J. Lugo, Jr. v. PPB ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Johnny Lugo, Jr., :
Petitioner :
:
v. : No. 904 C.D. 2021
: Submitted: March 4, 2022
Pennsylvania Parole Board, :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE DUMAS FILED: May 27, 2022
Johnny Lugo, Jr. (Lugo) petitions for review of the Pennsylvania Parole
Board’s (Board) July 16, 2021 decision denying his request for administrative relief.
Lugo contends that the Board violated his due process rights prior to revoking his
parole and erred in recalculating his maximum sentence date. Upon careful
consideration, we affirm.
I. BACKGROUND
Briefly, in the Berks County Court of Common Pleas (trial court), Lugo
pleaded guilty to various drug offenses and was sentenced to an aggregate sentence
of one-and-a-half to four years in prison, with a maximum sentence date of January
24, 2023. The Board granted parole and issued an order to release Lugo on parole
in August 2020. Order to Release on Parole/Reparole, 4/29/20. Lugo signed an
acknowledgment of the conditions governing his parole in August 2020. Conditions
Governing Parole/Reparole, 8/19/20. Lugo was at liberty on parole until March 25,
2021, when parole officers detained Lugo because he admitted to using illegal drugs
a few days earlier.
The Board presented Lugo with, and Lugo signed, a hearing notice,
which identified Lugo’s admission as the reason for the hearing. Notice of
Rescission Hr’g, 4/8/21.1 Lugo signed a document listing his rights, including a right
to court-appointed counsel. Inmate Rights at Parole Bd. Hr’gs, 4/8/21. Lugo also
signed a waiver of his rights to a hearing and to counsel. Waiver of Rescission Hr’g
& Counsel, 4/8/21.
The Board revoked Lugo’s parole and recalculated his new maximum
sentence date as December 13, 2023. Notice of Bd. Decision, 5/7/21. The Board’s
notice notified Lugo of his right to file a request for administrative relief with the
Board, i.e., appeal the Board’s determination. Id. The notice also stated that Lugo
had a right to court-appointed counsel and that he must “set forth specifically the
factual and legal bases for the” appeal. Id. Lugo pro se timely filed a request for
administrative relief, which only stated he wanted to appeal the Board’s May 7th
1
In Gruff v. Pennsylvania Board of Probation & Parole, 986 A.2d 953, 957 (Pa. Cmwlth.
2009), this Court explained that “a rescission is based on information or facts arising prior to the
inmate’s release on parole, while a revocation arises only when an inmate already at liberty on
parole violates a term or condition of that parole or is convicted of a crime while on parole.” Gruff,
986 A.2d at 957 (cleaned up). Therefore, notwithstanding the record’s references to “rescission,”
because Lugo was already at liberty on parole, his parole could only be revoked. See id.The Gruff Court also suggested that to the extent the Board nevertheless seeks rescission
of a fully-executed parole, the Board should use a process “similar to the process used for
revocation of parole[.]” Id. at 958 (citation and footnote omitted). That process includes “written
notice of the basis for the rescission; a fact-finding hearing at which the parolee can appear and
present evidence; a right to cross-examine adverse witnesses, unless there is ‘good cause’ to deny
the parolee that right; a neutral and impartial decision-maker; and written conclusions which
include the evidence relied upon and the reasons for the rescission.” Id. at 958-59 (citations
omitted).
2
decision, and the Board denied relief. Bd.’s Decision, 7/16/21; Correspondence,
5/26/21.
Lugo pro se timely filed an “original jurisdiction” petition for review
with this Court. This Court ordered that Lugo’s “original jurisdiction” petition for
review be treated as an appellate petition for review of the Board’s affirmance and
appointed counsel for Lugo. Order, 8/25/21 (citing Pa.R.A.P. 1501). Counsel filed
an amended petition for review.2
II. ISSUES AND ARGUMENTS
Lugo, although raising five issues, presents only three arguments in his
appellate brief.3 For his first two arguments, Lugo argues that the Board violated his
right to due process because the Board’s hearing notice failed to advise Lugo of the
alleged parole violations, the specific parole conditions he violated, and a description
of his rights, among other items. Lugo’s Br. at 16. Lugo therefore reasons that his
subsequent waiver was unknowing and involuntary. Id. at 16-17. Lugo relatedly
argues that the Board should have independently substantiated his alleged admission
that he used illegal narcotics. Id. at 17.
Last, Lugo insists he is entitled to credit for the time he spent at liberty
on parole. Id. at 18. Specifically, Lugo calculates that he was in good standing
between May 8, 2020, and March 25, 2021, a span of 322 days. Id. Lugo concludes
that if this Court agrees with the Board that he is a technical parole violator, he is
entitled to a credit of 322 days against his maximum sentence. Id.
2
We review the Board’s decision to determine whether constitutional rights were violated,
whether there was an error of law, and whether the record supports the Board’s findings. See
Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704; Miskovitch v. Pa. Bd. of Prob. &
Parole, 77 A.3d 66, 70 n.4 (Pa. Cmwlth. 2013).
3
The argument section of Lugo’s brief does not comply with Pa.R.A.P. 2119, because the
section is not “divided into as many parts as” the five issues he originally raised in his statement
of questions involved. See Pa.R.A.P. 2119.
3
The Board counters that Lugo waived all of his issues because he did
not identify any issues in his request for administrative relief. Bd.’s Br. at 7-8.4 The
Board did not address the merits of Lugo’s arguments. See generally id.III. DISCUSSION
By way of guidance, the “law is well settled that issues not raised before
the Board either at the revocation hearing or in the petitioner’s administrative appeal
are waived and cannot be considered for the first time on appeal.” Chesson v. Pa.
Bd. of Prob. & Parole, 47 A.3d 875, 878 (Pa. Cmwlth. 2012); see 2 Pa.C.S. § 703(a);
Pa.R.A.P. 1551 (“Only questions raised before the government unit shall be heard
or considered”); accord Goods v. Pa. Bd. of Prob. & Parole, 912 A.2d 226, 235 (Pa.
2006) (holding “there is no logical reason why the Board cannot require a parolee to
raise his claims at the initial hearing”).
For example, in Hartman v. Pennsylvania Board of Probation & Parole
(Pa. Cmwlth., No. 863 C.D. 2014, filed Jan. 23, 2015), 2015 WL 5122085(unreported), the pro se petitioner signed forms waiving his rights to a violation
hearing and counsel. Hartman, slip op. at 2, 2015 WL 5122085, at *1.5 The Board
recommitted the petitioner as a parole violator, the petitioner pro se filed a request
for administrative relief, and the Board affirmed. Id. The petitioner appealed to this
Court, arguing that his waivers were unknowing and involuntary. Id. The Court
affirmed because the petitioner failed to raise the issue in his pro se request for
administrative relief. Id., slip op. at 2-3, 2015 WL 5122085, at *1.
4
Regardless, the Board reasons that because Lugo waived his right to a revocation hearing,
we must affirm. Bd.’s Br. at 9-10. We need not address this particular argument in light of our
disposition.
5
We may cite to an unreported decision of this Court issued after January 15, 2008, for its
persuasive authority. 210 Pa. Code § 69.414(a).
4
Conversely, in Mesko v. Pennsylvania Board of Probation & Parole,
245 A.3d 1174 (Pa. Cmwlth. 2021), the parolee alleged the Board violated his
constitutional rights by denying him the assistance of counsel, and the Board
countered that the parolee waived the issue by failing “to preserve it in his
administrative appeal.” Id. at 1179. The Mesko Court acknowledged that although
“indigent parolees are entitled to the assistance of counsel both at parole revocation
hearings and in the prosecution of subsequent appeals as of right[, . . .] the parolee
must request” counsel. Id. at 1180 (emphasis in original and cleaned up).
Therefore, the Mesko Court concluded, a parolee’s “failure to request counsel for an
administrative proceeding may be fatal to preserving the issue for our review.” Id.
at 1181 (citation omitted). Nevertheless, the Mesko Court rejected the Board’s
assertion of waiver because the Board did not dispute, and the record established,
that the parolee had actually requested counsel. Id.
Instantly, identical to the Hartman petitioner, Lugo signed forms
waiving his right to a hearing and to counsel. See Hartman, slip op. at 2, 2015 WL
5122085, at *1. Similar to Hartman, Lugo did not challenge his waivers and credit
for time spent at liberty on parole before the Board. See id. Unlike Mesko, the
instant record does not contradict the Board’s assertion of waiver. See Mesko, 245
A.3d at 1181. As in Chesson and Hartman, because Lugo failed to raise his claims
at the initial hearing and administrative appeal, he cannot raise them for the first time
on appeal to this Court. See Pa.R.A.P. 1551; Chesson, 47 A.3d at 878; Hartman,
slip op. at 2-3, 2015 WL 5122085 at *1; cf. Mesko, 245 A.3d at 1181.6
6
Even if this Court could address the merits, we would conclude Lugo is due no relief.
Lugo’s admission supports parole revocation, and the Board’s notice stated the basis for revoking
Lugo’s parole. See DeMarco v. Pa. Bd. of Prob. & Parole, 758 A.2d 746, 749 (Pa. Cmwlth. 2000);
cf. Gruff, 986 A.2d at 958-59. The Board also complied by using a process “similar to the process
5
For these reasons, we affirm.
LORI A. DUMAS, Judge
used for revocation of parole” for rescinding Lugo’s fully-executed parole. See Gruff, 986 A.2d
at 958-59. Because Lugo was recommitted as a technical parole violator, it would appear he
would be entitled to credit for time served at liberty in good standing. See 61 Pa.C.S. § 6138(c)(2).
Lugo, however, did not raise the issue before the Board; thus, we may not address it. See Jones v.
Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 36 C.D. 2020, filed Aug. 31, 2021), 2021 WL
3871291, at *3 (unreported) (noting that because parolee failed to challenge Board’s decision to
deny him credit for time spent at liberty on parole, this Court could not address issue).
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Johnny Lugo, Jr., :
Petitioner :
:
v. : No. 904 C.D. 2021
:
Pennsylvania Parole Board, :
Respondent :
ORDER
AND NOW, this 27th day of May, 2022, we affirm the Pennsylvania
Parole Board’s decision.
LORI A. DUMAS, Judge