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Case Law - save on Lexis / WestLaw. IN THE COMMONWEALTH COURT OF PENNSYLVANIA Darin Lee Hauman, : Petitioner : : v. : No. 1296 C.D. 2004 : Submitted: January 14, 2005 Pennsylvania Board of : Probation and Parole, : Respondent : BEFORE: HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE FRIEDMAN FILED: February 14, 2005 Darin Lee Hauman (Hauman) petitions for review of the May 24, 2004, order of the Pennsylvania Board of Probation and Parole (Board), which denied Hauman's administrative appeal from a Board order recommitting Hauman as a technical parole violator (TPV) and a convicted parole violator (CPV). We affirm. In 1992, Hauman was sentenced to a maximum term of twenty years for attempted statutory rape, indecent assault and endangering the welfare of a child. On March 20, 2000, Hauman was released on parole. (C.R. at 21.) Condition No. 1 of the conditions governing parole stated that Hauman could not leave the Altoona parole district without prior written permission of the parole supervision staff. (C.R. at 22.) Condition No. 7 stated, inter alia, that Hauman could not have internet access, pornography or direct contact with children. (C.R. at 23.) On July 7, 2001, Pittsburgh police arrested Hauman in Allegheny County for unlawful communication with a minor and criminal solicitation to commit statutory sexual assault and involuntary deviate sexual intercourse. That same day, the Board issued a detainer warrant and charged Hauman with leaving the Altoona district without written permission and utilizing a computer to communicate with someone he believed to be a minor. (C.R. at 27-28.) On August 27, 2001, police arrested Hauman and charged him with twenty-seven counts of sexual abuse of children. Hauman was convicted on October 2, 2003, with respect to eleven of those counts. (C.R. at 31.) The Board scheduled a combined violation and revocation hearing for February 10, 2004. (C.R. at 34, 36.) At the hearing, Hauman admitted that he violated Condition No. 1 by leaving the Altoona district without written permission; however, the Board then withdrew the charge that Hauman violated Condition No. 7. (C.R. at 54-55.) Hauman also acknowledged at the hearing that he was convicted on October 2, 2003, of eleven counts of sexual abuse of children. (C.R. at 57.) After considering the evidence presented at the hearing, the Board issued a decision on April 7, 2004, recommitting Hauman as a TPV to serve six months backtime and as a CPV to serve consecutively twenty-four months backtime, for a total of thirty months backtime. The Board's decision stated that, 2 while confined, Hauman must participate in sex offender treatment. (C.R. at 67.) Hauman filed an administrative appeal, which the Board denied on May 24, 2004. (C.R. at 70-72, 74.) Hauman now petitions this court for review of the Board's decision.1 Hauman first argues that the Board violated his Fifth Amendment right against self-incrimination by requiring him to participate in sex offender treatment. Hauman maintains that sex offender treatment would require him to admit his guilt. However, there is nothing in the record before this court indicating that Hauman would be required to admit his guilt in order to participate in sex offender treatment.2 Thus, we shall not address the matter further. 1 Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed or whether the necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704. 2 Even if the record supported Hauman's contention, this court stated in Weaver v. Pennsylvania Board of Probation and Parole, 688 A.2d 766 (Pa. Cmwlth. 1997), that a prisoner could not challenge on Fifth Amendment grounds the Board's requirement that he receive treatment prior to being released on parole. This court pointed out that treatment programs are administered by the Department of Corrections; therefore, a prisoner needs to challenge the administration of the treatment program by the Department of Corrections. Id. We also note that the United States Court of Appeals for the Third Circuit recently held that a prisoner may challenge the denial of parole on Fifth Amendment grounds by seeking federal habeas corpus review without first seeking a writ of mandamus in the state courts. See Defoy v. McCullough, ___ F.3d ___ (3d Cir., No. 03-3474, filed January 4, 2005). 3 Hauman next argues that the Board abused its discretion in the imposition of six months and twenty-four months backtime because that amount of backtime is beyond the presumptive ranges. We disagree. The presumptive range for a violation of Condition No. 1 is six to twelve months for a single offense. 37 Pa. Code §75.4. Here, the Board imposed six months backtime for Hauman's admitted violation of Condition No. 1, which is the minimum amount the Board could have imposed. The Board's regulations provide no presumptive range relative to a conviction for sexual abuse of children. Where the regulations do not list the specific crime, the Board follows the presumptive range for the most closely related crime category in terms of severity. 37 Pa. Code §75.1(e). In this case, the Board followed the presumptive range for indecent assault, (C.R. at 42), which is twelve to eighteen months.3 37 Pa. Code §75.2. The Board then multiplied the maximum of eighteen months by the eleven counts of sexual abuse of children and obtained a maximum presumptive range of 198 months. (See C.R. at 42, Board's brief at 7); see also Corley v. Pennsylvania Board of Probation and Parole, 478 A.2d 146 (Pa. Cmwlth. 1984) (holding that the Board has discretion to recommit for each separate criminal conviction). Because the twenty-four months backtime the Board imposed on Hauman is less than the 198-month maximum and greater than the twelve-month minimum, the backtime falls within the presumptive range. 3 Hauman does not specifically argue that the Board abused its discretion by using indecent assault to determine the presumptive range. 4 Hauman also argues that the Board violated his freedom of religion by requiring his participation in sex offender treatment. Hauman states in his brief that he has followed "Pentecostal" ways since he was five years old, that he follows the doctrines and commands within the "Authorized King James Version Bible" and that he follows the teachings of Evangelist Jimmy Swaggert of the Family Worship Center Church, Inc. Hauman claims that he would be a "heretic," and no longer a Christian, if he were to participate in the sex offender program. (Hauman's brief at 11.) Despite these assertions in Hauman's brief, the record before this court contains no actual evidence regarding Hauman's religious beliefs or the requirements of the sex offender program. Thus, we shall not address the matter further. Finally, Hauman argues that the Board miscalculated his maximum date of incarceration. In raising this issue, Hauman acknowledges that the Board's decision does not provide a maximum date; however, Hauman states that, in "a more recent Notice of Board Action, which is not the subject of this appeal," the Board improperly set a maximum date of August 6, 2017. (Hauman's brief at 11.) Inasmuch as the maximum date established by the Board is not the subject of this appeal, it would be improper for us to address the matter. Accordingly, we affirm. _____________________________ ROCHELLE S. FRIEDMAN, Judge 5 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Darin Lee Hauman, : Petitioner : : v. : No. 1296 C.D. 2004 : Pennsylvania Board of : Probation and Parole, : Respondent : O R D E R AND NOW, this 14th day of February, 2005, the order of the Pennsylvania Board of Probation and Parole, dated May 24, 2004, is hereby affirmed. _____________________________ ROCHELLE S. FRIEDMAN, Judge
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