§ 75.4. Presumptive ranges for technical parole violators.
The presumptive ranges for recommitment for the general conditions of parole are as follows:
Violation of: Single Multiple Condition 1 6 to 12 months 6 to 18 months (see § 63.4(1)) Condition 2 6 to 9 months 6 to 18 months (see § 63.4(2)) Condition 3(a) 3 to 6 months 6 to 18 months (see § 63.4(3)(i)) Condition 3(b) 3 to 6 months 6 to 18 months (see § 63.4(3)(ii)) Condition 3(c) 3 to 6 months 6 to 18 months (see § 63.4(3)(iii)) Condition 4 3 to 9 months 6 to 18 months (see § 63.4(4)) Condition 5(a) 5 to 12 months 6 to 18 months (see § 63.4(5)(i)) Condition 5(b) 6 to 12 months 6 to 18 months (see § 63.4(5)(ii)) Condition 5(c) 6 to 18 months 6 to 18 months (see § 63.4(5)(iii)) Condition 6 0 to 6 months (see § 63.4(6)) Special Condition 3 to 18 months See § 75.3(f) (see § 63.5)
Authority The provisions of this § 75.4 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 § 75.4 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 (122562) to (122563).
Notes of Decisions Appeals
The court will not interfere with the Board of Probation and Parole’s exercise of discretion where the Board’s finding of technical parole violation was supported by substantial evidence and the backtime imposed was within the presumptive range. Hawkins v. Board of Probation and Parole, 490 A.2d 942 (Pa. Cmwlth. 1985).
Danger to Society Determinations
Nothing in the record supported the Board of Probation and Parole’s conclusion that the parolee was a danger to society when the parolee was charged with a single technical violation. Drug use alone did not justify deviation from the presumptive range and the fact that the parolee’s underlying conviction was for third-degree murder did not make the parolee any more a threat to society than when the parolee was first paroled. Duncan v. Board of Probation, 687 A.2d 1179 (Pa. Cmwlth. 1996); appeal denied 704 A.2d 1383 (Pa. 1997).
Evidence
Although the Board of Probation and Parole is specifically permitted to review requests for administrative relief de novo, the panel must issue an order to that effect. Unless the Board expressly orders that the matter will be heard de novo, the revocation panel must only review the revocation decision on a substantial evidence standard. On petition for administrative relief, without an order for de novo review, new or additional findings on aggravating circumstances cannot be made in order to support backtime imposed. Having determined that the finding of a violation of condition 2 was not supported by substantial evidence, as evidenced by the order removing all references to that condition from the Board’s order, the backtime imposed, which was for a single violation of condition 5, should have been reduced. Watkins v. Board of Probation and Parole, 685 A.2d 226 (Pa. Cmwlth. 1996).
Where the Board of Probation and Parole imposed backtime in excess of the maximum presumptive range, the Board was required to provide writen 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).
There was substantial evidence to allow the Board of Probation and Parole to exceed the presumptive range for multiple violations of condition 5A where the Board stated the following aggravating circumstances: ‘‘Early failure on parole. Serious multiple convictions. Overall poor parole adjustment. On parole for similar charges.’’ Ward v. Board of Probation and Parole, 538 A.2d 971 (Pa. Cmwlth. 1988).
If the Board of Probation and Parole imposes backtime in excess of the maximum presumptive range for a given violation, it must justify the increased backtime by listing the aggravating factors upon which it based its decision and these aggravating factors must be supported by substantial evidence contained in the record. Harper v. Board of Probation and Parole, 520 A.2d 518 (Pa. Cmwlth. 1987); appeal denied 531 A.2d 432 (Pa. 1987).
Court did not rule on issue of whether evidence concerning criminal charges obtained without warning required by § 71.2(1) must be excluded from parole violation hearings. These hearings do not need to be 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 hearing. Coleman v. Board of Probation and Parole, 515 A.2d 1004 (Pa. Cmwlth. 1986).
General Comment
This section sets forth presumptive ranges for recommitment of technical parole violators. Marsh v. Board of Probation and Parole, 485 A.2d 853 (Pa. Cmwlth. 1984).
The presumptive ranges established by this Board of Probation and Parole to structure its discretion assign a range in terms of months to various parole conditions and for various crimes for which a parolee may be connected. Krantz v. Board of Probation and Parole, 483 A.2d 1044 (Pa. Cmwlth.).
Multiple Convictions
The Board may impose separate recommitment terms for each conviction while on parole although the separate convictions involved arise out of the same criminal event, since the multiple conviction provision contained in this section does not appear in § 73.1. Perry v. Board of Probation and Parole, 485 A.2d 1231 (Pa. Cmwlth. 1984).
Presumptive Range Exceeded
Parolee failed to assert how the missing portion of the witnesses cross-examination testimony could negate the fact that substantial evidence existed in the transcribed portion of the witness’s testimony, and in the record as a whole. Therefore, based on the parolee’s history of sex offenses, violent behavior, danger to the community, and original conviction, parolee was properly recommitted for a length of time exceeding the presumptive range in imposing backtime. Harris v. Board of Probation and Parole, 680 A.2d 35 (Pa. Cmwlth. 1996).
Procedure
Under this section, 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. Moroz v. Board of Probation and Parole, 660 A.2d 131 (Pa. Cmwlth. 1995).
Sentence within Range
Where petitioner was found to have violated one count of a general condition of his parole which, under regulation of the Board of Probation and Parole, carries a presumptive range of 5 to 12 months, and because the recommitment fell within the presumptive range, the period of recommitment was proper. Price v. Board of Probation and Parole, 781 A.2d 212 (Pa. Cmwlth 2001).
Parolee was recommitted within presumptive range following arrest by parole agent for possession of knife and multiple other violations of the conditions of parole. Kyte v. Board of Probation and Parole, 680 A.2d 14 (Pa. Cmwlth. 1996).
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).
The fact that petitioner had been repeatedly warned by parole agent not to associate with drug users, that a lab report indicated petitioner had ingested methamphetamine and petitioner admitted to taking the pill, was sufficient to warrant the Board of Probation and Parole to increase petitioner’s recommitment from the 5—12 month presumptive range to 15 months. Moore v. Board of Probation and Parole, 530 A.2d 1011 (Pa. Cmwlth. 1987).
Where Board of Probation and Parole imposed backtime of 12 months for three technical parole violations and court deleted the finding of one of those violations, 12 months backtime was still well within the presumptive range for two technical parole violations, thus remand to Board for reconsideration of backtime imposed was not required. Lawson v. Board of Probation and Parole, 524 A.2d 1053 (Pa. Cmwlth. 1987).
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 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).
Imposition of 18 months backtime for technical violation (engaging in assaultive behavior) is within the published presumptive range for general parole condition 5C. LaCourt v. Board of Probation and Parole, 488 A.2d 70 (Pa. Cmwlth. 1985).
Fifteen months backtime given by the Board of Probation and Parole was within the 6 to 18 months presumptive range for multiple violations of general parole conditions 1 (obtaining permission to leave parole district) and 5(ii) (refraining from owning or possessing any weapon). Lantzy v. Board of Probation and Parole, 477 A.2d 18 (Pa. Cmwlth. 1984).
The recommitment time specified in this section was a minimum time and the Board did not violate its own regulations where the range was exceeded because a parolee violated a special condition of parole. Lewis v. Board of Probation and Parole, 459 A.2d 1339 (Pa. Cmwlth. 1983).
Treatment Programs
Participation in required inpatient drug and alcohol treatment program need not be credited against unexpired prison term of parole violator where program lacked custodial aspects which are characteristic of confinement. Jackson v. Board of Probation and Parole, 568 A.2d 1004 (Pa. Cmwlth. 1990).
Written Justification
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).
The 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).
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