Commonwealth Court Cases - Commonwealth Court Case Law from PA - Pennsylvania Commonwealth Court

Microsoft Word - 1226CD04.doc

	ROMINGER LEGAL
		Pennsylvania Court Cases and Opinions - PA Legal Research
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case was taken from the Pennsylvania Courts. Search our site for more cases - CLICK HERE

MOST CURRENT PENNSYLVANIA SUPERIOR COURT CASES

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William DiSabatino,

:

Petitioner :

:

v.

: No. 1226 C.D. 2004

: SUBMITTED: March 4, 2005
Pennsylvania Board of Probation
:
and Parole,

:

Respondent :

BEFORE:
HONORABLE JAMES GARDNER COLINS, President Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Judge

HONORABLE ROBERT SIMPSON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE LEADBETTER

FILED: April 25, 2005

William DiSabatino petitions for review of the order of the
Pennsylvania Board of Probation and Parole (Board) that denied his appeal from
his recommitment as a parole violator. In addition, DiSabatino's appointed
counsel, Kent Watkins, petitions for leave to withdraw on the grounds that
DiSabatino's appeal is frivolous. Upon review, we grant Watkins' petition and
affirm the order of the Board.

Following a revocation hearing, DiSabatino was recommitted to a
State Correctional Institution as a convicted parole violator to serve eighteen
months back-time based upon his conviction of possession of a firearm without a

license. 1 DiSabatino filed a pro se administrative appeal with the Board, but
because he failed to raise any issues, the Board dismissed the appeal. DiSabatino
then filed a pro se petition for review in this court wherein he appears to dispute
the length of time of his recommitment, arguing that the Board erred in adding his
time at liberty on parole to his maximum sentence after his new conviction and
parole revocation.2 Pursuant to an order of this court, Watkins was appointed as
appellate counsel. Watkins filed an amended petition for review, asserting that the
Board's revocation of DiSabatino's parole constituted an error of law, a violation
of his constitutional rights, and was not supported by substantial evidence. In
addition, Watkins asserted that the Board failed to give DiSabatino credit for time
served pursuant to the Board's warrant. Shortly thereafter, however, Watkins filed
his petition to withdraw as counsel and a "Turner letter" in support thereof.3

In his Turner letter, Watkins sufficiently details the issue raised, the
nature and extent of his review and his analysis in concluding that the appeal is
frivolous. See Hont v. Pennsylvania Bd. of Prob. & Parole, 680 A.2d 47 (Pa.

1 DiSabatino was also arrested for technical parole violation 3B (failure to notify parole staff
of arrest within 72 hours), however, probable cause was not established with respect to this
violation. See Preliminary/Detention Hearing Report, Certified Record at 33 (dated May 27,
2003).
2 In his appeal to our court, DiSabatino asserts:

the parole board . . . illegally took 7 years of parole time servied
[sic] on the street free of parole violations, and added those 7 years
to petitioner's sentence, which adds 7 years to his sentence
imposed [sic] upon him by a legal court of law, which violates the
14th Anendment [sic] of the United States Constitotion [sic] of
America, due process of law, violating the ex post facto clause.

Appeal of William DiSabatino, 1226 C.D. 2004 (dated May 24, 2004).
3 See Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988).
2

Cmwlth. 1996) (establishing requisite elements of adequate Turner letter).
Specifically, Watkins noted that Title 37 Pa. Code § 75.2 provides that the
violation of any provision of the Pennsylvania Uniform Firearms Act4 carries a
presumptive range of eighteen to twenty-four months back-time, and thus,
DiSabatino received the low end of the presumptive range for his recommitment.
In addition, Watkins noted, citing Department of Corrections v. Reese, 774 A.2d
1255 (Pa. Super. 2001), that the Board may extend the expiration of an offender's
maximum sentence upon his recommitment as a convicted parole violator.
Watkins provided DiSabatino with a copy of his petition to withdraw and the
Turner letter and advised him of his right to obtain substitute counsel or to raise
any points that he deemed worthy of merit in a pro se brief to this court. Thus,
Watkins has complied with the requirements necessary to seek leave to withdraw
as counsel. Hont, 680 A.2d at 48.

Turning to the merits of the matter before us, we note that none of
DiSabatino's alleged legal defects were raised at either the revocation hearing or in
his administrative appeal to the Board. It is well-settled that failure to raise an
issue before the Board results in a waiver and precludes this court from review.
Newsome v. Pennsylvania Bd. of Prob. & Parole, 553 A.2d 1050, 1052 (Pa.
Cmwlth. 1989) (citations omitted). Therefore, pursuant to Section 703(a) of the
Administrative Agency Law, 2 Pa. C.S. § 703(a), and Pa. R.A.P. 1551(a), those
issues are waived and cannot be considered for the first time on appeal to this
court. Harper v. Pennsylvania Bd. of Prob. & Parole, 520 A.2d 518 (Pa. Cmwlth.
1987).

4 18 Pa. C.S. § 6101-6126.
3

Even if the issues in DiSabatino's appeal had been properly preserved,
our independent evaluation of the proceedings before the Board reveal that his
arguments are without merit. As Watkins aptly noted, the eighteen months back-
time is within the presumptive range.5 When a Board-ordered recommitment is
within the presumptive range, any challenge to the recommitment is not a valid
basis for administrative relief. Lotz v. Pennsylvania Bd. of Prob. & Parole, 548
A.2d 1295 (Pa. Cmwlth. 1988). In addition, DiSabatino's contention that the
Board erred in adding his time at liberty on parole to his maximum sentence after
his new conviction and parole revocation is also without merit, since it is well-
established that convicted parole violators shall be given no credit for the time at
liberty on parole. Reese, 774 A.2d at 1265.

Accordingly, we grant the petition to withdraw and affirm the order of
the Board.

________________________________________

BONNIE
BRIGANCE
LEADBETTER,
Judge

5 The presumptive range for a violation of any provision of the Pennsylvania Uniform
Firearms Act is eighteen to twenty-four months. 37 Pa. Code § 75.2. See also Ward v.
Pennsylvania Bd. of Prob. & Parole, 538 A.2d 971 (Pa. Cmwlth. 1987).
4

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William DiSabatino,

:

Petitioner :

:

v.

: No. 1226 C.D. 2004

:
Pennsylvania Board of Probation
:
and Parole,

:

Respondent :

O R D E R

AND NOW, this 25th day of April, 2005, the petition of Kent
Watkins to withdraw as counsel in the above captioned matter is hereby
GRANTED and the order of the Pennsylvania Board of Probation and Parole is
hereby AFFIRMED.

________________________________________

BONNIE
BRIGANCE
LEADBETTER,
Judge