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Wareham v. State Board of Probation and Parole12/5/2003
The Pennsylvania Board of Probation and Parole (Board) has filed preliminary objections in the nature of a demurrer and raising failure of compliance with the Pennsylvania Rules of Civil Procedure to an action in mandamus filed by Joseph Wareham. We grant the preliminary objections and dismiss Wareham's Petition for Review.
Wareham is currently incarcerated at the State Correctional Institute in Cresson, Pennsylvania. Wareham alleges in his Petition for Review that he was paroled by the Board on October 26, 1989 while serving a fifteen to thirty year sentence. His parole was then transferred to the State of Florida. He further alleges, and supporting documentation attached to his petition shows, that as a result of drug and alcohol violations, the State of Florida issued a parole violation warrant on November 8, 1990. Although probable cause for a parole violation was established at a preliminary detention hearing, the Florida Department of Corrections made a determination to end Wareham's case, based on an apparent decision by the Board not to bring Wareham back to Pennsylvania as a parole violator, but to reparole him. The Florida Department of Corrections released Claimant on January 3, 1991, and he was allegedly informed that he received a "negative termination" of his parole, that he was no longer on parole, and that he did not have to report to the Florida parole office any longer.
Wareham also alleges that the Board subsequently made a request to the Florida Department of Corrections to reinvestigate the possibility of providing parole supervision over him. Wareham was informed of that request and he was instructed to report to a Florida probation office. Wareham reported to this office, and a urine sample tested positive for cocaine. Nevertheless, on March 25, 1991, the Florida Department of Corrections notified the Board that it was declining to provide any further parole supervision for Wareham and that it had officially closed its case on him.
Wareham alleges that at no time after his release from prison on January 3, 1991, did the Board declare him delinquent or attempt to take action against him until November 1998, when Wareham returned to Pennsylvania. He averred that he believed that as he was no longer being supervised, he had been legally discharged from his Pennsylvania sentence. Wareham's affidavit attached to his petition, however, indicates that he was imprisoned in Florida from May 1992 until July 1996 on a nine-year sentence for his conviction of drug charges.
Upon his release from this imprisonment, Wareham registered with local Florida authorities as a convicted felon.
On or about November 13, 1998, Wareham returned to Pennsylvania to attend his father's wake. On November 18, 1998, he was charged with driving under the influence of alcohol, and he subsequently pled guilty to this charge. On November 19, 1998, he was arrested by Abington, Pennsylvania police for stalking a former girlfriend and charged with retaliation against a witness and related charges, charges that were subsequently nolle prossed. On November 25, 1998, the Board charged Wareham with numerous parole violations, including the two recent Pennsylvania criminal charges. On March 9, 1999, the Board added more charges relating to Wareham's Florida convictions.
The Board subsequently held a parole revocation hearing and sentenced Wareham, on December 8, 1999, to serve twenty-one months of backtime. Wareham filed a counseled administrative appeal from that decision, arguing that the sentence of twenty-one months backtime was beyond the presumptive range and that the Board violated his due process rights by recommitting him as a parole violator
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