IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gabriel Santosusso, :

Petitioner :

:

v. : No. 574 C

. D

. 2017

: SUBMITTED: December 8, 2017 Pennsylvania Board of : Probation and Parole, :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY SENIOR JUDGE LEADBETTER FILED: January 30, 2018

Gabriel Santosusso petitions for review of the April 10, 2017 o rder of
the Pennsylvania Board of Probation and Parole (Board) denying Santosusso’s
administrative appeal from the revocation of his parole following a federal

conviction on March 15, 2012. Santosusso argues that the Board failed to provide
him with a timely revocation hearing . The Board argues that Santosusso waived his
challenge to the timeliness of his revocation hearing when he waived his right to a
hearing. We affirm.

On November 3, 2010, the Board granted Santosusso conditi onal parole

from his five

- to

- ten year sentence for nine counts of Manufacture, Sale, Delivery, or

Po ssession with Intent and one count of Criminal Conspiracy. ( Certified Record2

(C.R.) at 1

- 4. ) His original minimum date was January 27, 2011

, and his origi nal
maximum date was January 27, 2016. ( Id. at 2. ) The Board paroled Santosusso on
February 1, 2011. At that time, Santosusso signed conditions governing the terms
of his parole . He thereby acknowledged that if he was convicted of a crime

committed whi le on parole, the Board had the authority to recommit him to serve
the balance of his original sentence with no credit for time at liberty on parole. ( Id.

at 5

- 10. )

On June 28, 2011, the United States Drug Enforcement Agency charged

Santosusso with fe deral drug

- trafficking offenses in New York . ( Id. at 24. ) On Ju ly

5, 2011, the Board issued a warrant to d etain Santosusso for parole violation . ( Id. at

21. ) However , Santosusso remai ned in federal custody in New York following his

arrest , and on March 15, 2012

, he pleaded guilty to a federal drug offense . ( Id. at

15. ) On January 23, 2013, he wa s sentenced to serve 66 months in federal prison.

( Id. at 16

- 17. ) T he Board received official verification of the federal conviction on

June 11, 2013. ( Id. a t 34

. ) However, Santosusso remained in federal custody until
November 4, 2015, when he was returned to the Pennsylvania Department of
Corrections. ( Id. at 46. )

On January 21, 2016, the Board provided Santosusso with notice of its

intention to hold a revocation hearing for violations of his parole conditions . ( Id. at

29. ) Santosusso waived his right to a hearing and admitted violating his conditions
of parole. ( Id. at 30

- 34. ) On March 23, 2016 , the Board recommitted Santosusso
and changed his maxim um date from January 27, 2016 to October 29, 2020 . ( Id. at

42. )3 On July 22, 2016, the Board modified its March 23, 2016 decision,
changing Santosusso’s maximum date to April 10, 2019. ( Id. at 47.) The Board
calculated that Santosusso owed 1,821 days o f backtime towards his original
sentence when he was paroled on February 1, 2011. ( Id. at 48.) The Board credited

Santosu sso with 568 days for the period of July 5, 2011 to January 23, 2013, leaving

Santosusso with a debt of 1,253 days of time on his ori ginal sentence. 1 ( Id. ) The

Board determined that Santosusso began serving his remaining 1,253 days on
November 4, 2015, when he was returned to the Pennsylvania Department of
Corrections from federal custody. ( Id. ) As a result, the Board calculated
Santosusso’s new original sentence maximum date to be April 10, 2019. ( Id. at 48.)

Santosusso submitted an Administrative Remedies Form to the Board
on May 27, 2016

, appealing the Board’s March 23, 2016 decision. ( Id. at 50

- 56.)
On August 4, 2016, Sa ntosusso submitted a second Administrative Remedies Form

, appealing the Board’s July 22, 2016 modification to its March 23, 2016 decision.

( Id. at 57

- 61.) On April 10, 2017, the Board issued a response letter to Santosusso

1 T he Board was applying the rule set forth in Baasit v. Pennsylvania Board of Probation and Parole , 90 A.3d 74 (Pa. Cmwlth. 2014) , when it recalculated Santosusso’s new original maximum date to provide him with credit for his pre

- sentence federal confinement . There, this Court held that such credit should be applied to a parolee’s original state sentence under Section 6138(a) of the Prisons and Parole Code , 61 Pa.C.S. § 6138(a), where a parolee is held on both a Board detainer and pending federal charges

. Baasit , 90 A.3d at 82

- 83. In Smith v. Pennsylvania Board of Probation and Pa role , 171 A.3d 759 (Pa. 2017), the Supreme Court expressly disapproved Baasit

. However, the question of the propriety of the Board’s award of pre

- sentence credit pursuant to
Baasit is not before this Court here

.4

affirming its March 23, 2016 an d July 22, 2016 decisions. ( Id. at 68

- 69.) This appeal

followed

. 2

Santosusso claims that the Board failed to provide him with a timely
revocation hearing. Section 71.4 of the Board’s Regulations, 37 Pa. Code § 71.4,
provides in relevant part:

(1) A revocation hearing shall be held within 120 days from the date the Board re ceived official verification

. . . of the guilty verdict at the highest trial court level except as follows:

(i) I f a parolee is confined outside the jurisdiction of the Departmen t of Corrections, such as

. . . confinement in a Federal correctional institution .

. . where the parolee has not waived the right to a revocation hearing by a panel.

. . , the revocation hearing shall be held within 120 days of the official verification of the return of the parolee to a State correctional facility.

Thus, when a parolee like Santosusso is transferred from federal custody to a state
correctional facility, the 120

- day window for a revocation hearing opens when the

Board receives official ve rification of the parolee’s return to state custody.
However, the regulation also recognizes that such a hearing needs to be scheduled
only if the parolee has not waived his right to the hearing. 37 Pa. Code § 71.4(1)( i).
Santosusso waived his right to a revocation hearing on January 21, 2016, 78 days

after his return to a state correctional facili ty.

2 Bec ause there are no disputed facts , but only legal questions at issue here, our review is plenary.5 The Board argues that Santosusso may not challenge the timeliness of
a revocation hearing when he waived his right to such a hearing. We agree. In

Fisher v. Pennsylvania B oard of Prob ation and Parole , 62 A.3d 1073 (Pa. Cmwlth.
2013), this Court held that when a parolee has waived his right to a revocation
hearing, he has also “expressly waived his right to later allege that the Board failed
to timely schedule a revocation hearing.” Id. at 1076; see Baxter v. P a. Bd. of Prob.

& Parole (Pa. Cmwlth.

, No. 12 C.D. 2011, filed February 24, 2012). 3

Santosusso does not address the waiver issue in his brief. Instead, he

claim s that the Board violated Sect ion 6138(a)(5.1) of the Prisons and Parole Code
(Code), which states, “If the parolee is sentenced to serve a new term of total
confinement by a Federal court . . . because of a verdict or a ple a. . . , the parolee
shall serve the balance of the original t erm before serving the new ter m .” 61 Pa.
C.S. § 6138(a)(5.1). Santosusso argues that the statute required the Board to wrest
him from federal custody to continue serving his state sentence upon receipt of

official verification of his federal sentence. Ther efore, he contends, the pe riod for a
timely revocation hearing expired long before his return to a SCI because the Board
did not hold a revocation hearing within 120 days from June 11, 2013, the date it

received verification of his federal sentence

.

This Court has recently considered a similar argument in Brown v.
Pennsylvania B oard of Prob ation and Parole (Pa. Cmwlth.

, No. 262 C.D. 2017,
filed December 14, 2017). In Brown, as in this case

, a parolee remained in federal
custody from the time of his arrest until the conclusion of a federal sentence. Brown

3 Section 414 of this Court’s Internal Operating Procedures authorizes the citation of unreported panel decisions issued after January 15, 2008, for their persuasive value.6

argued that Section 6138(a)(5.1) of the Code mandated that the Board conduct a
revocation hearing within 120 days of the date of official verification of his federal
sentence regardless of whether he remained in federal custody, but this Court
rejected that argument:

Brown does not dispute that he was in federal custody before and after his federal sentencing and when the Board received official verification of his conviction. His argument pre sume s that the Board had the ability to obtain him from federal custody in order to hold a revocation hearing and recommit him as a [parole violator] to serve the remainder of [his] original sentence in accordance with Section 6138(a)(5.1). However, the Board asserts that it does not have the ability to acquire a Pennsy lvania parolee from the custody of another jurisdiction in order to recommit the parolee to serve the remainder of the original sentence. Thus, . . . Brown was already unavailable to the Board when he pled guilty and was sentenced, as well as when it received official verification of his conviction. The Board could not have acquired Brown until after his release from federal custody. . . . Under these circumstances, we are not persuaded by Bro wn’s argument that Section 71.4(1)(i) of the regulations is inapplicable based on Section 6138(a)(5.1) [of the Code].

. . .

Brown , slip op. at 12 (emphasis in original)

.

As in Brown , we are unaware of any authority supporting Santosusso’s
implicit supposition that the B oard has the power to pluck a Pennsylvania parolee
from a federal prison for the purpose of recommitting him as a parole violator. We
find the reasoning in Brown to be persuasive with respect to Santosusso’s argument

that the Board f

ailed to hold a timely revocation hearing in this case. Moreover, as
discussed above, Santosusso waived this argument when he waived his right to a
revocation hearing on January 21, 2016.7 For these reasons, we affirm the decision of the Board.

_____________________________________ BONNIE BRIGANCE LEADBETTER, Senior J udgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gabriel Santosusso, :

Petitioner :

:

v. : No. 574 C

. D 2017

: Pennsylvania Board of : Probation and Parole, :

Respondent :

O R D E R

AND NOW, this 30 th day of January

, 201 8

, the decision of the
Pennsylvania Board of Probation and Parole dated April 10, 2017, is affirmed.

_____________________________________ BONNIE BRIGANCE LEADBETTER, Senior J udge