37 Pa. Code § 71.2 - Procedure for violation of parole conditions

The following procedures shall be followed if a parolee, not already detained after appropriate hearings for other technical violations or criminal charges, has been charged with a technical violation:

(1) After a parolee is detained under a Board warrant, the parolee shall be visited by a representative of the Board. The parolee shall be notified of the following:

(i) The charges against the parolee specifying the conditions of parole violated.

(ii) That a preliminary hearing will be held within 14 days and that the parolee will be notified of the exact date.

(iii) The parolee's right to speak, to have voluntary witnesses appear and to present documentary evidence at the preliminary hearing.

(iv) The right to retain counsel, and the name and address of the public defender of the county of confinement.

(v) That the purpose of the hearing is to determine whether there is probable cause to believe that the parolee has committed a parole violation, and to resolve by admissions, agreements or stipulations as many factual matters as possible.

(2) After the preliminary hearing is scheduled, the parolee and counsel shall be given a copy of the written notice of the charges and of the date and time of the hearing.

(3) The preliminary hearing shall be held within 14 days of the detention of the parolee on the Board warrant.

(4) The preliminary hearing shall be held before an examiner. The parolee has the right to be present during the entire proceeding, unless the parolee waives that right, refuses to appear or behaves disruptively.

(5) When the parties are present and assembled for the preliminary hearing, the examiner shall verbally advise the parolee and counsel of the following: the parolee may retain counsel for the proceedings; the parolee may, with leave of the examiner, waive the right to the preliminary hearing; and, if the preliminary hearing is waived, the hearing may proceed as a violation hearing before the examiner, unless the parolee asserts the right to be heard by a panel at a violation hearing.

(i) Counsel for the parolee shall enter a written appearance.

(ii) A parolee may waive in writing the right to counsel.

(iii) If counsel is not present but the parolee desires counsel, that fact shall be documented by the examiner and acknowledged by the parolee. The examiner shall terminate the proceeding. The preliminary hearing shall be held within 14 days.

(iv) If the parolee waives both the right to a preliminary hearing and the right to be heard by a panel at a violation hearing, both waivers shall be signed by the parolee. The examiner may follow the procedures governing violation hearings, and the Board may treat the proceeding as a violation hearing.

(v) If the parolee waives the right to a preliminary hearing but does not wish to waive the right to be heard by a panel, the examiner shall terminate the proceedings, and the parolee shall be scheduled to be heard by a panel at a violation hearing.

(vi) If the parolee does not wish to waive the right to the preliminary hearing and where a waiver of, or appearance by, counsel has been signed as prescribed in this section, the examiner shall conduct a preliminary hearing.

(6) A representative of the Board who is familiar with the facts which constitute the alleged violation shall be present to testify.

(7) The examiner shall make a summary which shall state:

(i) Which violations are supported by probable cause.

(ii) A summary of the evidence presented.

(iii) Which of the violations have been admitted, agreed to or stipulated.

(8) If the examiner finds that none of the allegations were supported by probable cause, the parolee shall be released as soon as practicable.

(9) If the examiner finds probable cause and is of the opinion that a violation hearing is warranted, the examiner shall initiate the scheduling of a violation hearing, if desired by the parolee or by the Board's representative to resolve remaining contested relevant facts.

(10) If a violation hearing is scheduled, it shall be held not later than 120 days after the preliminary hearing.

(11) Before the violation hearing the parolee or counsel shall be notified of the following:

(i) The charges, specifying the conditions of parole violated and setting forth the circumstances of the violations.

(ii) The date set for the hearing and of the right to be heard by a panel.

(iii) The right to speak, to have witnesses appear and to present documentary evidence.

(iv) The right to cross-examine an adverse witness who appears at the hearing, unless the panel or examiner specifically finds good cause for not allowing confrontation.

(v) The right to representation by counsel at the hearing, the right to free counsel, if the parolee is unable to afford to retain counsel, and the name and address of the public defender.

(vi) That there is no penalty for requesting counsel.

(12) If the parolee is unable to afford counsel, the Board will notify the appropriate public defender by transmitting a copy of the written notice given to the parolee.

(13) The following procedures apply during a violation hearing:

(i) A violation hearing shall be held before a panel, or, if the parolee has waived hearing by a panel, the hearing shall be held before an examiner other than the examiner who conducted the preliminary hearing, if practicable.

(ii) The parolee has the right to be present during the entire proceeding, unless the parolee expressly waives that right, refuses to appear or behaves disruptively.

(14) If a parolee appears without counsel at the violation hearing, the panel or examiner shall determine whether the parolee understands the right to free counsel if unable to afford counsel, and that there is no penalty for requesting counsel.

(15) A representative of the Board who is familiar with the facts which constitute the violation shall be present to testify.

(16) If a violation hearing is conducted by an examiner, the examiner shall prepare a written report and file it with the other panel member for decision. The report shall state:

(i) Which violations have been proved by a preponderance of the evidence.

(ii) The evidence relied upon.

(iii) A decision as to disposition and the reasons for it.

(17) If the hearing is before a panel, the panel shall act promptly.

(18) If revocation is ordered, the revocation decision shall specifically state the reasons for revocation. The decision shall be transmitted to the parolee or to counsel of record.

(19) The panel may not find that a violation was proved except by a preponderance of the evidence.

Notes

37 Pa. Code § 71.2

The provisions of this § 71.2 adopted August 4, 1972, effective 8/14/1972, 2 Pa.B. 1465; amended February 18, 1977, effective 3/1/1977, 7 Pa.B. 487; amended May 23, 1980, effective 5/24/1980, 10 Pa.B. 2049; amended September 12, 1980, effective 9/13/1980, 10 Pa.B. 3667; amended September 17, 1982, effective 9/18/1982, 12 Pa.B. 3290; amended January 15, 1988, effective 1/16/1988, 18 Pa.B. 250.

The provisions of this § 71.2 issued under: section 506 of The Administrative Code of 1929 (71 P. S. § 186); and section 23 of the act of August 6, 1941 (P. L. 861, No. 323) (61 P. S. § 331.23); amended under section 506 of The Administrative Code of 1929 (71 P. S. § 186); and the act of August 6, 1941 (P. L. 861, No. 323) (61 P. S. § § 331.1-331.34).

This section cited in 37 Pa. Code § 71.3 (relating to return for a new criminal charge).