§ 71.4. Conviction for a new criminal offense.

 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 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, 314A.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.

     (ii)   A parolee who is confined in a county correctional institution and who has waived the right to a revocation hearing by a panel in accordance with the Rambeau decision shall be deemed to be within the jurisdiction of the Department of Corrections as of the date of the waiver.

   (2)  Prior to the revocation hearing, the parolee will be notified of the following:

     (i)   The right to a revocation hearing, the right to notice of the exact date and the right at the revocation hearing to be heard by a panel.

     (ii)   The right to retain counsel, the right to free counsel if unable to afford to retain counsel and the name and address of the public defender.

     (iii)   There is no penalty for requesting counsel.

     (iv)   The right to speak, to have voluntary witnesses appear and to present documentary evidence.

     (v)   The purpose of the hearing is to determine whether to revoke parole and that if revocation is ordered, the parolee will receive no credit for time spent at liberty on parole.

   (3)  If the parolee cannot afford counsel, the Board will notify the appropriate public defender by transmitting a copy of the written notice given to the parolee.

   (4)  The revocation hearing shall be held by a panel or, when the parolee has waived the right to a hearing by a panel, by an examiner.

   (5)  If a parolee appears without counsel at a revocation hearing, it shall first be determined whether the parolee understands the right to retain counsel, the right to free counsel if unable to afford counsel and that there is no penalty for requesting counsel. If the parolee then wishes to exercise the right to counsel, the panel or examiner shall terminate the proceedings and the revocation hearing shall be rescheduled.

   (6)  The parolee has the right to be present during the entire proceeding, unless the parolee waives that right, refuses to appear or behaves disruptively.

   (7)  If the hearing is conducted by an examiner, the examiner shall file a report with the other panel member for decision.

   (8)  If revocation is ordered, the revocation decision shall be transmitted to the parolee and to counsel of record.

Authority

   The provisions of this §  71.4 issued under section 506 of The Administrative Code of 1929 (71 P. S. §  186); and section 23 of the act of August 6, 1941 (P. L. 861, No. 323) (61 P. S. §  331.23).

Source

   The provisions of this §  71.4 adopted August 4, 1972, effective August 14, 1972, 2 Pa.B. 1465; amended February 18, 1977, effective March 1, 1977, 7 Pa.B. 487; amended May 26, 1978, effective May 27, 1978, 8 Pa.B. 1468; amended May 23, 1980, effective May 24, 1980, 10 Pa.B. 2049; amended September 12, 1980, effective September 13, 1980, 10 Pa.B. 3667; amended September 17, 1982, effective September 18, 1982, 12 Pa.B. 3290; amended January 15, 1988, effective January 16, 1988, 18 Pa.B. 250. Immediately preceding text appears at serial pages (122538) to (122548).

Notes of Decisions

   Accrual

   Confinement in a county correctional facility is confinement outside of the Department of Corrections. Upon return to a State correctional facility, and in the absence of a waiver by the parolee, the Board must hold a panel revocation hearing within 120 days of return to the State facility. Copeland v. Board of Probation and Parole, 771 A.2d 86 (Pa. Cmwlth. 2001).

   Parole revocation hearing shall be held within 120 days of the official verification of the return of the parolee to a state correctional facility or, when the record contains no verification, the 120-day period begins to run on the date the Board could have obtained official verification. Unreasonable and unjustifiable delays which are not attributable to the parolee or the parolee’s counsel do not toll the running of the 120 days. Williams v. Board of Probation and Parole, 579 A.2d 1369 (Pa. Cmwlth. 1990); appeal denied 618 A.2d 405 (Pa. 1992).

   The Board must hold a parole or revocation hearing within 120 days from the date the Board receives official notice of a plea of guilty or nolo contendre or of the guilty verdict at the highest trial court level and it is not necessary for the Board to await a final conviction before imposing backtime on the parole violator. McClinton v. Board of Probation and Parole, 546 A.2d 759 (Pa. Cmwlth. 1988).

   An off the record statement by a hearing examiner that the petitioner was aware that his continuance request included the handwritten words ‘‘including sentencing,’’ which would have extended the 120 day limit, was not sufficient evidence to carry the Parole Board’s burden of proof. Dennis v. Board of Probation and Parole, 532 A.2d 1230 (Pa. Cmwlth. 1987).

   The parole revocation hearing must be held within 120 days of the date the Board receives official verification of a parolee’s conviction and not 120 days from the date of conviction. James v. Board of Probation and Parole, 530 A.2d 1051 (Pa. Cmwlth. 1987).

   The terms ‘‘revocation hearing’’ and ‘‘violation hearing’’ have acquired specific meanings in the context of parole, thus the defendant’s request for a ‘‘continuance of his violation/revocation hearing’’ related to both hearings and the delay caused by request for continuances will not be considered in determining timeliness of above-described hearings. Tarrant v. Board of Probation and Parole, 521 A.2d 997 (Pa. Cmwlth. 1987); appeal denied 535 A.2d 84 (Pa. 1987).

   The 120-day period for holding a full board hearing did not begin with date of parolee’s conviction in New York, but with the date he was returned to a Pennsylvania facility. Davis v. Board of Probation and Parole, 498 A.2d 6 (Pa. Cmwlth. 1985); appeal denied 531 A.2d 1120 (Pa. 1987).

   Where parolee was not charged with parole violation until after conviction of new crime, the 120-day time period for disposition of parole violation charge commenced on the date the parolee was charged with parole violation and not on the date of conviction of the new crime. Carr v. Board of Probation and Parole, 494 A.2d 1174 (Pa. Cmwlth. 1985).

   Where Board did not charge parolee with violation of parole until after conviction and sentencing for other crime the 120 day time period of 37 Pa. Code §  71.4(2), for providing a parolee with Revocation Hearing, commences on the date parolee is charged with parole violation, not on the date of finding or plea of guilty. Carr v. Board of Probation and Parole, 494 A.2d 1174 (Pa. Cmwlth. 1985).

   Where a petitioner does not waive his right to a full Board Hearing, the 120 days in which the Board has to give a convicted violator a hearing, paragraph (2), does not commence until petitioner’s return to a State Correction Institution. Chancey v. Board of Probation and Parole, 477 A.2d 22 (Pa. Cmwlth. 1984).

   A Board revocation hearing is timely where it is held within 120 days of receipt of notification of the guilty plea or verdict of guilt, or 120 days of official verification of the parolee’s return to a state correctional facility such 120-day period to be computed exclusive of time when the parolee is out of the jurisdiction of the Pennsylvania Bureau of Correction, under paragraph (2)(i). Toth v. Board of Probation and Parole, 470 A.2d 206 (Pa. Cmwlth. 1984).

   Where a parolee has been convicted of a new criminal offense, paragraph (2) requires that a parole revocation hearing be held within 120 days of the date the Board receives official verification of the conviction. Woods v. Board of Probation and Parole, 469 A.2d 332 (Pa. Cmwlth. 1983).

   Board regulations require that parole revocation hearings, where the violation charged is a conviction for a new offense, must be held within 120 days from the date the Board receives official notice of conviction. There is no corresponding time limit regarding rehearings, however. Lewis v. Board of Probation and Parole, 456 A.2d 729 (Pa. Cmwlth. 1983).

   The 120 day period for holding the hearing does not begin to run until the Board receives official verification of the transfer of a parolee from a county correctional institution to a state correctional facility. Harold X. (Smith) v. Board of Probation and Parole, 417 A.2d 1350 (Pa. Cmwlth. 1980).

   For purposes of revoking parole, the fact that the court deferred sentencing on the new convictions has no significance; the event justifying such action is a conviction on new charges. Ganter v. Board of Probation and Parole, 405 A.2d 989 (Pa. Cmwlth. 1979).

   Since the first trial of the parolee ended in a mistrial and a retrial had not yet taken place, the criminal charges were still pending and thus no violation of the 120 day time limit of 37 Pa. Code §  71.4(2) (relating to conviction for a new criminal offense) was yet possible. Battle v. Board of Probation and Parole, 403 A.2d 1063 (Pa. Cmwlth. 1979).

   The provisions of 37 Pa. Code §  71.4 (relating to conviction for a new criminal offense) does not become operative until a conviction on the new charges has been obtained. Ryles v. Board of Probation and Parole, 399 A.2d 151 (Pa. Cmwlth. 1979).

   If a parolee is confined in a county correctional institution, the 120-day period in which a parole revocation hearing must be held begins to run when the Board receives official verification of the parolee’s transfer to a state correctional facility rather than from the date of the Board’s reception of official verification of the parolee’s guilty plea. Perry v. Board of Probation and Parole, 398 A.2d 739 (Pa. Cmwlth. 1979).

   The 120-day period begins to run on the date on which the parolee is returned to the jurisdiction of the Bureau rather than on the date on which the parole violation warrant is filed. Terrell v. Jacobs, 390 A.2d 1379 (Pa. Cmwlth. 1978).

   The 120-day period for holding the hearing does not begin to run until the Board receives official verification of the transfer of a parolee from a county correctional institution to a state correctional facility. Alger v. Zaccagni, 388 A.2d 769 (Pa. Cmwlth. 1978).

   Calculation

   Although 37 Pa. Code §  71.4(5)(iv) (relating to conviction for a new criminal offense) is specifically directed to revocation hearings before an Examiner on waiver of hearing before a quorum of the Board, there is no reason to not apply it to a Board hearing. Dobson v. Jacobs, 406 A.2d 1207 (Pa. Cmwlth. 1979).

   Delay

   For offenders facing a revocation hearing based on new criminal conviction, the period of time that an offender is confined to a county prison does not count towards the 120 days that the Board of Probation and Parole has to provide the offender with a revocation hearing. Koehler v. Board of Probation and Parole, 935 A.2d 44, 51 (Pa. Cmwlth. 2007)

   Because the Board lodged the detainer, filed the parole violation charge and held the revocation hearing well beyond 120 days after the parolee’s return to State correctional institution, the parole violation charge must be dismissed with prejudice. It is well established that unreasonable and unjustifiable delay, which is not attributable to the parolee or parolee’s counsel, does not toll the running of the 120-day period. McDonald v. Board of Probation and Parole, 673 A.2d 27 (Pa. Cmwlth. 1996).

   Where a parolee’s right to a revocation hearing within 120 days was waived by his request for a continuance pending disposition of all criminal charges, the burden is not on the Board to keep track of when this event occurred. Williams v. Board of Probation and Parole, 561 A.2d 866, 867 (Pa. Cmwlth. 1989); appeal denied 575 A.2d 120 (Pa. 1990).

   Where parolee had been convicted in Philadelphia Municipal Court but had then appealed de novo to the Philadelphia County Common Pleas Court, the Municipal Court conviction was effectively nullified and the 120-day period for holding a parole revocation hearing commenced with the date of conviction in Common Pleas Court, not with the Municipal Court conviction date. Johnson v. Board of Probation and Parole, 511 A.2d 894 (Pa. Cmwlth. 1986).

   Section 71.4(2) providing that a full board hearing will be held within 120 days of official verification of the Board of the admission of a parolee from a county correctional institution to a state correctional facility does not violate a parolee’s right to a hearing within a reasonable period of time, does not violate equal protection and is not unconstitutionally vague. Andrews v. Board of Probation and Parole, 510 A.2d 394 (Pa. Cmwlth. 1986).

   The 120 day rule requires that a violation/revocation hearing not be held more than 120 days from the date of the Board’s receipt of official verification of the guilty verdict handed down. Dennis v. Board of Probation and Parole, 532 A.2d 1230 (Pa. Cmwlth. 1987).

   Revocation hearing was timely, since delay beyond statutory period was attributable to parolee’s request for a continuance. Pierce v. Board of Probation and Parole, 525 A.2d 1281 (Pa. Cmwlth. 1987).

   This section requires the Board of Parole and Probation to hold a hearing within 120 days of the date on which it receives official verification of parolee’s conviction for parole violation, and fact that defendant’s attorney know of his conviction previously to the Board’s receipt of verification does not render the hearing untimely. Tarrant v. Board of Probation and Parole, 521 A.2d 997 (Pa. Cmwlth. 1987); appeal denied 535 A.2d 84 (Pa. 1987).

   Where parolee, who had been arrested for new crime, requested a continuance of his violation and revocation hearing ‘‘pending disposition of criminal charges and sentencing, if convicted,’’ the 120 day period for hearing began when the Board received verification of sentencing, not with the date the continuance was requested. Robinson v. Board of Probation and Parole, 503 A.2d 1048 (Pa. Cmwlth. 1986); appeal after remand 520 A.2d 1230 (Pa. Cmwlth. 1987).

   Where Petitioner had requested and been granted a continuance of his parole revocation hearing, his contention on appeal that the 120-day rule of paragraph (2) had been violated was ‘‘wholly frivolous’’; appointed counsel was granted leave to withdraw and the Board of Probation and Parole’s denial of administrative relief was affirmed. Craig v. Board of Probation and Parole, 502 A.2d 758 (Pa. Cmwlth. 1985).

   Under paragraph (2), the Board has a 120-day period in which to provide a parolee a revocation hearing following a new criminal conviction; however, under paragraph (2)(i), the 120-day period does not commence for a parolee housed in a county prison who requests a full Board hearing until the parolee is received at a State correctional facility. Coades v. Board of Probation and Parole, 480 A.2d 1298 (Pa. Cmwlth. 1984).

   A parolee confined in a county correctional facility who waives his right to a Full Board revocation hearing is deemed to be within the jurisdiction of the Bureau of Corrections beginning with the date of his waiver, and the 120-day period begins to run as of that date. Woods v. Board of Probation and Parole, 469 A.2d 332 (Pa. Cmwlth. 1983).

   If a parolee who is confined outside the jurisdiction of the Bureau of Corrections does not waive his right to a Full Board revocation hearing, the 120-day period begins to run when the parolee is returned to a state correctional institution. Woods v. Board of Probation and Parole, 469 A.2d 332 (Pa. Cmwlth. 1983).

   Where a parolee is sent a notice captioned ‘‘Revocation Hearing—New Conviction’’ and makes an appearance for the hearing within the time prescribed in 37 Pa. Code §  71.4(1), and where the parolee then requests continuance of the hearing until such time as he is prepared to proceed, and the hearing is then held on the same day petitioner notifies the Board that he is prepared, the Board is excused from meeting the time constraints of 37 Pa. Code §  71.4(1). Nicastro v. Board of Probation and Parole, 455 A.2d. 295 (Pa. Cmwlth. 1983); appeal denied 530 A.2d 869 (Pa. 1987).

   Since the parolee was confined in county institutions because of an arrest on criminal charges and because of a bench warrant, and since he had requested a continuance of the final hearing until after disposition of the criminal charges, and the final hearing was held within 120 days of the dismissal of the criminal charges, the final hearing was timely. Hairston v. Jacobs, 408 A.2d 1195 (Pa. Cmwlth. 1979).

   The Board may delay a full revocation hearing until after sentencing in response to a parolee’s oral request for a continuance, especially since the parolee was not prejudiced by the delay. Blair v. Board of Probation and Parole, 408 A.2d 907 (Pa. Cmwlth. 1979); appeal after remand 454 A.2d 1186 (Pa. Cmwlth. 1983); appeal after remand 467 A.2d 71 (Pa. Cmwlth. 1983); cert. denied 466 U. S. 977 (1984).

   Postponements made at the request of the counsel of the parolee cannot be charged against the Board. Jones v. Board of Probation and Parole, 404 A.2d 755 (Pa. Cmwlth. 1979).

   If a parolee is detained in a county prison awaiting disposition of other charges, that time is excluded from the 120-day requirement of 37 Pa. Code §  71.4(2). Dobson v. Board of Probation and Parole, 402 A.2d 1133 (Pa. Cmwlth. 1979).

   The delay caused by the request of a parolee for a continuance will not be considered in determining whether the time limits have been met. Corbin v. Board of Probation and Parole, 399 A.2d 1202 (Pa. Cmwlth. 1979).

   The time a parolee spends in a county prison or detention center awaiting disposition of other charges is excluded from the 120-day requirement. Tate v. Board of Probation and Parole, 396 A.2d 482 (Pa. Cmwlth. 1979).

   The time limit for the hearing does not include any time which was the result of a request for a continuance, nor any time which was the result of a hearing waiver. Cohen v. Board of Probation and Parole, 390 A.2d 345 (Pa. Cmwlth. 1978).

   Due Process

   Delaying a revocation hearing beyond the 120-day requirement just so an inmate may serve an unspecified amount of time on his new sentence, without any further justification, does not equate with holding a hearing within a reasonable time or comport with due process. Williams v. Board of Probation and Parole, 757 A.2d 436 (Pa. Cmwlth. 2000).

   The Board must afford a convicted parole violator a final parole revocation hearing within a reasonable time after guilt is established and when there is a nine month delay between conviction and sentencing on the new criminal charges, the practice of delaying the final parole revocation hearing until after sentencing violates a parolee’s due process rights. United States ex rel. Burgess v. Lindsey, 395 F. Supp. 404 (E. D. Pa. 1975).

   Equal Protection

   Equal protection is not violated by paragraph (2) on the theory that it makes an arbitrary distinction between county-confined parolees who waive full Board hearings and county-confined parolees who do not so waive. Bronson v. Board of Probation and Parole, 468 A.2d 1205 (Pa. Cmwlth. 1983); appeal after remand 501 A.2d 704 (Pa. Cmwlth. 1985).

   Requiring incarcerated parolees confined in county institutions who desire prompt revocation hearings to waive their right to full hearing before Board of Probation and Parole is reasonable, and thus is not violative of equal protection. Blair v. Board of Probation and Parole, 467 A.2d 71 (Pa. Cmwlth. 1983); cert. denied 466 U. S. 977, 104 S.Ct. 2358 (1984).

   The provisions of 37 Pa. Code §  71.4(2)(i) excluding from computation the 120 day period the time of confinement spent outside of a State correctional facility do not violate equal protection principles. Emmi v. Board of Probation and Parole, 460 A.2d 889 (Pa. Cmwlth. 1983).

   The Parole Board’s regulations require that an unrepresented, indigent parolee facing a revocation hearing must be supplied with the address of the local public defender to whom he may apply for representation prior to the hearing. O’Hara v. Board of Probation and Parole, 487 A.2d 90 (Pa. Cmwlth. 1985).

   Evidentiary Issues

   Board could not take administrative notice of timeliness of revocation hearing where document necessary to establish date of verification of conviction was not time-stamped by Board; thus, Board’s determination was not supported by substantial evidence, and Board failed to meet its burden of proof by a preponderance of the evidence that hearing was timely. Abbruzzese v. Board of Probation and Parole, 524 A.2d 1049 (Pa. Cmwlth. 1987).

   Where a violator’s recommitment is based upon both his municipal court and common pleas convictions and the revocation hearing was not held within 120 days of the date the Board received notice as to one of those convictions, the court will not assume that either conviction would have been independently sufficient in the Board’s judgment to recommit the violator for the remainder of his unexpired term. Davis v. Board of Probation and Parole, 481 A.2d 714 (Pa. Cmwlth. 1984).

   The provisions of paragraph (2)(i) does not violate equal protection requirements, but merely provides two different mechanisms by which the board may obtain the jurisdiction necessary for its hearings and determinations to have validity. Woods v. Board of Probation and Parole, 469 A.2d 332 (Pa. Cmwlth. 1983).

   Exception

   Where a parolee is confined in a county institution, the 120-day time limit does not begin to run for purposes of parole revocation until the Board receives official verification of the parolee’s transfer to a State correctional facility. McMahon v. Board of Probation and Parole, 559 A.2d 595 (Pa. Cmwlth. 1989).

   Although parolee was held in county prison in this Commonwealth he was held there by Federal authorities and, under paragraph (2)(i), the time held there was not counted in computing the 120-day period within which parolee must be afforded a parole revocation hearing. Scott v. Board of Probation and Parole, 498 A.2d 31 (Pa. Cmwlth. 1985).

   Since parolee was confined in a Federal institution and not in a county institution, he did not come under that part of paragraph (2)(i) which provides that the 120-day period for hearing on a convicted parole violator charge begins with the date a county confinee waives the final revocation hearing by a quorum of the Board of Probation and Parole. Cameron v. Board of Probation and Parole, 496 A.2d 419 (Pa. Cmwlth. 1985).

   When a parolee is confined in a county correctional institution, the Board acquires jurisdiction over him when a waiver of his right to a full Board revocation hearing is executed, and a hearing held within 120 days of the date of the waiver is timely. D’Nicuola v. Board of Probation and Parole, 467 A.2d 1383 (Pa. Cmwlth. 1983).

   General Comment

   Under 37 Pa. Code §  71.5, which provided only general rules governing Chapter 71, this section was a special provision pertaining to parolees who have been convicted of a new criminal offense. Geiger v. Board of Probation and Parole, 655 A.2d 214 (Pa. Cmwlth. 1995).

   Jurisdiction

   After being detained and revoked, the parolee was temporarily transferred to the Federal Detention Center in Philadelphia to plead guilty to Federal charges. The parolee’s temporary transfer to the Federal detention center did not constitute confinement outside the jurisdiction of the Department of Corrections. Morgan v. Board of Probation and Parole, 814 A.2d 300 (Pa. Cmwlth. 2003).

   Although the parolee was moved from a State correctional facility to a county one for a nonjury trial on new charges, he was at all times serving State backtime and was under a Department jurisdiction. Montgomery v. Board of Probation and Parole, 808 A.2d 999 (Pa. Cmwlth. 2002).

   Because a parolee confined outside the jurisdiction of the Department of Corrections is clearly not ‘‘available’’ to begin serving backtime for the original offense, any new sentence a parolee is ordered to serve at an institution different from that which he or she was paroled from must precede backtime. Griffin v. Department of Correction, 862 A.2d 152, 155 N. 4 (Pa. Cmwlth. 2004).

   The provisions of 37 Pa. Code §  71.4 (relating to conviction for a new criminal offense) is not applicable if 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 the request of the Board itself. Hammond v. Board of Probation and Parole, 396 A.2d 485 (Pa. Cmwlth. 1979).

   Time spent in a State hospital did not constitute within the jurisdiction of the Department of Corrections, and therefore, the 120-day rule did not apply. Slater v. Board of Probation and Parole, 542 A.2d 200 (Pa. Cmwlth. 1988).

   Since the parolee was being held in a county institution at the time of his full-board hearing, the Board had no jurisdiction over him and did not violate his rights in ordering him recommitted as a convicted parole violator ‘‘when available’’ and in setting no date for reparole reconsideration. Rothman v. Jacobs, 392 A.2d 903 (Pa. Cmwlth. 1978).

   Notice

   A parolee was not given adequate notice of a revocation hearing since it was originally scheduled to be a preliminary hearing but was changed to a revocation hearing after the parolee appeared for the preliminary hearing and informed the Board that he had been convicted of the new criminal charges. Champion v. Board of Probation and Parole, 399 A.2d 447 (Pa. Cmwlth. 1979).

   Official Verification

   If the record does not disclose the date of notification, then the date of the return of the prisoner to the state correctional institution is considered to be the date of notification. Cohen v. Board of Probation and Parole, 390 A.2d 345 (Pa. Cmwlth. 1978).

   Preliminary Hearing

   A preliminary detention hearing need not be held within ten days when a parolee is given a preliminary hearing relative to the criminal charges and is later tried and convicted on those charges. Alger v. Zaccagni, 388 A.2d 769 (Pa. Cmwlth. 1978).

   Reasonable Time

   Although the Board may delay final revocation hearing until after the trial on the criminal charges without violating due process, the final hearing must be held within a reasonable time and a nine month delay is unreasonable. United States ex rel. Burgess v. Lindsey, 395 F. Supp. 404 (E. D. Pa. 1975).

   Revocation Decision

   

   For the purpose of determining whether defendant’s revocation hearing was timely, criminal arrest and disposition report could not be considered when determining the date on which the Board of Probation and Parole received official verification of defendant’s guilty plea where the report was never entered into the record at the hearing. Johnson v. Board of Probation and Parole, 890 A.2d 45, 49 (Pa. Cmwlth. 2006).

   The Board’s failure to send counsel of record a copy of a recommitment order constituted negligence by the Board and the parolee’s attorney’s submission of a request for administrative relief 34 days after the order was issued was excused. Calcagni v. Board of Probation and Parole, 582 A.2d 1141 (Pa. Cmwlth. 1990).

   As long as the Board follows its regulations regarding informing the parolee of the right to counsel, provides the parolee with a form PBPP 340 containing the written notice of the right to counsel as well as the name and address of the applicable public defender, and documents the waiver of counsel by a Form PBPP 72 at the time of the hearing which becomes part of the record, the parolee’s waiver of counsel will be deemed informed and voluntary and given effect. Coades v. Board of Probation and Parole, 480 A.2d 1298 (Pa. Cmwlth. 1984).

   An order by the Board, dated March 19, 1981, computing backtime and fixing the time for reparole as a result of a hearing held on September 3, 1975, did not violate any of the parolee’s rights under 37 Pa. Code §  71.4(9). Brown v. Board of Probation and Parole, 456 A.2d 1141 (Pa. Cmwlth. 1983).

   Although the Board failed to follow the requirements of 37 Pa. Code §  71.4(9) (relating to conviction for a new criminal offense) in that notice of the Board’s decision was not sent until some months after the decision was made, the petitioner was not prejudiced, since his failure to receive notice was due to his unauthorized absence from the detention facility where notice was actually sent. Grady v. Jeffes, 401 A.2d 1386 (Pa. Cmwlth. 1979).

   Revocation Hearing

   The 120-day time period for the Board of Probation and Parole to conduct a parole revocation hearing began to run from the date the board received the court history detailing defendant’s conviction; the court history constituted the ‘‘official’’ verification of defendant’s conviction which started the 120-day period, and the fact that the Board or parole agents had knowledge of defendant’s new conviction prior to the receipt of the official verification did not trigger the 120-day period. Taylor v. Board of Probation, 931 A.2d 114, 120 (Pa. Cmwlth. 2007)

   Revocation of parole hearing which resulted in decision to recommit parolee to serve backtime as a convicted parole violator was held in a timely manner by Board of Probation and Parole where hearing occurred within the 120 days from date Board received official verification parolee’s sentence. Reavis v. Board of Probation and Parole, 909 A.2d 28, 35—36 (Pa. Cmwlth. 2006).

   Petitioner who was charged as a technical violator and not as a convicted violator was not entitled to a revocation hearing and his due process rights were not violated. Obringer v. Board of Probation and Parole, 547 A.2d 449 (Pa. Cmwlth. 1988); appeal denied 557 A.2d 728 (Pa. 1989).

   Parolee’s due process rights were not violated where Board held full violation and revocation hearing while parolee was still incarcerated in county prison and before 120 day period, provided for in 37 Pa. Code §  71.4(2)(i), began to run. Inmon v. Board of Probation and Parole, 504 A.2d 373 (Pa. Cmwlth. 1986).

   Section 71.4 requires that a final parole revocation hearing be held within 20 days of official verification of parolee’s guilty verdict. Taylor v. Board of Probation and Parole, 402 A.2d 1153 (Pa. Cmwlth. 1979).

   The revocation hearing must be held within the required time if the parolee is being confined in a county correctional facility solely as a result of the Board’s action and thus is being held exclusively under the Board’s jurisdiction. Dobson v. Board of Probation and Parole, 398 A.2d 252 (Pa. Cmwlth. 1979).

   Right to Counsel

   The Board complied with this section in granting a continuance to permit the petitioner to obtain legal representation since he expressed desire to be represented by counsel, even though petitioner refused to sign the continuance form because he felt he would be harmed by signing. Africa v. Board of Probation and Parole, 556 A.2d 506 (Pa. Cmwlth. 1989); appeal denied 564 A.2d 917 (Pa. 1989).

   The on-the-record colloquy required by 234 Pa. Code Rule 318 in criminal court is not a prerequisite for effective waiver of counsel in a parole revocation hearing; compliance by the Board with its own regulations is sufficient. Pitch v. Board of Probation and Parole, 514 A.2d 638 (Pa. Cmwlth. 1986).

   Two days’ notice over a weekend is inadequate notice to counsel of a parole revocation hearing and parolee’s waiver of counsel cannot be considered freely made where hearing examiner, knowing parolee desired prompt treatment for pre-AIDS syndrome and treatment was not available in parolee’s then present prison, explained the choice as between going ahead without counsel or postponing to a later unpredictable date. Murray v. Jacobs, 512 A.2d 785 (Pa. Cmwlth. 1986).

   The Board must ensure that the parolee is aware of the right to counsel, however the Board’s counseling is not required to be done on the record and may be done by waiver of counsel form PBPP72. Coades v. Board of Probation and Parole, 480 A.2d 1298 (Pa. Cmwlth. 1984).

   The Board is required to assure the parolee that he will not be penalized in any way for requesting counsel. Coades v. Board of Probation and Parole, 480 A.2d 1298 (Pa. Cmwlth. 1984).

   An indigent parolee in a Board parole revocation hearing shall, upon proper request, be provided counsel by the public defender of the county in which the parolee is incarcerated, and not, if the parolee was convicted in a different county, by the public defender of the county of conviction. Passaro v. Board of Probation and Parole, 424 A.2d 561 (Pa. Cmwlth. 1981).

   Timeliness

   The parolee’s revocation hearing was held within the 120-day limit; however, in preparation of the parolee’s appeal, the Board discovered that the tape of the hearing was blank, preventing the creation of a transcript. Upon petition and order of Commonwealth Court, a rehearing was held after the original 120-day period had expired. Under these circumstances, the hearing is deemed to be timely. Joyce v. Board of Probation and Parole, 811 A.2d 73 (Pa. Cmwlth. 2002).

   Under subsection (i), where a parolee was confined in a county correctional institution and had waived the right to a panel revocation hearing, the parolee was deemed to be within the jurisdiction of the Department of Corrections as of the date of the waiver. In such a case, the 120 day period began to run on the date of the waiver or the date of official verification of the conviction, whichever was later. Hartagen v. Board of Probation and Parole, 662 A.2d 1157 (Pa. Cmwlth. 1995).

   The Board of Probation and Parole’s acquisition of jurisdiction triggered the running of the 120 day period in which to conduct a probation revocation hearing. Because the period did not begin to run when the convicted parole violator was returned to the state facility, petitioner’s parole violation charges are dismissed. Mack v. Board of Probation and Parole, 654 A.2d 129 (Pa. Cmwlth. 1995).

   Timely Hearing

   Evidence supported the Board of Probation and Parole’s position that petitioner’s parole revocation hearing was timely in that it was held 67 days after receipt of official verification of his conviction; parole agent testified when Board received official verification and the criminal arrest and disposition report indicated that official verification of petitioner’s conviction was received by the Board on that date. Eaton v. Bd. of Probation and Parole, 959 A.2d 477, 480 (Pa. Cmwlth. 2008).

   Where it is alleged that the Board was aware of the conviction and the availability of the conviction records, but did not retrieve them, a remand was required to determine whether a 143 day period between a parolee’s conviction and the receipt of the conviction records by the Board rendered a parole revocation hearing untimely. Fitzhugh v. Board of Probation and Parole, 623 A.2d 376 (Pa. Cmwlth. 1993).

   A recommitment order is a final, appealable order, and by failure to appeal a recommitment order, the petitioner waived issues relating to timeliness of his revocation hearing. Woodard v. Board of Probation and Parole, 582 A.2d 1144 (Pa. Cmwlth. 1990).

   Failure to provide revocation hearing 120 days from date of receipt of verification of conviction resulted in prejudice; parole violation charges dismissed. Johnson v. Board of Probation and Parole, 566 A.2d 918 (Pa. Cmwlth. 1989); appeal granted 575 A.2d 118 (Pa. 1990); affirmed 583 A.2d 790 (Pa. 1991).

   Where parolee had requested continuance pending sentencing for new crime, fact that the hearing was held prior to sentencing did not nullify the continuance but only gave parolee basis to object to prematurity of hearing. Robinson v. Board of Probation and Parole, 503 A.2d 1048 (Pa. Cmwlth. 1986); appeal after remand 520 A.2d 495 (Pa. Cmwlth. 1987).

   A parolee could not argue that he was denied due process and should have received a revocation hearing within 120 days of his plea of guilty when he was free on bail and not incarcerated during that time period. Myers v. Board of Probation and Parole, 554 A.2d 622 (Pa. Cmwlth. 1989).

   Where Board failed to meet its burden of proof by a preponderance of the evidence that hearing was timely, proper remedy is a dismissal of parole violation charges with prejudice. Abbruzzese v. Board of Probation and Parole, 524 A.2d 1049 (Pa. Cmwlth. 1987).

   Where convicted parole violator alleged that his revocation hearing was untimely, it is for the Board to prove by a preponderance of the evidence that it was, in fact, timely. Abbruzzese v. Board of Probation and Parole, 524 A.2d 1049 (Pa. Cmwlth. 1987).

   Where a revocation hearing is scheduled and held by the Board of Probation and Parole within 120 days from the date the Board received notification of a plea of guilty by a parolee, such a hearing is timely under paragraph (2) notwithstanding the fact that the Board scheduled a re-hearing to hear evidence on an objection by the petitioner beyond the 120 day limit. Hughes v. Board of Probation and Parole, 473 A.2d 225 (Pa. Cmwlth. 1984).

   Where the Board, under a timely hearing, recommits a parolee solely on the basis of a conviction for one of two charges on which the parolee was simultaneously convicted, the Board cannot then recommit on the basis of conviction on the second charge, if the hearing on that charge is held after the expiration of the 120-day limit contained in this section. McSorley v. Board of Probation and Parole, 463 A.2d 1234 (Pa. Cmwlth. 1983).

   The 120-day rule of 37 Pa. Code §  71.3 is satisfied when the Board holds a full violation and revocation hearing within 120 days of conviction but that hearing is continued because the parolee is not represented by counsel, even if the eventual hearing where the parolee is represented by counsel is held after expiration of the 120-day period, as it is not the responsibility of the Board to provide counsel. Ruza v. Board of Probation and Parole, 458 A.2d 662 (Pa. Cmwlth. 1983).

   The Board has complied with the time limitations of 37 Pa. Code §  71.4(2) if it offers a hearing within 120 days from the date the Board receives official notification of an attorney who purports to represent the parolee, regardless of whether any attorney-client relationship actually exists. Jones v. Board of Probation and Parole, 455 A.2d 778 (Pa. Cmwlth. 1983).

   If a parolee is detained without hearing, pending disposition of new criminal charges, and a final revocation hearing is held 22 days after the conviction of the parolee on the new criminal charges, the Board has complied with the requirement that a hearing be held within 120 days from the date the Board receives official verification of a plea of nolo contendere or a guilty verdict at the highest trial court level. Mirando v. Cuyler, 412 A.2d 916 (Pa. Cmwlth. 1980).

   A parolee whose combined violation and revocation hearing was untimely as to the technical violation charges under the provisions of 37 Pa. Code §  71.2(11) (relating to procedure for violation of parole conditions) was not prejudiced thereby, because the revocation component of the hearing was timely, due to the fact that the limitation period for criminal parole violations provided by 37 Pa. Code §  71.4(2)(i) had not begun to run on the date of the hearing due to the parolee’s interim county prison incarceration, and his original maximum sentence was extended solely because of criminal, not technical, parole violations. Hines v. Board of Probation and Parole, 420 A.2d 381 (Pa. Cmwlth. 1980).

   Since the revocation hearing was held within 120 days of the parolee’s return to a state correctional facility from a penitentiary in another state, the hearing was timely. Auman v. Board of Probation and Parole, 394 A.2d 686 (Pa. Cmwlth. 1978).

   Since the final revocation hearing was held within 120 days of the parolee’s return to the state correctional facility from a federal penitentiary, the hearing was timely held. Harris v. Board of Probation and Parole, 393 A.2d 510 (Pa. Cmwlth. 1978).

   Since the parole violation hearing was held within 120 days of the return of the parolee to the state correctional institution from a county correctional institution, the hearing was timely held. Gaito v. Board of Probation and Parole, 392 A.2d 343 (Pa. Cmwlth. 1978); affirmed 412 A.2d 568 (Pa. 1980).

   Holding the hearing over five months after conviction is not a violation of this section if the parolee is being held at a county prison and is not transferred to a state correctional institution until well after the hearing is held. Thomas v. Board of Probation and Parole, 391 A.2d 714 (Pa. Cmwlth. 1978).

   The final revocation hearing for a parolee convicted of a new crime was held within a proper time after conviction where it was set for three months after conviction and was delayed for an additional two months because of the parolee’s request for a continuance. Washington v. Jacobs, 386 A.2d 631 (Pa. Cmwlth. 1978).

   Vagueness

   The right to parole is not a fundamental right; the regulation providing that the 120-day period for hearing commences upon release from county authorities into state custody is reasonable and is not unconstitutionally vague. Andrews v. Board of Probation and Parole, 510 A.2d 394 (Pa. Cmwlth. 1986).

Cross References

   This section cited in 37 Pa. Code §  71.5 (relating to general).



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