Opinion
1029 C.D. 2020
08-31-2021
Dwayne D. Underwood a/k/a Derrick Royal, Petitioner v. Pennsylvania Parole Board, Respondent
OPINION NOT REPORTED
Submitted: April 23, 2021
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge HONORABLE ANNE E. COVEY, Judge HONORABLE J. ANDREW CROMPTON, Judge
MEMORANDUM OPINION
P. KEVIN BROBSON, President Judge
Petitioner Dwayne D. Underwood a/k/a Derrick Royal (Underwood) petitions for review of a final determination of the Pennsylvania Parole Board (Board). The Board denied Underwood's request for administrative relief, thereby rejecting his claim that the Board erred by (1) failing to hold a timely revocation hearing and (2) permitting him to serve his new federal sentence prior to serving the balance of his original Pennsylvania sentence in violation of Section 6138(a)(5.1) of the Prisons and Parole Code (Parole Code), 61 Pa. C.S. § 6138(a)(5.1). For the reasons set forth below, we affirm the Board's final determination.
In his petition for review, Underwood indicates that he was appealing from the Board's April 7, 2020 decision, wherein the Board recommitted Underwood as a convicted parole violator to serve 24 months' backtime. The Board's April 7, 2020 decision is not, however, a final determination. On May 29, 2020, Underwood filed an administrative appeal from the Board's April 7, 2020 decision. The Board thereafter issued a final determination, affirming Underwood's recommitment as a convicted parole violator on October 20, 2020. Thus, we will treat this appeal as an appeal from the Board's October 20, 2020 final determination, not the Board's April 7, 2020 decision.
In 1994, the Philadelphia County Court of Common Pleas convicted Underwood of robbery and criminal conspiracy and sentenced him to serve an aggregate prison term of 1½ to 15 years with a minimum sentence date of December 18, 1995, and a maximum sentence date of June 18, 2009 (Original Pennsylvania Sentence). (Certified Record (C.R.) at 1, 5.) The Board granted Underwood parole from his Original Pennsylvania Sentence and released him from confinement to a Community Corrections Center on April 15, 1998. (Id. at 3-5.) Approximately one year later, on May 18, 1999, the Philadelphia Police Department arrested Underwood and charged him with aggravated assault and other related offenses. (Id. at 22.) At the time of his arrest, Underwood was in possession of drugs and a loaded weapon. (Id.) Thereafter, by decision dated July 29, 1999, the Board declared Underwood delinquent effective May 28, 1999, for his failure to report for his scheduled appointment with parole supervision staff. (Id. at 9-10.)
On November 9, 1999, the Federal Bureau of Alcohol, Tobacco, and Firearms assumed prosecution of the drug and firearm-related charges stemming from Underwood's May 18, 1999 arrest. (Id. at 25.) The next day, the Board issued a warrant to commit and detain Underwood. (Id. at 11.) On January 6, 2000, Underwood was found guilty of possession of a controlled substance with the intent to deliver-cocaine base/crack, possession of a controlled substance with the intent to deliver-marijuana, possession of a firearm in furtherance of a drug trafficking crime, and possession of a firearm by a convicted felon. (Id. at 12, 24.) Thereafter, on May 10, 2000, the United States District Court for the Eastern District of Pennsylvania sentenced Underwood to serve an aggregate prison term of 270 months (New Federal Sentence). (Id. at 12-13.) Underwood was committed to the custody of the Federal Bureau of Prisons and transferred to United States Penitentiary Allenwood (USP Allenwood) on May 31, 2000. (Id. at 13.) On June 29, 2000, the Board issued another warrant to commit and detain Underwood. (Id. at 19.) Given, however, that Underwood was committed to USP Allenwood to serve his New Federal Sentence, the Federal Bureau of Prisons returned the warrant to the Board on July 11, 2000. (Id. at 20.) In response thereto, the Board filed a detainer against Underwood with the Federal Bureau of Prisons on July 29, 2000. (Id. at 21.) The Board, however, did not receive official verification of Underwood's federal conviction until July 26, 2005. (Id. at 12, 25.)
On September 10, 2001, a Pennsylvania jury found Underwood guilty of aggravated assault. (Id. at 23, 43.) The Board received official verification of Underwood's new Pennsylvania conviction on December 6, 2001. (Id. at 22.) Subsequent thereto, on March 26, 2002, the Philadelphia County Court of Common Pleas sentenced Underwood to serve a prison term of 5 to 10 years. (Id. at 101.) Because Underwood was required to attend the pre-trial, trial, post-trial, and sentencing proceedings associated with his new Pennsylvania criminal charges, the Federal Bureau of Prisons transferred Underwood on several occasions to Philadelphia County on multiple writs. (Id. at 139.) As a result, Underwood was temporarily transferred to Philadelphia County from November 27, 2000, to December 18, 2000; January 2, 2001, to January 8, 2001; August 27, 2001, to October 5, 2001; October 22, 2001, to November 5, 2001; January 14, 2002, to February 11, 2002; and March 25, 2002, to April 8, 2002. (Id. at 137, 139.)
While the writs themselves are not included in the Certified Record, it appears from the record that the purpose of the transfers was to enable Underwood to appear before the Philadelphia County Court of Common Pleas in connection with his new Pennsylvania criminal charges. (See C.R. at 43-51, 97-105, 130-39.)
The Federal Bureau of Prisons returned Underwood to a state correctional institution on December 17, 2019. (Id. at 42.) Shortly thereafter, the Board provided Underwood with two notices of charges based upon his new Pennsylvania conviction and his federal conviction, which informed Underwood of his upcoming parole revocation hearing scheduled for February 21, 2020. (Id. at 32-34.) The Board held Underwood's panel revocation hearing on February 21, 2020. (Id. at 59-83.) By decision dated April 7, 2020, the Board recommitted Underwood as a convicted parole violator to serve 24 months' backtime. (Id. at 128.) The Board also recalculated Underwood's maximum sentence date as February 19, 2031. (Id. at 126.)
Underwood filed a request for administrative relief, wherein he challenged the timeliness of his revocation hearing and the order in which he served the balance of his Original Pennsylvania Sentence and his New Federal Sentence. (Id. at 130-34.) The Board denied Underwood's request for administrative relief, reasoning:
The Board recommitted you as a convicted parole violator, in part, for the new conviction in the United States District Court [for] the Eastern District of Pennsylvania at docket number 1999-717 under alias Dwayne Underwood. The record reflects that you were found guilty of the new offenses and sentenced on May 10, 2000, and you were returned on December 17, 2019[, ] to a state correctional institution ("SCI") for the first time since your April 15, 1998 release on parole. There is no indication that you waived your right to a panel hearing prior to your return to an SCI. Because you were confined outside the jurisdiction of the Pennsylvania Department of Corrections at the time of your conviction, the Board was required to hold the revocation hearing within 120 days of the date it received official verification of your return to an SCI. 37 Pa. Code § 71.4(1)(i). In this case, you were returned to an SCI on December 17, 2019, and the Board conducted a panel revocation hearing 66 days later on February 21, 2020. Therefore, the revocation hearing was timely.(Id. at 166.) Underwood then petitioned this Court for review.
On appeal, Underwood argues that the Board's decision to recommit him as a convicted parole violator was improper because the Board: (1) failed to hold his revocation hearing within 120 days after receiving official verification of his return to a state correctional institution as required by Section 71.4(1)(i) of the Board's regulations, 37 Pa. Code § 71.4(1)(i); and (2) violated Section 6138(a)(5.1) of the Parole Code by permitting him to serve the entirety of his New Federal Sentence prior to serving the balance of his Original Pennsylvania Sentence.
This Court's standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. 2 Pa. C.S. § 704.
We first consider Underwood's argument that the Board failed to hold a timely revocation hearing as required by Section 71.4(1)(i) of the Board's regulations. In support thereof, Underwood contends that the Board received official verification of his federal conviction on May 10, 2000, and he was thereafter returned to the custody of the Pennsylvania Department of Corrections on six separate occasions between November 2000 and March 2002 to appear before the Philadelphia County Court of Common Pleas in connection with his new Pennsylvania charges, conviction, and sentence. Underwood, therefore, suggests that the Board was required to hold his revocation hearing within 120 days of November 27, 2000, the date on which he was first returned to the Pennsylvania Department of Corrections' custody, but that the Board did not do so until April 7, 2020, nearly two decades later, in violation of Section 71.4(1)(i) of the Board's regulations. In response, the Board argues that Underwood did not return to a state correctional institution until December 17, 2019, when the Federal Bureau of Prisons released him to the Pennsylvania Department of Corrections' custody, and, therefore, Underwood's revocation hearing, which was held on February 21, 2020, was timely.
Pursuant to Section 71.4 of the Board's regulations, the Board must abide by the following procedures before a parolee can be recommitted as a convicted parole violator:
(1) A revocation hearing shall be held within 120 days from the date the Board received official verification of the plea of guilty . . . except as follows:
(i) If a parolee is confined outside the jurisdiction of the [Pennsylvania] Department of Corrections, such as . . . confine[d] in a Federal correctional institution . . . where the parolee has not waived the right to a revocation hearing[, ] . . . the revocation hearing shall be held within 120 days of the official verification of the return of the parolee to a State correctional facility.37 Pa. Code § 71.4 (emphasis added). Section 71.4(1)(i) of the Board's regulations, therefore, explicitly sets forth the dates on which the clock begins to run against the Board in order for it to hold a timely revocation hearing for a parolee who is confined in a Federal correctional institution-i.e., when the Board receives "official verification" that the parolee, who has been convicted on new criminal charges and has not waived his right to a revocation hearing, has returned to a state correctional institution and is, again, under the jurisdiction of the Pennsylvania Department of Corrections.
Here, Underwood received his federal conviction and New Federal Sentence and was thereafter committed to the custody of the Federal Bureau of Prisons and transferred to USP Allenwood. Underwood remained in the custody of the Federal Bureau of Prisons until December 17, 2019, when he was returned to a state correctional institution for the first time since his parole on April 15, 1998. While we acknowledge that Underwood was temporarily transferred by the Federal Bureau of Prisons to Philadelphia County on multiple writs to attend various proceedings in connection with his new Pennsylvania charges between November 2000 and March 2002, such writs did not interrupt the Federal Bureau of Prisons' jurisdiction over Underwood. See Morgan v. Pa. Bd. of Prob. & Parole, 814 A.2d 300, 303 (Pa. Cmwlth. 2003) ("When a prisoner is detained pursuant to a writ for the purposes of presenting him to the court on new criminal charges, the prisoner is 'considered to remain in the primary custody of the first jurisdiction until the first sovereign relinquishes jurisdiction over the person. The receiving sovereign . . . is, therefore, considered simply to be "borrowing" the prisoner from the sending sovereign for the purposes of indicting, arraigning, trying, and sentencing him.'" (quoting Ruggiano v. Reish, 307 F.3d 121, 125 n.1 (3d Cir. 2002))). In addition, it is important to recognize that Underwood was not confined within a state correctional institution during any of those temporary transfers. (See C.R. at 42.) Underwood, therefore, remained outside the jurisdiction of the Pennsylvania Department of Corrections until December 17, 2019. Pursuant to Section 71.4(1)(i) of the Board's regulations, the Board had 120 days from December 17, 2019-the date of the official verification of his return to a state correctional institution-to hold Underwood's revocation hearing. The Board held Underwood's revocation hearing on February 21, 2020-only 66 days after his return to the state correctional institution, which is well within the mandated 120-day requirement as set forth under Section 71.4(1)(i). Thus, the Board did not fail to hold a timely revocation hearing.
Next, we consider Underwood's argument that the Board violated Section 6138(a)(5.1) of the Parole Code by permitting him to serve the entirety of his New Federal Sentence prior to serving the balance of his Original Pennsylvania Sentence. In support thereof, Underwood suggests that the facts set forth in this Court's prior decision in Fumea v. Pennsylvania Board of Probation and Parole, 147 A.3d 610 (Pa. Cmwlth. 2016), are analogous and instructive. In response, the Board argues that Underwood's reliance on Fumea is misplaced because that decision was based on an October 27, 2010 amendment to Section 6138(a) of the Parole Code, and, prior to that amendment, parolees convicted of federal crimes were required to serve their new federal sentences before the balance of their original Pennsylvania sentences. The Board further argues that the facts of this case are clearly distinguishable from Fumea because, at all times prior to his return to a state correctional institution on December 17, 2019- including the dates on which he was transferred on writ to Philadelphia County- Underwood remained in the Federal Bureau of Prisons' custody.
Underwood's entire argument is premised on the application of Section 6138(a)(5.1) of the Parole Code to the facts and circumstances of his case. There is no question that Section 6138(a)(5.1) establishes that "[i]f the parolee is sentenced to serve a new term of total confinement by a Federal court . . ., the parolee shall serve the balance of the original term before serving the new term." Subsection (a)(5.1), however, was not added to Section 6138 until October 27, 2010, more than 10 years after Underwood received his New Federal Sentence and was committed to USP Allenwood. At the time that Underwood received his New Federal Sentence, the order in which he was to serve his sentences was determined not by Section 6138(a)(5.1) but, rather, by Section 21a(a) of the former Parole Act, the precursor to Section 6138(a)(5) of the Parole Code, which provided:
See Act of October 27, 2010, P.L. 931.
Act of August 6, 1941, P.L. 861, as amended, added by the Act of August 24, 1951, P.L. 1401, formerly 61 P.S. § 331.21a, repealed by the Act of August 11, 2009, P.L. 147.
The Parole Code, 61 Pa. C.S. §§ 101-6309, including Section 6138(a)(5), was not codified until August 11, 2009, and did not become effective until October 13, 2009.
If a new sentence is imposed upon such parolee, the service of the balance of said term originally imposed shall precede the commencement of the new term imposed in the following cases:
(1) If a person is paroled from any [s]tate penal or correctional institution under the control and supervision of the [Pennsylvania] Department of Justice and the new sentence imposed upon him is to be served in any such [s]tate penal or correctional institution.
(2) If a person is paroled from a county penal or correctional institution and the new sentence imposed upon him is to be served in the same county penal or correctional institution.
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.61 P.S. § 331.21a (repealed 2009). Applying Section 21a(a) of the former Parole Act, the governing law at the time that Underwood received his New Federal Sentence, it is clear that Underwood served his sentences in the proper order-his New Federal Sentence before the balance of his Original Pennsylvania Sentence.
The Pennsylvania Department of Justice was disbanded and later replaced by the Pennsylvania Department of Corrections. See Pennsylvania Department of Corrections website at https://www.cor.pa.gov/About%20Us/Pages/History.aspx (last visited August 30, 2021).
Underwood's reliance on this Court's prior decision in Fumea is similarly misplaced. First, our decision in Fumea was based, at least in part, on the application of Section 6138(a)(5.1) of the Parole Code. Fumea, 147 A.3d at 615 ("[T]here is no question that Section 6138(a)(5.1) prescribes the proper order in which [the parolee] must serve his sentences."). As explained more fully above, Section 6138(a)(5.1) does not apply to Underwood. Second, the facts of Fumea are distinguishable from the facts of this case. In Fumea, the parolee was arrested by federal authorities and posted a bond that same day. Fumea, 147 A.3d at 611. The Board, however, detained the parolee pending disposition of his new criminal charges until December 13, 2009, his original maximum date, when the Board released him but declared him delinquent for control purposes. Id. On July 8, 2011, a federal jury found the parolee guilty of conspiracy. Id. at 612. The parolee was sentenced to serve a prison term of 41 months on November 21, 2011. Id. That same day, the Board issued a warrant to commit and detain the parolee. Id. at 612, 616. Although a parole agent attended the sentencing, the parole agent did not take the parolee into custody, and the federal judge remanded the parolee to the custody of the Federal Bureau of Prisons. Id. at 612, 619-20. Based on these facts and the application of Section 6138(a)(5.1), we concluded that the Board did not hold a timely revocation hearing because the Board "offered no clear explanation . . . as to why [the Board] failed to take custody of [the parolee] while [the parolee] was still available to the Board at or before his federal sentencing, when [the Board] was undeniably aware of the conviction, an agent attended his sentencing, and the Board issued its detainer on the date of sentencing." Id. at 619-20. The facts of this case are not even remotely similar to Fumea. As explained more fully above, Underwood remained in the custody of the Federal Bureau of Prisons and outside the jurisdiction of both the Pennsylvania Department of Corrections and the Board at all times between when he received his New Federal Sentence and when he was returned to a state correctional institution on December 17, 2019. For all of these reasons, we cannot conclude that the Board erred by permitting Underwood to serve his New Federal Sentence prior to serving the balance of his Original Pennsylvania Sentence.
Accordingly, we affirm the Board's final determination.
ORDER
AND NOW, this 31st day of August, 2021, the final determination of the Pennsylvania Parole Board is hereby AFFIRMED.