DocketNumber: Appeal, No. 628 C.D. 1985
Citation Numbers: 97 Pa. Commw. 311, 509 A.2d 935
Judges: Barbieri, Craig, Palladino
Filed Date: 5/19/1986
Status: Precedential
Modified Date: 6/24/2022
Opinion by
On January 6, 1984, while on parole from a two-to-ten-year sentence for involuntary deviate sexual intercourse, Harry Hartman (Petitioner) was arrested for rape and indecent assault. A parole violation warrant was filed the same day based upon the criminal charges and technical parole violations. Upon Petitioners request, his preliminary parole violation hearing was continued to January 31, 1984. On January 23, 1984 the criminal charges were dismissed because the alleged victim refused to testify. On January 31, 1984, Petitioner signed waivers of the preliminary hearing and a full Board hearing, and a violation hearing was held before a hearing examiner. Based upon the hearing examiners recommendation, the Board of Probation and Parole (Board), by order dated March 12, 1984, recommitted Petitioner for twenty-four months as a technical parole violator. Petitioner timely requested administrative relief which was denied, and Petitioner appealed to this Court. Upon the Boards motion, which asserted that the tape recording of the violation hearing was incomplete and could not be transcribed, we remanded the case to the Board for a new violation hearing. Hartman v. Commonwealth, Board of Probation and Parole, (No. 1658 C.D. 1984, filed September 13, 1984).
A new violation hearing was scheduled for October 1, 1984. Petitioner appeared and requested a continu
The tape recording of this testimony was forwarded to the Board, a quorum of which convened on November 20, 1984, to hear testimony from one additional witness. Based upon both the recorded and live testimony, the Board, by order dated January 8, 1985, recommitted Petitioner to serve twenty-four months backtime as a technical parole violator. Petitioners timely request for administrative relief was denied and Petitioner now appeals to this Court.
Petitioners initial assertion of error is that the Boards hearing examiner erred in proceeding to take testimony and making evidentiary rulings at the October 9, 1984 hearing after Petitioner had requested a full Board hearing. We agree.
The Boards regulations are quite specific on the procedure to be followed by a hearing examiner with regard to advising a parolee of his right to be heard by a quorum of the Board:
(14) The following procedures will apply during the Violation Hearings:
(ii) If the Violation Hearing is to be held before an Examiner of the Board, such Examiner shall, prior to the commencement of the proceeding,*314 verbally readvise the parolee and his attorney, if any, of the parolees right to be heard before a quorum of the Board.
(A) If the parolee still wishes to waive his right to a hearing before a quorum of the Board and the Examiner is satisfied that the parolees waiver is knowing, intelligent, and freely made, the Examiner shall then accept and make a part of the record a written waiver to that effect.
(B) If the parolee now wishes to exercise his right to be heard by a quorum of the Board at a Violation Hearing, the Examiner shall document such fact and have the parolee sign such documentation, and the. Examiner shall then terminate the proceedings and have the parolee returned to custody. The Examiner shall then initiate action to- have the parolee scheduled to be heard by a quorum of the Board.
37 Pa. Code §71.2(14) (emphasis added). In LaBoy v. Commonwealth, Board of Probation and Parole, 74 Pa. Commonwealth Ct. 332, 459 A.2d 916 (1983) we held that the Board and its hearing examiners must comply with these regulations. There was no such compliance in this case.
The Board now argues that Petitioner did not have a right to a full Board hearing on the facts of this case because the October 9, 1984 hearing was the result of a remand order by this Court. We reject this argument. Our order stated that a new violation hearing was to be conducted; it contemplated a completely new hearing subject to all the rights and procedures that attach to an original violation hearing. We did not order a limited hearing for a limited purpose.
In the alternative, the Board argues that Petitioner did receive a full Board hearing on November 20, 1984,
Accordingly, we must again remand this case to the Board for a new violation hearing. If Petitioner chooses to exercise his right to be heard by a quorum of the Board, then the Board is to hear all of the testimony. Because we have decided that a remand is necessary, we need not address the evidentiary issues raised by Petitioner.
Order /
And Now, Máy 19, 1986, the order of the Board of Probation and Parole, dated February 19, 1985, in the above-captioned case is vacated, and the case is remanded for a new violation hearing.
Jurisdiction relinquished.