D.T. Henderson v. PPB ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Darnell T. Henderson, :
:
Petitioner :
:
v. : No. 174 C.D. 2021
: Submitted: January 21, 2022
Pennsylvania Parole Board, :
:
Respondent :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: April 13, 2022
Darnell T. Henderson (Parolee), an inmate housed at the State
Correctional Institution at Greene (SCI-Greene), petitions for review of the February
3, 2021 decision of the Pennsylvania Parole Board (Board) denying his
Administrative Appeal that challenged the Board’s October 23, 2020 decision,
which rescinded the automatic reparole that the Board had granted in its August 28,
2020 decision. The Board’s August 28, 2020 decision recommitted Parolee as a
technical parole violator (TPV). We affirm.
In October 2016, Parolee received an aggregate three- to six-year
sentence of imprisonment based on his guilty pleas to a number of charges in the
Dauphin County Court of Common Pleas. Certified Record (C.R.) at 1-5. Parolee’s
sentence had a minimum expiration date of June 17, 2019, and a maximum
expiration date of June 17, 2022. Id. at 4. Following an initial boot camp release on
February 20, 2019, id. at 6-14, the Board declared Parolee delinquent effective
March 11, 2020. Id. at 17.
On July 29, 2020, the Board issued a Warrant to Commit and Detain
Parolee. C.R. at 18. On August 7, 2020, the Board issued a Notice of Charges and
Hearing. Id. at 19. The Board alleged that Parolee violated Parole Condition #3A
requiring that he maintain regular contact with the parole supervision staff, and
Parole Condition #5A requiring that he abstain from the unlawful possession, sale,
or use of controlled substances. Id. That same day, Parolee executed a Waiver of
Violation hearing and Counsel/Admission Form in which he “knowingly,
voluntarily and willingly admit[ted] to the violation(s)[.]” Id. at 21.
As a result, the Board mailed its August 28, 2020 decision recommitting
Parolee as a TPV to a Community Corrections Center (CCC)/Community
Corrections Facility (CCF)/Parole Violation Center (PVC) to serve six months’
backtime pursuant to Section 6138(d)(3)(i) of the Prisons and Parole Code (Code),1
and stating that he would be automatically reparoled no later than January 29, 2021.
1
61 Pa. C.S. §6138(d)(3)(i). Code Section 6138(d)(3)(i) states, in relevant part:
(3) Except as set forth in paragraph . . . (5), the parolee shall be
recommitted for one of the following periods, at which time the
parolee shall automatically be reparoled without further action by
the [B]oard:
(i) For the first recommitment under this subsection, a maximum
period of six months.
In turn, Code Section 6138(d)(5)(i) states, in pertinent part, that “[t]he time limit under paragraph
(3) shall not be applicable to a parolee who . . . [c]ommitted a disciplinary infraction involving
assaultive behavior . . . .” 61 Pa. C.S. §6138(d)(5)(i) (emphasis added).
2
C.R. at 42-43. However, the decision also stated, in relevant part, that pursuant to
Code Section 6138(d)(5)(i), he would be “reparoled automatically without further
action of the Board, upon successful completion of all recommended programs,
provided [that he was] in good standing with the Board.” Id. at 43.
On October 10, 2020, the Board issued an Automatic Reparole
Rescission Report indicating that Parolee committed a disciplinary infraction at the
CCC/CCF involving assaultive behavior. C.R. at 57-60. The Board summarized the
documentary evidence as follows:
Misconduct report from [the Department of Corrections
(DOC)] at incident number D 476240 reflects that
[Parolee] violated rules: #17 – Threatening Another
Person, #33 – Using Abusive, Obscene or Inappropriate
Language to or About an Employee, #35 – Refusing to
Obey an Order and #43 – Presence in an Unauthorized
Area. The misconducts [occurred on] 09/22/2020 when
[Parolee] got upset at medical staff, cursed at her, used
profanities, refused [an] order to leave and threatened to
“beat her ass” multiple times. He pled not guilty to the
misconducts at his 09/24/2020 disciplinary hearing held at
the SCI. However, the prison found him guilty of all
misconducts based on the evidence presented and imposed
45 days in disciplinary custody for the infractions.
Id. at 58.
Based on the foregoing, the Board decided to rescind Parolee’s right to
automatic reparole, explaining:
The Board recommitted [Parolee] to a[] CCC/CCF for his
technical parole violation(s) by decision recorded
08/19/2020[, and mailed 08/23/2020,] with an automatic
reparole date of no later than 01/29/2021. While in the
center, he committed multiple disciplinary infractions,
including one for threatening staff. He denied the
infractions at his disciplinary hearing held in the SCI, but
the prison found him guilty of all four infractions. I accept
3
the prison’s finding and conclude that the threatening
misconduct constitutes assaultive behavior. Because he
committed an infraction involving assaultive behavior, the
Board has authority to revoke his right to automatic
reparole. Thus, I am voting to deny him automatic
reparole and modify the recommitment location to an
SCI/[Contracted County Jail (CCJ)] based on finding that
he is now an identifiable threat to public safety that cannot
be diverted as evidenced by his assaultive infraction in the
center. I am also voting to have him reviewed for reparole
one year from the date of his assaultive infraction. His
current max date is 11/24/2022.
C.R. at 60. Accordingly, the Board mailed its October 23, 2020 decision rescinding
the automatic reparole that the Board had granted in its August 28, 2020
recommitment decision, and directing that Parolee be reviewed for reparole on or
after September 22, 2021. Id. at 63.
On November 19, 2020, Parolee submitted an Administrative Appeal
to the Board in which he claimed, inter alia, that he did not commit assaultive
behavior at the CCC/CCF, and SCI-Greene did not permit him to present evidence
to support his version of events. See C.R. at 68-102. Parolee also alleged that the
Board’s rescission of the automatic reparole that it had previously granted without a
hearing violated his due process rights, and that its decision is not supported by
substantial evidence. Id. at 77-78.
On February 3, 2021, the Board mailed its decision denying Parolee’s
Administrative Appeal, which states, in pertinent part:
The [Code] provides that automatic reparole does
not apply to [TPVs] who commit disciplinary infractions
involving assaultive misconducts. 61 Pa. C.S.
§6138(d)(5). Because [Parolee] incurred a qualifying
misconduct under the statute, the Board acted within its
authority by rescinding automatic reparole in this case.
Moreover, the Board acted within its discretion by taking
this action without conducting an additional evidentiary
4
hearing because [Parolee] was already afforded due
process to challenge the misconduct at issue in the hearing
held in the [SCI]. There is no reason for the Board to re-
litigate those facts.
The Board regulations provide that the scope of
review of an administrative appeal is limited to
[determining] whether the decision is supported by
substantial evidence, an error of law has been committed,
or there has been a violation of constitutional law. 37
Pa. Code §73.1(a)(2). The record in this matter establishes
that the Board decision mailed October 23, 2020 (recorded
10/13/2020), is supported by substantial evidence, does
not constitute an error of law, and does not violate
[Parolee’s] constitutional rights.
Accordingly, the Board decision mailed October 23,
2020 (recorded 10/13/2020), is AFFIRMED.
C.R. at 139-40. Parolee filed the instant petition for review,2 again arguing that the
Board’s July 23, 2018 decision rescinding the automatic parole provision in the
February 14, 2018 decision violated his due process rights.
However, as stated above, Code Section 6138(d)(5)(i) states, in relevant
part, that “[t]he [nine-month] time limit under paragraph (3)[(i)] shall not be
applicable to a parolee who . . . [c]ommitted a disciplinary infraction involving
assaultive behavior . . . .” 61 Pa. C.S. §6138(d)(5)(i) (emphasis added).3 Thus, the
2
Our review is limited to determining whether constitutional rights were violated, whether
the adjudication was in accordance with law, and whether necessary findings were supported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Miskovitch
v. Pennsylvania Board of Probation and Parole, 77 A.3d 66, 70 n.4 (Pa. Cmwlth. 2013).
3
As this Court has observed:
Although the Board’s regulations require that parolees
refrain from assaultive behavior, the regulations do not
provide a definition of ‘assault.’ 37 Pa. Code §63.4(5)(iii)
(relating to general conditions of parole). However, this
(Footnote continued on next page…)
5
Board was without authority to apply the six-month backtime limit and automatic
reparole provisions of Code Section 6138(d)(3)(i) following Parolee’s DOC
assaultive behavior disciplinary infraction based upon the mandatory language of
Code Section 6138(d)(5)(i).
Indeed, with respect to credit for the time spent at liberty on parole that
the Board must award a TPV under Code Section 6138(a)(2), this Court has
explained:
Under Pennsylvania law, the Board “can exercise only
those powers conferred upon it by the General Assembly
in clear and unmistakable language.” . . . [Code S]ection
6138(c)(2) positively states that a TPV “shall be given
Court recognizes ‘[a]ssaultive behavior encompasses a
broader category of actions than would the crime of assault,
and thus actions that would not constitute a crime may
nonetheless be sufficient grounds for revocation of parole.’
Jackson v. P[ennsylvania] B[oard] of Prob[ation and]
Parole, 885 A.2d 598, 601 (Pa. Cmwlth. 2005).
Moreover, in the context of parole violations, assaultive
behavior is defined under the ordinary dictionary definition
of assault. Moore v. P[ennsylvania] B[oard] of Prob[ation
and] Parole, [505 A.2d 1366, 1367-68 (Pa. Cmwlth. 1986)].
Webster’s Collegiate Dictionary, 73 (11th ed. 2003) defines
assault as: ‘1 a: [A] violent physical or verbal attack. . . .
[and] 2 a: [A] threat or attempt to inflict offensive physical
contact or bodily harm on a person (as by lifting a fist in a
threatening manner) that puts the person in immediate
danger of or in apprehension of such harm or contact.’
Flowers v. Pennsylvania B[oard] of Prob[ation] and Parole, 987
A.2d 1269, 1271-72 (Pa. Cmwlth. 2010). Accordingly, a threat that
places an individual in apprehension of bodily harm can constitute
assaultive behavior, as that term is used in [a] parole condition [to
refrain from assaultive behavior].
Malarik v. Pennsylvania Board of Probation and Parole, 25 A.3d 468, 470 (Pa. Cmwlth. 2011).
6
credit for the time served on parole in good standing.” 61
Pa. C.S. §6138(c)(2) (emphasis added). Through this
directive of the General Assembly, the Board has no
choice over the matter and must grant credit to the parolee
who is recommitted as a TPV.
Penjuke v. Pennsylvania Board of Probation and Parole, 203 A.3d 401, 416 (Pa.
Cmwlth. 2019), appeal denied, 228 A.3d 254 (Pa. 2020) (citations omitted).
Likewise, in this case, the Board was without the authority to grant the
administrative relief that Parolee requested because it was affirmatively prohibited
from doing so by Code Section 6138(d)(5)(i).
Moreover, as outlined by the Board, any process that Parolee was due
with respect to his disciplinary infraction that took place at the SCI was provided
through the grievance procedure that Parolee could pursue with respect to those
disciplinary proceedings. See, e.g., DOC Policy Statement DC-ADM 801(4)(C)(1)
(“After the misconduct hearing has concluded the Misconduct and Hearing Record
shall be forwarded to the Facility Manager/designee for review. This review shall
ensure that the hearing was conducted in accordance with procedures and that the
actions taken conform to facility regulations.”); DOC Policy Statement DC-ADM
801(5)(A)(1) (“An inmate who has been found guilty of a misconduct charge(s) may
appeal to the Program Review Committee (PRC) for initial review within 15
calendar days of the hearing. . . .”); DOC Policy Statement DC-ADM 801(5)(B)(1)
(“The inmate may appeal the decision of the PRC to the Facility Manager/designee
within seven calendar days of receipt of the written PRC decision . . . .”); DOC
Policy Statement DC-ADM 801(5)(C)(3) (“The inmate may appeal the decision of
the Facility Manager/designee within seven calendar days of the receipt of the
Facility Manager/designee’s decision. Appeals that are addressed to the Secretary,
Chief Counsel, or other Central Office Staff, are delivered to these individuals first,
7
and then referred to the Chief Hearing Examiner’s Office.”) (emphasis in original).
As stated in his appellate brief, Parolee availed himself of this prison appeal process.
See Petitioner’s Brief at 5.
However, Parolee may not collaterally attack the underlying
misconduct determination in the instant Administrative Appeal of the Board’s
recission decision that was mandated by Code Section 6138(d)(5)(i), and no due
process hearing was required before that decision was issued. Indeed, as this Court
has explained:
It is well[]settled that under Pennsylvania law a
grant of parole by itself does not vest a prisoner with any
protected liberty interest in that parole. Green [v.
Pennsylvania Board of Probation and Parole, 515 A.2d
1006 (Pa. Cmwlth. 1986)]. Cf. Jago v. Van Curen, 454
U.S. 14 [] (1981) (no liberty interest created by a grant of
parole under Ohio law until the prisoner is actually
released on parole). Our case law has consistently held
that a prisoner does not attain the status of a “parolee” until
the grant of parole is actually executed. See, e.g., Dinkins
v. Department of Justice, [523 A.2d 1218 (Pa. Cmwlth.
1987)]; Franklin v. Pennsylvania Board of Probation and
Parole, [476 A.2d 1026 (Pa. Cmwlth. 1984)]; Jones v.
Pennsylvania Board of Probation and Parole, [473 A.2d
247 (Pa. Cmwlth. 1984)]. In Green, we held that a grant
of parole is not executed until the prisoner signs the
acknowledgement of parole conditions, Board form
PBPP-11, and the Board issues its parole release order,
Board form PBPP-10. []515 A.2d at 1008. Here, there is
no allegation that [the inmate] signed the
acknowledgement of parole conditions or that the Board
issued a parole release order and [the inmate] concedes
that they were not completed. Accordingly, [the inmate]
never attained the status of “parolee” with respect to the
parole granted by the [Board’s] order and the Board was
not required to provide him with advance notice and a
hearing before it rescinded its prior grant of parole.
8
Therefore, the Board did not violate any of his due process
rights when it rescinded its prior grant of parole. . . .
Johnson v. Pennsylvania Board of Probation and Parole, 532 A.2d 50, 52 (Pa.
Cmwlth. 1987). Likewise, in this case, the Board’s recission decision was issued
before Parolee’s automatic parole was executed, so his due process rights were not
violated when the Board issued that decision pursuant to Code Section 6138(d)(5)(i)
without a counselled hearing. Id. See also Anderson v. Pennsylvania Parole Board,
266 A.3d 106, 110 n.7 (Pa. Cmwlth. 2021) (“[P]arole revocation, where a parolee’s
liberty is at stake, carries with it a constitutionally guaranteed right to a hearing,
while parole rescission, where the inmate is still confined, does not. Specifically, a
Board’s parole rescission decision due to prison misconduct is not subject to a
hearing.”) (citations omitted).
Accordingly, the Board’s decision is affirmed.
MICHAEL H. WOJCIK, Judge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Darnell T. Henderson, :
:
Petitioner :
:
v. : No. 174 C.D. 2021
:
Pennsylvania Parole Board, :
:
Respondent :
ORDER
AND NOW, this 13th day of April, 2022, the decision of the
Pennsylvania Parole Board dated February 3, 2021, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge