express provisions of Section 71.4(1) of the Board’s regulations, Fisher waived his right to challenge the timeliness of his revocation hearing when he expressly waived his right to have a hearing in the first place.

This Court has held:

[i]n order to effectuate a knowing and voluntary waiver in [Board] cases, all that is required is for the Board to show that it followed its own regulations and provided the necessary information to the offender prior to the offender signing the written waiver form. The waiver need not be effectuated in an ‘on the record colloquy.’ Rather, as here, execution of the Board’s form is sufficient.

Prebella v. Pennsylvania Bd. of Prob. & Parole, 942 A.2d 257, 261 (Pa.Cmwlth. 2008) (citations omitted). Moreover, in Baxter v. Pennsylvania Board of Probation and Parole (Pa.Cmwlth. No. 12 C.D. 2011, filed February 24, 2012),2 this Court specifically held that once a parolee waives his right to a parole revocation hearing, he is precluded from subsequently challenging the hearing’s timeliness.

Here, Fisher does not challenge the validity of his waiver, only its effect. It is undisputed that Fisher executed a waiver “of [his] rights to a parole revocation hearing.” C.R. at 45. The waiver of the right to a hearing necessarily encompasses the right to advance claims of error [1076]*1076he could have raised at the hearing. As in Baxter, we likewise hold that when he waived his right to a revocation hearing on December 9, 2011, he expressly waived his right to later allege that the Board failed to timely schedule a revocation hearing.3

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Bluebook (online)
62 A.3d 1073, 2013 Pa. Commw. LEXIS 51, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fisher-v-pennsylvania-board-of-probation-parole-pacommwct-2013.