Opinion
No. 1510 C.D. 2011
05-22-2012
Gary Lee Peavley, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Gary Peavley (Petitioner) petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) that recalculated his maximum sentence date. Petitioner argues that the Board failed to credit his original state sentence with the time he served in Kentucky from the date of his Kentucky parole revocation until he was recommitted by the Board. We affirm.
On April 16, 2008, Petitioner was paroled from his original 15-year state sentence, with a recalculated maximum sentence date of February 20, 2012. (Record Item 4 (R. Item), Board Action: Order to Release, November 28, 2007, Certified Record (C.R.) at 57, 58.) Petitioner had a detainer from the Commonwealth of Kentucky for an October 7, 2005, charge for traffic in controlled substance within 1,000 yards of a school and was held pending extradition. (R. Item 4, Board Action: Notice of Board Decision C.R. at 54; R. Item 9, Supervision History, November 14, 2010, C.R. at 72.) Kentucky declined to extradite, the detainer was lifted, and on May 13, 2008, Kentucky accepted parole supervision of Petitioner and he returned to Kentucky voluntarily. (R. Item 9, Supervision History, November 14, 2010, C.R. at 72.) Petitioner was arrested for the 2005 offense by Kentucky authorities on November 28, 2008, and subsequently convicted, for which he was sentenced to a 12-month term of probation to be served concurrently with his Pennsylvania sentence. (Id.)
Supervision of Petitioner's Pennsylvania parole in Kentucky was per the Interstate Compact for Adult Offender Supervision, an agreement entered into by the States that governs the movement of parolees and probationers among the States. See Interstate Compact for the Supervision of Adult Offenders, Act of August 11, 2009, P.L. 147, 61 Pa. C.S. §§ 7111-7115; U.S. Const., Art. I, § 10, cl. 3.
On October 10, 2009, Petitioner was arrested in Kentucky for driving while under the influence (DUI). (R. Item 6, Notice of Charges and Hearing, October 24, 2010, C.R. at 61.) Petitioner, on October 16, 2009, pled guilty to the amended charge of reckless driving. (Id.) Petitioner was arrested again for a DUI on November 8, 2009. (R. Item 6, Notice of Charges and Hearing, October 24, 2010, C.R. at 61; R. Item 9, Supervision History, November 14, 2010, C.R. at 72.) On November 23, 2009, the Barren County Circuit Court of Kentucky revoked Petitioner's probation for the 2005 offense and sentenced him to serve a new 12-month term of total confinement. (R. Item 9, Supervision History, November 14, 2010, C.R. at 72.) On December 3, 2009, the Board filed a detainer with the Kentucky authorities. (R. Item 5, Warrant for Arrest of Paroled Prisoner, C.R. at 60.)
Petitioner pled guilty to the second DUI on April 1, 2010, and he was sentenced to a term of 60-days confinement, for which he was credited with time served. (R. Item 6, Notice of Charges and Hearing, October 24, 2010, C.R. at 61; R. Item 9, Supervision History November 14, 2010, C.R. at 72.) Petitioner was not released, but remained in county prison in Kentucky, serving the remainder of his 12-month term of total confinement imposed as a result of violating his Kentucky probation. (R. Item 9, Supervision History November 14, 2010, C.R. at 72.) On October 21, 2010, Kentucky authorities notified the Board that Petitioner was scheduled for release from their custody on November 6, 2010. (Id.) On November 6, 2010, Petitioner was taken into custody by the Board and returned to the State Correctional Institution at Greene. (R. Item 11, Department of Corrections Moves Report, C.R. at 79.)
On November 8, 2010, Petitioner waived a violation and revocation hearing and signed an admission form, admitting to all parole violations. By a combined recommitment and recalculation order recorded January 14, 2011, the Board, relying on his admissions, recommitted Petitioner as a direct parole violator for 9-months and as a technical parole violator for 6-months. (R. Item 12, Notice of Board Decision, January 14, 2011, C.R. at 82.) Petitioner's maximum sentence date was recalculated as September 11, 2014. (Id.)
Specifically, Petitioner admitted to: (1) violation of condition 4 of his parole by failing to comply with all municipal, county, state, and Federal criminal laws; (2) violation of condition 7 of his parole by failing to complete drug/alcohol treatment and failure to abstain from the consumption or possession of alcohol; and (3) a new criminal charge in the Commonwealth of Kentucky for a DUI. (R. Item 8, Waiver of Violation Hearing and Admission Form, November 8, 2010, C.R. at 66; R. Item 9, Technical Violation Arrest Report, November 14, 2010, C.R. at 69; R. Item 9, Criminal Arrest and Disposition Report, November 14, 2010, C.R. at 70-71.)
Petitioner filed a petition for administrative review of the recalculation order with the Board, and by a determination mailed July 13, 2011, the Board affirmed its earlier decision. An appeal to this Court followed.
In review of Petitioner's appeal from the Board's order affirming Petitioner's recalculated maximum sentence date, this Court's scope is limited to determining whether the necessary findings of fact were supported by substantial evidence, whether errors of law were made, and whether constitutional rights were violated. Freeman v. Pennsylvania Board of Probation and Parole, 957 A.2d 356, 358 n.2 (Pa. Cmwlth. 2008.)
Petitioner asserts that time should be credited against his maximum recalculation date for the period that he was confined in a Kentucky prison, between April 1, 2010 and November 6, 2010, the date when the Board took him into custody and returned him to Pennsylvania. Petitioner reasons that when he was paroled by the Board, the Board was cognizant of the outstanding 2005 offense in Kentucky. He asserts the Board paroled him with the understanding that any action taken by Kentucky on the old offense would not count as a violation of his Pennsylvania parole. He acknowledges that the period of incarceration in Kentucky from November 23, 2009 until April 1, 2010, counted against his second DUI in Kentucky, because he was sentenced to time served. However, Petitioner contends that the period from April 1, 2010 to November 6, 2010 must be counted against both his Kentucky probation revocation for the 2005 offense and his Pennsylvania maximum term, because the Board paroled him with the implicit assurance that action taken by Kentucky on the 2005 offense would not have any bearing on his Pennsylvania term. We disagree.
In providing for violations of terms of parole by technical violators, the Prisons and Parole Code (Code) states:
Act of August 11, 2009, P.L. 147, as amended, 61 Pa. C.S. §§101-6309.
(2) If the parolee is so recommitted, the parolee shall be given credit for the time served on parole in good standing but with no credit for delinquent time and may be reentered to serve the remainder of the original sentence or sentences.61 Pa. C.S. § 6138(c). The Code makes clear that Petitioner is not entitled to credit for delinquent time and that the Board may stop the calendar when delinquent conduct occurs, to be started again once the Board has taken the parolee into custody. Additionally, we have established that a parolee is not entitled to credit time incarcerated against the sentence from which he has been paroled, when that time was spent confined due to a different sentence. Obringer v. Pennsylvania Bd. of Probation and Parole, 547 A.2d 449 (Pa. Cmwlth. 1988); Gaito v. Pennsylvania Bd. of Probation and Parole, 488 Pa. 397, 412 A.2d 568 (1980). Here, Petitioner was confined in Kentucky, not because of his original Pennsylvania sentence, but because Kentucky chose to revoke the Kentucky sentence of probation in light of his two 2009 offenses and instead, to sentence Petitioner to 12-months of total confinement.
(3) The remainder shall be computed by the board from the time the parolee's delinquent conduct occurred for the unexpired period of the maximum sentence imposed by the court without credit for the period the parolee was delinquent on parole. The parolee shall serve the remainder so computed from the date the parolee is taken into custody on the warrant of the board.
We have also established that "a formal declaration of delinquency is not needed to deny a [technical parole violator] credit for time spent in violation of his parole." Ranson v. Pennsylvania Bd. of Probation and Parole, 568 A.2d 1334, 1335 (Pa. Cmwlth. 1990). From April 1, 2010 until November 6, 2010, Petitioner was in violation of his Pennsylvania parole. Petitioner makes much of the fact that the original Kentucky charge for which he was incarcerated was from 2005, prior to his Pennsylvania parole, but this fact is irrelevant. As of October 2009, Petitioner was in technical violation of his Pennsylvania parole for violating conditions 4 and 7 of his parole. 61 Pa. C.S. § 6138(c). On April 1, 2010, Petitioner became a convicted parole violator, following his guilty plea to the offense of reckless driving. 61 Pa. C.S. § 6138(a). Petitioner's time in Kentucky prison was not time served in good standing, but time served in violation of his Pennsylvania parole, and we are assured of this by Petitioner's own admissions. (R. Item 8, Waiver of Violation Hearing and Admission Form, November 8, 2010, C.R. at 66.)
An exception to the general rule that the Board does not have to credit incarcerated time against a parolee's original sentence exists when a parolee is confined solely due to the Board's detainer; in such a situation, the time served will be credited against the sentence from which the parolee has been paroled. See McCloud v. Pennsylvania Bd. of Probation and Parole, 834 A.2d 1210, 1213 (Pa. Cmwlth. 2003). Petitioner does not fall within this exception. Petitioner was confined in Kentucky after April 1, 2010, because the two offenses he committed in November 2009 led to the revocation of his Kentucky probation. Petitioner was not confined solely due to the Board's detainer and, during Petitioner's confinement in Kentucky, he was never in the Board's custody.
Although the sentence of 12-months' probation that Petitioner originally received from Kentucky in November 2008 for the 2005 offense ran concurrently with Petitioner's Pennsylvania parole, this was a sentencing decision made by Kentucky, and Kentucky's choice to sentence him at that time to a concurrent term has no bearing on the actions of the Board. See Vance v. Pennsylvania Bd. of Probation and Parole, 741 A.2d 838, 840-841 (Pa. Cmwlth. 1999). In Walker v. Pennsylvania Board of Probation and Parole, 729 A.2d 634, 638 (Pa. Cmwlth. 1999), this Court found that although Pennsylvania could not sentence a parolee to serve a new sentence concurrent with backtime owed on an original sentence, we had to respect the sentence imposed by Maryland authorities, which sentenced a parolee to serve an unsuspended portion of his Maryland sentence concurrent with backtime served in Pennsylvania. See 61 Pa. C.S. § 6138(a). In Vance, we held that even though a New Jersey sentencing court had stated that a parolee's New Jersey sentence should run concurrently with his Pennsylvania sentence, the parolee was not entitled to credit for time served in New Jersey, regardless of the fact that if he had served that time in Pennsylvania, New Jersey was free to credit the Pennsylvania time towards his New Jersey sentence. 741 A.2d at 840-841; 61 Pa. C.S. § 6138(a). In discussing the limits of Walker's application to the situation presented in Vance, we stated:
Applying the principles of Walker to the instant case, the authorities in New Jersey were free to grant Petitioner credit for backtime served in the Commonwealth against his new sentence in New Jersey. However, Petitioner now seeks to extend our holding in Walker to require that the Commonwealth grant him credit for time served
outside the Commonwealth's jurisdiction. Neither Walker nor the Full Faith and Credit Clause[] mandate such a result.
Vance, 741 A.2d at 840-841.
U.S. Const., Art. IV, § 1. --------
U.S. Const., Art. IV, § 1. --------
The same principles apply here. If Kentucky had returned Petitioner to Pennsylvania, then time served in Pennsylvania could be credited towards his Pennsylvania sentence, and Kentucky could have credited that time as it chose to or not at all. Yet contrary to Petitioner's contention, the Board is not bound by decisions made by the Kentucky authorities, concerning Kentucky offenders, held in Kentucky prisons. Cf. Griffin v. Pennsylvania Department of Corrections, 862 A.2d 152, 156 (Pa. Cmwlth. 2004), aff'd, 590 Pa. 651, 915 A.2d 639 (2009) (holding that a federal court does not have the power to direct that a federal sentence served in a federal prison shall run concurrently with a state sentence).
The Board did not err in failing to credit the time Petitioner spent confined in Kentucky, due to new offenses that violated his Kentucky probation, against the time Petitioner owed on his original Pennsylvania sentence. Accordingly, the order of the Board is affirmed.
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 22nd day of May, 2012, the order of the Pennsylvania Board of Probation and Parole recorded July 13, 2011, is AFFIRMED.
/s/ _________
JAMES GARDNER COLINS, Senior Judge