                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Amin Griffin,                              :
                    Petitioner             :
                                           :   No. 762 C.D. 2018
             v.                            :
                                           :   Submitted: March 15, 2019
Pennsylvania Board of                      :
Probation and Parole,                      :
                  Respondent               :


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                           FILED: April 12, 2019


             Amin Griffin (Petitioner) petitions for review of the decision of the
Pennsylvania Board of Probation and Parole (Board) mailed on May 7, 2018, which
denied Petitioner’s request for administrative relief and affirmed its November 6,
2017 decision to recommit Petitioner as a convicted parole violator (CPV) to serve 36
months’ backtime and recalculated his maximum sentence date.1 Petitioner contends
that the Board failed to conduct a timely revocation hearing.
             The pertinent facts and procedural history of this case are as follows. On
August 19, 1997, a court of common pleas sentenced Petitioner to 11 to 30 years’
imprisonment following his convictions for aggravated assault and conspiracy to

      1
          By per curiam order dated June 8, 2018, this Court appointed counsel to represent
Petitioner in this appeal.
commit aggravated assault. On March 31, 2015, the Board released Petitioner on
reparole to the Joseph E. Coleman Center in Philadelphia, Pennsylvania. On July 13,
2016, the Pennsylvania State Police arrested Petitioner in Bedford County, and he
was detained at the Bedford County Correctional Facility (Bedford County Jail). The
prosecuting authorities then charged Petitioner with over 40 different crimes.
(Certified Record (C.R.) at 1-2, 38-41, 51-61.)
             On July 14, 2016, the Board lodge a warrant to commit and detain
Petitioner at the Bedford County Jail for violating parole. By decision recorded
August 19, 2016, the Board ordered that Petitioner be detained pending disposition of
the new criminal charges. (C.R. at 48, 67, 73.)
             On April 25, 2017, Petitioner and the Office of the District Attorney for
Bedford County entered into a plea agreement in which Petitioner agreed to plead
guilty to felony counts of possession of a controlled substance, aggravated assault,
escape, and fleeing or attempting to elude a police officer and, also, two misdemeanor
counts of recklessly endangering another person. On June 16, 2017, a trial judge
from the Court of Common Pleas of Bedford County accepted the plea agreement and
sentencing recommendation of the Assistant District Attorney and sentenced
Petitioner to an aggregate term of 2 years and 3 months to 15 years’ imprisonment at
a state correctional institution. Shortly thereafter, on June 25, 2017, Petitioner was
transferred from the Bedford County Jail to the Blair County Correctional Facility
(Blair County Jail). The Board did not receive advanced notification of this transfer.
(C.R. at 100-05, 118, 132, 175.)
             On September 8, 2017, the Board served Petitioner with a copy of the
notice of charges and parole revocation hearing. On September 25, 2017, Petitioner
requested that a revocation hearing be conducted before a panel of the Board. On



                                          2
September 28, 2017, Petitioner was returned to a state correctional institution,
specifically the State Correctional Institution at Houtzdale (SCI-Houtzdale). On that
same date, the Board convened a revocation hearing. (C.R. at 111-112, 188.)
            At the hearing, Petitioner, inter alia, objected on the ground that the
hearing was untimely and argued that the charges should be dismissed.        Petitioner
testified and admitted that he never signed a waiver of his right to a panel hearing
while he was confined at the Bedford County Jail or the Blair County Jail. Parole
Agent Amina Wilkerson, the prosecuting agent for the Board, testified, inter alia, that
Petitioner had been incarcerated at county prisons and was not transferred to SCI-
Houtzdale until the day of the hearing, September 28, 2017. (C.R. at 128-132.)
            By decision mailed November 6, 2017, the Board recommitted Petitioner
as a CPV, imposed backtime, and recalculated his maximum sentence date.
Thereafter, Petitioner filed an administrative appeal, asserting that the hearing was
untimely. In a decision that was mailed on May 7, 2018, the Board denied the appeal.
(C.R. at 190-193, 201-10.) The Board reasoned as follows:

            The record reflects that you pled guilty [to] the new
            offenses on June 16, 2017, and you were returned to a state
            correctional institution (“SCI”) for the first time since your
            release on parole on September 28, 2017. There is no
            indication that you waived your right to a panel hearing
            prior to your return to an SCI. Because you were confined
            outside the jurisdiction of the Pennsylvania Department of
            Corrections at the time of your conviction, the Board was
            required to hold the revocation hearing within 120 days of
            the date they [sic] received official verification of your
            return to an SCI. 37 Pa. Code §71.4(1)(i). In this case, you
            were returned to an SCI on September 28, 2017, and the
            Board conducted the revocation hearing that same day.
            Therefore, the revocation hearing was timely.




                                          3
(C.R. at 209.) Petitioner then filed a petition for review with this Court.2


                                           Discussion
              Citing Mack v. Pennsylvania Board of Probation and Parole, 654 A.2d
129 (Pa. Cmwlth. 1995), Petitioner argues that when the Board lodged its detainer on
July 14, 2016, he was confined at the Bedford County Jail solely on the Board’s
warrant and that the 120-day period began to run as of that date. Petitioner, as such,
contends that the revocation hearing held on September 28, 2017, was untimely.
              Where a parolee asserts that the Board held a revocation hearing beyond
the 120-day period, the Board bears the burden of proving, by a preponderance of the
evidence, that the hearing was timely. Koehler v. Pennsylvania Board of Probation
and Parole, 935 A.2d 44, 50 (Pa. Cmwlth. 2007).
              Section 71.4(1) of the Board’s regulations addresses the timing of
revocation hearings for a CPV, stating:

              (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], 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),

       2
         Our scope of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, or whether necessary findings of fact are supported by
substantial evidence. McCloud v. Pennsylvania Board of Probation and Parole, 834 A.2d 1210,
1212 n.6 (Pa. Cmwlth. 2003).



                                                4
             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] as of the date of the waiver.
37 Pa. Code §71.4(1) (emphasis added).
             In interpreting section 71.4(1)(i) of the Board’s regulations, this Court
has fashioned a particular set of rules for a parolee who is detained at a county
correctional institution. See, e.g., Mack, 654 A.2d at 131; Scott v. Pennsylvania
Board of Probation and Parole, 498 A.2d 31, 33 (Pa. Cmwlth. 1985). In Mack, we
concluded that, when a parolee was confined to a county correctional facility after his
new conviction in order to complete the sentence imposed for the new conviction, the
triggering date for counting the 120 days occurred when the parolee completed the
term of his county sentence. We determined that when the county sentence expired,
the Board had acquired jurisdiction over the parolee because, at that point, the parolee
was being “held at the county institution solely as a result of the Board’s action.” 654
A.2d at 131. Because the parolee completed his new sentence on November 2, 1993,
this Court found that the revocation hearing held on March 9, 1994 (127 days later)
was untimely, even though the parolee was not returned to a state correctional
institution until November 12, 1993 (117 days to the date of the hearing). See also
Dobson v. Pennsylvania Board of Probation and Parole, 398 A.2d 252, 253-54 (Pa.
Cmwlth. 1979).
             Similarly, in Murray v. Jacobs, 512 A.2d 785 (Pa. Cmwlth. 1986), we
concluded that the date for calculating the 120-day limitation period began when, at
the time of sentencing, the parolee had fully served the term of his new county


                                           5
sentence and a trial judge immediately paroled him from the county correctional
facility to the Board’s detainer. Id. at 788-89. In Hammond v. Pennsylvania Board
of Probation and Parole, 396 A.2d 485 (Pa. Cmwlth. 1979), this Court determined
that, when a trial judge sentenced the parolee to a term of probation on the new
convictions and did not impose a term of incarceration, the clock for a revocation
hearing started on the date of sentencing.        Id. at 486-87. In both Murray and
Hammond, we explained that section 71.4(1)(i) “is not applicable where the parolee is
. . . within the jurisdiction of the Board and is being held in a county institution, not at
the request of the county authorities but at that of the Board itself.” Murray, 512
A.2d at 789; Hammond, 396 A.2d at 487.
             However, the legal principles in Mack, Murray, and Hammond are
applicable only when the Board does not have “official verification” of the parolee’s
return to a state correctional institution.      Murray, 512 A.2d at 789.        In such a
situation, the 120-day period will begin to run on the date when the Board could have
obtained official verification, e.g., when the parolee completed his new sentence at
the county facility (Mack), was paroled simultaneously with the imposition of the
new sentence (Murray), or was sentenced only to a period of probation (Hammond).
See Williams v. Pennsylvania Board of Probation and Parole, 579 A.2d 1369, 1371-
72 (Pa. Cmwlth. 1990) (“Our review of the record reveals no official verification
which would indicate when the Board learned that [the petitioner] was available for
transfer and subject to the Board’s jurisdiction . . . . When the record contains no
official verification, the 120-day period begins to run on the date that the Board could
have obtained official verification.”); Murray, 512 A.2d at 789 (“As there is no
‘official verification’ in the record as to when the Board actually learned that




                                             6
petitioner was within its jurisdiction, we will fix the date as that on which the Board
could have had such official verification.”) (emphasis in original).3
               For purposes of this appeal, we assume, without deciding, that the
underlying rationale of Mack, Murray, and Hammond is applicable to this case.4


       3
           Otherwise, this Court has also held “that where a parolee is confined in a county
correctional institution, the 120-day period does not begin to run until the Board receives official
verification of the parolee’s transfer to a state correctional facility.” McMahon v. Pennsylvania
Board of Probation and Parole, 559 A.2d 595, 597-98 (Pa. Cmwlth. 1989) (citing, inter alia, Alger
v. Zaccagni, 388 A.2d 769 (Pa. Cmwlth. 1978)). In McMahon, the parolee pled guilty to theft-
related offenses in 1987, served time in a county correctional institution, and was then transferred to
a state correctional institution. The Board later received official verification that the parolee had
been returned to a state correctional institution on December 2, 1987, as indicated in a document
entitled, Sentence Status Change Report, otherwise known as Form DC-23B. Because the
revocation hearing was held on March 22, 1988, we concluded that the hearing was timely.
        Before our decision in McMahon, this Court in Alger concluded that the time period does
not begin to run until the Board receives “official verification” that the parolee had been returned to
state custody, without describing or discussing the nature of the evidence or document constituting
that verification. Instead, the Alger court appears to have assumed and held that “official
verification” occurs when there is evidence, in one form or another, establishing the date on which
the parolee was transferred to a state correctional facility. See 388 A.2d at 771; see also Johnson v.
Pennsylvania Board of Probation and Parole, 19 A.3d 1178, 1180 (Pa. Cmwlth. 2011).
        In other cases, however, panels of this Court have determined that the 120-day period begins
on the day the parolee is actually transferred to a state correctional institution without mentioning or
considering whether the Board had “official verification” of the transfer. See, e.g., Hartage v.
Pennsylvania Board of Probation and Parole, 662 A.2d 1157, 1160 (Pa. Cmwlth. 1995); Woods v.
Pennsylvania Board of Probation and Parole, 469 A.2d 332, 334 (Pa. Cmwlth. 1983); Perry v.
Board of Probation and Parole, 398 A.2d 739, 740 (Pa. Cmwlth. 1979); Terrell v. Jacobs, 390 A.2d
1379, 1381 (Pa. Cmwlth. 1978). Ostensibly, in these cases, the Court proceeded in such a manner
based on the apparent fact that section 71.4(1) requires “official verification of the return of the
parolee to a State correctional facility,” 37 Pa. Code §71.4(1), which necessarily entails that a
parolee’s return to a state institution will precede verification of that return.
        Due to the route of our disposition, we need not reconcile or resolve any perceived conflict
within this case law or vis-à-vis Mack, Murray, and Hammond.

       4
          We nevertheless note that, at the revocation hearing, it does not appear that any
documentation was introduced into evidence that could constitute “official verification of the
return” for purposes of section 71.4(1)(i) and, based upon on our case law, it is questionable (or at
(Footnote continued on next page…)

                                                   7
Even so, the earliest date on which the Board could have obtained jurisdiction over
Petitioner was June 16, 2017, when a trial judge sentenced him on the new criminal
convictions to a term of imprisonment at a state correctional institution. The Board
conducted a revocation hearing 104 days later on September 28, 2017.
             Although the Board filed a warrant to commit and detain on July 14,
2016, contrary to Petitioner’s argument and pursuant to our decisional law, all the
time that Petitioner spent at Bedford County Jail prior to the date of his sentence is
per se excluded from the 120-day rule. This is because “Petitioner [was] lodged in a
county prison on criminal charges filed there,” “there is nothing in the law which
authorizes the Board to supersede the jurisdiction of a county criminal court,” and
“therefore the Board had no jurisdiction over the Petitioner until he was released by
the county authorities . . . .” Terrell v. Jacobs, 390 A.2d 1379, 1381 (Pa. Cmwlth.
1978); accord Hartage v. Pennsylvania Board of Probation and Parole, 662 A.2d
1157, 1160 (Pa. Cmwlth. 1995) (“Nothing in the law authorizes the Board to
supersede the jurisdiction of a county criminal court; where a parolee is lodged in a
county prison on criminal charges, the Board has no jurisdiction over the parolee until
he is released by the county authorities to a state correctional institution . . . . Here,
after his April 25, 1994 conviction, the Board did not have jurisdiction over [the
petitioner] because he was confined in Philadelphia County Prison pending receipt
and disposition of post verdict motions [.]”); see Sharp v. Pennsylvania Board of
Probation and Parole, 467 A.2d 1194, 1196 n.4 (Pa. Cmwlth. 1983) (“Had petitioner


(continued…)

least unclear) whether Agent Wilkerson’s testimony that Petitioner was transferred to SCI-
Houtzdale on September 28, 2017, could suffice as “official verification.” See supra note 3.




                                             8
been confined in Philadelphia County [Jail] solely at the request of the Board, and
had he not been incarcerated on criminal charges lodged there, he would have been
within the Board’s jurisdiction at all times, and [Section 71.4(1)] would have been
inapplicable. However, since the new criminal charges intervened prior to the date
the Board detained petitioner, the Board did not have jurisdiction over him until he
waived a full Board hearing[.]”); Woods v. Pennsylvania Board of Probation and
Parole, 469 A.2d 332, 334 (Pa. Cmwlth. 1983) (“It is true that county-confined
parolees who do not give up their right to a Full Board revocation hearing must often
wait longer: this is so because the 120-day period does not commence during county
confinement, but begins later[.]”); Tate v. Pennsylvania Board of Probation and
Parole, 396 A.2d 482, 485 (Pa. Cmwlth. 1979) (“[T]he time the [p]etitioner spent in a
county prison or detention center awaiting disposition of other charges is excluded
from the 120[-]day requirement.”); Wile, PENNSYLVANIA LAW                   OF   PROBATION     AND

PAROLE §13:19 (3rd ed. 2010). Therefore, we conclude that the Board conducted a
timely revocation hearing under section 71.4(1)(i).
              Accordingly, albeit through alternative reasoning,5 we affirm the Board’s
order.




                                                 ________________________________
                                                 PATRICIA A. McCULLOUGH, Judge




        “[T]he rule is firmly established that this Court may affirm the tribunal below on different
         5

grounds if the Court agrees with the result reached below.” Procito v. Unemployment
Compensation Board of Review, 945 A.2d 261, 266 (Pa. Cmwlth. 2008) (en banc); see Watkins v.
Department of Corrections, 196 A.3d 272, 274 n.3 (Pa. Cmwlth. 2018).



                                                 9
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Amin Griffin,                          :
                  Petitioner           :
                                       :    No. 762 C.D. 2018
            v.                         :
                                       :
Pennsylvania Board of                  :
Probation and Parole,                  :
                  Respondent           :



                                    ORDER


            AND NOW, this 12th day of April, 2019, the decision of the
Pennsylvania Board of Probation and Parole mailed on May 7, 2018, is affirmed.



                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge
