Opinion
No. 577 C.D. 2001.
Argued: September 13, 2001.
Filed: July 1, 2002. Order Filed: August 27, 2002.
ORDER
NOW, August 27, 2002, having considered respondent's application for reargument and/or reconsideration, reargument is denied.
Reconsideration is granted, and our opinion and Order filed July 1, 2002, are hereby withdrawn.
The parties shall file and serve briefs (15 copies) addressing the applicability of this Court's opinion in Ranson v. Pennsylvania Board of Probation and Parole, 568 A.2d 1334 (Pa.Cmwlth. 1989) to this case on or before 9/16/02.
The Chief Clerk shall list this matter for argument on the December 2002 argument list in Harrisburg.
OPINION
This is an appeal by Thomas Williams (Parolee) from an order of the Pennsylvania Board of Probation and Parole denying administrative relief and upholding a combined parole revocation and recalculation order.
The following facts are relevant. On December 16, 1993, Parolee was sentenced to a term of five to ten years for criminal conspiracy to commit homicide. He was paroled on May 17, 1999, at which time his maximum sentence date was January 28, 2003. Shortly following his parole, he was declared delinquent for technical parole violations effective August 1, 1999.
Subsequently, on October 22, 1999, Parolee was arrested on new charges of receiving stolen property, violations of automobile laws and for technical parole violations. He was incarcerated and failed to post bail. On December 17, 1999, Parolee was recommitted by the Board as a technical parole violator to serve twelve months backtime, when available, for leaving his residence without permission and for failing to complete a required treatment program. This order did not contain a new maximum expiration date. The order also indicated that Parolee was detained pending disposition of the criminal charges.
On October 5, 2000, Judge David Cashman, acting as a committing magistrate, entered an order sentencing Parolee to pay a fine of $200 plus costs for a violation of Section 1543(a) of the Vehicle Code, 75 Pa.C.S.A. § 1543(a) (driving while operating privilege is suspended or revoked) and found Parolee guilty of violations of Sections 1786 and 1372 of the Vehicle Code, 75 Pa.C.S.A. § 1786, 1372 (required financial responsibility and unauthorized transfer or use of registration, respectively). Parolee was sentenced to no further penalties for those violations.
The record does not reveal why the sentencing took place almost a year after Parolee was arrested.
By an order dated January 2, 2001, the Board recommitted Parolee as a technical parole violator (concurrent with its previous twelve month recommitment) for nine months for violations of condition #4 (failure to comply with all laws) and recalculated his maximum expiration date from January 28, 2003, to April 2, 2004. Parolee petitioned for administrative relief, which was denied, and this appeal ensued.
On appeal, the only issue is whether Parolee's loss of street time and the attendant extension of his maximum date was improper. The Board concedes in its brief, and there is no dispute, that Parolee was not convicted in a court of record. There is also no dispute, therefore, that he could not be recommitted as a "convicted" parole violator; and, the Board's order at issue clearly states that the action was taken for technical violations.
Further, there is no dispute that Parolee was entitled to credit from the date he was paroled on May 17, 1999, until he was declared delinquent on August 1, 1999; nor is there any dispute that he was not entitled to credit from the date of August 1, 1999, until he was arrested on October 22, 1999. The dispute concerns only the period of time from the date of his arrest (October 22, 1999) until he was sentenced by the committing magistrate (October 5, 2000).
Parolee argues that, because his sentence was not a conviction entered by a court of record, his situation should be analogized to a finding of not guilty and he should be given credit for time served against his original five to ten-year sentence. See Davidson v. Pennsylvania Board of Probation Parole, 667 A.2d 1206 (Pa.Cmwlth. 1995).
The Board argues that, because Parolee had violated the law and was found guilty (although he had no conviction in a court of record), he was not in "good standing" while he remained incarcerated on the new charges and, therefore, he is not entitled to credit against his old sentence. The Board analogizes the situation to Smarr v. Pennsylvania Board of Probation Parole, 748 A.2d 799 (Pa.Cmwlth. 2000), petition for allowance of appeal granted, ___ Pa. ___, 791 A.2d 1166 (2002), and its progeny, which concerned convictions in courts of record and convicted parole violator cases.
The "good standing" rule, upon which the Board relies, appears in Section 21.1(b) of what is commonly referred to as the Parole Act, 61 P. S. § 331.21a (b). The critical language provides that if a parolee who is a technical parole violator is recommitted "he 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 his original sentence or sentences." Id. (emphasis added).
Act of August 6, 1941, P.L. 861, as amended, 61 P. S. § 331.1-331.34a. Section 21.1 was added by Section 5 of the Act of August 24, 1951, P.L. 1401.
This issue appears to be a question of first impression: whether an individual who is convicted in a court not of record and who concededly cannot be recommitted as a convicted parole violator, but is recommitted as a technical parole violator, must suffer the loss of street time because he was not "on parole in good standing" while a pretrial detainee on the new charges. We hold that in such a situation the Board cannot refuse to credit the pretrial time to the old sentence. Our reasoning is basic. It cannot be logically argued that Parolee was not on parole in good standing for the time in issue, because he was not on parole at all. He was in prison. While the case may be different for someone who has been constructively reparoled, that is not the situation we have here.
In holding as we do, we emphasize the following points:
1. This case does not concern which of two sentences pretrial confinement time should be allocated to because the Board concedes that the conviction by a magistrate was not in a court of record and because it also concedes that it never acted to recommit Parolee as a convicted parole violator.
2. This case does not concern the period of time when Parolee was delinquent on parole and it is not disputed that, for that period, the street time must be forfeited.
3. This case does not hold that a parolee could not be recommitted as a technical parole violator for violations of the law, but only that that recommitment cannot involve the loss of street time for the period subsequent to the arrest.
4. However, this case does concern whether a parolee can suffer a loss of street time for a period when he is in prison but not on constructive parole.
Based upon the foregoing discussion, the order is affirmed in part, reversed in part and this matter is remanded for a recalculation of Parolee's maximum date.
ORDER
NOW, July 1, 2002, the order of the Pennsylvania Board of Probation and Parole in the above-captioned matter is affirmed to the extent Parolee was recommitted as a technical parole violator and to the extent that his street time was forfeited from the date of delinquency to the date of arrest and reversed as to the balance of the time in issue. This matter is remanded to the Pennsylvania Board of Probation and Parole to recalculate Parolee's maximum date in accordance with this order within thirty (30) days of entry of this order and to relist Parolee for reparole consideration on its next available docket.
Jurisdiction relinquished.
Judge Smith-Ribner concurs in result only.