Opinion
No. 2056 C.D. 2012
07-22-2013
Steven Rene Guzman, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Steven Rene Guzman (Guzman) petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) that denied his administrative appeal of a Board order recommitting him as a convicted parole violator to serve 12 months' backtime on his original sentence. Guzman contends: given the mitigating evidence he presented, the Board's decision to recommit him constituted an abuse of discretion; the Board lacked the legal authority to recommit him after the maximum date of his original sentence expired; and, the Board lacked the legal authority to recommit him to serve 12 months' backtime where there were only eight months left on his original sentence. Upon review, we affirm.
I. Background
In December 2005, Guzman began serving a one to four year sentence (original sentence) after he pled guilty in Lehigh County to carrying a firearm without a license. Guzman's original sentence initially had a maximum date of December 22, 2009.
The Board first paroled Guzman in February 2007. However, the Board recommitted him in July 2008 for a technical parole violation. Guzman's maximum date remained the same.
The Board re-paroled Guzman in March 2009. On November 19 and December 10, 2009, Guzman sold heroin to an undercover detective in Berks County. However, the authorities did not take Guzman into custody at that time. In late December 2009, the maximum date of Guzman's original sentence expired without the Board's knowledge of the criminal incidents. As a result, the Board closed his case.
In December 2010, the authorities filed drug charges against Guzman. In January 2011, the authorities arrested him on those charges. Guzman posted bail.
When the Board learned of the new charges against Guzman, it re-opened his parole case. Because the criminal activity occurred prior to the expiration of Guzman's original sentence, the Board declared him delinquent for control purposes.
In mid-February 2012, Guzman pled guilty to two counts of possession with intent to deliver a controlled substance (heroin). The Court of Common Pleas of Berks County (Berks court) sentenced Guzman to one and one-half to four years (new sentence) on the new charges. Approximately two weeks later, the Board lodged its detainer against Guzman for the new convictions.
In March 2012, authorities returned Guzman to a state correctional institution. In April 2012, a Board hearing examiner conducted a revocation hearing on Guzman's new convictions. Guzman acknowledged his original sentence and its maximum date. See Notes of Testimony (N.T.), 4/2/12, at 6-7; Reproduced Record (R.R.) at 48-49. Parole Agent N. Emory (Parole Agent) then testified that in February 2012 Guzman pled guilty to the two drug charges which led to his new sentence. Id. at 7-9; R.R. at 49-51. Further, Guzman acknowledged his new convictions. Id. at 13; R.R. at 51. Parole Agent also submitted into evidence certified copies of docket entries from the Berks court reflecting Guzman's new convictions and new sentence. See State Exs. S-1, S-2; R.R. at 120, 131. On cross-examination, Parole Agent testified the two drug incidents occurred prior to the expiration of Guzman's original sentence. N.T. at 9; R.R. at 51.
In addition, Guzman and his fiancé, Sasha Quinones (Fiancé) testified regarding Guzman's accomplishments in turning his life around after the drug incidents in 2009. Guzman and Fiancé started and operated several businesses in Reading, Pennsylvania, including a clothing store, notary service and a small restaurant. Further, Guzman now supported and provided a home for his two children. Guzman introduced into evidence pictures of his businesses, home and children. See Defense Exs. D-2, D-3, D-4; R.R. at 87-95. Guzman also submitted into evidence a number of letters of support from members of the community. See Defense Ex. D-4; R.R. at 96-111.
In June 2012, the Board issued a decision recommitting Guzman as a convicted parole violator to serve 12 months' backtime on his original sentence. The Board relied on Parole Agent's testimony, the certified record of Guzman's drug convictions, and Guzman's acknowledgment of the same. See Bd. Dec., 6/8/12; R.R. at 142-43. The Board also noted Guzman's strong family support as a mitigating factor. Id.
Guzman filed an administrative appeal. Ultimately, the Board rejected the merits of Guzman's appeal, noting: substantial evidence supports its revocation decision; Guzman's new offenses occurred prior to the expiration of his original sentence; and, Guzman's 12-month recommitment fell well below the maximum presumptive range for Guzman's two drug convictions. See Bd. Dec., 10/11/12; R.R. at 151-52. The Board also rejected Guzman's claim that the Board could not recommit him for 12 months because there were only eight months remaining on his original sentence. In so doing, the Board noted it later discovered a technical error in the calculation of Guzman's new maximum date and issued a decision modifying the maximum date of Guzman's original sentence from January 12, 2014 to May 13, 2014. See Bd. Dec., 8/30/12; Supplemental Certified Record (Supp. C.R.) at 5a. Guzman petitions for review.
Our review is limited to determining whether constitutional rights were violated, whether the adjudication was in accordance with law, and whether necessary findings were supported by substantial evidence. 2 Pa. C.S. §704; Adams v. Pa. Bd. of Prob. & Parole, 885 A.2d 1121 (Pa. Cmwlth. 2005).
II. Issues
Guzman presents three issues. He asserts that given the mitigating evidence presented, the Board's 12-month recommitment constituted an abuse of discretion. Guzman also contends the Board lacked the legal authority and jurisdiction to recommit him after his maximum sentence expired. He further argues the Board lacked the legal authority and jurisdiction to recommit him for 12 months where the Board paroled him with only eight months left on his original sentence.
III. Discussion
A. Substantial Evidence; Excessive Term
Guzman first argues substantial evidence does not support the Board's excessive 12-month recommitment given the strong mitigating evidence of support from his family and the community. Guzman also points out he remained arrest-free for two years following the expiration of the maximum date of his original sentence and that he rehabilitated himself while on parole. Citing 37 Pa. Code §75.1 (application of presumptive ranges to convicted parole violators), Guzman asserts the Board, in its discretion, should have recommitted him to a lesser term.
When recommitting a parolee, the Board may rely on certified copies of court records that establish the parolee's new convictions. See Sanchez v. Pa. Bd. of Prob. & Parole, 616 A.2d 1097 (Pa. Cmwlth. 1992) (Board may rely on photocopies of docket sheets from the criminal court to establish parolee's new convictions). Here, Parole Agent submitted certified copies of docket entries from the Berks court showing Guzman's guilty pleas to the drug charges and his new sentence. Guzman also acknowledged his convictions. Clearly, the record supports the Board's decision to recommit Guzman as a convicted parole violator.
Guzman nevertheless contends that 12 months' backtime constituted an excessive recommitment given the strong mitigating circumstances. We disagree. Guzman pled guilty to two violations of possession with intent to deliver heroin, a Schedule I controlled substance. Pursuant to Section 113(f)(1) of the Controlled Substance, Drug, Device and Cosmetic Act (Drug Act), possession with intent to deliver a Schedule I controlled substance is a felony with a maximum sentence of 15 years imprisonment. The presumptive range for recommitment based on this violation of the Drug Act is 24 to 36 months. 37 Pa. Code §75.2. In addition, the Board may consider each conviction as a separate parole violation. Davidson v. Pa. Bd. of Prob. and Parole, 33 A.3d 682 (Pa. Cmwlth. 2011). Consequently, the presumptive range for Guzman's two convictions was 48 to 72 months.
Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §780-113(f)(1).
However, the Board only recommitted Guzman for 12 months. It also noted Guzman's strong family support as a mitigating circumstance. Bd. Dec., 6/8/12; R.R. at 145. As such, we reject Guzman's claim that the Board abused its discretion by recommitting him for an excessive period.
Further, we note the Board re-paroled Guzman from his original sentence for a second time on April 3, 2013. See Supp. C.R. at 6a-7a. The Board's grant of re-parole rendered moot Guzman's excessive recommitment argument. See Taylor v. Pa. Bd. of Prob. and Parole, 746 A.2d 671 (Pa. Cmwlth. 2000) (an appeal may be dismissed as moot where events render it impossible for the reviewing court to grant relief).
B. Expiration of Original Sentence
Guzman next contends the Board lacked the legal authority and jurisdiction to recommit him as a convicted parole violator where the Board notified him that he served his original sentence, which expired in December 2009. He further asserts the authorities did not file the drug charges against him until December 2010, and did not arrest him on those charges until January 2011. Further, Guzman did not plead guilty to the drug charges until February 2012, more than two years after the expiration of his maximum sentence and Board supervision.
Initially, we note, a "parolee shall remain in the legal custody of the Board until the expiration of his maximum sentence, or until he is legally discharged." 37 Pa. Code §63.2. However, "[i]f the parolee violates the conditions of parole, at a time during his period on parole, the Board may cause his detention or return to a correctional institution." 37 Pa. Code §63.3 (emphasis added).
In short, the Board has the authority to recommit a parolee after the expiration of his maximum sentence where the parolee is convicted of a crime committed while on parole even if he is not convicted until after his original sentence expired. Reavis v. Pa. Bd. of Prob. & Parole, 909 A.2d 28 (Pa. Cmwlth. 2006) (citing Adams v. Pa. Bd. of Prob. & Parole, 885 A.2d 1121 (Pa. Cmwlth. 2005)). In Adams, we recognized that Section 21.1a of the former "Parole Act," predecessor to current Section 6138(a) of the Prisons and Parole Code (Parole Code), 61 Pa. C.S. §6138(a), provided the Board with statutory authority to revoke parole even after the expiration of the parolee's maximum sentence date. Similar language is now codified at 61 Pa. C.S.§6138(a)(1). Thus, the Board had jurisdiction to recommit Guzman based on his new convictions even though he was not charged with the new offenses until after his original sentence expired. Reavis; Adams.
See Act of August 6, 1941, P.L. 861, as amended, added by the Act of August 24, 1951, formerly 61 Pa. P.S. §§331.21.1a, repealed by Section 11(b) of the Act of August 11, 2009, P.L. 147.
Here, it is undisputed that Guzman's criminal activity leading to his new convictions occurred prior to the expiration of the maximum date of his original sentence. Consequently, Guzman's contention that the Board lacked jurisdiction to recommit him where he was not arrested and charged with the drug offenses until after his original sentence expired lacks merit. Id.
Further, the closing of Guzman's case by Board supervision staff prior to the filing of the drug charges did not preclude the Board from recommitting Guzman based on his convictions on those charges. See McFarland v. Pa. Bd. of Prob. & Parole, 569 A.2d 374 (Pa. Cmwlth. 1989) (only the Board itself, not supervision staff, has the authority to make parole decisions; where parolee is provided proper notice and explanation of an alleged parole violation occurring while the parolee is under supervision, the Board may adjudicate that violation as long as it is not reversing itself on a substantive issue previously decided).
C. Length of Remaining Sentence
Guzman also contends the Board erred in recommitting him to serve 12 months' backtime on his original sentence where the Board re-paroled him with only eight months remaining on his original sentence. Rather, Guzman asserts the Board could only recommit him for the eight months remaining on his sentence.
Guzman's position lacks merit. When a parolee is recommitted based on a criminal conviction, the parolee's maximum sentence date may be extended to account for all street time, regardless of good or delinquent standing. Richards v. Pa. Bd. of Prob. & Parole, 20 A.3d 596 (Pa. Cmwlth.), appeal denied, 611 Pa. 684, 29 A.3d 574 (2011). In Richards, we observed that Section 6138 of the Parole Code (violation of terms of parole) provides:
(a) Convicted violators.—
(1) A parolee under the jurisdiction of the board released from a correctional facility who, during the period of parole or while delinquent on parole, commits a crime punishable by imprisonment, for which the parolee is convicted or found guilty by a judge or jury or to which the parolee pleads guilty or nolo contendere at any time thereafter in a court of record, may at the discretion of the board be recommitted as a parole violator.
(2) If the parolee's recommitment is so ordered, the parolee shall be reentered to serve the remainder of the term which the parolee would have been compelled to
serve had the parole not been granted and shall be given no credit for the time at liberty on parole.61 Pa. C.S. §6138(a)(1) and (2).
Moreover, we specifically noted in Richards that a convicted parole violator forfeits all time spent in good standing prior to recommitment on technical violations. Otherwise, convicted parole violators with no prior violations and recommitments as technical parole violators would forfeit all street time from their original parole date. However, convicted parole violators with prior violations and recommitments as technical violators, would forfeit less street time: they would only forfeit street time from their most recent re-parole. Id. Such a result would be absurd, because it treats parolees with prior technical violations better than those without prior technical violations. Id.
In accord with Richards, Guzman, as a convicted parole violator, forfeited all street time from the date of his parole in February 2007 to his recommitment as a technical parole violator in July 2008. Therefore, Guzman's argument that the Board could not sentence him to 12 months' backtime when there were only eight months remaining on his original sentence also lacks merit. 61 Pa. C.S. §6138(2); Richards.
The Board's recommitment order, dated May 30, 2012, indicates Guzman forfeited 330 days spent at liberty on parole, from February 12, 2007 until January 8, 2008. R.R. at 147. Although the Board declared Guzman delinquent effective January 8, 2008 (R.R. at 11), by decision dated April 21, 2008, the Board cancelled the delinquency and continued Guzman on parole. Id. at 12. Also, the Board did not recommit Guzman as a technical parole violator until July 3, 2008. Id. at 13. As such, it appears Guzman actually spent more forfeitable time at liberty on parole than the 330 days noted.
Effective September 4, 2012, the Legislature amended Section 6138 of the Parole Code to grant the Board discretion to give convicted parole violators credit for time spent at liberty on parole. See 61 Pa. C.S. §§6138(a)(2), (2.1). However, this amendment took effect after the Board's recommitment order in the present case, mailed June 8, 2012. Moreover, the Board's August 30, 2012 recalculation order also pre-dated the effective date of this amendment.
For the above reasons, we affirm the Board's October 11, 2012 order denying Guzman's administrative appeal from the Board's June 8, 2012 recommitment order.
As discussed above, the Board later modified its recommitment order by recalculating the maximum date of Guzman's original sentence to be May 13, 2014. Bd. Dec., 8/30/12; Supp. C.R. at 5a. The Board's August 30, 2012 modification order is not before the Court for review in this appeal. Ultimately, the Board re-paroled Guzman on April 3, 2013 from his original sentence to his state detainer sentence. See Bd. Dec., 4/3/13; Supp. C.R. at 6a-7a. --------
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 22nd day of July, 2013, for the reasons stated in the foregoing opinion, the order of the Pennsylvania Board of Probation and Parole is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge