§ 75.3. Application of presumptive ranges to technical parole violators.
(a) Presumptive ranges of parole backtime to be served shall be utilized if a parolee violates a general or special condition of parole, and the Board orders recommitment as a technical violator after the appropriate violation hearing.
(b) The presumptive ranges of parole backtime are intended to structure the discretion of the Board while allowing for individual circumstances in terms of mitigation and aggravation to be considered in the final decision.
(c) The Board may deviate from the presumptive range or determine that recommitment should not occur provided sufficient written justification is given.
(d) The presumptive ranges are intended to directly relate to the severity of the technical violation, both singly and in combination.
(e) When multiple violations occur, the presumptive range will be used which has the highest backtime range of those conditions violated.
(f) Backtime for a violation of a special condition shall be aggregated with other backtime, unless the revocation decision states otherwise.
Authority The provisions of this § 75.3 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 § 75.3 adopted January 16, 1981, effective January 17, 1981, 11 Pa.B. 353; amended January 15, 1988, effective January 16, 1988, 18 Pa.B. 250. Immediately preceding text appears at serial pages (122559) to (122560).
Notes of Decisions Backtime
Subsection (f), when read in light of subsection (e) and § 75.4, does not imply that a technical violation of a general condition must be applied to run concurrently with other backtime. Mione v. Board of Probation and Parole, 709 A.2d 440 (Pa. Cmwlth. 1998).
The Board was justified in imposing backtime in the 3 to 18 month range when a parolee admitted at the parole hearing that he had quit his job in anticipation of securing a higher paying position which was a condition of parole. Smith v. Board of Probation and Parole, 543 A.2d 221 (Pa. Cmwlth. 1988); appeal granted 557 A.2d 728 (Pa. 1989); affirmed 574 A.2d 558 (Pa. 1990).
Computation of Time
Board of Probation and Parole did not exceed its presumptive range in imposing backtime for parole violation where the backtime imposed for violation of special condition of parole, unexpired term, was in effect only 9 days, since total unexpired term was 1 year and 9 days, Board had imposed 12 months for violations of general parole conditions and backtime imposed for general parole condition violations and special parole condition violations are aggregated to compute a reparole eligibility date. Lawson v. Board of Probation and Parole, 524 A.2d 1053 (Pa. Cmwlth. 1987).
This section provided presumptive recommitment ranges only for violations of general conditions. There were no presumptive ranges to be followed when a parolee violated a special condition of parole and special condition violations must be dealt with at least as severely as the least serious of the general conditions, according to subsection (f). Lewis v. Board of Probation and Parole, 459 A.2d 1339 (Pa. Cmwlth. 1983).
Evidence
Court did not rule on issue of whether evidence concerning criminal charges obtained without the warning required by § 71.2(1) must be excluded from parole violation hearings as parole revocation hearings are not conducted with the same evidentiary rules as would apply to trial on criminal charges; even statements taken in violation of Miranda rights are admissable as evidence during revocation hearings. Coleman v. Board of Probation and Parole, 515 A.2d 1004 (Pa. Cmwlth. 1986).
Presumptive Range Exceeded
Where defendnt had been paroled on three different occasions and on the last occasion again violated a special condition of probation, there was sufficient justification for exceeding the maximum presumptive range. Moroz v. Board of Probation and Parole, 660 A.2d 131 (Pa. Cmwlth. 1995).
Board of Probation and Parole did not abuse its discretion, where written justification was given for exceeding presumptive range, to the effect that petitioner, while on parole after murder conviction, had engaged in assaultive behavior and possessed a knife less than 1 month following release. Pounds v. Board of Probation and Parole, 527 A.2d 180 (Pa. Cmwlth. 1987); decision vacated 558 A.2d 859 (Pa. 1989).
Procedure
Under 37 Pa. Code § 75.4, the applicable presumptive range for violating a special condition imposed by the Board of Probation and Parole or the parole agent was 3 to 18 months. Where the Board imposed backtime in excess of the maximum presumptive range, the Board was required to provide written justification for the increased backtime listing any aggravating reasons. Additionally, the aggravating reasons found by the Board must be supported by substantial evidence in the record. Moroz v. Board of Probation and Parole, 660 A.2d 131 (Pa. Cmwlth. 1995).
Written justification must be given for deviations from the presumptive ranges for recommitment of a parole violator and where mitigating factors previously cited no longer exist, no written justification was deemed given. Kilpatrick v. Board of Probation and Parole, 521 A.2d 978 (Pa. Cmwlth. 1987).
Without additional explanation or supporting evidence in the record, the Board of Probation and Parole’s statement, ‘‘Aggravating: pattern of parole failure,’’ did not constitute sufficient written justification for deviating from the presumptive recommitment ranges for technical violation of parole. Carthon v. Board of Probation and Parole, 512 A.2d 799 (Pa. Cmwlth. 1986).
Where the Board of Probation and Parole varied from the presumptive ranges, by either increasing or decreasing backtime, it was required to state in writing the mitigating or aggravating reasons. Krantz v. Board of Probation and Parole, 483 A.2d 1044 (Pa. Cmwlth. 1984).
The Board of Probation and Parole adopted the presumptive ranges found in this chapter in an attempt to structure the discretion of the Board while allowing deviation for individual circumstances. Gundy v. Board of Probation and Parole, 478 A.2d 139 (Pa. Cmwlth. 1984).
Sentence within Range
The general condition which the parolee was found to have violated, having the highest back time range had a presumptive range of 5 to 12 months. Aggregating that back time with the back time for violation of three special conditions, the presumptive range became 14 to 66 months. The amount of back time imposed by the Board of Probation and Parole was 24 months, a period of time within the presumptive range. Kelly v. Board of Probation and Parole, 669 A.2d 436 (Pa. Cmwlth. 1995).
Where defendant had been on parole after serving a 9 to 60 month sentence and was subsequently arrested for receiving stolen property and multiple technical parole violations, the Board of Probation and Parole’s order that petitioner serve 18 months backtime was in accord with the appropriate range for multiple violations. Coleman v. Board of Probation and Parole, 515 A.2d 1004 (Pa. Cmwlth. 1986).
The Board of Probation and Parole’s imposition of 48 months backtime for violation of conditions of parole pertaining to ownership of firearms and assaultive behavior was within the presumptive ranges authorized by subsection (b) and was supported by substantial evidence in the record. Chapman v. Board of Probation and Parole, 484 A.2d 413 (Pa. Cmwlth. 1984).
Special Conditions
The Board of Probation and Parole can aggregate the recommitment period for a parolee’s violation of a special condition of parole along with multiple violations of general conditions of parole. Williams v. Board of Probation and Parole, 701 A.2d 279 (Pa. Cmwlth. 1997).
Fifteen month imposition of back time by the Board of Probation and Parole was within the presumptive range for violating special conditions of parole relating to consumption of alcohol and therefore was not disturbed as an abuse of discretion by the Board. Lotz v. Board of Probation and Parole, 548 A.2d 1295 (Pa. Cmwlth. 1988); affirmed 583 A.2d 427 (Pa. 1990).
The minimum and maximum recommended recommitment periods set forth in this section provide a rationale for the Board of Probation and Parole’s choice of minimum and maximum presumptive ranges for violations of special conditions. Johnson v. Board of Probation and Parole, 527 A.2d 1107 (Pa. Cmwlth. 1987).
While the presumptive ranges for recommitment of technical parole violators did not apply to a violation of a special condition of parole, such a violation must be dealt with at least as severely as the least serious of the general conditions, so that a recommitment which exceeded the minimum by only 6 months was not an abuse of the Board of Probation and Parole’s discretion. Marsh v. Board of Probation and Parole, 485 A.2d 853 (Pa. Cmwlth. 1984).
The imposition of a special condition that duplicated a general condition, and the use of it as a foundation for an aggregation and extension of the time periods, was an increase of the possible recommitment time in the absence of any express justification in violation of subsection (c). Gartner v. Board of Probation and Parole, 469 A.2d 697 (Pa. Cmwlth. 1983).
The Board of Probation and Parole, upon a finding of a violation of a special condition, had authority under this section to recommit a parolee and aggregate time periods for a period in excess of the presumptive ranges. Gartner v. Board of Probation and Parole, 469 A.2d 697 (Pa. Cmwlth. 1983).
Special Conditions
—Sentence within Range
In order to give effect to subsection (f) of this regulation, subsection (e) must be interpreted to refer only to multiple violations of general parole conditions. Interpreting subsection (e) as including special conditions would render subsection (f) a nullity. If a parolee violates a general condition in addition to a special condition, under a strict reading of subsection (e), the amount of back time assessed would be in the range of 3 to 18 months. This interpretation would conflict with the requirement in subsection (f) that back time for a violation of a special condition be aggregated with other back time. Kelly v. Board of Probation and Parole, 669 A.2d 436 (Pa. Cmwlth. 1995).
Parolee’s back time recommitment of 18 months for violation of a special condition relating to consumption of alcohol fell within presumptive range under this section and thus was not excessive; overruling Knight v. Board of Probation and Parole, 510 A.2d 402 (Pa. Cmwlth. 1986); overruled 527 A.2d 1107 (Pa. Cmwlth. 1987), Johnson v. Board of Probation and Parole, 527 A.2d 1107 (Pa. Cmwlth. 1987).
The Board of Probation and Parole’s denial of administrative relief would be affirmed where the backtime given for a special condition violation was within the Board’s three to eighteen months presumptive range. Lantzy v. Board of Probation and Parole, 477 A.2d 18 (Pa. Cmwlth. 1984).
A Board of Probation and Parole’s order of 36 months of backtime for a violation of a special condition that had a 6 to 18 months presumptive range was not an abuse of discretion where the Board provided sufficient written justification under subsection (c). Fahlfeder v. Board of Probation and Parole, 470 A.2d 1130 (Pa. Cmwlth. 1984).
Technical Violations
The imposition of a sentence of 18 months backtime for four technical parole violations was the proper maximum sentence under the presumptive ranges. Lewis v. Board of Probation and Parole, 515 A.2d 1033 (Pa. Cmwlth. 1986).
The Board of Probation and Parole may not impose additional time beyond the presumptive range for multiple technical violations solely on the basis of there being multiple technical violations. Robinson v. Board of Probation and Parole, 503 A.2d 1048 (Pa. Cmwlth. 1986); appeal after remand 520 A.2d 1230 (Pa. Cmwlth. 1987).
The Board of Probation and Parole may not recommit for technical violations where technical violations are based upon acts which constitute new crimes upon which parolee had been convicted. Robinson v. Board of Probation and Parole, 503 A.2d 1048 (Pa. Cmwlth. 1986); appeal after remand 520 A.2d 1230 (Pa. Cmwlth. 1987).
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