Opinion
No. 880 C.D. 2014
01-08-2015
Leander Pierce, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Leander Pierce (Pierce) petitions for review from a final determination of the Pennsylvania Board of Probation and Parole (Board) that recalculated his parole eligibility date as February 26, 2015.
This Court's review is limited to determining whether the Board's findings are supported by substantial evidence, are in accordance with the law, and whether constitutional rights have been violated. Krantz v. Pennsylvania Board of Probation and Parole, 483 A.2d 1044 (Pa. Cmwlth. 1984). This Court will interfere with the Board's exercise of administrative discretion where it has been abused or exercised in an arbitrary or capricious manner. Green v. Pennsylvania Board of Probation and Parole, 664 A.2d 677 (Pa. Cmwlth. 1995).
Pierce was effectively sentenced on July 24, 2007, to a term of one to three years for manufacture/sale/deliver or possession with intent to deliver drugs, to a term of one to three years for criminal conspiracy regarding drugs, to a term of one to three years for the sale or transfer of firearms to an ineligible person, and to a term of one to three years for criminal conspiracy regarding firearms to be served consecutively for a total term of four to twelve years. Pierce was also sentenced concurrently to a term of two years six months to five years for a violation of probation. Pierce was released on parole on August 2, 2011.
On August 29, 2012, the Collingdale Police Department in Delaware County arrested Pierce and charged him with driving under the influence, possession of a controlled substance or metabolite (first offense), possession of a controlled substance by person not registered, manufacture, delivery or possession with intent to manufacture or deliver drugs, and the use/possession of drug paraphernalia. On August 29, 2012, the Board entered a warrant to commit and detain Pierce.
In a decision mailed October 19, 2012, and recorded October 18, 2012, the Board recommitted Pierce as a technical parole violator to serve nine months backtime for leaving the district without permission and for failure to successfully complete/attend an outpatient drug/alcohol program pending the resolution of his outstanding criminal charges.
On January 7, 2013, the Court of Common Pleas of Delaware County (common pleas court) convicted Pierce of possession with intent to deliver and sentenced him to a term of eleven months fifteen days to twenty-three months in the Delaware County Prison. Pierce was concurrently sentenced to a term of three days to six months for driving under the influence, Tier 3, First Offense.
In a decision mailed March 28, 2013, and recorded March 27, 2013, the Board recommitted Pierce to serve eighteen months backtime as a convicted parole violator concurrent with the backtime for the technical violations when available pending the parole from or completion of the Delaware County sentence.
Pierce petitioned for administrative relief and explained that he waived his revocation hearing on the advice of his probation officer and ended up receiving a longer recommitment period than he anticipated. The Board found that the recommitment ordered was within the presumptive range for the offenses for which Pierce was convicted and denied Pierce's request. This ruling is not before this Court. --------
In a decision dated July 16, 2013, the Board established Pierce's maximum date as June 1, 2021, and that he was not eligible for reparole until December 10, 2014.
By order dated August 26, 2013, the common pleas court ordered Pierce be paroled to the Board's detainer.
In a decision recorded October 10, 2013, and mailed October 11, 2013, the Board changed Pierce's parole eligibility date to February 26, 2015, and his maximum date to August 17, 2021.
Pierce petitioned for administrative relief and asserted:
I am appealing this due to the calculations is [sic] incorrect. My first green sheet calculations was [sic] correct but the second green sheet is incorrect. I was sentenced on January 7, 2013 to 11½ to 23 months on Delaware County time in which I served until June 5, 2013 (good time earned at 6 days per months which
equals 69 days) so I served 9½ months. With this being said on June 5, 2013 my 18 month technical violation started and should end on December 10, 2014.Request for Administrative Relief, October 23, 2013, at 1; Certified Record (C.R.) at 74.
Please review this appeal and the enclosed copies of my two green sheets and my status sheet which shows the calculations of time and when I should be eligible for parole (December 10, 2014).
On November 6, 2013, Pierce again sought administrative relief and alleged that he was released from the Delaware County Correctional Facility on June 10, 2013, as the initial recommitment notice stated. In the second recommitment mailed October 11, 2013, the date for his return to state custody was listed as August 26, 2013. Pierce asserted that he was entitled to between sixty-nine and seventy-six days of credit based on the discrepancy in the dates.
The Board denied Pierce's request:
The Board paroled you from a state correctional institution on August 2, 2011 with a max sentence date of July 24, 2019. This means you had a total of 2913 days remaining on your sentence at the time of parole. In light of your recommitment as a convicted parole violator, the Board was authorized to recalculate your sentence to reflect that you received no credit for the period you were at liberty on parole. . . . This means you still had 2913 days remaining on your sentence based on your recommitment.
On August 29, 2012, the Board lodged its detainer against you. On that same date, authorities charged you for new criminal offenses that were docketed in the Court of Common Pleas of Delaware County at CP# 6494-
2012. The record reflects that you did not post bail, nor did you allege that you posted bail. On January 7, 2013, you pled guilty to the new criminal charges, and the court sentenced you to a new term of imprisonment to be served in the Delaware County Prison on that same day. You were subsequently paroled from your county prison sentence by court order, effective August 26, 2013.Board Decision, April 22, 2014, at 1-2; C.R. at 93-94.
Based on these facts, the Board did not give you any credit for the period you were incarcerated from August 29, 2012 to August 26, 2013 because you were not incarcerated solely on the Board detainer for that period. . . . Credit for that time period should be applied to your new sentence. This means you still had 2913 days remaining on your sentence.
The Prisons and Parole Code provides that convicted parole violators who are paroled from a state correctional institution and then receive another sentence to be served in a county prison must serve the new sentence first. . . . Thus, you could not become available to commence service of your original sentence until your were released from our new sentence. This did not occur until you were paroled on August 26, 2013. Adding 2913 days to that date yields a new maximum sentence date of August 17, 2021. (Citations omitted).
Pierce contends that he completed his Delaware County sentence on June 5, 2013, and was transported to the State Correctional Institution at Graterford on June 10, 2013, to begin serving his eighteen months backtime. He asserts that he should be eligible for parole as of December 10, 2014.
Section 6138(a)(5) of the Prisons and Parole Code, 61 Pa.C.S. §6138(a)(5), provides that if a parolee is convicted of a new crime, the sentence for the new conviction shall precede the commencement of the balance of the sentence originally imposed subject to certain exceptions not applicable here.
Pierce was convicted and sentenced to a term of eleven and one-half to twenty-three months in the Delaware County Correctional Facility on January 7, 2013. Although Pierce asserts that he completed the sentence on June 5, 2013, due to credit for good behavior, the record reflects that the common pleas court did not parole him to the Board's detainer until August 26, 2013. At that point, Pierce became available to serve the eighteen months backtime as a convicted parole violator. Adding eighteen months to August 26, 2013, yields a parole eligibility date of February 26, 2015. That is the date the Board calculated. The Board did not err.
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 8th day of January, 2015, the order of the Pennsylvania Board of Probation and Parole in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge