Opinion
No. 1829 C.D. 2011
08-20-2012
Gregory S. Bethea, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Gregory S. Bethea petitions for review of an adjudication of the Pennsylvania Board of Probation and Parole (Board) recommitting him as a convicted parole violator and calculating his new maximum sentence date on his original sentence as January 8, 2017. In calculating this new maximum sentence date, the Board did not credit Bethea with the time he spent incarcerated for his new criminal arrest. However, it did credit that incarceration time toward his new criminal sentence of "time served to 23 months." Discerning no error, we affirm.
On April 12, 1999, Bethea was sentenced to serve six to 12 years in prison for firearm and terroristic threat convictions, with a maximum sentence date of December 8, 2013. Bethea was paroled to ADAPPT Treatment Services on January 28, 2008, and on February 19, 2008, he was unsuccessfully discharged for walking out of the facility without permission. The Board declared Bethea delinquent as of February 19, 2008. On October 29, 2009, Bethea was arrested on 12 new criminal charges ranging from forgery to weapons and drug charges. The Board lodged a warrant to commit and detain Bethea on the same day.
On November 12, 2009, Bethea was arraigned and bail was set at $250,000 for the new criminal charges; he did not post bail. On March 14, 2011, Bethea pleaded guilty to four of the 12 criminal charges; the other charges were nolle prossed. Bethea was sentenced to time served to 23 months with immediate parole. By the time he was sentenced on March 14, 2011, Bethea had spent a total of 501 days in county prison on the Board's detainer and on the new criminal charges.
The trial court's sentencing order is a pre-printed, four-page form with blocks to be checked and spaces to be filled in with hand-written notations. Each page is signed at the bottom by the sentencing judge. The first three pages of the sentencing order address each of the 12 criminal charges and its disposition. Bethea pled guilty to some of the charges, and the others were nolle prossed. At the bottom of each page is a hand-written notation that states as follows: "Aggregate sent T/S - 23 mos + 2 yrs prob." Certified Record, Item No. 9, Sentencing Order at 1-3 (C.R. at ___). This is construed to mean: "Aggregate sentence of time served to 23 months plus two years of probation." The fourth and final page of the form is entitled "Sentencing Conditions Order," which lists a series of boxes to be checked off for conditions ranging from DNA testing to drug and alcohol treatment to restitution. One box is entitled: "Credit for time served___ (Subject to verification)." That box is checked and includes the notation "2/18/11 to present," a period of 25 days. C.R., Item No. 9 at 37. The Lancaster County criminal docket statement reports the disposition of Bethea's new criminal charges to be time served, 39 days. C.R., Item No. 9, Criminal Docket at 5-6.
In a combined revocation and recommitment order, the Board revoked Bethea's parole and recommitted him as a convicted parole violator to serve 18 months backtime concurrently for technical and convicted parole violations. Bethea's new maximum sentence date was calculated to be January 8, 2017. The Board credited Bethea 14 days on his original sentence for his incarceration prior to his arraignment, i.e., from October 29, 2009, to November 11, 2009. Otherwise, the Board did not give him any credit on his original sentence for the remaining 487 days out of the total 501 days he spent in prison before his sentencing on March 14, 2011. That incarceration time, according to the Board's records, was assigned to Bethea's new sentence. C.R., Item No. 9, Board of Probation and Parole Criminal Arrest and Disposition Report at 2. Bethea sought administrative review, seeking to have 487 days credited to his original sentence. The Board denied his appeal, and Bethea petitioned for this Court's review.
On appeal, Bethea argues that the Board erred because it did not credit his pre-sentence incarceration from November 12, 2009, to February 18, 2011, towards his original sentence. He argues that his "time served" on the new sentence was only that time between February 18, 2011, to March 14, 2011, with immediate parole, as reported on the Sentencing Conditions Order. This leaves the period from November 12, 2009, to February 18, 2011. Bethea argues that under Martin v. Pennsylvania Board of Probation and Parole, 576 Pa. 588, 840 A.2d 299 (2003), this unaccounted time must be credited to his original sentence.
"Our scope of review is limited to a determination of whether necessary findings are supported by substantial evidence, an error of law was committed, or whether constitutional rights of the parolee were violated." Gaito v. Pennsylvania Board of Probation and Parole, 563 A.2d 545, 547 (Pa. Cmwlth. 1989) (citing Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704).
The Board argues that Bethea has received credit in accordance with Martin. It properly calculated Bethea's new maximum date because: (1) Bethea never posted bail and, thus, was never held solely on the Board's warrant; (2) he was convicted of new criminal charges; and (3) he was sentenced to a maximum term of 23 months on the new criminal charges, which is longer than the period November 12, 2009, to February 18, 2011. The Board construes the sentencing order to give Bethea credit for the entire period of incarceration on the new charges, i.e., November 12, 2009, to March 14, 2011, in his sentence on the new conviction. Stated otherwise, of his maximum sentence of 23 months, Bethea has already served approximately 16 months. The Board argues that if Bethea believes that the trial court intended to sentence him to 25 days, i.e., February 18, 2011, to March 14, 2011, to 23 months, then he needs to seek clarification from the sentencing judge. We agree.
Pre-sentence detention time must be allocated either to the original sentence or to the new sentence, as a matter of justice and equity. As our Supreme Court stated in Martin:
[T]he considerations relevant to the award of credit are just and equitable in nature. . . . [W]here an offender is incarcerated on both a Board detainer and new criminal charges, all time spent in confinement must be credited to either the new sentence or the original sentence. . . . [I]ndigency of a detainee in failing to satisfy the requirements for bail is not determinative as to whether the offender receives credit for time served.576 Pa. at 604-606, 840 A.2d at 308-309 (emphasis added and in original) (internal citations and footnotes omitted). The Court further explained that the trial court should state the disposition of any imposed sentence on the record, particularly with regards to time served, to avoid any ambiguities. Id. at 605 n.6, 840 A.2d at 309 n.6.
In Melhorn v. Pennsylvania Board of Probation and Parole, 883 A.2d 1123 (Pa. Cmwlth. 2005), rev'd, 589 Pa. 250, 908 A.2d 266 (2006), Barry Melhorn received a new sentence of six months to 23.5 months for crimes he committed while on parole. His pre-sentence confinement on both the Board's warrant and the new charges was just over five months. The sentencing court did not credit any pre-sentence time to his new sentence. This Court ordered the Board to credit Melhorn's original sentence with the unused and uncredited pre-sentence confinement time. The Supreme Court reversed in a per curiam order citing McCray v. Department of Corrections, 582 Pa. 440, 872 A.2d 1127 (2005), Gaito v. Pennsylvania Board of Probation and Parole, 488 Pa. 397, 412 A.2d 568 (1980), and Section 9760 of the Judicial Code, 42 Pa. C.S. §9760.
The full order of the Supreme Court reads:
PER CURIAM
AND NOW, this 30th day of August, 2006, the Petition for Allowance of Appeal is GRANTED, and the order of the Commonwealth Court is hereby REVERSED. See McCray v. Pennsylvania Department of Corrections, 582 Pa. 440, 872 A.2d 1127 (2005); Gaito v. Pennsylvania Board of Probation and Parole, 488 Pa. 397, 412 A.2d 568 (1980); 42 Pa.C.S. § 9760. Jurisdiction relinquished.
Justice SAYLOR notes his dissent.
In Armbruster v. Pennsylvania Board of Probation and Parole, 919 A.2d 348 (Pa. Cmwlth. 2007), Matthew Armbruster was sentenced to a term of eight to twenty-four months on his new criminal conviction. The trial court did not credit him for any time served on his new sentence, and he was not paroled from his new sentence. Armbruster argued that he was entitled to 250 days of credit on his original sentence for the period he was incarcerated before sentencing on the new criminal charges. We rejected this claim because the maximum term of his new sentence exceeded the time he spent in pre-sentence incarceration. In doing so, this Court construed the Supreme Court's decision in Melhorn as limiting Martin, stating that
[W]e believe that Martin is limited to the allocation of excess pre-sentence confinement credit. In other words, where a parole violator is confined on both the Board's warrant and the new criminal charges and it is not possible to award all the credit on the new sentence because the period of pre-sentence incarceration exceeds the maximum term of the new sentence, the credit must be applied to the offender's original sentence.Armbruster, 919 A.2d at 355 (emphasis in original). We held that Armbruster's only remedy was to seek credit on his new sentence from the trial court.
Bethea's sentencing order is less than pellucid. Three pages of the sentencing order, which list each charge and its disposition, contain the following statement at the bottom of the page: "aggregate sentence of time served to 23 months." On page 4, the Sentencing Conditions Order, the box entitled "time served" is checked with the troublesome notation "2/18/11 to present." C.R., Item No. 9, Sentencing Order at 4. It is not clear what that notation means or who wrote it; the date "2/18/11" relates to nothing else in the record.
Bethea believes that the "2/18/11 to present" notation trumps the other provisions in the sentencing order that recorded his sentence as being for all "time served to 23 months." The Board relied on the expanded hand-written statement of his sentence, not the "2/18/11 to present" notation on page 4, when it construed the terms of Bethea's new sentence. Thus, the Board calculated Bethea's maximum sentence date on his new sentence on the assumption that Bethea has served 487 days of that sentence. Bethea is not also entitled to 487 days of credit on his original sentence. Further, he is not entitled to have those 487 days moved from his new sentence to his original sentence.
If Bethea believes there is an error in the sentencing order, his exclusive remedy lies with the trial court or in an appeal to the Superior Court. Ambruster, 919 A.2d at 355-56. If he believes there is no error, but that the order has been incorrectly construed, then he should seek that clarification from the sentencing court. We cannot say, however, that the Board has misconstrued the sentencing order, which states, three times, that he was given an aggregate sentence of time served to 23 months.
For the foregoing reasons, we affirm the order of the Board.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 20th day of August, 2012, the order of the Pennsylvania Board of Probation and Parole dated August 31, 2011, in the above captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge
Melhorn, 589 Pa. 250, 908 A.2d 266 (2006).