IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Rupert Brintley, :
Petitioner :
: No. 569 C.D. 2017
v. :
: Submitted: December 1, 2017
Pennsylvania Board of :
Probation and Parole, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: January 10, 2018
Rupert Brintley (Petitioner) petitions for review of the May 3, 2017
decision of the Pennsylvania Board of Probation and Parole (Board), which denied his
petition for administrative review and affirmed the July 26, 2016 determination to
recommit Petitioner as a convicted parole violator and extend his maximum sentence
expiration date.
The underlying facts of this case are not in dispute. Petitioner was
originally convicted of 3rd degree murder and sentenced on January 31, 2001, to a term
of incarceration of 10 to 20 years. Petitioner was released on parole to a community
corrections center on February 22, 2010. On May 22, 2012, Petitioner was arrested
and charged with multiple sexual offenses, including rape of a child, unlawful contact
with a minor, sexual assault, incest, and indecent assault. That same day, the Board
issued a warrant to commit and detain Petitioner pending disposition of these new
criminal charges. On October 29, 2015, Petitioner pled no contest to the charges of
rape of a child and unlawful contact with a minor. On April 27, 2016, Petitioner was
sentenced to a term of incarceration of 6 to 12 years on each conviction, with the
sentences to run concurrently. (Certified Record (C.R.) at 1-51.)1
On May 16, 2016, Petitioner was provided with a notice of charges and
parole revocation hearing related to his new criminal convictions. A parole revocation
hearing was subsequently held on June 16, 2016. At this hearing, counsel for Petitioner
raised an issue with respect to the timeliness of the hearing, noting that the date of
conviction was October 29, 2015. Parole Agent Ryan Svenkeson appeared on behalf
of the Board and responded that the Board did not receive official verification of
Petitioner’s convictions until April 27, 2016, and, hence, the hearing was held within
the required 120 days.2 The hearing examiner noted that the official verification of
Petitioner’s convictions from the Philadelphia Court System Records Department was
date-stamped April 27, 2016. Agent Svenkeson explained that it takes time to get this
official verification processed through the courts and that he cannot schedule a
revocation hearing until he receives the same. Counsel for Petitioner reiterated that the
conviction occurred six months earlier. Agent Svenkeson then presented a chain of
several emails from the Board to the convicting court from November 4, 2015, through
March 1, 2016, requesting the official verification. (C.R. at 53-96.)
1
The remaining charges were nolle prossed. (C.R. at 39.)
2
The Board’s regulations require that a parole revocation hearing 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).
2
Upon questioning by counsel for Petitioner, Agent Svenkeson admitted
that, as of November 4, 2015, the secured docket, which showed Petitioner’s
convictions on October 29, 2015, was available to the Board. However, Agent
Svenkeson noted that he still needed certified proof of the convictions before
scheduling the parole revocation hearing. The hearing examiner ultimately overruled
Petitioner’s objection to the timeliness of the hearing, and, following brief testimony
from Petitioner, the hearing was closed. By decision mailed July 26, 2016, the Board
recommitted Petitioner as a convicted parole violator to serve 30 months backtime and
extended his maximum sentence expiration date. (C.R. at 97-114.)
On August 22, 2016, Petitioner submitted an administrative remedies
form to the Board alleging that his parole revocation hearing was untimely. Petitioner
contended that the Board received official notice of his convictions on November 4,
2015, and that the hearing held on June 16, 2016, was well beyond the required 120
days. By decision mailed May 3, 2017, the Board denied Petitioner’s request for
administrative review and affirmed its July 26, 2016 recommitment order. The Board
held that the parole revocation hearing was timely, explaining that, despite Petitioner’s
convictions on October 29, 2015, it did not receive official verification of the same
until April 27, 2016, and the hearing was held within 50 days of receipt of this
verification. (C.R. at 118-22.)
Petitioner thereafter filed a petition for review with this Court.
On appeal,3 Petitioner argues that the Board erred in affirming his
recommitment as it contravened his due process right to a timely parole revocation
hearing. We disagree.
3
Our scope of review is limited to determining whether constitutional rights were violated,
whether the adjudication was in accordance with the law, and whether necessary findings were
3
“There is no question that one of the minimal due process rights to which
parolees are entitled is the disposition of their parole violation charges within a
reasonable time.” Carr v. Pennsylvania Board of Probation and Parole, 494 A.2d
1174, 1176-77 (Pa. Cmwlth. 1985) (citing Morrissey v. Brewer, 408 U.S. 471, 485
(1972)). As noted above, the Board’s regulations address the timeliness of a parole
revocation hearing, providing that,
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). The regulations further define “official verification” as “Actual
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. When the timeliness of a parole
revocation hearing is challenged, the Board bears the burden of proving by a
preponderance of the evidence that the hearing was timely. Wiley v. Pennsylvania
Board of Probation and Parole, 967 A.2d 1060, 1062 (Pa. Cmwlth. 2009). If the Board
fails to present substantial evidence demonstrating the timeliness of the revocation
hearing, thereby failing to meet its burden of proof, the parole violation charges are
dismissed with prejudice. Id.
In the present case, Petitioner argues that the Board’s explanations for why
it had to wait for the official verification and what it was doing to procure proof of the
convictions failed to establish that the hearing was timely or that it acted diligently. In
support of this argument, Petitioner relies on this Court’s previous decisions in
supported by substantial evidence. 2 Pa.C.S. §704; Adams v. Pennsylvania Board of Probation and
Parole, 885 A.2d 1121, 1122 n.1 (Pa. Cmwlth. 2005).
4
Williams v. Pennsylvania Board of Probation and Parole, 579 A.2d 1369 (Pa. Cmwlth.
1990); Fitzhugh v. Pennsylvania Board of Probation and Parole, 623 A.2d 376 (Pa.
Cmwlth. 1993); McDonald v. Pennsylvania Board of Probation and Parole, 673 A.2d
27 (Pa. Cmwlth. 1996); and Taylor v. Pennsylvania Board of Probation and Parole,
931 A.2d 114 (Pa. Cmwlth. 2007).
In Williams, this Court held that the Board could not exclude time from
the 120-day requirement where it permitted a parolee to remain for months in another
jurisdiction before taking him into custody. In Fitzhugh, we held that the Board could
not force a parolee to wait an unreasonable period of time for a parole revocation
hearing by delaying retrieval of the necessary court records. In McDonald, we held
that the Board’s failure to explain an inability to hold a parole revocation hearing within
120 days of its acquisition of jurisdiction over the newly-convicted parolee required
dismissal of the violations with prejudice. Finally, in Taylor, this Court, sitting en
banc, held that a certified computer printout of the court history of a parolee’s new
conviction met the definition of “official verification” under the Board’s regulations.
However, Petitioner’s reliance on these cases is misplaced as these cases are factually
distinguishable from the present case.
In this case, while Agent Svenkeson admitted at the parole revocation
hearing that he was aware of and possessed a computer printout of Petitioner’s court
history showing his new convictions, unlike in Taylor, this computer printout was not
certified by the convicting court. To the contrary, this computer printout contains an
express declaration that the same cannot be relied on to be accurate. Even if the Board
had attempted to obtain official verification of this computer printout, as Petitioner
alleges in his brief, Petitioner merely speculates that the Board could have obtained this
verification prior to April 27, 2016. Moreover, unlike the other cases relied upon by
5
Petitioner, here, the Board presented sufficient evidence establishing the multiple
attempts it made to obtain the official verification from the convicting court.
Furthermore, this Court, in previously rejecting an argument that a parole
revocation hearing was untimely, expressly held, “Neither statute nor regulation places
a burden on the Board to demonstrate that it exercised due diligence in obtaining
official verification of a parolee’s new conviction.” Lawson v. Pennsylvania Board of
Probation and Parole, 977 A.2d 85, 88 (Pa. Cmwlth. 2009). In Lawson, the parolee
claimed that a parole revocation hearing was untimely following a delay of greater than
11 months between his guilty plea to new charges and the hearing. However, in that
case, a parole agent testified that he received official verification of the new convictions
61 days before the parole revocation hearing. While due diligence was not required,
we noted that the parole agent offered a reason for the delay, namely a problem with
obtaining official verification from the convicting court. Ultimately, we held that the
parole revocation hearing, held within 61 days of the date that the parole agent received
this official verification, was timely. Additionally, this Court has previously held that
“the Board is not required to search every U.S. court’s docket to determine whether a
parolee was convicted and may wait for official verification even if an agent is aware
of the conviction.” Lee v. Pennsylvania Board of Probation and Parole, 596 A.2d 264,
265 (Pa. Cmwlth. 1991).
Because Petitioner’s parole revocation hearing was held within 120 days
of the date that the Board received official verification of Petitioner’s new convictions,
and the Board was not required to prove that it exercised due diligence in obtaining the
same, the Board did not err in denying Petitioner’s request for administrative review
and affirming its July 26, 2016 recommitment order.
6
Accordingly, the Board’s decision is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Rupert Brintley, :
Petitioner :
: No. 569 C.D. 2017
v. :
:
Pennsylvania Board of :
Probation and Parole, :
Respondent :
ORDER
AND NOW, this 10th day of January, 2018, the decision of the
Pennsylvania Board of Probation and Parole, dated May 3, 2017, is hereby affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge