         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Edward Foley,                            :
                   Petitioner            :
                                         :
            v.                           :   No. 1792 C.D. 2017
                                         :   Submitted: May 4, 2018
Pennsylvania Board of Probation and      :
Parole,                                  :
                 Respondent              :

BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE ROBERT SIMPSON, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                    FILED: July 23, 2018

            Edward Foley petitions for review of an adjudication of the
Pennsylvania Board of Probation and Parole (Board) that recommitted him as a
convicted parole violator. Foley argues that the Board’s panel revocation hearing
was untimely because it was held more than 120 days after he was returned to a State
Correctional Institution (SCI) following his conviction on new criminal charges.
Discerning no merit to Foley’s argument, we affirm the Board.
            On May 16, 2016, Foley was paroled from a one to two-year sentence
he received in 2015 for violating probation. On October 31, 2016, Foley was
arrested in Franklin County and charged with driving under the influence (DUI). On
January 12, 2017, Foley was arrested by Board agents and charged with violating
his parole. The Board detained and incarcerated Foley at SCI-Camp Hill that same
day.
            On January 18, 2017, the 39th Judicial District, Franklin County
Branch issued a writ to transfer Foley from SCI-Camp Hill to the Franklin County
Prison so that he could attend a preliminary hearing on the DUI charge. Foley was
transferred to Franklin County on January 23, 2017. On January 27, 2017, the State
Police charged Foley with theft by deception, forgery, and unauthorized use of
another person’s financial information. On April 12, 2017, Foley pled nolo
contendere to the DUI charge and the additional charges. He was returned to SCI-
Camp Hill on April 24, 2017.
              On June 6, 2017, the Board received official verification of Foley’s new
convictions. On June 28, 2017, he was recommitted as a technical parole violator to
serve four months of backtime. On July 6, 2017, Foley received a copy of the
Board’s Notice of Charges and Hearing, which scheduled a non-panel revocation
hearing on July 28, 2017, at SCI-Camp Hill. On July 26, 2017, Foley learned that
he would be transferred to SCI-Rockview the next day and that his revocation
hearing was rescheduled to August 8, 2017. The Notice of Charges and Hearing was
served on Foley on August 3, 2017, and again on August 29, 2017, which scheduled
the revocation hearing for September 11, 2017, when the Board held the revocation
hearing. On September 28, 2017, Foley was recommitted as a convicted parole
violator.
              On October 3, 2017, Foley filed an administrative appeal challenging
the September 11, 2017, revocation hearing as untimely.                  Specifically, Foley
asserted that the 120-day deadline for holding the hearing began to run when he was
returned to SCI-Camp Hill on April 24, 2017, not when the Board received
verification of his new convictions on June 6, 2017. Foley Brief at 13.1 The Board
denied Foley’s request for administrative relief, for the stated reason that the hearing

1
  The date of the hearing, September 11, 2017, was 140 days after Foley was returned to SCI-
Camp Hill from the Franklin County Prison and 97 days after the date on which the Board received
official verification of Foley’s new convictions.
                                               2
was held 97 days after the Board received official verification of Foley’s conviction.
Foley petitioned for this Court’s review.
               On appeal,2 Foley argues that the Board erred in affirming his
recommitment because it failed to provide him with a timely revocation hearing. At
issue in this case is the day on which the 120-day deadline for holding the hearing
began to run.
               We begin with the applicable law. Due process requires that a parolee
receive a timely hearing after he is taken into custody for a parole violation. Taylor
v. Pennsylvania Board of Probation and Parole, 931 A.2d 114, 117 (Pa. Cmwlth.
2007) (citing Morrissey v. Brewer, 408 U.S. 471 (1972)). In accordance with that
principle, the Board has obligated itself by regulation to hold a parole revocation
hearing within 120 days of receiving official verification of the parolee’s conviction,
as follows:

               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[3] 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

2
  Our review determines whether constitutional rights have been violated, whether an error of law
has been committed or whether the necessary findings of fact are supported by substantial
evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Miskovitch v.
Pennsylvania Board of Probation and Parole, 77 A.3d 66, 70 n.4 (Pa. Cmwlth. 2013), appeal
denied, 87 A.3d 322 (Pa. 2014).
3
  “Official verification” is “[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.
                                                3
                             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).4
              Foley argues that the exception in Section 71.4(l)(i) is applicable here
because he was confined in a county jail and did not waive his right to a revocation
hearing before a panel. 34 Pa. Code §71.4(l)(i). Both Foley and the Board assert
that our decisions in Morgan v. Pennsylvania Board of Probation and Parole, 814
A.2d 300 (Pa. Cmwlth. 2003), and Montgomery v. Pennsylvania Board of Probation
and Parole, 808 A.2d 999 (Pa. Cmwlth. 2002), support their respective positions.
              In Morgan, the parolee was in state prison serving 12 months of
backtime as a technical parole violator, when he was charged with federal crimes.
He was transferred to a federal detention center for approximately one week, where
he entered a guilty plea to the federal charges. He was then returned to state prison.
The Board conducted a parole revocation hearing on the basis of his federal
conviction approximately six months after his return to the state prison and two
months after the Board’s receipt of the official verification of his federal conviction.


4
  The Board bears the burden of establishing the timeliness of a panel revocation hearing; if the
Board fails to meet its burden by explaining the basis for any delay, the appropriate remedy is
dismissal of the parole violation charges with prejudice. See McDonald v. Pennsylvania Board of
Probation and Parole, 673 A.2d 27 (Pa. Cmwlth. 1996).
                                               4
The parolee asserted that the 120-day deadline began to run when he was returned
to state custody, and not when the Board received official verification of his
conviction. In rejecting the parolee’s argument, this Court explained:

              When a prisoner is detained pursuant to a writ for the purposes
              of presenting him to the court on new criminal charges, the
              prisoner is “considered to remain in the primary custody of the
              first jurisdiction unless and until the first sovereign relinquishes
              jurisdiction over the person. The receiving sovereign ... is,
              therefore, considered simply to be ‘borrowing’ the prisoner from
              the sending sovereign for the purposes of indicting, arraigning,
              trying, and sentencing him.”

Morgan, 814 A.2d at 303 (quoting Ruggiano v. Reish, 307 F.3d 121, 125 n.1 (3d Cir.
2002)).5 Because the parolee never left the Department of Corrections’ jurisdiction
even while physically in the custody of federal authorities to answer criminal
charges, the exception in 34 Pa. Code §71.4(l)(i) did not apply. Official notification
was the operative date for calculating the 120-day deadline for holding a timely
hearing.
              In Montgomery, the parolee was recommitted to state prison as a
technical parole violator. While serving his backtime, he was transferred to county
jail for a non-jury criminal trial. Approximately one month later, he was returned to
state prison. Six months later, the Board received verification of his new conviction
and scheduled a revocation hearing to recommit the parolee as a convicted parole
violator. As in Morgan, the parolee argued that the 120-day period began to run
upon his return to state prison, not when the Board received official notification of
his new conviction. This Court held that the exception did not apply because the


5
  Ruggiano was superseded on other grounds by Section 5G1.3 of the Federal Sentencing
Guidelines, 18 U.S.C., FSG §5G1.3 (2003), as stated in Smith v. McKean, 580 F.App’x. 98, 99 (3d
Cir. 2014).
                                              5
parolee had been serving his backtime sentence for the technical parole violation
during the relevant period and, thus, never left the jurisdiction of the Department of
Corrections. Accordingly, his revocation hearing was timely held.
               Foley contends that Morgan and Montgomery are distinguishable
because he was not serving backtime when he was transferred from SCI-Camp Hill
to Franklin County and then back to SCI-Camp Hill. He notes that in Morgan this
Court stated that we rejected the parolee’s argument in Montgomery “because the
parolee was continuously serving his technical parole violation backtime, although
physically in a county jail, [and] never left the jurisdiction of the Department of
Corrections.” Morgan, 814 A.2d at 303. Similarly, in Morgan the parolee was
serving his backtime in state prison when he was transferred to a federal detention
center.
               Foley focuses on why the Department of Corrections had jurisdiction
over the parolees in Morgan and Montgomery, i.e., they were serving backtime
sentences.     The salient point, however, is the fact that the Department had
jurisdiction over the parolee at the time of transfer and retained it throughout the
relevant period. It matters not whether the parolee was serving a backtime sentence,
as in Morgan and Montgomery, or was detained on the Board’s warrant, as in this
case.6 The issuance of the writ by the 39th Judicial District, Franklin County Branch


6
  Foley emphasizes that the regulation itself cites as an example of confinement outside the
jurisdiction of the Department of Corrections “confinement in a county correctional institution
where the parolee has not waived the right to a revocation hearing.” 37 Pa. Code §71.4(l)(i). Foley
overlooks that he was first incarcerated on the Board’s detainer, thereby subjecting him to the
Department of Corrections’ jurisdiction. When he was transported to Franklin County pursuant to
the court of common pleas’ writ, no “county confinement” occurred. Although he “was physically
in the care of other authorities, he technically never left the [Department’s] jurisdiction.” Morgan,
814 A.2d at 303.


                                                 6
did not interrupt the Department of Corrections’ jurisdiction over Foley, who
remained in the custody of the Department.7
                Indeed, Foley’s argument was raised and rejected by this Court in
Nance v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No. 1901 C.D.
2011, filed July 20, 2012).8 In Nance the parolee was arrested on new criminal
charges while on parole. He posted bail on the new charges, but the Board had
lodged a detainer warrant. As such, the parolee was transferred from the county jail
to state prison. Three months later, he was transferred to the county jail, where he
entered a guilty plea and was sentenced. He was returned to state prison the same
day.
                The Board received official verification of the new conviction four
months later and held a revocation hearing within 38 days of receiving the official
verification. The parolee argued that the revocation hearing was untimely because
more than 120 days had passed since his return to state prison. He also argued that

7
  Foley suggests that the primary jurisdiction analysis in Morgan and Ruggiano should be limited
to cases involving the allocation of sentence credit. We see no reason to limit its principles in that
respect. This Court has expressly relied on this primary jurisdiction analysis as “a means for
resolving jurisdictional disputes between the sovereigns” and held that whichever sovereign first
arrested the defendant has primary jurisdiction. Newsuan v. Pennsylvania Department of
Corrections, 853 A.2d 409, 411 (Pa. Cmwlth. 2004) (citing Chambers v. Holland, 920 F. Supp.
618, 622 (M.D.Pa.), aff’d, 100 F.3d 946 (3d Cir.1996)). Further, “[p]rimary jurisdiction remains
vested in the sovereign that first arrested the defendant until it relinquishes its priority of
jurisdiction by, e.g., bail release, dismissal of the state charges, parole release, or expiration of the
sentence.” Id. (citing Chambers, 920 F. Supp. at 622). See also Johnson v. Pennsylvania Board
of Probation and Parole, 19 A.3d 1178, 1180 (Pa. Cmwlth. 2011) (noting that the place of original
incarceration is the jurisdiction which maintains custody). The primary jurisdiction analysis is
especially appropriate where, as here, a parolee asserts that there is no basis to conclude that he
did not leave state jurisdiction when he was transferred temporarily to a county facility on a judicial
writ.
8
  This Court’s unreported memorandum opinions may be cited “for [their] persuasive value, but
not as binding precedent.” Section 414(a) of the Commonwealth Court’s Internal Operating
Procedures, 210 Pa. Code §69.414(a).
                                                   7
Morgan and Montgomery were limited to their facts, i.e., that the parolees had
already been recommitted and were serving their backtime when their transfers
occurred. The parolee attempted to distinguish his case from this precedent by
arguing that because he was held solely on the Board’s detainer, the Board lost
jurisdiction when he was transferred to the county jail. We rejected this argument.
We explained that the parolee was transferred only for the disposition of the new
criminal charges, not to serve a county sentence. As such, while he was physically
under the control of county authorities, he never left state jurisdiction.
             Here, Foley was transferred to answer new criminal charges, not to
serve a county sentence.       Accordingly, he never left the jurisdiction of the
Department of Corrections when he was transferred to Franklin County. Because
Foley was never under the jurisdiction of Franklin County, the exception under 37
Pa. Code §71.4(1)(i) does not apply here. Under 37 Pa. Code §71.4(1), the 120-day
period began to run when the Board received official verification of Foley’s new
convictions, on June 6, 2017. Foley’s revocation hearing, held 97 days later on
September 11, 2017, was timely.
             Accordingly, we affirm the Board.

                                     _____________________________________
                                     MARY HANNAH LEAVITT, President Judge




                                           8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Edward Foley,                         :
                  Petitioner          :
                                      :
            v.                        :   No. 1792 C.D. 2017
                                      :
Pennsylvania Board of Probation and   :
Parole,                               :
                 Respondent           :


                                 ORDER

            AND NOW, this 23rd day of July, 2018, the order of the Pennsylvania
Board of Probation and Parole dated November 28, 2017 in the above-captioned
matter is AFFIRMED.

                                 _____________________________________
                                 MARY HANNAH LEAVITT, President Judge
