§ 71.3. Return for a new criminal charge.
The following procedures shall be followed if a parolee, not already detained after appropriate hearings for other criminal charges or technical violations, has been charged with a new criminal offense:
(1) A parolee may be detained on a Board warrant pending disposition of a criminal charge following the occurrence of one of the following:
(i) A district justice has conducted a criminal preliminary hearing and concluded that there is a prima facie case against the parolee.
(ii) The parolee waives a criminal preliminary hearing and is held for court.
(iii) The parolee is convicted of a crime at a trial before a judge of the Philadelphia Municipal Court or a district justice.
(iv) An examiner conducts a detention hearing.
(2) A parolee detained on a Board warrant upon the occurrence of one of the events enumerated in paragraph (1) may be held, without further hearing, pending disposition of the new criminal charge.
(3) If the decision of the agent, with concurrence of the district director, is to detain a parolee, the agent shall file a written report with the Board stating the reasons for detention.
(4) The Board may either concur in the decision of the agent to detain or reject the decision and order the parolee continued on parole pending disposition of the new criminal charge.
(5) If the Board concurs with the agent’s decision to detain the parolee, the parolee shall be notified of the decision in writing.
(6) If an agent determines that a parolee poses a risk to the community or to self and that immediate incarceration or continued detention of the parolee is necessary, the agent shall apply to the district director for authorization to detain.
(7) If application is made under paragraph (6), the district director shall promptly grant or deny the request.
(8) If the application is granted, the parolee may be detained up to 30 days without the occurrence of one of the events enumerated in paragraph (1).
(9) The Board will follow the procedures generally governing preliminary hearings contained in § 71.2(1)—(8) (relating to procedure for violation of parole conditions) in conducting detention hearings, except that a detention hearing shall be held within 30 days of the parolee’s detention. After the detention hearing, a panel shall determine whether to continue to detain the parolee pending disposition of the new criminal charge.
(10) In determining whether a parolee should be detained under this section, the agent and the district director shall consider the following criteria:
(i) Risk to the community if the parolee is not detained.
(ii) Evidence that the parolee has violated parole in a sufficiently serious manner to warrant return as a technical violator.
(iii) The history of the parolee while under supervision.
(iv) Whether the parolee is in delinquent status by absconding.
(v) Seriousness of the offense with which the parolee has been charged.
(vi) Possibility that the parolee may abscond from parole supervision if not detained.
(vii) Whether the new criminal charge involves an alleged use of a weapon or physical assault.
(viii) Whether the parolee already has another pending criminal charge.
Authority The provisions of this § 71.3 issued under: section 506 of The Administrative Code of 1929 (71 P. S. § 186); amended under section 506 of The Administrative Code of 1929 (71 P. S. § 186); and the act of August 6, 1941 (P. L. 861, No. 323) (61 P. S. § § 331.1—331.34).
Source The provisions of this § 71.3 adopted August 4, 1972, effective August 14, 1972, 2 Pa.B. 1465; amended February 18, 1977, effective March 1, 1977, 7 Pa.B. 487; amended July 10, 1981, effective July 11, 1981, 11 Pa.B. 2478; amended January 15, 1988, effective January 16, 1988, 18 Pa.B. 250. Immediately preceding text appears at serial pages (122535) to (122537).
Notes of Decisions Continuances
The terms ‘‘revocation hearing’’ and ‘‘violation hearing’’ have acquired specific meanings in the context of parole, thus the defendant’s request for a ‘‘continuance of his violation/revocation hearing’’ related to both hearings and the delay caused by request for continuances will not be considered in determining timeliness of above-described hearings. Tarrant v. Board of Probation and Parole, 521 A.2d 997 (Pa. Cmwlth. 1987); appeal denied 535 A.2d 84 (Pa. 1987).
Detainers
The issuance of a detainer does not violate a parolee’s constitutional rights when he has been arrested for a new offense, if a committing magistrate has conducted a preliminary hearing and concluded there is a prima facie case against the parolee. Jezick v. Board of Probation and Parole, 530 A.2d 1031 (Pa. Cmwlth. 1987).
Detention Hearings
The Board of Probation and Parole did not need to hold a detention hearing after the conviction of a parole violation. Williams v. Board of Probation and Parole, 654 A.2d 235 (Pa. Cmwlth. 1995).
A Magistrate’s determination under 37 Pa. Code § 71.3(1) that there is a prima facie case against a parolee on new criminal charges obviates the need for a detention hearing, so that any defect in procedures at that hearing is harmless error. Boone v. Board of Probation and Parole, 457 A.2d 229 (Pa. Cmwlth. 1983).
Preliminary Hearings
Since the parolee was afforded a preliminary hearing after his arrest at which a prima facie case was established, the parolee could be detained, under 37 Pa. Code § 71.3(1)(i) and (2) (relating to arrest for a new criminal offense), without a preliminary detention hearing. Battle v. Board of Probation and Parole, 403 A.2d 1063 (Pa. Cmwlth. 1979).
A criminal preliminary hearing or the detention hearing mandated by 37 Pa. Code § 71.3(1)(iv) (relating to arrest for a new criminal offense) must be held within 15 days, since 37 Pa. Code § 71.3(9) (relating to arrest for a new criminal offense) requires the Board to follow the same procedures as those in 37 Pa. Code § 71.2(1)—(8) (relating to procedure for violation of parole conditions), and 37 Pa. Code § 71.2(3) (relating to procedure for violation of parole conditions) requires a hearing to be held within that time. Whittington v. Board of Probation and Parole, 402 A.2d 1105 (Pa. Cmwlth. 1979).
A detention hearing conducted by the Board is unnecessary when there is a criminal preliminary hearing at which a prima facie case is established. Ryles v. Board of Probation and Parole, 399 A.2d 151 (Pa. Cmwlth. 1979).
Relief
In order to establish grounds for relief based on the failure of the Probation and Parole Board to comply with notice and hearing procedures, it is necessary to allege, or the record must show, that the maximum expiration date of the original sentence was affected. Simmons v. Board of Probation and Parole, 381 A.2d 221 (Pa. Cmwlth. 1978).
Timeliness
Where Board of Probation and Parole held detention hearing 26 days after it lodged warrant and detainer against parolee, hearing was timely under present regulations. McCain v. Curione, 527 A.2d 591 (Pa. Cmwlth. 1987).
If a parolee is detained without hearing, pending disposition of new criminal charges, and a final revocation hearing is held 22 days after the conviction of the parolee on the new criminal charges, the Board has complied with the requirement that a hearing be held within 120 days from the date the Board receives official verification of a plea of nolo contendere or a guilty verdict at the highest trial court level. Mirando v. Cuyler, 412 A.2d 916 (Pa. Cmwlth. 1980).
Waiver
Failure to make objections to the timeliness of parole revocation hearings under 37 Pa. Code § § 71.2(3) and 71.3(1)(ii) prior to the revocation hearing constitutes a waiver of those issues as grounds for challenging the validity of the parole revocation hearings ultimately held. Nicastro v. Board of Probation and Parole, 455 A.2d 295 (Pa. Cmwlth. 1983).
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