Opinion
No. 1262 C.D. 2013
04-17-2014
Shihed Tomoney, 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 SENIOR JUDGE FRIEDMAN
Shihed Tomoney petitions for review of the July 12, 2013, order of the Pennsylvania Board of Probation and Parole (Board), which denied his administrative appeal from the Board's February 28, 2013, decision setting July 28, 2015, as his parole violation maximum date. We affirm.
On April 29, 2003, Tomoney received a 3- to 6-year sentence for manufacture/sale/delivery or possession with intent to manufacture or deliver a controlled substance. (C.R. at 1.) His original maximum sentence date was April 29, 2009. (Id.) On February 8, 2006, the Board granted Tomoney parole. (Id. at 7.) Tomoney was released from custody on May 3, 2006. (Id. at 68.)
Tomoney is currently an inmate at the State Correctional Institution at Rockview.
This sentence ran concurrently with a 1- to 2-year sentence that Tomoney received on June 6, 2002. (C.R. at 2.)
The Philadelphia Police Department arrested Tomoney on December 2, 2008, for unlawfully possessing a controlled substance and confined Tomoney to the Philadelphia County Prison. (Id. at 16.) Tomoney did not post bail. Because of the new charges, the Board lodged a warrant and detainer on December 3, 2009. On December 21, 2009, Tomoney pled guilty to the new charges and received an additional 9- to 36-month sentence. (Id. at 50.) On May 31, 2011, the Board recommitted Tomoney as a convicted parole violator (CPV) to serve 24 months' backtime when available, pending release from his new county prison sentence. (Id. at 57.)
On January 12, 2012, personnel at the Philadelphia County Prison erroneously released Tomoney from custody. (See Tomoney's Br. at 19; C.R. at 85.) On January 13, 2013, Tomoney was rearrested pursuant to a Board warrant. On February 28, 2013, the Board, referencing its May 31, 2001, order imposing 24 months of backtime, calculated Tomoney's parole violation maximum sentence date as July 28, 2015. (C.R. at 71.) The Board did not credit Tomoney with the time he spent out of custody between January 12, 2012, and January 13, 2013.
Although the record contains no explanation for this oversight, it appears that personnel at the Philadelphia County Prison erroneously released Tomoney from custody instead of turning him over to the Board's detainer. (See Tomoney's Br. at 19; C.R. at 85.)
On March 27, 2013, Tomoney filed an administrative appeal challenging the Board's order. (Id. at 72-79.) On July 12, 2013, the Board affirmed the decision. (Id. at 85.) Tomoney filed a petition for review with this court.
Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether the findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
Tomoney argues that the Board violated section 6138(a)(2.1) of the Prisons and Parole Code (Code), 61 Pa. C.S. §6138(a)(2.1), by failing to consider whether to award him credit for time spent at liberty on parole in computing his maximum parole violation date of July 28, 2015. We disagree.
Tomoney acknowledges that we cannot order the Board to exercise its discretion in a particular fashion, but he asks that we reverse the Board's order and remand for a determination of whether he should receive credit for the time spent on parole. (See Tomoney's Br. at 23.)
On September 4, 2012, the Act of July 5, 2012, P.L. 1050 (Act 122) went into effect, adding section 6138(a)(2.1) of the Code. Act 122 does not apply retroactively to recommitments that occurred prior to its effective date. See Welshimer v. Pennsylvania Board of Probation and Parole, 83 A.3d 277, 279 (Pa. Cmwlth. 2014) (noting that Act 122's automatic-reparole provision is inapplicable to parole violators recommitted prior to Act 122's effective date).
Section 6138(a) of the Code states in pertinent part as follows:
(1) A parolee under the jurisdiction of the [B]oard 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 [B]oard be recommitted as a parole violator.61 Pa. C.S. §6138(a)(1), (2) & (2.1).
(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, except as provided under paragraph (2.1), shall be given no credit for the time at liberty on parole.
(2.1) The [B]oard may, in its discretion, award credit to a parolee recommitted under paragraph (2) for the time spent at liberty on parole . . . .
The Board recommitted Tomoney as a CPV on May 31, 2011, before Act 122 became effective. Therefore, the Board lacked discretion to award Tomoney credit for time spent at liberty on parole. Moreover, on February 28, 2013, the Board did not recommit Tomoney; rather, the Board merely recalculated Tomoney's maximum sentence date based upon the May 31, 2011, recommitment. Thus, section 6138(a)(2.1) of the Code did not impact Tomoney's reentry into confinement.
"Recommitment is an administrative determination that the parolee should be reentered to serve all or part of the unexpired term of his original sentence." Rivenbark v. Pennsylvania Board of Probation and Parole, 509 Pa. 248, 253, 501 A.2d 1110, 1113 (1985).
The Code, as it existed in 2011, stated: "(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." Former Section 6138(a)(2) of the Code, 61 Pa. C.S. §6138(a)(2). --------
Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 17th day of April, 2014, we hereby affirm the July 12, 2013, order of the Pennsylvania Board of Probation and Parole.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge