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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Tyrone Anthony Butler,
:

Petitioner

:

:

v.

: No. 1168 C.D. 2004

:
Pennsylvania Board of
: Submitted: November 19, 2004
Probation and Parole,

:

Respondent

:
BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge
HONORABLE
DORIS
A.
SMITH-RIBNER, Judge

HONORABLE JESS S. JIULIANTE, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE JIULIANTE
FILED: February 1, 2005

Tyrone Anthony Butler petitions for review of the May 4, 2004 order
of the Pennsylvania Board of Probation and Parole (Board) that denied his
administrative appeal from the Board's March 11, 2004 order recommitting Butler
to serve 12 months backtime as a technical parole violator. Butler contends that
the evidence was not sufficient to support the Board's determination that he
violated Count 1 of Condition No. 7 of his parole as a result of his possession of
fraudulent identification, i.e., another person's driver's license. We affirm.

On May 13, 1998, Butler received a sentence of 2 years, 3 months to
10 years imprisonment as a result of drug-related convictions. On December 19,
1999, Butler was paroled at the expiration of his minimum sentence.

On March 31, 2000, Butler was recommitted as a technical parole
violator; he was reparoled on August 3, 2000. On September 17, 2001, Butler was

again recommitted as a technical parole violator; he was reparoled on September 8,
2003.

On December 18, 2003, Butler was arrested and charged with the
following parole violations: Condition 2 (moving without permission), a general
condition, Condition 5B (possession of a weapon), also a general condition, and
two counts of Condition 7 (possession of fraudulent identification) and
(unsuccessful discharge from a contract facility), two special conditions. The
Condition 2 violation resulted from Butler's change of his approved residence
without permission. The Condition 5B violation resulted from Butler's possession
of a razor blade in his wallet. The Condition 7 violations resulted from Butler's
unsuccessful discharge from a contract facility due to his failure to maintain
accountability for 24 hours, and Butler's possession of another person's driver's
license in his wallet.

At a January 15, 2004 revocation hearing, Butler admitted to violating
Condition 2 by moving without permission and violating Count 2 of Condition 7 as
a result of his unsuccessful discharge from a contract facility. Frank Rooney,
Butler's parole agent, testified that a search at the time of his arrest on December
18, 2003 revealed that he had a razor blade and someone else's driver's license in
his wallet. Butler then testified that the wallet was in a bag that someone else had
packed for him. Butler also testified that he had to leave his approved residence, a
halfway house, due to medical reasons, i.e., complications related to several recent
surgeries he had undergone.

On March 11, 2004, the Board mailed Butler its decision
recommitting him as technical parole violator to serve 12 months backtime for one
count of violating Condition 2 and two counts of violating Condition 7. On May 4,
2004, the Board denied Butler's administrative appeal from the recommitment
order.
2

Butler's petition for review to this Court followed. Our review of a
decision of the Board is limited to determining whether the necessary findings of
fact are supported by substantial evidence, an error of law was committed, or
constitutional rights were violated. Houser v. Pennsylvania Board of Probation
and Parole, 682 A.2d 1365 (Pa. Cmwlth. 1996).

Butler contends that the evidence presented during the parole
revocation hearing was insufficient to sustain the Board's finding that Butler
violated Count 1 of Condition 7 as a result of his possession of fraudulent
identification. Specifically, Butler contends that although the notice of charges
specified that Agent Rooney served Butler with a PBPP 336, a form advising
Butler that he was not to possess any means of identification not in his own name,
the record and exhibits generated at the parole revocation hearing do not contain
either the PBPP 336 that Butler signed or any testimony from Agent Rooney that
said form was served upon Butler.

Butler maintains that if Agent Rooney had introduced into evidence
the PBPP 336 or even testified as to its content and that he served it upon Butler, it
could reasonably be argued that the Board met its evidentiary burden, but that such
is not the case here. Citing Nickens v. Pennsylvania Board of Probation and
Parole, 502 A.2d 277 (Pa. Cmwlth. 1985) (Board bears burden of proving
violation of parole by a preponderance of the evidence), Butler asserts that the
Board failed to prove the existence of the facts necessary to prove the allegation
that he violated Count 1 of Condition 7 by possessing fraudulent identification.

In response, the Board contends that Butler waived his claim about the
PBPP 336 inasmuch as he did not raise it either at his parole revocation hearing, in
his administrative appeal or in his petition for review before this Court. The Board
also contends that Agent Rooney's testimony that another person's driver's license
3

was found in Butler's wallet constitutes substantial evidence to support the Board's
determination that Butler violated Condition 7 as charged.

The Notice of Charges and Hearings contained the following:
You are charged with the following:
TECHNICAL PAROLE VIOLATIONS:
....
CONDITION 7: (2 COUNTS)
....
COUNT 1: ON 9/9/2003, YOU WERE GIVEN A PBPP
336 SPECIAL CONDITION THAT YOU ARE NOT
TO POSSESS ANY IDENTIFICATION SUCH AS,
BUT NOT LIMITED TO, DRIVER'S LICENSES,
CREDIT CARDS, WELFARE CARDS, PHONE
CARDS, ETC., WHICH IS FRAUDULENT AND/OR
NOT IN YOUR NAME.
SUPPORTING EVIDENCE:
ON 12/18/2003, WHEN TAKEN INTO CUSTODY,
YOU HAD A PENNSYLVANIA DRIVER'S LICENSE
IN YOUR WALLET IN THE NAME OF KEVIN B.
GRIFFIN.

Certified Record (C.R.) 39.

The Board contends that although Butler was represented by counsel
at the revocation hearing, neither he nor his counsel claimed that Butler was
unaware of this parole condition. Citing Pa. R.A.P. 1551(a)1 and Demarco v.
Pennsylvania Board of Probation and Parole, 758 A.2d 746 (Pa. Cmwlth. 2000)
(issues not raised in an administrative appeal to the Board are waived), the Board
asserts that Butler has not preserved this issue for our review.

In the case sub judice, our review of the record supports the Board's
position. Butler did not challenge the Board's failure to admit the signed PBPP

1 Pa. R.A.P. 1551(a) provides that "[n]o question shall be heard or considered by the
court which was not raised before the government unit...."
4

336 into evidence in his administrative appeal. As such, we are constrained to
conclude that this issue has been waived. Pa. R.A.P. 1551(a); DeMarco.
Further,
we
believe that Agent Rooney's testimony that Butler's
wallet contained another person's driver's license is sufficient to sustain the
Board's finding that Butler violated Condition 7 as charged. The record also
indicates that Butler's hearing counsel stipulated to the items which were found in
Butler's wallet, i.e., a razor blade and another person's driver's license.2 See C.R.
53-54. The driver's license was admitted into evidence as Exhibit S-1. Id. at 54.

We note that the Board contends, in the alternative, that even if this
Court concluded that the waiver rule did not apply and that the violation at issue is
not supported by substantial evidence, the recommitment order should be affirmed
on the ground that the 12-month recommitment falls within the presumptive range
for Butler's other technical violations. The Board points out that the presumptive
range in 37 Pa. Code § 75.4 for Butler's admitted violation of Count 2 of Condition
7 (unsuccessful discharge from a contract facility) is 3 to 18 months and the
presumptive range for Butler's admitted violation of Condition 2 (moving without
permission) is 6 to 9 months.
Thus,
citing
Kyte v. Pennsylvania Board of Probation and Parole, 680
A.2d 14 (Pa. Cmwlth. 1996) (recommitment order may be upheld even if one
violation is unsupported where recommitment falls within presumptive range for
other technical violations), the Board contends that its recommitment order is
alternatively justified by Butler's violations of Condition 2 and Count 2 of
Condition 7. We agree with the Board that inasmuch as Butler does not challenge

2 As the Board points out, Butler's position at the revocation hearing was that he was
unaware that he was in possession of another person's driver's license at the time of his arrest
insomuch as someone he did not know had put his clothes in a bag which contained his wallet
with the driver's license inside. See C.R. 55-56.
5

on appeal his violation of Condition 2 (moving without permission) or his violation
of Count 2 of Condition 7 (unsuccessful discharge from a contract facility),
Butler's 12-month recommitment falls within the presumptive range for those
violations and, therefore, that it provides an alternative ground to uphold the
recommitment order.

In view of the foregoing, we affirm the order of the Board.

JESS S. JIULIANTE, Senior Judge

6

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Tyrone Anthony Butler,
:

Petitioner

:

:

v.

: No. 1168 C.D. 2004

:
Pennsylvania Board of
:
Probation and Parole,

:

Respondent

:

O R D E R

AND NOW, this 1st day of February, 2005, the May 4, 2004 order of
the Pennsylvania Board of Probation and Parole is hereby AFFIRMED.

JESS S. JIULIANTE, Senior Judge

Document Outline