J.C. Rainey v. PPB

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John C. Rainey, :
Petitioner :
:
v. : No. 1124 C.D. 2023
: Submitted: July 5, 2024
Pennsylvania Parole Board, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEAVITT FILED: September 12, 2024
John C. Rainey petitions for review of an adjudication of the
Pennsylvania Parole Board (Board) recommitting him as a convicted parole violator.
On appeal, Rainey argues that his parole revocation hearing was untimely convened
and that the parole violation charges should be dismissed. For the reasons to follow,
we affirm.
In 2017, Rainey pled guilty to carrying a firearm without a license and
was sentenced to serve a term of incarceration of one year and six months to five
years. His original maximum date of sentence was January 28, 2021. On June 4,
2018, he was paroled.
On July 21, 2020, Upper Dublin Police Department arrested Rainey on
new criminal charges. Certified Record at 16 (C.R. __). On September 9, 2020, the
Board issued a warrant to detain Rainey pending disposition of the new criminal
charges. Id. However, on January 28, 2021, the Board cancelled its warrant because
Rainey’s maximum term of sentence had expired.
On April 25, 2022, Rainey was convicted of four counts of harassment
and sentenced to a total of 360 days’ probation by the Court of Common Pleas of
Delaware County. C.R. 19. The Board received official verification1 of Rainey’s
conviction on June 2, 2022. Id. at 24. Thereafter, the Board declared Rainey
delinquent as of July 13, 2022, and issued a warrant for his detainer. Id. at 25. On
September 27, 2022, Darby Borough Police Department arrested Rainey on new
criminal charges and on the Board’s warrant. Id.
On October 27, 2022, the Board issued a Notice of Charges and Hearing
to Rainey. C.R. 19. On November 14, 2022, a revocation hearing was conducted
before a hearing examiner. At the hearing, Rainey’s counsel objected to the
timeliness of the revocation hearing, noting that the Board received verification of
his conviction on June 2, 2022, which triggered a 120-day deadline for the revocation
hearing. The hearing examiner took testimony on the timeliness of Rainey’s parole
revocation hearing.
Parole Agent Mark Orlando testified as follows:
Agent Orlando: . . . So, after the conviction, the parolee was
found to be delinquent, and the case was transferred to [the
Fugitive Apprehension Search Team (FAST) Unit] because they
[were not] able to locate him and therefore, he was unavailable
for revocation until the date he was rearrested and the [B]oard
filed another warrant, which was on 09/27/22.
Hearing Transcript, 11/14/2022, at 9 (H.T. __); C.R. 34 (emphasis added). Agent
Orlando argued that the 120-day deadline started on September 27, 2022, when
Rainey was detained on the Board’s warrant. Forty-eight days later, November 14,
2022, his revocation hearing was held, well within the 120-day deadline.
1
Official verification is the “[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.
2
In response, Rainey testified that, in April of 2022, Parole Agent Ward
Evans informed him that if he was convicted of a misdemeanor or felony, then he
would need to report himself. Rainey explained that, at his trial on the underlying
criminal charges, he told the trial judge that he “would not take – [he] would not
negotiate a plea if it violated [him] on [his] parole.” H.T. 16; C.R. 41. For that
reason, he was allowed to plead guilty to four summary harassment charges. After
his conviction, Agent Evans did not contact him. Since his conviction, he has been
living at the same address and using the same telephone number that he had when
he was on parole. Rainey claimed that he could not be delinquent because the Board
never attempted to contact him.
The hearing examiner rejected Rainey’s challenge to the timeliness of
the revocation hearing. The hearing examiner reasoned that Rainey was not detained
until September 27, 2022, and his revocation hearing was held within 120 days of
his detention on the Board’s warrant. The hearing examiner recommended that
Rainey be recommitted as a convicted parole violator to serve six months’ backtime.
On November 16, 2022, the Board recommitted Rainey as a convicted
parole violator to serve six months’ backtime, when available, pending his return to
a State Correctional Institution. C.R. 76.
In his administrative appeal, Rainey argued that his revocation hearing
was untimely. The Board did not address Rainey’s objection to the timeliness of the
revocation hearing but denied his appeal. The Board explained that Rainey was
recommitted as a convicted parole violator, when available. Once he becomes
available to serve his original sentence, the Board will issue a recalculation decision,
including any potential credit.
3
Rainey petitioned for this Court’s review. On appeal,2 Rainey argues
that his revocation hearing was not timely, and the Board failed to prove by a
preponderance of the evidence that he received a timely revocation hearing.
The Board bears the burden of proving, by a preponderance of
evidence, that it conducted the hearing in a timely manner. McDonald v.
Pennsylvania Board of Probation and Parole, 673 A.2d 27, 29 (Pa. Cmwlth. 1996).
The timeliness of a parole revocation hearing is governed by the Board’s regulations.
Section 71.4(1) of Title 37 of the Pennsylvania Code states:
(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 of Corrections, 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, . . . 314 A.2d 842 ([Pa.] 1973), 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 of Corrections as of the date of the waiver.
2
Our review of the Board’s decision determines whether constitutional rights were violated,
whether the decision was in accordance with the law, or whether the necessary findings of fact
were supported by substantial evidence. Kerak v. Pennsylvania Board of Probation and Parole,
153 A.3d 1134, 1137 n.9 (Pa. Cmwlth. 2016).
4
37 Pa. Code §71.4(1) (emphasis added). The 120-day requirement for holding a
revocation hearing begins to run when the Board acquires jurisdiction over the
parolee. Williams v. Pennsylvania Board of Probation & Parole, 579 A.2d 1369,
1371 (Pa. Cmwlth. 1990). Additionally,
[i]n determining the period for conducting hearings . . . , there
shall be excluded from the period, a delay in any stage of the
proceedings which is directly or indirectly attributable to one of
the following:
(1) The unavailability of a parolee or counsel.
(2) Continuances granted at the request of a parolee or
counsel, in which case the Board is not required to reschedule the
hearing until it receives a written request to reschedule the
hearing from the parolee or counsel.
(3) Reasonable or necessary continuances granted to, or
occurrences related to, the Board or its employees.
(4) A change of decision by a parolee either to waive the right
to be heard by a panel after asserting it or to assert that right after
waiving it. In this case, the hearing shall be held within 120 days
of the last change of decision.
(5) An event which could not be reasonably anticipated or
controlled by the Board, including, but not limited to, illness,
injury, acts of nature and prison or civil disorder.
37 Pa. Code §71.5(c) (emphasis added). Thus, under the Board’s regulations, when
a parolee is otherwise unavailable, the Board’s duty to hold a revocation hearing, or
take other action beyond issuing a detainer, is deferred until the parolee is returned
to a State Correctional Institution. In this regard, the Board’s receipt of official
verification of the parolee’s new conviction is irrelevant. Brown v. Pennsylvania
Board of Probation and Parole, 184 A.3d 1021, 1025 (Pa. Cmwlth. 2017).
In sum, “[t]he test for determining the timeliness of a revocation
hearing held before the Board is whether, after subtracting the periods of time not
5
chargeable to the Board, the remaining time exceeds 120 days from either . . . the
official verification of the new conviction or of the offender’s return to a state
correctional institution.” Britton v. Pennsylvania Board of Probation and Parole
(Pa. Cmwlth., No. 2101 C.D. 2014, filed March 14, 2016) (unreported),3 slip op. at
8-9 (quoting Koehler v. Pennsylvania Board of Probation and Parole, 935 A.2d 44,
50 (Pa. Cmwlth. 2007)).
According to the record, Rainey was convicted on new criminal charges
and sentenced to a term of probation in April 2022. He was not in the custody of the
Department of Corrections. After receiving official verification of his conviction on
June 2, 2022, the Board issued an order declaring Rainey delinquent because his
supervising parole agent was unable to locate him.4 The case was then transferred
to the FAST Unit to locate Rainey. On September 27, 2022, Rainey was arrested on
new criminal charges and on the Board’s warrant. Once Rainey was placed in
custody, the Board conducted his revocation hearing within 48 days.
Rainey contends that the exceptions to the 120-day time period in 37
Pa. Code §71.4 are inapplicable because he was not incarcerated when the Board
received official verification of his conviction. Moreover, any delay in holding the
revocation hearing was not attributable to him because he was still living at the same
address and using the telephone number that he did when he was on parole.
3
An unreported panel decision of this Court, “issued after January 15, 2008,” may be cited “for its
persuasive value[.]” Section 414(a) of the Commonwealth Court’s Internal Operating Procedures,
210 Pa. Code §69.414(a).
4
At the hearing, Agent Orlando informed the hearing examiner that he could “have the agent on
record,” who was on standby, “testify” about the efforts the Board made to locate Rainey. H.T.
12; C.R. 37. The hearing examiner, however, determined that was not necessary because he had
“noted the objection.” H.T. 13; C.R. 38.
6
Rainey directs this Court to its decision in Abbruzzese v. Pennsylvania
Board of Probation and Parole, 524 A.2d 1049 (Pa. Cmwlth. 1987), where this
Court reversed the Board’s revocation of parole because the hearing was untimely
held. There, the parolee was transported to New Jersey to face pending criminal
charges. He pled guilty to those charges on May 9, 1984, and was sentenced on June
15, 1984. Thereafter, he was returned to a Pennsylvania State Correctional
Institution the first week of July 1984, and his revocation hearing for the New Jersey
convictions was conducted on November 27, 1984. At that hearing, the hearing
examiner accepted the parole agent’s testimony that official verification of the
conviction was received on September 13, 1984. However, because the verification
was not dated, this Court concluded actual receipt was not established. Abbruzzese
is irrelevant because, here, there is no dispute that the Board received official
verification of Rainey’s conviction on June 2, 2022.
Rainey notes, correctly, that he was not “confined outside the
jurisdiction of the Department of Corrections,” such as in a county correctional
facility, at the time the Board received official verification of his conviction. 37 Pa.
Code §71.4(1)(i). Even so, the Board’s regulations specify that the period of time
that a parolee is unavailable will be excluded from the calculation of the 120-day
deadline. 37 Pa. Code §71.5(c). The Board accepted the parole agent’s testimony
that Rainey was unavailable between June 2, 2022, when it received verification of
the conviction, and September 27, 2022, when he was arrested. The Board cannot
hold a revocation hearing without first providing notice of that hearing. See
generally Morrissey v. Brewer, 408 U.S. 471 (1972). This requires having custody
or access to the parolee.
7
A total of 165 days elapsed from the date the Board received official
verification (June 2, 2022), until the revocation hearing (November 14, 2022).
Subtracting the time that Rainey was unavailable, 117 days, from that total, leaves
48 days. Because Rainey’s hearing was held within 48 days from the Board’s receipt
of official verification of his conviction, his revocation hearing was timely.
For the foregoing reasons, we affirm the Board’s adjudication.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John C. Rainey, :
Petitioner :
:
v. : No. 1124 C.D. 2023
:
Pennsylvania Parole Board, :
Respondent :
ORDER
AND NOW, this 12th day of September, 2024, the adjudication of the
Pennsylvania Parole Board, dated September 7, 2023, in the above-captioned matter,
is AFFIRMED.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita