Opinion
No. 544 C.D. 2012
10-09-2012
Sterling Chavis, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Sterling Chavis (Chavis) petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board). The Board denied Chavis' petition for administrative review. In his petition for administrative review, Chavis sought to challenge the Board's June 15, 2011 decision identifying his parole violation maximum date as July 25, 2023. We affirm the Board's order.
As background, in 1982, a Pennsylvania trial court found Chavis guilty of various crimes and sentenced him to a term of imprisonment, which resulted in a maximum parole violation date of June 18, 2001. (Certified Record (C.R.) at 1.) Following parole from his Pennsylvania sentences and subsequent periods of incarceration in New Jersey and Pennsylvania, on February 9, 1995, the Pennsylvania Department of Corrections (DOC) transferred Chavis to New Jersey to serve a sentence for a new criminal conviction in New Jersey, stemming from charges filed against Chavis in New Jersey in November 1992. New Jersey then returned Chavis to DOC's custody on June 22, 2009, on the basis of a detainer that the Board had lodged against him. On September 2, 2010, after New Jersey returned Chavis to Pennsylvania, the Board mailed to Chavis a recalculation decision, changing his parole violation maximum date from June 18, 2001 to April 10, 2024. (C.R. at 39.) By decision mailed March 9, 2011, however, the Board changed the maximum date to September 12, 2023. (C.R. at 42.) By decision recorded June 15, 2011, the Board again revised its calculation of Chavis' maximum date to July 25, 2023. (C.R. at 45.) Chavis filed his request for administrative relief, challenging his recalculated parole violation maximum date, which the Board denied.
The Board referenced its earlier recommitment order mailed January 26, 1995, following a revocation hearing, in which it recommitted Chavis to serve backtime assessed for his conviction of the 1992 New Jersey criminal charges, when available.
In this appeal, Chavis argues only that the Board erred in calculating his parole violation maximum date when it failed to credit Chavis for time that he spent incarcerated in New Jersey from February 9, 1995, through June 22, 2009, for his New Jersey conviction. As the Board notes, the single dispute in this matter concerns the nature of the Board's action when Chavis was returned to New Jersey on February 9, 1995. Chavis contends that the 5,149 days the Board argues Chavis owed on his Pennsylvania sentence continued to run following his transfer on February 9, 1995, and, consequently, his maximum parole violation date expired on or about March 7, 2009. Chavis bases this claim on his assertion that the Board paroled him at the time DOC transferred him to New Jersey on February 9, 1995.
This Court's review of an order of the Board denying a parolee's request for administrative relief is limited to considering whether necessary facts are supported by substantial evidence, and whether the Board erred as a matter of law or violated the parolee's constitutional rights. Kirkland v. Pennsylvania Bd. of Prob. and Parole, 528 A.2d 711 (Pa. Cmwlth. 1987).
We note that, in contrast to the question Chavis presents to this Court, Chavis raised a different claim in his request for administrative relief. In that pleading, Chavis contended that the Board returned him to New Jersey on February 9, 1995, pursuant to the Interstate Agreement on Detainers, and that the transfer "was the result of him being paroled to New Jersey to begin serving his New Jersey sentence." (C.R. at 48.)
As Chavis notes, there are three documents in the certified record that refer to DOC's transfer of Chavis to New Jersey on February 9, 1995, as constituting a "parole." An entry for May 30, 1995, in a DOC "moves report" states: "Paroled." (C.R. at 36.) Another DOC form relating to the February 9, 1995 transfer states that the transfer is for the purpose of "[p]arole to N.J. Sentence." (C.R. at 50.) Chavis overlooks the fact that DOC has no authority to grant a prisoner parole. Chavis also relies upon the reference to "parole" in the Board's decision denying Chavis' request for administrative relief. The Board states in its decision that Chavis "was paroled on February 9, 1995 and transferred to New Jersey . . . to begin serving his sentence . . . ." The certified record, however, contains no formal decision of the Board granting Chavis parole. Consequently, absent any evidence of an actual Board action granting parole, we view the Board's use of this term as a likely inadvertent misstatement.
Chavis argues that his status following the February 9, 1995 transfer was that of a "constructive" parolee. In support of this argument, Chavis relies upon this Court's decision in Weyand v. Pennsylvania Board of Probation and Parole, 503 A.2d 80 (Pa. Cmwlth. 1986). In Weyand, this Court noted that "'[c]onstructive parole' occurs where a prisoner, subject to consecutive sentences . . . is administratively paroled on the initial sentence and immediately begins serving the minimum term of the consecutive, or detainer, sentence. While still in prison, the prisoner is serving the detainer sentence and is considered 'at liberty on parole' from the initial sentence." Weyand, 503 A.2d at 85. The present matter does not present such a situation. In order to be in a state of constructive parole, the Board must also act formally to grant parole. The term "constructive parole" applies simply when the Board grants an inmate parole from one sentence, but he is not at liberty in the actual sense, because he must first complete serving a distinct sentence for which he or she has not been paroled. Thus, the rule set forth in Weyand is not applicable here, because, contrary to Chavis' position, the Board did not grant him parole.
The Board contends that, as of February 9, 1995, Chavis was a recommitted parole violator in "when-available" status. In other words, although he was being held by DOC before February 9, 1995, he was not available following his revocation hearing and transfer to New Jersey to serve his backtime. Moreover, when Pennsylvania transferred Chavis back to New Jersey, he began to serve time on his New Jersey sentence. As the Board notes, in Vance v. Pennsylvania Board of Probation and Parole, 741 A.2d 838 (Pa. Cmwlth. 1999), appeal denied, 563 Pa. 695, 760 A.2d 859 (2000), this Court held that there is no legal authority requiring the Board to award credit to a parolee for time incarcerated in another state. While the authorities of other states may be free to award credit to an inmate serving a sentence in that state for backtime the inmate served in Pennsylvania, the Board is not authorized to grant an inmate credit for time served in jurisdictions outside of Pennsylvania. Vance, 741 A.2d at 840-41. Moreover, as the Board notes, and as reflected in Section 21(a) of the law commonly referred to as the Parole Act (Act), convicted parole violators must serve their original and new sentences consecutively. Thus, under the Act, because Chavis was serving his New Jersey sentence commencing on February 9, 1995, when DOC transferred him back to New Jersey, the Board was not authorized to credit Chavis for the period following the transfer until it again obtained custody through the filing and execution of a detainer.
Act of August 6, 1941, P.L. 861, added by the Act of August 24, 1951, P. L. 1401, as amended, 61 P.S. § 331.21a. The General Assembly repealed this provision by the Act of August 11, 2009, P.L. 147, but adopted a similar provision through Section 7 of the same Act. This provision is codified at 61 Pa. C.S. § 6138(a).
The Board, in apparent response to the discrete legal argument Chavis raised in his request for administrative relief, also contends that the Interstate Agreement on Detainers, Section 9101 of the Judicial Code, 42 Pa. C.S. § 9101, was also not the trigger for his transfer back to New Jersey, because the New Jersey court had already convicted him. Section 9101 of the Judicial Code provides for transfers between states only for untried indictments, informations, and complaints. Bellochio v. Pennsylvania Bd. of Prob. and Parole, 559 A.2d 1024, 1027 (Pa. Cmwlth. 1989). Because Chavis does not discuss this issue, we need not evaluate it any further. --------
Accordingly, we affirm the Board's order denying Chavis' request for administrative relief.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 9th day of October, 2012, the order of the Pennsylvania Board of Probation and Parole is AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge