Lord v. Com., Pennsylvania Bd. of Probation and Parole

• Decision Date: 19 September 1990
• Citation: 580 A.2d 463,135 Pa.Cmwlth. 225
• Parties: Lester J. LORD, Petitioner, v. COMMONWEALTH of Pennsylvania, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 463

580 A.2d 463

135 Pa.Cmwlth. 225

Lester J. LORD, Petitioner, v. COMMONWEALTH of Pennsylvania, PENNSYLVANIA BOARD OF

PROBATION AND PAROLE, Respondent.

Commonwealth Court of Pennsylvania.

Argued April 5, 1990.

Decided Sept. 19, 1990.

David Crowley, Chief Public Defender, Centre County, for petitioner.

Robert A. Greevy, Chief Counsel, with him, Timothy P. Wile, Asst. Chief Counsel, for respondent.

Before DOYLE and SMITH, JJ., and SILVESTRI, Senior Judge.

DOYLE, Judge.

Before us for consideration is a petition for review of an order of the Pennsylvania Board of Probation and Parole (Board) filed by Lester J. Lord. The Board denied Lord's request for administrative relief from a Board order which rescinded a previously granted reparole and extended his reparole date by twenty-four months.

Lord was paroled by the Board on September 18, 1986 from his original sentence of nine to twenty-one years imposed by the Court of Common Pleas of Lycoming County as a result of his conviction for rape, indecent assault, involuntary deviate sexual intercourse, and escape. He was subsequently arrested and charged with indecent assault on July 29, 1987 by Springettsbury Township Police (York County), and was found guilty by a jury on November 18, 1987. He received a sentence of one to two years. A revocation hearing was thereafter held at the State Correctional Institution at Camp Hill on February 19, 1988. As a result, the Board recorded an order on March 18, 1988 which recommitted Lord as a convicted parole violator for a total of twenty-four months backtime. The March 18 order also granted Lord reparole to his original nine to twenty-one year sentence as of March 16, 1988. Given its literal effect, this order would virtually wipe out the twenty-four months backtime imposed and would allow Lord to immediately commence serving the minimum term of the one-to-two year sentence imposed for the 1987 York County conviction.

Thereafter, by order recorded July 18, 1988 the Board attempted to modify its March 18, 1988 grant of reparole by changing the reparole date to March 16, 1990. Lord filed a request for administrative relief and contended that the change in reparole dates violated his due process rights. By order recorded September 2, 1988 the Board rescinded its action of July 18 and scheduled a rescission hearing which, after a delay to enable Lord to obtain counsel, was held on March 22, 1989 at the State Correctional Institution at Rockview (SCI-Rockview).

At that hearing, Board clerical personnel testified that the March 16, 1988 reparole date was the result of clerical error, and that when the twenty-four months backtime assessed by the Board for the 1987 York County conviction was taken into account, Lord's correct reparole date was March 16, 1990. By order recorded on March 22, 1989, the Board modified its order of March 18, 1988 to reestablish Lord's reparole date as March 16, 1990, made no other changes, and rejected Lord's contention that the rescission of the March 18, 1988 order was untimely under Board regulations.

The issue before this Court is whether the Board may correct a clerical error in its records where that correction results in the rescission ¹ of an executed grant of parole, apparently a question of first impression in the Commonwealth.

We have previously recognized the Board's power to rescind a grant of parole prior to an inmate's actual release from confinement. See, e.g., Johnson v. Pennsylvania Board of Probation and Parole, 110 Pa.Commonwealth Ct. 142, 532 A.2d 50 (1987). Based upon Reider v. Pennsylvania Board of Probation and Parole, 100 Pa.Commonwealth Ct. 333, 514 A.2d 967 (1986), the Johnson Court held that an order rescinding an unexecuted parole, like the denial of a parole application, is not subject to judicial review. ² It further held that because Johnson's parole was never "executed," i.e., he never signed an acknowledgement of parole conditions and the Board did not issue a release order, Green v. Pennsylvania Board of Probation and Parole, 101 Pa.Commonwealth Ct. 132, 515 A.2d 1006 (1986), no liberty interest was vested by the mere grant of parole and the Board was not required to afford Johnson the due process guarantees of notice and a hearing mandated by Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

In the instant case, however, where the parole was executed as defined in Green, the Board was required to provide Lord with the notice and hearing due him under Morrissey. Based upon our review of the record, the March 22, 1989 hearing at SCI-Rockview, where Lord was represented by counsel and had the opportunity to cross-examine Board members and staff, provided sufficient due process. However, we must now answer the question of whether, due process notwithstanding, the Board possesses the authority to rescind an executed grant of parole which is the apparent result of a clerical error.

Whether the Board may correct clerical errors in its orders is an issue which has arisen previously in several different contexts. In Winters v. Pennsylvania Board of Probation and Parole, 102 Pa.Commonwealth Ct. 403, 518 A.2d 618 (1986), petition for allowance of appeal denied, 517 Pa. 612, 536 A.2d 1335 (1987), we held that the Board could properly correct a previous order by shifting backtime from one sentence to another as long as the status quo, i.e., the total amount of backtime to be served, remained the same. More recently, in McFarland v. Pennsylvania Board of Probation and Parole, 130 Pa.Commonwealth Ct. 639, 569 A.2d 374 (1989), we held that the Board could properly rescind an entry made by a staff technician erroneously closing McFarland's case because it is the Board, and not its staff, which has the authority to make parole decisions. As support for its holding, the McFarland Court relied on the following from our earlier decision in Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa.Commonwealth Ct. 90, 309 A.2d 165 (1973):

We firmly believe that an administrative agency, on its own motion, having provided...