          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


John Hart,                               :
                         Petitioner      :
                                         :
                   v.                    :   No. 1769 C.D. 2016
                                         :   Submitted: February 17, 2017
Pennsylvania Board of Probation and      :
Parole,                                  :
                        Respondent       :



BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE JULIA K. HEARTHWAY, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                         FILED: June 2, 2017


      John Hart (Petitioner) petitions for review of the Order of the Pennsylvania
Board of Probation and Parole (Board), which denied his request for administrative
relief, thereby affirming his recommitment as a convicted parole violator (CPV) to
serve three months’ backtime. Petitioner raises multiple issues, including whether
his revocation hearing was timely held. After review of the record, we conclude
the Board did not meet its burden of proving, by a preponderance of the evidence,
that the hearing was held within 120 days of receiving official verification of the
conviction, as required. Therefore, we are constrained to reverse the Order of the
Board and dismiss the parole violation charges.
       On November 16, 2011, Petitioner, while on parole, was arrested in
Philadelphia County on multiple charges. (Certified Record (C.R.) at 15, 24.)1
The Board lodged a detainer on November 17, 2011. (Id. at 13.) On January 3,
2012, Petitioner’s monetary bail was reduced to released on his own recognizance
(ROR). (Id. at 35.) Because of the Board detainer, he was released from the
Philadelphia Prison System and transferred back to the custody of the Department
of Corrections (DOC) on January 9, 2012. (Id. at 205.) He remained in the
custody of the DOC until he reached his maximum parole date (January 10, 2013),
when his bail was reinstated to the original monetary amount, and he was
transferred back to the Philadelphia Prison System, where he remained pending
disposition on the new charges. (Id. at 1, 205.) On November 12, 2015, a jury
convicted Petitioner of harassment and stalking but acquitted him of identity theft,
disruption of service, possession of an instrument of crime, and unlawful use of a
computer.2 (Id. at 36.) On February 25, 2016, the Board lodged a detainer. (Id. at
145.) A revocation hearing was originally scheduled for March 15, 2016. (Id. at
138.) However, at the request of Petitioner, the hearing was continued to April 5,
2016. (Id. at 143.)
       At the April 5, 2016 revocation hearing, a parole agent introduced a certified
copy of Petitioner’s conviction, which was admitted into the record as State’s




       1
          The Board originally filed a certified record on December 6, 2016, which was missing
approximately 200 pages. It filed a supplemental certified record on May 2, 2017, which was
complete. All citations to the Certified Record (C.R.) refer to supplemental record that was
recently filed.
        2
          On May 26, 2016, Petitioner was sentenced to two-and-one-half to five years on the
new charges. (C.R. at 36, 60.)



                                              2
Exhibit 1 (Exhibit S-1).3 (Hr’g Tr. at 6.) Petitioner argued Exhibit S-1 does not
contain a timestamp that establishes when the document was received by the
Board. (Id. at 20.) Therefore, according to Petitioner, the only date upon which
the Board could find his conviction was officially verified to the Board was the
print date of November 12, 2015, which was also the date of his conviction. (Id. at
20-21.) As such, Petitioner argued, the revocation hearing was untimely. When
asked by the hearing examiner when the parole agent verified the conviction, the
parole agent responded, “In February, I believe.” (Id. at 19.) Aside from copies of
cases Petitioner introduced in support of his argument, no further testimony or
evidence was offered on this matter.
       The Board subsequently issued its decision, recommitting Petitioner as a
CPV to serve three months’ backtime when available pending resolution of

       3
          Because the exhibits do not follow the hearing transcript in the Certified Record, it is
not clear what document constitutes Exhibit S-1. However, based upon the testimony at the
hearing, it appears to be referring to the “Trial Disposition and Dismissal Form” located in the
Certified Record at page 89. This document appears to have an exhibit label on it, although in
the process of being reproduced, it was blacked out and is indecipherable. However, it bears the
print date “11/12/2015” that Petitioner cited when referring to the exhibit, (Hr’g Tr. at 20), as
well as the “First Judicial District” stamp that the parole agent testified to. (Id. at 21.)
        Aside from the problems identifying Exhibit S-1, our review has been further
complicated by the testimony regarding several other forms, which were not admitted into
evidence at the hearing. For instance, Form PBPP-257H, “Supervision History,” (C.R. at 129-
30, 141-42), was discussed at length and even objected to by Petitioner. (Hr’g Tr. at 12-15.)
The hearing examiner ultimately overruled the objection at the hearing, (id. at 23), and indicated
same in the Hearing Report. (C.R. at 146.) However, Form PBPP-257H was not listed as being
admitted. (See Hr’g Tr. at 4 (listing exhibits); Hearing Report, C.R. at 147 (listing Exhibit S-1 as
the only exhibit introduced by the State).) In addition, there was testimony that appears to relate
to Form PBPP-257N, “Notice of Charges and Hearing,” (C.R. at 138), which the hearing
examiner asked parole agent to make corrections to and initial. (Hr’g Tr. at 6, 25.) This form
was also not admitted as an exhibit. (See Hr’g Tr. at 4 (listing exhibits); Hearing Report, C.R. at
147 (listing Exhibit S-1 as the only exhibit introduced by the State).) As discussed herein, to the
extent the Board relied on any exhibits other than Exhibit S-1, the only State exhibit admitted
into evidence, the Board erred.



                                                 3
outstanding criminal charges.4 (C.R. at 199.) On June 14, 2016, Petitioner filed a
timely request for administrative relief.             (Id. at 207.)      After the outstanding
criminal charges were nolle prossed, the Board rendered a decision noting no
action was taken as to that arrest and referring Petitioner back to the May 4, 2016
decision to recommit him as a CPV based upon his conviction. (Id. at 203.)
Petitioner filed a timely administrative appeal from this decision, as well. (Id. at
283.) On October 3, 2016, the Board affirmed its revocation decision, its decision
to not grant Petitioner time spent at liberty on parole, and the length of the
recommitment period. (Id. at 304.) This appeal follows.5
       On appeal,6 Petitioner asserts several issues he has raised throughout the
administrative process, namely: (1) whether the revocation hearing was timely; (2)
whether he was wrongfully denied the opportunity to present evidence of
mitigating factors; (3) whether the Board erred in allocating time served between
January 3, 2012 and January 11, 2013, and February 25, 2016 and May 26, 2016,
towards his original sentence instead of his new sentence; (4) whether the
recommitment period exceeded the presumptive guideline range; and (5) whether
the Board should have granted Petitioner credit for time spent at liberty on parole.7

       4
          At the time of the decision, Petitioner was still being detained on another set of charges,
which were ultimately nolle prossed. (C.R. at 281.)
        5
          Our scope of review is limited to determining whether or not the Board’s decision is
supported by substantial evidence, is in accordance with the law, and is observant of Petitioner’s
constitutional rights. Abbruzzese v. Pa. Bd. of Prob. and Parole, 524 A.2d 1049, 1050 (Pa.
Cmwlth. 1987). “Substantial evidence is defined as evidence that a reasonable mind would find
sufficient to support a conclusion.” Smalls v. Pa. Bd. of Prob. and Parole, 823 A.2d 274, 275
(Pa. Cmwlth. 2003).
        6
          On March 6, 2017, Petitioner filed a Motion to Amend/Correct Page Two of Petitioner’s
February 7, 2017 Sur-Reply, to which there was no response. We grant the motion.
        7
          The Board held its decision on whether Petitioner is entitled to credit for time spent at a
community corrections center in abeyance pending a hearing. (C.R. at 304.)



                                                 4
Timeliness of Revocation Hearing
       Under the regulations, “[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 . . . .” 37 Pa. Code
§ 71.4(1) (emphasis added). “Official verification” is defined as “[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.
       The Board bears the burden of proving, by a preponderance of the evidence,
that a hearing was timely. Johnson v. Pa. Bd. of Prob. and Parole, 890 A.2d 45, 49
(Pa. Cmwlth. 2006). Preponderance of the evidence is “such proof as leads the
fact-finder . . . to find that the existence of a contested fact is more probable than
its nonexistence.” Smalls v. Pa. Bd. of Prob. and Parole, 823 A.2d 274, 275 (Pa.
Cmwlth. 2003) (quoting Sigafoos v. Pa. Bd. of Prob. and Parole, 503 A.2d 1076,
1079 (Pa. Cmwlth. 1986)).
       In its October 3, 2016 decision, the Board contends Petitioner’s revocation
hearing was timely because official verification of the conviction was received on
February 19, 2016, and the Board scheduled the revocation hearing for March 15,
2016,8 which was only 25 days after the official verification date. (C.R. at 303.)
The Board’s finding that official verification occurred on February 19, 2016,
however, is not supported by the evidence presented at the revocation hearing.


       8
         We note that March 15, 2016, is the correct date to use as the hearing date, although the
actual hearing was not held until April 5, 2016. Under the regulations, any continuances granted
at the request of a parolee are excluded from the time period. 37 Pa. Code § 71.5(c)(2).
Petitioner requested that the March 15, 2016 hearing be continued so that he could obtain private
counsel. (C.R. at 143.) Therefore, the delay is not attributable to the Board.



                                                5
The parole agent presented Exhibit S-1 as official verification, which was admitted
into evidence. While we agree that Exhibit S-1 is sufficient to serve as official
verification, it does not establish the date the Board received official verification of
conviction. As Petitioner pointed out at the hearing, the only date on Exhibit S-1
was the print date of November 12, 2015, which was also the date of Petitioner’s
conviction. (C.R. at 89; Hr’g Tr. at 20.)
       When confronted by Petitioner about the lack of a received date, the hearing
examiner asked the parole agent when Exhibit S-1 was received, to which the
parole agent replied, “[i]n February, I believe.” (Hr’g Tr. at 19 (emphasis added).)
This testimony does not support the Board’s ultimate finding that official
verification was received on February 19, 2016.             At best, the parole agent’s
testimony supports a conclusion that official verification may have been received
sometime in February. While if it is correct that official verification was received
anytime in February, even February 1, 2016, the revocation hearing would be
timely, the parole agent’s belief that official verification may have been received in
February does not satisfy the Board’s burden of proving same by a preponderance
of the evidence.
       We see no mention of February 19, 2016, as the date of receipt of official
verification of Petitioner’s conviction in our review of the testimony and exhibits
admitted into evidence at the hearing. After scouring the Certified Record, the
only mention we see of February 19, 2016, is contained in Form PBPP-257C.
(C.R. at 16.) Importantly, Form PBPP-257C was not admitted into evidence at the
hearing.9 Therefore, the Board could not rely on it to support its finding that

       9
         On December 19, 2016 and on May 5, 2017, following the filing of the Supplemental
Certified Record, Petitioner filed Motions to Strike Documents from the Certified Record and
(Footnote continued on next page…)


                                             6
official verification of conviction was received on February 19, 2016.                      See
Johnson, 890 A.2d at 49-50 (reversing a Board decision and dismissing petitioner’s
parole violation charges with prejudice when the Board relied on Form PBPP-
257C, which was not entered into the record at the hearing). “While the Board
may, in certain circumstances, take official notice of documents contained in its
own files, this court has held that the Board may not take official notice of
documents in its file when such documents were not offered into evidence and
pertained to a necessary factual determination.” Id. (citations omitted) (emphasis
added). Here, the date official verification was received is a necessary factual
determination. Therefore, to the extent the Board relied upon Form PBPP-257C,
which was not admitted into evidence, to find that official verification was
received on February 19, 2016, the Board erred.
       Without Form PBPP-257C, the record is devoid of substantial evidence
pertaining to when official verification was, in fact, received. “Where, as here, the
Board has failed to present substantial evidence as to the timeliness of the
petitioner’s revocation hearing, thereby failing to meet its burden of proof by a
preponderance of the evidence . . . , the appropriate remedy is a dismissal of the


_____________________________
(continued…)
Exclude as Evidence Form PBPP-257C and PBPP-Form 257H, arguing various parts of the
Certified Record should be stricken because they were not admitted into evidence at the
revocation hearing. Given our resolution of the timeliness issue, we dismiss Petitioner’s motions
as moot. On May 5, 2017, Petitioner also filed a Petition to Correct Supplemental Record,
seeking to include in the record a copy of Defendant’s Exhibit 1, a copy of Ramos v.
Pennsylvania Board of Probation and Parole, 954 A.2d 107 (Pa. Cmwlth. 2008). Because the
exhibit is an opinion for which we have a citation, we find it unnecessary to correct the record.
However, we again express concern that an exhibit that was introduced and admitted into
evidence at the revocation hearing failed to be included in the Board’s Certified Record for our
review.



                                               7
parole violation charges with prejudice.”10 Abbruzzese v. Pa. Bd. of Prob. and
Parole, 524 A.2d 1049, 1052 (Pa. Cmwlth. 1987) (citation and footnote omitted).
       Based upon the foregoing, the Order of the Board is reversed.




                                            _____________________________________
                                            RENÉE COHN JUBELIRER, Judge




       10
          Because of our conclusion that the Board failed to present substantial evidence as to
the timeliness of the revocation hearing, we need not address Petitioner’s other issues raised on
appeal.



                                               8
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


John Hart,                                :
                          Petitioner      :
                                          :
                   v.                     :   No. 1769 C.D. 2016
                                          :
Pennsylvania Board of Probation and       :
Parole,                                   :
                        Respondent        :


                                       ORDER


      NOW, June 2, 2017, the order of the Pennsylvania Board of Probation and
Parole, in the above-captioned matter, is REVERSED.
      Petitioner’s Motion to Amend/Correct Page Two of Petitioner’s February 7,
2017 Sur-Reply is GRANTED. Petitioner’s Motions to Strike Documents from
the Certified Record and Exclude as Evidence Form PBPP-257C and PBPP-257H
and Petition to Correct the Supplemental Record are DISMISSED as MOOT.
Petitioner’s “Motion to Expedite” and “Emergency Application for Summary
Relief/Motion to Expedite, to which no responses have been filed, are hereby
DENIED AS MOOT in light of the filing of this Court’s Memorandum Opinion
and Order disposing of Petitioner’s appeal in this matter.




                                        _____________________________________
                                        RENÉE COHN JUBELIRER, Judge
