Fumea v. Pa. Bd. of Prob. & Parole
| Decision Date | 16 September 2016 |
| Docket Number | No. 1551 C.D. 2015,1551 C.D. 2015 |
| Citation | 147 A.3d 610 |
| Parties | Wayne Fumea, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent |
| Court | Pennsylvania Commonwealth Court |
David Crowley, Chief Public Defender, Bellefonte, for petitioner.
Alan M. Robinson, Acting Chief Counsel, Harrisburg, for respondent.
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION BY COHN JUBELIRER, JUDGE
Wayne Fumea (Fumea) petitions for review of the August 11, 2015 Decision of the Pennsylvania Board of Probation and Parole (Board), which denied his administrative appeal and affirmed the decision recommitting him to serve 12 months backtime as a convicted parole violator (CPV) and recalculating his maximum date as March 17, 2023. On appeal, Fumea argues that the Board erred by not complying with Section 6138(a)(5.1) of the Prisons and Parole Code (Parole Code),1 61 Pa. C.S. § 6138(a)(5.1)
, which requires that he serve the balance of his original state sentence before serving his new federal sentence. As a result of the Board's violation of that section, he argues that his parole revocation hearing was untimely. On the date of his federal sentencing, a warrant to commit and detain was issued and a representative of the Board attended his sentencing, yet did not take Fumea into custody, resulting in his serving his federal sentence before serving his original state sentence. Because we conclude that the Board did not comply with Section 6138(a)(5.1) of the Parole Code, and that, as a result, the revocation hearing was not timely held, we reverse and remand to the Board.
On July 31, 1995, Fumea was sentenced to serve 5 to 10 years in a state correctional institution (SCI) after being found guilty of 3 counts of drug manufacture, sale, delivery, or possession with intent to distribute, with a maximum date set at December 13, 2009. (C.R. at 1.) Fumea was released on parole from SCI-Greensburg on December 13, 1999. (C.R. at 8.) On January 29, 2008, Fumea was arrested by federal authorities and indicted for wire fraud. Fumea posted unsecured bond the same day. (C.R. at 34.) The Board issued a warrant to commit and detain on March 5, 2008, pending the disposition of the new criminal charges. (C.R. at 10.) The Board detained Fumea pending disposition of the new criminal charges until his original maximum date of December 13, 2009, at which time he was released and the Board warrant was lifted. (C.R. at 17.) For control purposes, the Board declared Fumea delinquent effective January 29, 2008.
(C.R. at 22.)2
Following a federal jury trial, the jury found Fumea guilty of conspiracy on July 8, 2011. (C.R. at 42.) On November 21, 2011, a federal judge sentenced Fumea to 41 months imprisonment in the custody of the United States Bureau of Prisons (BOP), with 3 years of supervised release. (Judgment in a Criminal Case, C.R. at 27; Federal Criminal Docket, C.R. at 43.) The same day, the Board issued a warrant to commit and detain Fumea. (C.R. at 23.) The judge remanded Fumea to the custody of the United States Marshal. (C.R. at 43.) The Board obtained “official verification” of Fumea's conviction on December 7, 2011, and issued an arrest warrant on December 9, 2011. (C.R. at 46.) The Board did not take Fumea into custody until December 24, 2014, when he was released from federal custody. A revocation hearing was held 62 days later on February 24, 2015. (Hearing Report, C.R. at 51.)
At the hearing, Fumea, through counsel, objected to the timeliness of the hearing and cited to Section 6138(a)(5.1) of the Parole Code regarding the order of service of sentences. Fumea testified, and the Board did not dispute, that an agent of the Board was present at the sentencing, the federal sentencing judge was prepared to issue a report date sometime in the middle of January 2012, and that he entered into federal custody after sentencing instead. (Hr'g Tr. at 13-14.) Fumea argued that he was available to the Board on the date of his sentencing, and that the Board did not take him into custody despite the presence of an agent of the Board at the sentencing. Fumea also argued that he was prejudiced by the Board's failure to follow Section 6138(a)(5.1)
because of the outstanding Board detainer, and as a result, the BOP treated him adversely. Fumea contends that as a result of his serving his federal sentence before his original state sentence, while the Board had a detainer on him, he was disadvantaged because, had the Board followed Section 6138(a)(5.1), he would have served his federal sentence after his state sentence and free of a Board detainer. As such, Fumea argues, he would have been able to participate in federal rehabilitative efforts, such as home confinement and outside work, and he would have been eligible for reparole in 2011, given the credit for time he spent in state custody prior to the expiration of his maximum sentence. (Hr'g Tr. at 16.) Instead, he was precluded from all of these.
By decision mailed June 15, 2015, the Board overruled Fumea's objection to the timeliness of the hearing and recommitted him “to a State Correctional Institution as a convicted parole violator to serve 12 months backtime” for his new criminal conviction. (Board Decision, C.R. at 89.) The Board recalculated Fumea's new maximum date as March 17, 2023, based on a return to custody date of December 24, 2014. (Order to Recommit, C.R. at 91.) The decision also stated that Fumea would be interviewed for reparole on the next available docket.3
On June 18, 2015, Fumea filed a timely administrative appeal of the Board's June 15, 2015 decision presenting the same arguments as those raised at the hearing. Fumea asserted that after sentencing, “[t]he Sentencing Court was prepared to permit [Fumea] to remain free on bail pending his appeal until his State Parole Agent informed that Court that the Board was not prepared to take custody of him.” (C.R. at 102, ¶ 7.) Fumea continued to maintain that the 120-day period within which to hold his parole revocation hearing should have commenced no later than the date the Board issued the arrest warrant, December 9, 2011. (Id. at ¶ 10.)4
By Decision dated August 11, 2015, the Board denied Fumea's administrative appeal. The Board held that Fumea's hearing was timely because he was released from federal custody and returned to a SCI on December 24, 2014, and the Board held the hearing 62 days later on February 24, 2015, pursuant to 37 Pa. Code § 71.4(1)(i)
. (Board Decision at 1, C.R. at 105.) Fumea now petitions this Court for review of the Board's denial.5
Fumea argues that his parole revocation hearing was not timely because, pursuant to the order of service of sentences set forth in Section 6138(a)(5.1) of the Parole Code, he was required to serve his state sentence prior to his new federal sentence. He contends that the Board's agent was present at his federal sentencing, there was a warrant issued that same day by the Board, and the Board should have taken custody of him prior to his serving his federal time. The Board's failure to do so denied Fumea due process, caused him to serve his federal sentence with the state detainer on him, which prevented him from being able to participate in federal rehabilitative efforts, such as home confinement and outside work, and delayed his opportunity to make parole. He cites this Court's holding in Baasit v. Pennsylvania Board of Probation and Parole, 90 A.3d 74, 82–83 (Pa.Cmwlth.2014)
, in support of his interpretation of Section 6138(a)(5.1) of the Parole Code.
The Board argues that it complied with Section 71.4(1)(i)
of its regulations, 37 Pa. Code § 71.4(1)(i), because “Fumea was confined outside of the jurisdiction of the Department of Corrections at the time of his conviction because he was not returned to a SCI prior to his conviction.” (Board's Br. at 7.) Because Fumea was returned to a SCI on December 24, 2014, and the Board conducted his revocation hearing 62 days later, on February 24, 2015, the Board argues that the hearing was timely. The Board argues there is no basis on which to find that it improperly delayed Fumea's return to a SCI, and the fact that the BOP kept custody of Fumea instead of returning him to a SCI, so that he could serve his original sentence first, does not mean that the Board failed to conduct a timely revocation hearing. Essentially, the Board argues that the BOP had custody of Fumea at the time of his arrest and conviction and then “chose to keep Fumea to serve his new federal sentence.” (Board's Br. at 9.)6 Thus, the Board argues that it did the only thing it could do—wait for Fumea's return.
When a parolee challenges the timeliness of a revocation hearing, “the Board has the burden of proving ... that the hearing was, in fact, timely.” Williams v. Pa. Bd. of Prob. and Parole, 145 Pa.Cmwlth. 31, 602 A.2d 434, 436 (1992)
. Here, the Board relies on Section 71.4(1)(i) of its regulations, 37 Pa. Code § 71.4(1)(i), to support its contention that the hearing was timely held. Section 71.4(1), and subsection (i), of the Board's regulations provide that:
, the revocation hearing shall be held within 120 days of the official...
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