Opinion
No. 611 C.D. 2014
01-30-2015
Terrell Mitchell, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Terrell Mitchell (Mitchell) petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board), which denied his Petition for Administrative Relief challenging the Board's recalculation of his maximum sentence date. We now affirm.
On November 9, 2008, the Court of Common Pleas of Bucks County sentenced Mitchell to a term of two to six years for receiving stolen property. (Certified Record (C.R.) at 1.) His maximum sentence date was initially calculated as July 15, 2014. (Id. at 2.) Mitchell was paroled on March 27, 2011. (Id. at 9.) He was arrested on new charges on August 13, 2011, and the Board lodged a detainer against him on the same day. (Id. at 12, 15.) Additional criminal charges were filed on August 24, 2011. (Id. at 26.) Mitchell was released on bail on February 23, 2012, but remained confined as a result of the Board's detainer. (Id. at 19.) On January 11, 2013, Mitchell pleaded guilty to all of the charges against him and a sentence of three to six years was imposed. (Id. at 51.)
Mitchell waived his hearing before the Board and admitted to being convicted of the new crimes. (Id.) The Board voted to recommit Mitchell on May 8, 2013. (Id. at 53.) By Order dated May 29, 2013, the Board recommitted Mitchell for thirty-six months backtime. (Id. at 55.) In so doing, the Board gave Mitchell a credit of 323 days for the period in which he was confined solely by the Board's detainer, February 23, 2012 to January 11, 2013. (Id. at 53.) He did not receive credit for any of the days he was held due to both the new charges against him and the Board's detainer. (Id.) His maximum sentence date was recalculated as October 8, 2015, and his reparole eligibility date was recalculated as June 19, 2015. (Id.)
Mitchell filed a Petition for Administrative Relief, arguing that the Board erred in recalculating his maximum sentence date and his reparole eligibility date. (Id. at 57-59.) The Board affirmed its decision on March 27, 2014. (Id. at 61-62.) In so doing, the Board reasoned:
Based on these facts, the Board gave you 323 days credit on your original sentence for the period you were incarcerated from February 23, 2012 to January 11, 2013 because you were held solely on the Board detainer during that period. Gaito v. [Pennsylvania] Board of Probation and Parole, 412 A.2d 568 (Pa. 1980). Conversely, the Board did not give you credit on your original sentence for the period you were incarcerated from August 13, 2011 to February 23, 2012 because you were not held solely on the Board detainer during that period. Id. Additionally, the Board did not give you credit on your original sentence for the period you were incarcerated from January 11, 2013 to May 8, 2013 because the Board had not yet recommitted you as a convicted parole violator. The credit for this time frame will be calculated and credited by the Department of
Corrections toward your new sentence. Subtracting the credit the Board gave you from the time you had remaining left 883 days remaining on your sentence.(Id.) Mitchell then petitioned this Court for review.
On appeal, Mitchell argues that the Board erred in recalculating his maximum sentence date and reparole eligibility date. Specifically, Mitchell states that he is entitled to credit for the period between August 13, 2011 and February 23, 2012, during which he was confined on both the new charges and the Board's detainer. Additionally, he argues that he is entitled to credit for the period between January 11, 2013, and May 8, 2013, during which he was confined prior to the revocation of his parole.
Our standard of review of a Board order denying administrative relief is limited to considering whether necessary factual findings are supported by substantial evidence, whether the Board erred as a matter of law, and whether constitutional rights were violated. 2 Pa. C.S. § 704.
We first address Mitchell's argument that he was entitled to credit for the period from August 13, 2011, to February 23, 2012, when he was confined due to both the new charges as well as the Board's detainer. In support of this argument, Mitchell relies on the Pennsylvania Supreme Court's decision in Martin v. Pennsylvania Board of Probation and Parole, 840 A.2d 299 (Pa. 2003). In Martin, the Court established an exception to the rule provided in Gaito v. Pennsylvania Board of Probation and Parole, 412 A.2d 568 (Pa. 1980). Martin, 840 A.2d at 301. This exception applies in situations where the "length of pre-trial confinement exceeds the sentence imposed for the new crimes." Id. The Court held that pre-sentence confinement time must be credited to either the original sentence or the new sentence; and, in situations where the period of confinement exceeds the new sentence, it is proper to apply the credit to the original sentence. Id. at 309. Mitchell argues that the exception recognized in Martin should apply here, and, therefore, he should receive credit on his original sentence.
Here, however, the length of Mitchell's pre-trial confinement did not exceed the sentence imposed for the new crimes. Mitchell was confined for less than two years - from August 13, 2011 to May 8, 2013 - and he was sentenced to three to six years for his new crimes. There is no excess time that must be credited to Mitchell's original sentence. Thus, the exception recognized in Martin does not apply, and Gaito is controlling. In Gaito, the Pennsylvania Supreme Court held:
[I]f a defendant is being held on custody solely because of a detainer lodged by the Board and has otherwise met the requirements for bail on the new criminal charges, the time which he spent in custody shall be credited against his original sentence. If a defendant, however, remains incarcerated prior to trial because he has failed to satisfy bail requirements on the new criminal charges, then the time spent in custody shall be credited to his new sentence.Gaito, 412 A.2d at 571 (emphasis added). Here, Mitchell did not satisfy bail requirements until February 23, 2012. The Board properly credited Mitchell for the period from February 23, 2012, to January 11, 2013, during which he was held solely on the Board's detainer. The Board was not required to give him credit for the period he was confined due to both the detainer and the new charges. See Gaito, 412 A.2d at 571; Williams v. Pa. Bd. of Prob. and Parole, 68 A.3d 386, 389-90 (Pa. Cmwlth. 2013). Thus, the Board did not err in failing to give Mitchell credit on his original sentence for the period between August 13, 2011, and February 23, 2012.
Although it is somewhat unclear from his brief, it appears that Mitchell may also be arguing that he is entitled to additional credit under Martin because the trial court failed to give him credit for the period between August 13, 2011, and February 23, 2012, when it issued its sentencing order. In Melhorn v. Pennsylvania Board of Probation and Parole, 883 A.2d 1123 (Pa. Cmwlth. 2005), rev'd, 908 A.2d 266 (Pa. 2006), this Court held that a parolee was entitled to credit on his original sentence in a situation where it was impractical for him to receive credit on his new sentence because he was already on parole for that sentence. The Supreme Court of Pennsylvania, however, reversed our decision, clarifying the rule that parolees cannot seek credit from the Board to correct an error of the sentencing court. Melhorn, 908 A.2d at 266; see also Armbruster v. Pa. Bd. of Prob. and Parole, 919 A.2d 348, 356 (Pa. Cmwlth. 2007) ("[W]here a sentencing court does not give an inmate full credit for time served, the inmate's remedy is in the trial court and through the direct appeal process, not through the Board.") Thus, Mitchell's remedy for any error on the part of the trial court lies in an appeal from the trial court's sentencing order, and it was appropriate for the Board to deny him credit.
Mitchell also argues that he should receive credit on his original sentence for his confinement from January 11, 2013, to May 8, 2013, the period between the imposition of his new sentence and the Board's vote to recommit him. In Williams v. Pennsylvania Board of Probation and Parole, 654 A.2d 235 (Pa. Cmwlth. 1995), we held that "credit for time a convicted parole violator spends in custody between imposition of a new sentence and revocation of parole must be applied to the new sentence." Id. at 237. Thus, any credit for this time period must be allocated to Mitchell's new sentence, not to his original sentence.
Mitchell also appears to argue that because there is no guarantee that the Pennsylvania Department of Corrections (Department) will properly allocate the credit to his new sentence, he should receive credit on his original sentence. This argument is speculative. It is not incumbent upon the Board to modify its order based on the potential future actions of the Department. If the Department later fails to properly allocate Mitchell's credit to his new sentence, then he will be able to appeal the Department's action. --------
Further, in situations where a parolee is paroled from a state correctional institution and receives a new sentence that will also be served in a state correctional institution, he must serve the balance of the term originally imposed prior to serving the new term. 61 Pa. C.S. § 6138(a)(5). A convicted parole violator becomes available to serve the original term once his parole is revoked by the Board. Hill v. Pa. Bd. of Prob. and Parole, 683 A.2d 699, 701-02 (Pa. Cmwlth. 1996) ("[W]here the Board . . . recommits a convicted parole violator to serve the balance of an original sentence before beginning service of a new term, the prisoner's service of backtime on the original sentence must be computed from the date the Board revokes the prisoner's parole.") Thus, Mitchell did not become available to serve the balance of his original sentence until May 8, 2013, and it was necessary to calculate his backtime from that date. The Board did not err in failing to give Mitchell credit on his original sentence for this time period.
Accordingly, we affirm the Board's order.
/s/_________
P. KEVIN BROBSON, Judge Senior Judge Friedman concurs in result only. ORDER
AND NOW, this 30th day of January, 2015, the order of the Pennsylvania Board of Probation and Parole is AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge