Opinion
No. 1668 C.D. 2011
02-24-2012
Ernest Watson, Petitioner v. Pennsylvania Board of Probation and Parole and Pennsylvania Department of Corrections, Respondents
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Ernest Watson (Watson) petitions this Court for review from the July 29, 2011 determination (Determination) of the Pennsylvania Board of Probation and Parole (Board), which denied his request for administrative relief, and affirmed its recalculation order mailed April 14, 2011. Finding no error in the Board's decision, we affirm.
On May 26, 2004, Watson was paroled from a 5-year state prison sentence. Certified Record at 29 (C.R. ___). His maximum term expiry date was May 9, 2007, leaving 1078 days remaining on his sentence. C.R.30. Watson was arrested on September 18, 2006 on new criminal charges, and confined in a County facility. On September 19, 2006, Board agents filed a detainer, and on September 20, 2006, bail on the new charges was set at $250,000.
Watson was arrested for the offenses of Manufacture/Deliver/Possession with Intent to Manufacture or Deliver and Firearm Not to be Carried Without a License. C.R. 39.
Following the expiration of his original maximum term, on May 11, 2007, the Board removed its detainer. On October 1, 2007, more than a year after his arrest, the Philadelphia Court of Common Pleas reduced bail from $250,000 to nominal ($1), and Watson was released on house arrest to be electronically monitored. C.R. 55. On October 20, 2010, Watson entered a guilty plea on the new charges, and was sentenced to a new term of imprisonment to be served in a County facility; his house arrest was vacated and immediate parole was granted. C.R. 50. The Board re-lodged its detainer on January 6, 2011. Adding 1078 days to the date the Board re-lodged its detainer, the Board recalculated a new maximum date of December 19, 2013. C.R. 87.
We note that based upon the Certified Record, Watson remained under house arrest from October 1, 2007 until October 20, 2010, a period of over thirty-six months. However, no portion of this detention occurred as a result of the Board's detainer, or any other Board activity.
Before this Court, Watson argues that he posted bail on his new charges on October 11, 2006, and was therefore held in custody from that date until May 11, 2007 (the date the Board removed its detainer), solely as a result of the detainer from the original charges. Thus, he avers, credit for that period was mistakenly withheld. Consequently, Watson argues that his maximum sentence date was incorrectly calculated, and should reflect a maximum date of May 29, 2013.
Our scope of review is limited to a determination of whether necessary findings are supported by substantial evidence, an error of law was committed, or whether constitutional rights of the parolee were violated. Slaymaker v. Pennsylvania Board of Probation and Parole, 768 A.2d 417, 418 n.1 (Pa. Cmwlth. 2001)(citing Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Shaffer v. Pennsylvania Board of Probation and Parole, 675 A.2d 784 (Pa. Cmwlth. 1996)). --------
It is well established that if a parolee is arrested on new criminal charges, posts bail and is detained solely on the Board's warrant until disposition of the new criminal charges, the parolee is entitled to backtime credit for the time served under the Board's warrant. Gaito v. Pennsylvania Board of Probation and Parole, 408 Pa. 397, 412 A.2d 568 (1980).
In its Determination, the Board states that it granted no credit on Watson's original sentence for any time he was incarcerated between September 18, 2006 and October 20, 2010, because he was not incarcerated solely on the Board's detainer at any point during that period. C.R. 92. We agree.
The record simply does not support Watson's claim that he posted bail on October 11, 2006. In its Determination, the Board states that Watson did not claim in his petition that he posted bail from his new criminal charges during the period he was under Board detainer. C.R. 92. However, an examination of the record does reveal that in his August 25, 2011 "Petition for Writ of Mandamus and/or Extraordinary Relief," Watson avers, in a numbered section under the heading "Chronology and Sequence of Events," that: "4. Philadelphia County [p]osted bail on October 11, 2006 though petitioner could not be released (Board Contingent) due to detainer." (emphasis added.) And, later in that section, his petition states: "13. After Philadelphia County paid petitioner bail, petitioner was held [s]olely under the Board's Warrant, thus Board failed to credit petitioner time held solely under the referenced Board Warrant (7 months)." In fact, the record shows that Watson's bail was modified to "nominal" on October 1, 2007, almost five months after the Board removed its detainer. C.R. 48 (emphasis added.)
In his brief to this Court, Watson refers to "R. 48, 74," seemingly pointing to locations in the record that support his claim. Brief for Petitioner, at 2. However, page 48 of the record consists of a printout of criminal docket CP-51-CR-1300730-2006, and it establishes that Watson's bail was set on October 11, 2006 at $250,000, requiring ten percent payment, and clearly does not reflect any posting of bail on that date. C.R. 48. Page 74 of the record is a Pennsylvania Department of Corrections "Move Report" for inmate Ernest Watson, which details his movement through the Commonwealth system; it contains no notation whatsoever for October 11, 2006. C.R. 74. An examination of the record further reveals that Watson's Criminal Arrest and Disposition Report plainly reflects that bail was not posted. C.R. 39.
With unequivocal indication in the record that there was no activity with regard to the $250,000 bail after it was set for Watson on October 11, 2006, until October 1, 2007, when it was reclassified to "nominal," Watson is not entitled to credit on his original sentence for any time during which he was confined between September 18, 2006 (his date of arrest) and October 1, 2007. Gaito. Because Watson's claim is without merit, we hold that the Board's Determination correctly affirmed the recalculation order.
Finally, the Pennsylvania Department of Corrections requests dismissal from this action, since it played no administrative role in determining whether Watson was eligible for the credit requested or the establishment of a new maximum sentence date based on his parole violations and recommitment. Under Section 6138(a)(2) of the Prisons and Parole Code, the Board has the exclusive power to recalculate an offender's maximum sentence date upon recommitment of a parole violator. Prisons and Parole Code, 61 Pa. C.S. §§101-6309. Dismissal is granted.
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 24th day of February, 2012, the order of the Pennsylvania Board of Probation and Parole, dated July 29, 2011, is AFFIRMED. The Pennsylvania Department of Corrections, as Respondent, is DISMISSED.
/s/ _________
JAMES GARDNER COLINS, Senior Judge