Opinion
No. 1482 C.D. 2014
04-15-2015
James Moody, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
James Moody (Moody) petitions for review of the order of the Pennsylvania Board of Probation and Parole (Board) affirming its decision denying him administrative appeal relief. We affirm.
Moody is still serving a 1997 sentence of six years, six months to 14 years for the crimes of Voluntary Manslaughter, Possessing an Instrument of Crime, and Firearm not to be Carried without License. That sentence had original minimum and maximum release dates of August 21, 2003, and February 21, 2011. Those release dates have been subject to change because of loss of time spent while at "liberty on parole."
The Board paroled Moody for the first time on June 28, 2004, but on December 21, 2004, the Board issued a detainer against him due to new drug charges and, subsequently, on May 16, 2006, recommitted him as a technical parole violator to serve six months backtime for violating a condition of his parole, Failure to Refrain from Assaultive Behavior. The Board reparoled Moody on January 24, 2007, to an approved plan.
On March 5, 2008, the Board issued another detainer against Moody because he was arrested and charged with the crimes of Resisting Arrest and Criminal Conspiracy. On April 22, 2008, the Board decided to detain Moody pending the disposition of his criminal charges. On September 26, 2008, the charges against Moody were withdrawn, and on October 1, 2008, the Board ordered Moody's release and canceled the warrant to commit and detain.
On August 11, 2010, Moody was arrested and charged with aggravated assault for assaulting police officers who were attempting to arrest him. On August 12, 2010, the Board lodged another detainer against him. On September 22, 2010, the Board issued a decision to detain Moody pending the disposition of his new criminal charges. On February 16, 2011, the Board decided to release him and cancel its warrant effective February 21, 2011. That same day, upon the expiration of his original maximum sentence, Moody was released from incarceration on his original sentence but remained in jail. Then on March 14, 2011, the Board issued a decision to declare Moody delinquent for control purposes effective March 11, 2010. During this period, Moody remained in jail because he had not made bail on the aggravated assault charge. However, on May 13, 2013, Moody was granted ROR bail with house arrest.
On October 22, 2013, Moody was convicted of two counts of aggravated assault and sentenced to a minimum of 11 months, 15 days and a maximum of 23 months of incarceration. While on parole, on December 13, 2013, Moody was arrested and placed into SCI-Graterford for a possible parole violation. On December 19, 2013, after being notified of the Board's notice of charges and hearing, the date and time of his scheduled revocation hearing, and the name and address of the local public defender's office, Moody executed waivers of preliminary hearing, panel hearing, revocation hearing, right to counsel and admitted to committing aggravated assault while on parole.
Moody had pled guilty to the charges and was immediately paroled.
On January 31, 2014, the hearing panel revoked Moody's parole and denied him credit for the time he was at liberty on parole due to his assault of police officers while on parole. On February 10, 2014, the Board decided to recommit Moody as a convicted parole violator to serve 36 months of backtime against his original sentence as a result of his guilty plea for committing aggravated assault, determining that he was not eligible for parole until December 13, 2016, with the maximum sentence date being November 29, 2017.
In recalculating Moody's maximum sentence date, the Board noted that when Moody was released on parole on January 24, 2007, his maximum sentence date was calculated as February 21, 2011, leaving 1,489 days on his original sentence. The Board further noted that he forfeited 176 days of credit when he was released from June 28, 2004, to December 21, 2004. The total of 1,489 and 176 resulted in 1,665 days of backtime owed by Moody. Moody did, however, receive 218 days of confinement time credit from March 5, 2008, to October 9, 2008, for his arrests for which the charges were eventually withdrawn. The Board applied the 218 days of credit to Moody's 1,665 days of backtime owed and determined that he owed a total of 1,447 days (or three years, 11 months, 16 days) of backtime. The Board then added 1,447 days to December 13, 2013, and determined Moody's new parole violation maximum sentence date to be November 29, 2017.
Moody was paroled to a community program on June 28, 2004, and violated his parole on December 21, 2004.
In March 2014, Moody filed an administrative appeal to the Board's decision, alleging that (1) the Board erred in its calculation of Moody's backtime owed; (2) the Board erred in not crediting him for time at liberty on parole as the crime he committed was not a crime of violence; (3) the Board erred in not crediting him with the four months he served in pre-sentence confinement on his aggravated assault conviction; and (4) the 36-months sanction of backtime is excessive. The Board denied Moody's appeal and affirmed its previous decision, finding that Moody's backtime owed was properly calculated, that he is not entitled to a backtime-served credit because he was not incarcerated solely on the Board's warrant, that he received confinement time credit for the 218 days, and that the 36 months of backtime is not excessive as it falls within the presumptive recommitment range of 24 to 80 months. Moody then filed a petition for review with this court.
The presumptive recommitment range for a conviction of aggravated assault is 24-40 months for each count. 37 Pa. Code §75.2. As Moody was convicted for two counts of aggravated assault, the aggregate presumptive range is 24 to 80 months.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law, and whether the necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
In his petition for review, Moody first argues that because he was incarcerated for a period of time in excess of the maximum sentence imposed for the aggravated assault guilty plea, he is entitled to have that excess time credited against his original sentence. Specifically, Moody contends that he was incarcerated in excess of ten months and two days from the maximum sentence imposed on him for his aggravated assault conviction as there lacks evidence that the Board lifted its detainer before May 13, 2013, which is when Moody obtained his release on ROR bail. However, the Board, in its Supplemental Certified Record, showed that it lifted Moody's August 12, 2010 detainer on February 21, 2011. If that was the case, Moody then contends that even if the Board had lifted its warrant when he reached his original maximum term expiration date on February 21, 2011, he still accumulated at least six months credit while he was confined on the Board's warrant from August 12, 2010, to February 21, 2011.
In his brief, Moody mistakenly lists February 11, 2011, as his original maximum term expiration date and also uses it as the end date for the timeframe he establishes in requesting six months credit; however, the correct date would be February 21, 2011. (Petitioner's Brief at 17-18.)
The general rule governing the allocation of credit for time served awaiting disposition of a new criminal charge was established by our Supreme Court in Gaito v. Pennsylvania Board of Probation and Parole, 488 Pa. 397, 412 A.2d 568 (1980). In Gaito, the Supreme Court held that "time spent in custody pursuant to a detainer warrant shall be credited to a convicted parole violator's original term ... only when the parolee was eligible for and had satisfied bail requirements for the new offense and thus remained incarcerated only by reason of the detainer warrant lodged against him." Gaito, 488 Pa. at 403, 412 A.2d at 571.
The Board lodged its warrant against Moody on August 12, 2010, the day after he was arrested for aggravated assault, which it lifted on February 21, 2011. On February 21, 2011, Moody's original maximum sentence date expired and he was released from incarceration on the original sentence. He was not released from jail because he had not made bail on the aggravated assault charge. For the period in question then, Moody was never incarcerated solely on the Board's warrant because he had not made bail which made that six months not creditable against his original sentence.
Moody next argues that the Board abused its discretion when it denied him for the time he spent at liberty on parole on the basis that his aggravated assault convictions involved police officers. Moody contends that the Board should have considered Section 6138(a)(2.1)(i) of the Code in determining whether to allot him credit. That section provides, in relevant part:
The board may, in its discretion, award credit to a parolee ... for the time spent at liberty on parole, unless any of the following apply:
(i) The crime committed during the period of parole or while delinquent on parole is a crime of violence as defined in 42 Pa. C.S. §9714(g) (relating to sentences for second and subsequent offenses) ....
Included under Section 9714(g) is the crime of aggravated assault, as defined in 18 Pa. C.S. §2702(a)(1) or (2). 42 Pa. C.S. §9714(g). An individual is guilty of aggravated assault under Section 2702(a)(1) or (2) if he or she:
(1) [A]ttempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; [or]18 Pa. C.S. §2702(a)(1)-(2).
(2) [A]ttempts to cause or intentionally, knowingly or recklessly causes serious bodily injury to any of the officers, agents, employees or other persons enumerated in subsection (c) or to an employee of an agency, company or other entity engaged in public transportation, while in the performance of duty[.]
"Police officer" is specifically included in subsection (c). 18 Pa. C.S. §2702(c)(1). --------
The Board's denial of credit for Moody's time while at liberty on parole is not an abuse of the Board's discretion because it had no discretion to grant time for liberty on parole, given that he was convicted and sentenced for aggravated assault of police officers, a crime for which the Code specifically requires the denial of credit.
Accordingly, the Board's determination is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 15th day of April, 2015, the order of the Pennsylvania Board of Probation and Parole dated June 18, 2014, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge