Opinion
No. 1414 C.D. 2013
05-13-2014
Hector Morales, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Hector Morales (Petitioner) petitions for review of the July 22, 2013 order of the Pennsylvania Board of Probation and Parole (Board) denying his administrative appeal and his petition for administrative review and affirming its previous decision to recommit Petitioner as a convicted parole violator. We affirm.
On March 5, 1996, Petitioner was sentenced to a term of incarceration of two years, nine months to five years, six months, with a minimum sentence date of August 13, 1998, and a maximum sentence date of May 13, 2001. On August 18, 1998, the Board released Petitioner on parole. On November 24, 1999, Petitioner was arrested for possession of controlled substances and drug paraphernalia. Subsequently, the Board declared Petitioner delinquent effective November 29, 1999. While delinquent, the Delaware County Court of Common Pleas (trial court) issued a bench warrant and Petitioner's bail was forfeited on December 14, 2000. (Certified Record (C.R.) at 1, 4-10, 17, 20, 45.)
Although the record does not contain the exact date, we infer from Petitioner's bail forfeiture that he was released on bail subsequent to his November 24, 1999 arrest. Petitioner was never tried regarding his 1999 arrest.
On July 4, 2011, Petitioner was arrested for possession of a controlled substance, manufacture of a controlled substance, possession of drug paraphernalia, and providing false identification to a law enforcement officer. That same day, the Board was notified of the arrest and lodged a warrant to commit and detain Petitioner. Petitioner failed to post bail for his 2011 arrest and remained confined in county prison on both the Board's July 4, 2011 warrant and his 2011 arrest. On July 5, 2011, the trial court held a hearing regarding Petitioner's 2000 bench warrant. That same day, the trial court issued an order rescinding the bench warrant and set Petitioner's bail. (C.R. at 11-18, 42, 46, 51, 65.)
By decision dated October 3, 2011, the Board recommitted Petitioner as a technical parole violator, when available, pending resolution of his new criminal charges. The Board changed Petitioner's maximum sentence date from May 13, 2001, to December 16, 2012, based on added delinquency time. On February 1, 2012, Petitioner was found guilty on all charges from his 2011 arrest. On May 29, 2012, Petitioner was sentenced to a nine to twenty-year term of confinement in a state correctional institution in relation to his 2011 convictions. On that same day, Petitioner pleaded guilty to a charge stemming from his 1999 arrest and was sentenced to an eighteen to thirty-six-month term of confinement to be served consecutively with his sentence for his 2011 convictions. (C.R. at 12-20, 43, 53, 57.)
The Board notified Petitioner of its intent to hold a revocation hearing based on these convictions. However, Petitioner signed a waiver regarding his right to a revocation hearing, counsel, and a panel hearing, and therein voluntarily admitted to convictions in relation to his 1999 and 2011 arrests. By decision dated July 31, 2012, the Board recommitted Petitioner as a convicted parole violator, when available, pending his return to a state correctional institution. By decision dated March 7, 2013, mailed March 14, 2013, the Board referred to its July 31, 2012 decision and established Petitioner's new maximum sentence date as February 22, 2015, and his reparole review date as November 29, 2013. (C.R. at 21-22, 35-40, 64.)
On March 25, 2013, Petitioner filed an administrative appeal, asserting that the Board lacked authority to recalculate his maximum sentence date. The Board considered Petitioner's appeal to include a request for administrative review of the Board's recalculation decision mailed March 14, 2013. (C.R. at 66-71.) By notice of decision dated July 22, 2013, the Board denied Petitioner's administrative appeal, stating that the panel appropriately used its discretion in recommitting Petitioner as a convicted parole violator. Citing section 6138(a)(2) of the Prisons and Parole Code (Code), 61 Pa.C.S. §6138(a)(2), the Board stated that Petitioner, as a convicted parole violator, automatically forfeited credit for all time served while on parole. Citing Gaito v. Pennsylvania Board of Probation and Parole, 412 A.2d 568 (Pa. 1980), the Board also stated that Petitioner is not entitled to any backtime served credit because he was never incarcerated solely on the Board's warrant. Moreover, citing Jackson v. Pennsylvania Board of Probation and Parole, 781 A.2d 239 (Pa. Cmwlth. 2001), the Board explained that the Code mandates that any time out on parole be added to Petitioner's original maximum sentence date as a recommitted convicted parole violator.
In the same notice of decision, the Board denied what it considered to be Petitioner's petition for administrative review of the recalculation of his maximum sentence date, noting that when Petitioner was originally released on parole on August 18, 1998, he had 999 days remaining on his original sentence. The Board also noted that Petitioner was not released to Pennsylvania authorities until May 29, 2012, and that the Board's decision dated July 31, 2012, recommitted Petitioner as a convicted parole violator. For the same reasons cited above, the Board concluded that Petitioner was not entitled to any credit for time served on parole or in custody prior to May 29, 2012. The Board determined that it correctly applied the remaining 999 days of his original maximum sentence date to May 29, 2012, the day that he first became available to Pennsylvania authorities, to reach the recalculated maximum sentence date of February 22, 2015. Thus, the Board affirmed its March 7, 2013 decision.
On August 19, 2013, Petitioner filed with this Court a pro se petition for review from the Board's July 22, 2012 order. Petitioner asserts that the Board erred in not crediting his time spent in custody from July 4, 2011, to May 29, 2012, against his maximum sentence date. Petitioner also asserts that the Board lacks the authority to change his original maximum sentence date.
By order dated August 27, 2013, we appointed a public defender to represent Petitioner.
Our scope of review of an action of the Board is limited to determining whether any of the parolee's constitutional rights were violated, whether an error of law was committed, or whether the Board's findings are supported by substantial evidence. Harden v. Pennsylvania Board of Probation and Parole, 980 A.2d 691, 695 n.3 (Pa. Cmwlth. 2009). We will not interfere with a determination unless the Board has acted arbitrarily or plainly abused its discretion. Id.
We first address Petitioner's contention that only the courts have the authority to recalculate a sentence date. In relevant part, section 6138(a) of the Code provides as follows:
(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.61 Pa.C.S. §6138(a)(1)-(2) (emphasis added). At the time of Petitioner's recommitment, the Code mandated that Petitioner, as a convicted parole violator, shall not receive "credit for the time at liberty on parole." 61 Pa.C.S. §6138(a)(2). The clear language of the Code expressly authorizes the Board to extend Petitioner's maximum sentence date so that it includes this parole time. Gaito. Our Supreme Court addressed Petitioner's argument in Gaito, stating that when the Board "refuses to credit a convicted parole violator with time spent free on parole there is neither a usurpation of the judicial function of sentencing nor a denial of the procedural safeguards to which persons are entitled." Id. at 570. Thus, the Board properly exercised its authority in recalculating Petitioner's maximum sentence date.
(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.
Effective September 3, 2012, section 6138(a) of the Code was amended to give the Board discretion to award credit for time at liberty on parole. 61 Pa.C.S. §6138(a)(2)-(2.1). In this case, the Board recommitted Petitioner as a convicted parole violator on July 31, 2012, prior to the amendment, and referenced this date in its March 7, 2013 decision establishing Petitioner's new maximum sentence date. --------
Petitioner also argues that the Board erred in not crediting his time served from the date he was taken into custody on July 4, 2011, through May 29, 2012, against his original maximum sentence date. Time spent in custody shall be applied to sentences pursuant to section 6138(a)(4)-(5) of the Code as follows:
(4) The period of time for which the parole violator is required to serve shall be computed from and begin on the date that the parole violator is taken into custody to be returned to the institution as a parole violator.
(5) If a new sentence is imposed on the parolee, the service of the balance of the term originally imposed by a Pennsylvania court shall precede the commencement of the new term imposed in the following cases:
61 Pa.C.S. §6138(a)(4)-(5). The law is well settled 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 Board's detainer warrant. Gaito, 412 A.2d at 571; Armbruster v. Pennsylvania Board of Probation and Parole, 919 A.2d 348, 352 (Pa. Cmwlth. 2007).(i) If a person is paroled from a State correctional institution and the new sentence imposed on the person is to be served in the State correctional institution.
(ii) If a person is paroled from a county prison and the new sentence imposed upon him is to be served in the same county prison.
(iii) In all other cases, the service of the new term for the latter crime shall precede commencement of the balance of the term originally imposed.
Petitioner was arrested and detained on July 4, 2011, prior to his sentencing for his 1999 and 2011 convictions. However, the record reveals that Petitioner failed to meet his bail requirements for the 2011 arrest and was detained on both the Board's warrant and for his arrest on July 4, 2011. As both Petitioner's old and new sentences are to be served at a state correctional institution and as Petitioner was never incarcerated solely on the Board's warrant prior to May 29, 2012, Petitioner is not entitled to backtime served credit against his original sentence. 61 Pa.C.S. §6138(a)(4)-(5); Gaito. Thus, the Board properly recalculated his maximum sentence date to February 22, 2015, 999 days from May 29, 2012, the date when Petitioner was released to Pennsylvania authorities.
Because the Board has the authority to recalculate Petitioner's maximum sentence date, and in making that calculation to include time served while at liberty on parole, and because Petitioner was never incarcerated solely on the Board's warrant prior to May 29, 2012, the Board did not err in recalculating Petitioner's maximum sentence date to February 22, 2015.
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 13th day of May, 2014, the July 22, 2013 order of the Pennsylvania Board of Probation and Parole is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge