J.F. Monek v. PBPP ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John Frank Monek, :
Petitioner :
:
v. :
:
Pennsylvania Board of :
Probation and Parole, : No. 325 C.D. 2019
Respondent : Submitted: December 6, 2019
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: April 27, 2020
John Frank Monek (Monek), pro se, petitions for review from the
February 15, 2019 order of the Pennsylvania Board of Probation and Parole (Board)
denying Monek’s request for administrative relief that challenged the Board’s
decision recorded May 11, 2018 and mailed May 16, 2018 (the Board Decision),
recommitting Monek as a technical parole violator. For the following reasons, we
affirm the order of the Board.
On September 15, 2015, Monek was sentenced to two terms of three to
seven years’ incarceration for Criminal Trespass and Aggravated Harassment By a
Prisoner. See Sentence Status Summary, Certified Record (C.R.) at 1-3. On May
26, 2016, Monek was granted parole subject to multiple Conditions Governing
Parole/Reparole (Conditions of Parole), which conditions Monek acknowledged by
signing the Conditions of Parole prior to his release. See Conditions of Parole, C.R.
at 8-10. The Conditions of Parole required Monek, among other things, to: (1)
reside in an approved residence not to be changed without written permission of
parole supervision staff (Condition 2); (2) maintain regular contact with parole
supervision staff by reporting regularly as instructed and following written
instructions of the Board or parole supervision staff (Condition 3(a)); and (3) comply
with special conditions imposed by the Board or parole supervision staff (Condition
7). See id. Included among Monek’s special conditions of parole were the additional
requirements that he “not consume or possess alcohol under any condition for any
reason[,]” and “not enter establishments that sell or dispense alcohol except as
approved by parole supervision staff.” Condition 7, C.R. at 9. Monek was ultimately
released on parole on September 6, 2016. See Notice of Board Decision dated June
3, 2016, C.R. at 4-6.
After failing to report to his parole agent as instructed, Monek was
declared delinquent from parole effective November 8, 2017. See Board
Administrative Action recorded Nov. 28, 2017, C.R. at 12; Notice of Charges and
Hearing executed Dec. 13, 2017, C.R. at 19-20. A warrant issued and Monek was
arrested on December 5, 2017. See Warrant to Commit and Detain dated Dec. 5,
2017, C.R. at 13; Technical Violation Arrest Report executed Dec. 13, 2017, C.R. at
22-23. Monek waived his right to counsel and his revocation hearing and admitted
to three technical parole violations. See Waiver of Violation Hearing and
Counsel/Admission Form executed Dec. 20, 2017, C.R. at 15. As a result, Monek
was detained in a Parole Violator Center until February 2018. See Order to Cancel
Warrant to Commit and Detain dated Feb. 1, 2018, C.R. at 28.
2
On February 1, 2018, Monek completed his time in the Parole Violator
Center and was transferred to the Self-Help Community Corrections Facility in
Philadelphia (Self-Help). See Supervision History executed Apr. 4, 2018
(Supervision History), C.R. at 57. On February 28, 2018, parole authorities
presented Monek with an additional special condition of parole that instructed, in
pertinent part:
Upon your release from Self[-]Help you must immediately
report to Keystone Correctional [Facility,] 7201
Allentown Blvd[.] Harrisburg, PA[,] 17112[,] (717) 651-
0340. No side trips.
Failure to report will be [a] violation of parole.
Special Condition of Parole dated Feb. 28, 2018 (Special Condition), C.R. at 29.
Monek refused to sign the Special Condition, but makes no contention that he did
not receive or review it or that he was otherwise unaware of the Special Condition
or its contents.
Monek did not report to the Keystone Correctional Facility upon his
release from Self-Help on March 1, 2018. See Supervision History, C.R. at 57.
Accordingly, Monek was declared delinquent effective March 1, 2018. Id. On
March 10, 2018, the Elizabethtown Police Department arrested Monek on the new
criminal charges of Driving Under the Influence of Alcohol and False Identification
to Law Enforcement. See id.; see also Criminal Complaint filed Mar. 12, 2018, C.R.
at 31-35. The Board lodged a detainer against Monek for the new criminal charges
and violations of Conditions 2 and 7, for changing his approved residence without
permission and for failing to comply with the Special Condition to report to
3
Keystone Correctional Facility, respectively. See Warrant to Commit and Detain
dated Mar. 11, 2018, C.R. at 30.
The Board conducted a parole violation hearing on April 6, 2018. See
Violation Hearing Notes of Testimony, Apr. 6, 2018 (N.T. 4/6/2018), C.R. at 65-96.
On May 11, 2018, based on admissions made by Monek during the hearing, the
hearing examiner found substantial evidence of the alleged violations existed, and
Monek was recommitted as a technical parole violator for a period of six months.
See Violation Hearing Report, C.R. at 43-50; see also Board Decision, C.R. at 102-
04.
On May 16, 2018, Monek filed an administrative appeal of the Board
Decision. See Administrative Remedies Form (Administrative Appeal), C.R. at 105-
09. In his administrative appeal, Monek argued that the Board improperly imposed
the Special Condition and that the Board improperly revoked his parole for technical
violations because substantial evidence had not been put forth to support a
revocation. Id. He further claimed that his rights to due process were violated by
parole agents who allegedly fabricated evidence against him. Id. On February 15,
2019, the Board responded by explaining that the record indicated that Monek had
admitted to all charged technical violations in this matter. See Board Response to
Administrative Appeal dated Feb. 15, 2019, C.R. at 189. Accordingly, the Board
affirmed the May 11, 2018 Board Decision. Id. This appeal followed.1
Before this Court, Monek has filed a 72-page brief that consists of
repeated challenges to the validity of the conditions of his parole, as well as extensive
1
Our scope of review of the Board’s decision denying administrative relief is limited to
determining whether necessary findings of fact are supported by substantial evidence, whether an
error of law was committed or whether constitutional rights have been violated. Fisher v. Pa. Bd.
of Prob. & Parole, 62 A.3d 1073, 1075 n.1 (Pa. Cmwlth. 2013).
4
complaints and allegations of wrongdoing against parole agents and his own private
counsel. See generally Monek’s Brief.
Initially, we note our review is limited to the Board Decision dated May
11, 2018, wherein the Board found that Monek violated the imposed Special
Condition of his parole. We note that, to the extent Monek challenges the imposition
of the Special Condition, such a challenge is not before this Court.2
To the extent the text of his brief raises a challenge to the Board
Decision mailed May 16, 2018, Monek argues that the record contains insufficient
evidence to support the Board’s finding that Monek violated the conditions of his
parole. See id. at vii-viii. This claim lacks merit. Initially, we note:
[t]he Board, as the ultimate fact-finder, evaluates witness
credibility, resolves conflicts in the evidence, and assigns
evidentiary weight. We leave the sufficiency of the
evidence to the Board’s discretion, and we will not
interfere with the Board’s finding of a technical parole
violation if it is supported by substantial evidence.
Flowers v. Pa. Bd. of Prob. & Parole, 987 A.2d 1269, 1271 (Pa. Cmwlth. 2010)
(internal citations omitted). Further,
[w]e have previously defined “substantial evidence” to be
such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion, requiring something
more than a scintilla creating a mere suspicion of the
existence of the fact to be established.
McCauley v. Pa. Bd. of Prob. & Parole, 510 A.2d 877, 879 (Pa. Cmwlth. 1986).
2
While not before this Court, we note that, once a convict meets certain eligibility
requirements, the Board may parole the convict subject to certain general and possibly some
special conditions, none of which require the prospective parolee’s approval or agreement.
Jackson v. Pa. Bd. of Prob. & Parole, 169 A.3d 1226, 1229 (Pa. Cmwlth. 2017).
5
Here, at the violation hearing conducted on April 6, 2018, Monek’s
parole agent testified that: (1) Monek’s approved residence as of March 1, 2018 was
Keystone Correctional Facility, which he was not allowed to change without written
permission, and (2) Monek failed to report to Keystone Correctional Facility as
directed. See N.T. 4/6/2018 at 7-9, C.R. at 71-73. Monek explained that he did not
dispute that he intentionally failed to report as directed. N.T. 4/6/2018 at 10-22,
C.R. at 74-86. Instead, Monek offered a lengthy explanation of his motivations
behind his technical parole violations.3 N.T. 4/6/2018 at 10-22, C.R. at 74-86. Based
on Monek’s admissions, the Board found Monek in violation of his parole
Conditions 2 and 7 and recommitted him as a technical parole violator to serve six
months’ backtime for the multiple technical parole violations. See Board Decision,
C.R. at 102-04. Upon administrative review, in which Monek again admitted he did
not report to Keystone Correctional and forwarded the same explanations for his
conduct, the Board stated that the record establishes that the Board Decision is
supported by substantial evidence. See Administrative Remedies Form
(Administrative Appeal), C.R. at 105-09; Board Response to Administrative Appeal
mailed Feb. 15, 2019, C.R. at 189.
We find no error in the determinations of the Board. Monek repeatedly
admitted to the violations he was determined to have committed. These admissions
constitute substantial evidence to support the Board’s Decision. To the extent
Monek raises explanations for his behavior before this Court, the Board considered
these admissions and also the excuses for those violations that Monek raised in his
3
In sum, Monek repeatedly argued that his technical violations arose from his desire to
continue his substance abuse and mental health counseling, his college education, and his
assimilation back into the Philadelphia area, all of which he felt would have been disrupted by
having to return to the Keystone Correctional Facility in Harrisburg pursuant to the Special
Condition. See generally, N.T. 4/6/2018; see also Administrative Appeal; Monek’s Brief at 62.
6
administrative appeal. However, the Board, as the factfinder and arbiter of
credibility, weighed the evidence and still found Monek in violation of parole. This
Court cannot reweigh the evidence. See Flowers.
Monek also alleges that his due process was violated by parole agents
allegedly fabricating evidence against him, and thus he is entitled to a new
evidentiary hearing. See Monek’s Brief at vii-viii. We note that this claim actually
challenges and restates Monek’s claim that substantial evidence was not adduced in
the hearing regarding his administrative appeal, discussed supra.
Further, to the extent he challenges the performance of his own counsel,
see Monek’s Brief at 18-49, we note that Monek did not raise this claim in his
administrative appeal before the Board and now attempts to raise this claim for the
first time in his brief. See Administrative Appeal, C.R. at 105-09. Accordingly, this
claim is waived. See Pa.R.A.P. 1551.
For these reasons, we affirm the Board’s order.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John Frank Monek, :
Petitioner :
:
v. :
:
Pennsylvania Board of :
Probation and Parole, : No. 325 C.D. 2019
Respondent :
ORDER
AND NOW, this 27th day of April, 2020, the February 15, 2019 order
of the Pennsylvania Board of Probation and Parole is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge