parole violation in Pennsylvania

2023In a Turner letter pertaining to a parole violation matter, an attorney seeks leave of court to withdraw representation because “the [violator’s] case lacks merit, even if it is not so anemic as to be deemed wholly frivolous.” Com. v. Wrecks, 931 A.2d 717, 722 (Pa. Super. 2007).

2021In a Turner letter pertaining to a parole violation matter, an attorney seeks leave of court to withdraw representation because “the [violator’s] case lacks merit, even if it is not so anemic as to be deemed wholly frivolous.” Com. v. Wrecks, 931 A.2d 717, 722 (Pa. Super. 2007).

2024A search will be deemed reasonable “if the totality of the evidence demonstrates: (1) that the parole officer had a reasonable suspicion that the parolee had committed a parole violation, and (2) that the search was reasonably related to the parole officer’s duty.” Commonwealth v. Gould, 187 A.3d 927, 935 (Pa. Super. 2018) (citation omitted).

2024See Gould, 187 A.3d at 935 (stating that a “parole officer’s warrantless search of a parolee will be deemed reasonable, and the fruits of the search will be admissible in court, if the totality of the evidence demonstrates: (1) that the parole officer had a reasonable suspicion that the parolee had committed a parole violation, and (2) that the search was reasonably related to the parole officer’s duty”).

2020See Young v. Commonwealth, 409 A.2d 843 (Pa. 1979); Armbruster v. Pa. Bd. of Prob. & Parole, 919 A.2d 348 (Pa. Cmwlth. 2007).

2020See Young v. [Cmwlth.], 409 A.2d 843 (Pa. 1979); Armbruster v. Pa. Bd. of Prob. & Parole, 919 A.2d 348 (Pa. Cmwlth. 2007).

2026It is well established that “[d]ue process requires that a parolee receive a timely hearing after he is taken into custody for a parole violation.” Dill v. Pa. Bd. of Prob. & Parole, 186 A.3d 1040, 1044 (Pa. Cmwlth. 2018), appeal denied, 207 throughout the appropriate sections of his brief and was raised before the Board.

2025C.R. at 83. 4 The sole issue Carmichael raises before this Court is one of due process, specifically whether the Board erred in determining that his revocation hearing was timely.5 Dill v. Pa. Bd. of Prob. & Parole, 186 A.3d 1040, 1044 (Pa. Cmwlth. 2018) (“Due process requires that a parolee receive a timely hearing after he is taken into custody for a parole violation.”).

2021The court found the violations, though technical, to be serious[.] Commonwealth v. Fair, 497 A.2d 643, 645 (Pa. Super. 1985) (emphasis added and some citations omitted).

2021Upon review, we agree. “[A] court faced with a parole violation must recommit the parolee to serve the remainder of the original sentence of imprisonment, from which the prisoner could be reparoled.” Commonwealth v. Holmes, 933 A.2d 57 , 59 n.5 (Pa. 2007); see also Commonwealth v. Fair, 497 A.2d 643, 645 (Pa. Super. 1985) (stating that the trial court, after finding a violation of parole in cases not under the control of the Pennsylvania Board of Parole, has “no authority for giving a new sentence with a minimum and maximum.”).

2022In Bronson, the Supreme Court of Pennsylvania echoed the importance of this right and its extending to such proceedings, explaining that “[w]hether a parole violation proceeding is properly classified as criminal, quasi-criminal or civil, we have recognized it to be a proceeding of the nature where the right to counsel is required to comport with our fundamental concepts of fairness.” Id.; see also Gagnon v. Scarpelli, 411 U.S. 778 . . . (1973) (explaining that both parole and probation revocation implicates a loss of liberty triggering due process requirements).

2021In Bronson, the Supreme Court of Pennsylvania echoed the importance of this right and its extending to such proceedings, explaining that “[w]hether a parole violation proceeding is properly classified as criminal, quasi-criminal or civil, we have recognized it to be a proceeding of the nature where the right to counsel is required to comport with our fundamental concepts of fairness.” Id.; see also Gagnon v. Scarpelli, 411 U.S. 778 (1973) (explaining that both parole and probation revocation implicates a loss of liberty triggering due process requirements).

2018See 61 Pa.C.S. § 6138; see also Walker v. Pa. Bd. of Prob. & Parole, 729 A.2d 634, 638 (Pa. Cmwlth. 1999) (recognizing “the [Parole] Board may not impose a parole violation sentence to run concurrently with a new sentence for an offense committed while on parole[]” (citation omitted)).

2016Ct. 1999) (recognizing “the [Parole] Board may not impose a parole violation sentence to run concurrently with a new sentence for an offense committed while on parole[]”) (citation omitted). -6- J-S06027-16 concurrently.” Id.

2020See Young v. Commonwealth, 409 A.2d 843 (Pa. 1979); Armbruster v. Pa. Bd. of Prob. & Parole, 919 A.2d 348 (Pa. Cmwlth. 2007).

2020See Young v. [Cmwlth.], 409 A.2d 843 (Pa. 1979); Armbruster v. Pa. Bd. of Prob. & Parole, 919 A.2d 348 (Pa. Cmwlth. 2007).

2017See McDonald v. Pa. Bd. of Prob. & Parole, 673 A.2d 27 (Pa. Cmwlth. 1996) (a delay of more than nine months from parolee’s return to DOC custody to his revocation hearing, which is not attributable to the parolee or his counsel, and for which the Board offers no explanation, requires dismissal of the parole violation charges).

2016“Where ... the Board fail[s] to meet its burden of establishing the timeliness of the revocation hearing, the appropriate remedy is dismissal of the parole violation charges with prejudice.” McDonald v. Pa. Bd. of Prob. and Parole, 673 A.2d 27, 30 (Pa.Cmwlth.1996).

2024“In contrast, a court faced with a parole violation must recommit the parolee to serve the remainder of the original sentence of imprisonment[.]” Id.

2024“In contrast, a court faced with a parole violation must recommit the parolee to serve the remainder of the original sentence of imprisonment[.]” Id.

2023Counsel outlines the issues raised by Cummings and concludes that Cummings’ appeal “is without merit and lacks support in either law or fact.” Id. at 1. 1 The term “no merit letter” refers to our Supreme Court’s decision in Commonwealth v. Turner, 544 A.2d 927, 928-29 (Pa. 1988), which sets forth the “appropriate procedures for withdrawal of court-appointed counsel in collateral attacks on criminal convictions.” In a parole violation matter where there is no constitutional right to counsel involved, a no merit letter is filed by an attorney requesting leave of court to withdraw representation

2023Counsel will be permitted to withdraw if this Court concurs with counsel’s determination that the 2 We use the term “Turner letter” to refer to our Supreme Court’s decision in Commonwealth v. Turner, 544 A.2d 927, 928-29 (Pa. 1988), which sets forth the “appropriate procedures for withdrawal of court-appointed counsel in collateral attacks on criminal convictions.” In a parole violation matter where there is no constitutional right to counsel involved, a Turner letter is filed by an attorney requesting leave of court to withdraw representation if the attorney determines the violator’s case lac

2025Specifically, in his appeal to the Board,8 Parolee alleged: The Board also erred in the revocation decision that did not contain specified information in order to pass [] constitutional muster in order to comply with the mandate in Morrissey [v. Brewer, 408 U.S. 471 (1972):] (1) [t]he parole condition violated[;] (2) the definition of that condition[;] (3) the nature of the offender[’s] offense[;] (4) any applicable presumptive range[;] (5) any mitigating or aggravating circumstances considered by the [Board] for increasing or decreasing parole violation backtime[;] and (6) the parole violatio

2024“It has long been established that due process requires that parolees receive a hearing within a reasonable time after they are taken into custody for a parole violation.” Taylor v. Pa. Bd. of Prob. & Parole, 931 A.2d 114, 117 (Pa. Cmwlth. 2007) (en banc) (citing Morrissey v. Brewer, 408 U.S. 471 (1972)).

2015Significantly, the Supreme Court has noted that even instances where a revocation hearing is delayed "until after the parolee has completed the sentence for the conviction which constituted the parole violation does not offend the principles of due process." Commonwealth v. Waters, 252 Pa. Super. 357, 359-60 (1977) (quoting Moody v. Daggett, 429 U.S. 78, 97 (1976)).

1989In Moody v. Daggett, 429 U.S. 78 , 86 n. 7, 97 S.Ct. 274 , 278 n. 7, 50 L.Ed.2d 236 (1976), the United States Supreme Court noted that: where petitioner has already been convicted of and incarcerated on a subsequent offense, there is no need for the preliminary hearing which Morrissey requires upon arrest for a parole violation.

2026Accordingly, “[a] search will be deemed reasonable if the totality of the evidence demonstrates: (1) that the parole officer had a reasonable suspicion that the parolee had committed a parole violation, and (2) that the search was reasonably related to the parole officer’s duty.” Id. at 1036 (citations omitted).

2025That is, a warrantless search of a parolee’s person or property “will be deemed reasonable if the totality of the evidence demonstrates: (1) that the parole officer had a reasonable suspicion that the parolee had committed a parole violation, and (2) that the search was reasonably related to the parole officer's duty.” Id., at 1036 . -6- J-S19023-25 Section 6182(b)(l) of the Pennsylvania Board of Probation and Parole Statute provides that the person or property of a supervised offender may be searched “if there is reasonable suspicion to believe that the real or other property in the possessio

2025In Commonwealth v. Kelley, 136 A.3d at 1013 - 14, this Court explained that “[i]mposition of a new state sentence concurrent with the parolee’s new sentence is an illegal sentence under [Section 6138].” Here, the trial court’s October 24, 2017 sentencing order does state that the new sentence it imposed was to run “concurrent w/each other and any other cases.” Order, 10/24/17, at 1.

2020Imposition of a new state sentence concurrent with [the parole violation sentence] is an illegal sentence under [Section 6138].” Kelley, 136 A.3d at 1013 (citations omitted).

2024Additionally, when the Board fails to produce evidence that it had the burden to produce, it “does not have the right to a second hearing to make the case it should have made in the first instance.” Gair v. Pa. Bd. of Prob. & Parole, 948 A.2d 884, 889 (Pa. Cmwlth. 2008); see also Mack v. Pa. Bd. of Prob. & Parole, 654 A.2d 129, 131 (Pa. Cmwlth. 1995) (reversing the decision of the Board and dismissing the parole violation charges with prejudice because the revocation hearing was untimely).

2019If the Board does not meet this “burden, the appropriate remedy is a dismissal of the parole violation charges with prejudice.” Id.

2025Fitzhugh v. Pa. Bd. of Prob. & Parole, 623 A.2d 376, 377 (Pa. Cmwlth. 1993); Ramos v. Pa. Bd. of Prob. & Parole, 954 A.2d 107, 109 (Pa. Cmwlth. 2008). 3 It is well established that due process requires a parolee to “receive a timely hearing after he is taken into custody for a parole violation.” Dill v. Pa. Bd. of Prob. & Parole, 186 A.3d 1040, 1044 (Pa. Cmwlth. 2018).

2023Id.

2000In essence, delaying the post-revocation healing when serving a subsequent sentence in state court is no different than delaying a parole revocation-hearing involving convicted parole violators incarcerated out-of-state until the expiration of their term and returned to the state which has lodged a parole violation detainer, a practice which has also been held to be constitutional. 6 Carchman v. Nash, 473 U.S. 716 , 105 S.Ct. 3401 , 87 L.Ed.2d 516 (1985); Harris v. Pennsylvania Board of Probation and Parole, 38 Pa.Cmwlth. 391 , 393 A.2d 510 (1978). 7 Because due process does not require a revo

2000In essence, delaying the post-revocation healing when serving a subsequent sentence in state court is no different than delaying a parole revocation-hearing involving convicted parole violators incarcerated out-of-state until the expiration of their term and returned to the state which has lodged a parole violation detainer, a practice which has also been held to be constitutional. 6 Carchman v. Nash, 473 U.S. 716 , 105 S.Ct. 3401 , 87 L.Ed.2d 516 (1985); Harris v. Pennsylvania Board of Probation and Parole, 38 Pa.Cmwlth. 391 , 393 A.2d 510 (1978). 7 Because due process does not require a revo

2026See Simmons, supra. Accordingly, we vacate Brown’s judgment sentence, and remand for a parole violation hearing.4 Judgment of sentence vacated.

2024To this end, we note that the issue raised here involves the legality of a sentence, see, e.g., Rosario, 294 A.3d 338 n.4; Simmons, supra, which cannot be waived, see Simmons, supra, and can be raised sua sponte by the court, see Rosario, 294 A.3d 342 n.4; Simmons, supra. -4- J-A14018-24 While we appreciate the trial court’s position, we are nonetheless constrained to vacate the judgment of sentence and remand for a parole violation hearing.

2019See generally Martin v. PBPP , 576 Pa. 588 , 595-96, 840 A.2d 299 , 303 (2003) (explaining that, following a parole violation, the Board can require the defendant to serve the remainder of his sentence as "backtime" before any sentence for a different offense begins).

2019See generally Martin v. PBPP , 576 Pa. 588 , 595-96, 840 A.2d 299 , 303 (2003) (explaining that, following a parole violation, the Board can require the defendant to serve the remainder of his sentence as "backtime" before any sentence for a different offense begins).

2025This Court previously noted that, while Section 9760 of the Sentencing Code “does not specifically contemplate credit for time served following a parole violation and revocation[,]” our Supreme Court has long-held that “this credit statute mandates an offender receive credit for all incarceration served before sentencing for which he [or she] is being detained in custody.” Gibbs, 181 A.3d at 1167 , citing Gaito v. Pennsylvania Bd. of Prob. and Parole, 412 A.2d 568 (Pa. 1980).

2023This statutory provision “does not specifically contemplate credit for time served following a parole violation and revocation.” Commonwealth v. -4- J-S04038-23 Gibbs, 181 A.3d 1165, 1167 (Pa. Super. 2018).

2024“It has long been established that due process requires that parolees receive a hearing within a reasonable time after they are taken into custody for a parole violation.” Taylor v. Pa. Bd. of Prob. & Parole, 931 A.2d 114, 117 (Pa. Cmwlth. 2007) (en banc) (citing Morrissey v. Brewer, 408 U.S. 471 (1972)).

2018If the Board fails to meet its burden, “the appropriate remedy is dismissal of the parole violation charges with prejudice.” Id.

2022Id. (citing Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973)).

2022Id. at 59-60 .

2000Because the revocation hearing was not held within 120 days of the Board receiving official verification of his conviction, Johnson v. Pennsylvania Board of Probation and Parole, 129 Pa. Cmwlth. 652, 566 A.2d 918 (1989), affirmed, 525 Pa. 573 , 583 A.2d 790 (1991), he then argues that the parole violation charges should be dismissed with prejudice.

1992This Court has repeatedly held that “[w]here the Board has failed to present substantial evidence as to the timeliness of the Petitioner’s revocation hearing thereby failing to meet its burden of proof by a preponderance of the evidence that the hearing was timely, the appropriate remedy is a dismissal of the parole violation charges with prejudice.” Johnson v. Pennsylvania Board of Probation and Parole, 129 Pa.Commonwealth Ct. 652, 660, 566 A.2d 918, 922 (1989), aff'd, 525 Pa. 573 , 583 A.2d 790 (1991).