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Case Law - save on Lexis / WestLaw. IN THE COMMONWEALTH COURT OF PENNSYLVANIA Orlando Alvarado, : Petitioner : : v. : : Pennsylvania Board of Probation : and Parole, : No. 1239 C.D. 2003 Respondent : Submitted: November 5, 2004 BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE JESS S. JIUILIANTE, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE COLINS FILED: February 1, 2005 Orlando Alvarado (Alvarado) pro se, petitions for review of a decision of the Pennsylvania Board of Probation and Parole (Board) that recommitted him as a convicted parole violator to serve 42 months backtime. We affirm the Board. In October, 1999 the Board reparoled Alvarado from his 17-year state prison sentence for five robberies and two criminal conspiracies. In February, 2000 Alvarado was arrested on drug charges and released on bail. Alvarado absconded from supervision on March 8, 2000. In September, 2001 Board agents arrested Alvarado after he attempted to resist arrest, running from the agents and attempting to disarm Board agent Guglielmi (Guglielmi). At that time, Alvarado was charged with aggravated assault, attempted theft, resisting arrest, and possession of cocaine. These charges were subsequently dismissed in March, 2002. By a revocation decision dated November 5, 2001 the Board recommitted Alvarado as a technical parole violator to serve 12 months backtime for multiple technical violations committed in 2000.1 Alvarado was subsequently charged with two additional technical parole violations2 and recommitted to serve an additional period of 30 months for a total of 42 months backtime. The revocation decision listed "assault on parole agents" and "threat to safety of community" as aggravating reasons for exceeding the applicable maximum 18-month presumptive range by 12 months. Alvarado requested and received a panel hearing. He was represented by an attorney from the Montgomery County Public Defender's Office. At the hearing, held in February, 2003, Alvarado admitted to possession of cocaine. Guglielmi testified that he grabbed Alvarado and held him in a bear hug, containing his arms in front of his body and that Alvarado then grabbed at the agent's waistband, seizing the magazine on the left side of his body and yanking on it vigorously as though he was trying to take it away. Guglielmi then testified that he was able to capture Alvarado's hand and announced to another agent at the scene that Alvarado was trying to get his gun. He testified that the other agent then struck Alvarado, as a third agent helped to take him to the ground and handcuff him. Guglielmi stated at the hearing that in his opinion, as a professional instructor of weapon retention, Alvarado was attempting to take his weapon but happened to 1 Parole condition #2, change of residence without permission; parole condition #3A, failure to report as instructed; and parole condition #3B, failure to notify parole staff of an arrest within 72 hours. 2 Parole condition #5A, abstain from the unlawful possession or sale of narcotics or dangerous drugs; and parole condition #5C, refrain from assaultive behavior. 2 grab at the wrong side of his belt and that had he been successful in taking the weapon would have attempted to kill him. The Board found the parole agent's testimony to be credible and that Alvarado's actions constituted assaultive behavior. 3 Alvarado filed an administrative appeal on April 18, 2003, claiming that the 12 months should run concurrently with the 30 months and that the Board improperly exceeded the applicable maximum 18-month presumptive range. The Board denied Alvarado's administrative appeal in May, 2003. In June, 2003 Alvarado filed a petition for review in which he abandoned his argument that the Board had improperly exceeded the presumptive range but continued to request that the two recommittal periods should run concurrently. In his brief, Alvarado renews his argument with regard to the presumptive range and argues for the first time that the Board lacked substantial evidence to support its decision to revoke parole and that counsel at the parole violation hearing was ineffective. With regard to parole revocations, this Court has held that issues not raised before the Board either in the revocation hearing or in an administrative appeal are deemed waived and cannot be considered for the first time in a judicial appeal. Dear v. Pennsylvania Board of Probation and Parole, 686 A. 2d 423 (Pa. Cmwlth. 1996). Alvarado's properly raised arguments on appeal must be rejected and the Board's denial of administrative relief affirmed. The Board listed aggravating reasons for exceeding the presumptive range. Harris v. Pennsylvania Board of Probation and Parole, 680 A. 2d 35 (Pa. Cmwlth. 1996). Alvarado 3 Our scope of review of the Board's decision is limited to determining whether the necessary findings are supported by substantial evidence and whether the Board committed errors of law or constitutional violations. Johnson v. Pennsylvania Board of Probation and Parole, 511 A. 2d 894 (Pa. Cmwlth. 1986). 3 admitted to the possession of cocaine at his violation hearing, and the Board found the testimony of the two arresting parole agents credible in concluding that Alvarado engaged in assaultive behavior. Our review of the record shows that Alvarado's counsel at the violation hearing had the opportunity to cross-examine both parole agent Guglielmi and a second parole agent who participated in the arrest and witnessed Alvarado's actions throughout the struggle to take him into custody (R.R. 51). Further, although he fails to raise the issue in his brief, no authority exists to support Alvarado's earlier argument that the two separate and distinct revocation decisions made regarding two sets of unrelated technical violations should have resulted in the concurrent service of the two recommittal periods. Accordingly, for the reasons stated above, we affirm the Board's dismissal of Alvarado's administrative appeal. ________________________________________ JAMES GARDNER COLINS, President Judge 4 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Orlando Alvarado, : Petitioner : : v. : : Pennsylvania Board of : Probation and Parole, : No. 1239 C.D. 2003 Respondent : O R D E R AND NOW, this 1st day of February 2005, the order of the Pennsylvania Board of Probation and Parole in this matter is AFFIRMED. ________________________________________ JAMES GARDNER COLINS, President Judge Document Outline
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