Opinion
802 C.D. 2020
09-09-2021
Gregory Rafael Espaillat, Petitioner v. Pennsylvania Parole Board, Respondent
OPINION NOT REPORTED
Submitted: February 12, 2021
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge
MEMORANDUM OPINION
BY PRESIDENT JUDGE BROBSON FILED: September 9, 2021
Petitioner Gregory Rafael Espaillat (Espaillat) petitions for review of a final determination of the Pennsylvania Parole Board (Board). The Board granted, in part, Espaillat's petition for administrative relief, in which he sought to challenge the Board's recalculation of his parole violation maximum date. For the reasons set forth below, we affirm the Board's order.
By decision recorded on October 17, 2016, the Board granted parole to Espaillat, an inmate incarcerated at a state correctional institution, and released him from confinement on November 13, 2016. (Certified Record (C.R.) at 7, 10.) At the time of his release, Espaillat had 695 days remaining on his original sentence, resulting in a maximum sentence date of October 9, 2018. (Id. at 9.) Thereafter, the Board declared Espaillat delinquent as of June 23, 2017, after Espaillat failed to report to the Lebanon County Probation Office for a meeting concerning his parole conditions. (Id. at 14-16.) The Pennsylvania State Police (PSP) subsequently arrested Espaillat for fleeing or eluding police, driving under the influence, and possession of cocaine on August 7, 2017. (Id. at 18-19.) The Board issued a warrant to commit and detain Espaillat for his parole violation that same day. (Id. at 17.) While being held on the Board's detainer, the Board charged Espaillat with a technical violation of the conditions of his parole for moving from his approved residence without permission (abscondment). (Id. at 21.) Espaillat waived his right to a hearing and counsel, and he admitted to the violation. (Id. at 22-23.) By decision recorded on September 15, 2017, the Board recommitted Espaillat as a technical parole violator to serve up to six months' backtime and recalculated his parole violation maximum date as November 23, 2018. (Id. at 34-36.) At that time, Espaillat had 473 days of backtime remaining on his original sentence. (Id. at 32.)
The Board calculated that Espaillat had "time lost due to delinquency" in the amount of 45 days for the time period from June 23, 2017 (the date of the Board's warrant to commit and detain for failure to report to his parole officer), to August 7, 2017 (the date Espaillat was returned to the Board's custody). Thus, the Board added 45 days to his original maximum sentence date of October 9, 2018, to arrive at a parole violation maximum date of November 23, 2018.
On October 10, 2017, PSP filed a criminal complaint in the Court of Common Pleas of Lebanon County, charging Espaillat with a variety of offenses related to his August 7, 2017 arrest. (C.R. at 37.) On the same day, the Board issued a warrant to commit and detain Espaillat for a violation of his parole based on the new charges. (Id. at 48, 52-54, 96.) Espaillat subsequently waived his right to a hearing and counsel. (Id. at 55-56.) By decision recorded on November 19, 2017, in modification of its September 15, 2017 decision, the Board detained Espaillat pending disposition of his criminal charges. (Id. at 63.)
Espaillat was charged with: (1) two counts of manufacture, delivery, or possession with intent to manufacture or deliver cocaine/heroin; (2) two counts of intentional possession of a controlled substance; (3) use or possession of drug paraphernalia; (4) four counts of driving under the influence (DUI); (5) two counts of fleeing or attempting to elude a police officer; (6) failure to drive on the right side of the roadway; (7) failure to drive within a lane and/or movement from a lane unsafely; (8) abandonment of a vehicle; (9) careless driving; (10) reckless driving; and (11) possession of an alcoholic beverage in a motor vehicle. (C.R. at 37-47.)
On November 14, 2018, Espaillat pleaded guilty to the charges stemming from his August 7, 2017 arrest. (C.R. at 70, 87, 91.) Espaillat then reached his parole violation maximum date on November 23, 2018, and the Board lifted its detainer. (Id. at 61.) On November 26, 2018, Espaillat posted bail, and he was released from custody prior to sentencing on his new criminal charges.(Id. at 67, 87.) Espaillat did not appear at his sentencing hearing, and he was subsequently arrested on August 26, 2019, pursuant to a bench warrant. (Id. at 87.) The Board lodged a warrant to commit and detain Espaillat on the same date. (Id. at 65.) On September 11, 2019, the Court of Common Pleas of Lebanon County sentenced Espaillat to fifteen months' to five years' imprisonment for his various offenses, and it returned Espaillat to the custody of the Board. (Id. at 70-72, 97.)
One count of schedule one DUI, fleeing or attempting to elude a police officer, and the charge relating to vehicle abandonment were withdrawn, and two counts of manufacture, delivery, or possession with intent to deliver were nolle prossed. (C.R. at 69-72.)
According to Espaillat's supervision history, the Court of Common Pleas of Lebanon County did not update officials as to Espaillat's status before he was released. (C.R. at 69-72, 87.)
Thereafter, the Board notified Espaillat that it was scheduling a parole revocation hearing as a result of his new criminal conviction. (Id. at 83.) Again, Espaillat waived his rights to a revocation hearing and counsel, and he admitted to his conviction and the violation of his parole. (Id. at 80-82.) By decision recorded on December 10, 2019 (mailed on December 17, 2019), the Board recommitted Espaillat as a convicted parole violator to serve twenty-five months' backtime concurrent with the imposed six months' backtime. (Id. at 99.) Important for purposes of this matter, the Board denied Espaillat credit for time spent at liberty on parole, citing Espaillat's "unresolved drug and alcohol issues." (Id. at 100.) The Board then recalculated Espaillat's parole violation maximum date as August 6, 2021. (Id. at 97-100.)
Espaillat filed a petition for administrative relief with the Board, wherein he challenged the Board's recalculation of his parole violation maximum date. (C.R. at 104-116.) Specifically, Espaillat alleged that the Board failed to give him credit on his original sentence for the time he spent incarcerated from August 7, 2017, to November 23, 2018. (Id. at 104-105.) By decision recorded on July 23, 2020, in recognition that it erred in its initial calculation, the Board recalculated Espaillat's parole violation maximum date as follows:
The Board paroled you from a state correctional institution ("SCI") on November 13, 2016[, ] with a max date of October 9, 2018, leaving you with 695 days on your original sentence the day you were released. The Board's decision to recommit you as a convicted parole violator . . . authorized the recalculation of your max date to reflect that you received no credit for the time spent at liberty on parole. 61 Pa. C.S. § 6138(a)(2). The Board denied you credit for the time spent at liberty on parole in this instance. You therefore owed 695 days on your original sentence.
The record shows that you absconded supervision[, ] and the Board declared you delinquent effective June 23, 2017. On August 7, 2017, the Board lodged its detainer against you for technical violations. By decision recorded September 15, 2017, the Board revoked your parole for technical violations and extended your max [date] due to delinquency to November 23, 2018. On November 29, 2017, local authorities in Lebanon County arrested you for new criminal charges. On November 23, 2018, the Board lifted its detainer. On November 26, 2018, you posted bail on your new criminal charges in Lebanon County. On August 26, 2019, your bail was reset, and there is no indication you posted thereafter. The Board re-lodged its
detainer against you on that date. On September 11, 2019, you were sentenced in the Court of Common Pleas of Lebanon County at docket number CP113-2018 to serve a new term of incarceration of 15 to 30 months in an SCI. The Board revoked your parole as a [convicted parole violator] by decision mailed December 17, 2019.
Based on the above facts, you are entitled to pre-sentence credit for 114 days for the period the Board held you solely on its detainer from August 7, 2017[, ] to November 29, 2017. Gaito v. Pa. [Bd.] of Prob[. &] Parole, 412 A.2d 568 (Pa. 1980). Subtracting 114 days from 695 days leaves you with 581 days remaining on your original sentence. Please note that any time spent incarcerated that was not allocated toward your original sentence will be calculated by the Department of Corrections and reflected in your new state sentence upon commencement of that term.
The Prisons and Parole Code [(Code)] provides that a [convicted parole violator] who was released from an SCI and receives a new sentence to be served in the SCI must serve the original sentence first. 61 Pa. C.S. § 6138(a)(5). Because the Board revoked your parole as a technical parole violator by decision recorded September 15, 2017, you therefore became available to commence service of your original sentence on September 11, 2019. Adding 581 days to that availabil[i]ty date yields a recalculated max date of April 14, 2021.(Id. at 121-123) (emphasis in original).
It appears that the Board misrepresented Espaillat's new sentence to be a term of fifteen to thirty months' incarceration, when it is actually a term of fifteen months' to five years' incarceration. (C.R. at 70-72). This misstatement, however, does not affect the Board's analysis.
Espaillat then filed a petition for review with this Court. In his petition, Espaillat essentially argues that, based on this Court's decision in Penjuke v. Pennsylvania Board of Probation and Parole, 203 A.3d 401 (Pa. Cmwlth. 2019), appeal denied, 228 A.3d 254 (Pa. 2020), the Board erred in failing to give him credit for the time he spent at liberty on parole-i.e., the 222 days between the time he was paroled on November 13, 2016, and when he was declared delinquent on June 23, 2017. Espaillat contends that, when the Board recommitted him as a technical parole violator, it awarded him credit for the 222 days spent at liberty on parole and, therefore, was subsequently prohibited from denying him credit for that time when it recommitted him as a convicted parole violator. Espaillat maintains that the Board was bound by its September 15, 2017 decision, wherein the Board implicitly acknowledged credit for the 222 days he spent at liberty on parole when it recalculated his parole violation maximum date using 473 days of backtime owed, not 695 days.
The Board essentially responds that, because it ultimately recommitted Espaillat as a convicted parole violator, it properly recalculated Espaillat's new parole violation maximum date when it subtracted the 114 days from the 695 days that remained on Espaillat's original sentence at the time of his parole. The Board did not recalculate his new parole violation maximum date using the starting point of 475 days, because the 475 days represented the time remaining on the original sentence before it made the determination that conviction on the new criminal charges warranted denial of credit for that time spent at liberty on parole.
While this Court recognizes that Espaillat did not raise specifically the issue of time spent at liberty on parole in his administrative remedies appeal below, we believe Espaillat's argument was broad enough to encompass a general challenge to the amount of credit owed on his original sentence, not just credit from the time he was confined from August 7, 2017, to November 23, 2018. Because the Board does not address the issue of waiver, moreover, we will not raise the issue of waiver sua sponte, and we will instead address the merits of Espaillat's argument.
Section 6138(a)(2) of the Code, 61 Pa. C.S. § 6138(a)(2), provides that when a convicted parole violator is recommitted "to serve the remainder of the term which the [convicted parole violator] would have been compelled to serve had . . . parole not been granted," the Board may, "in its discretion, award credit to [the convicted parole violator] . . . for the time spent at liberty on parole." When deciding not to award such credit, the Board must "provide a contemporaneous statement explaining its reason for denying a [convicted parole violator] credit for time spent at liberty on parole." Pittman v. Pa. Bd. of Prob. & Parole, 159 A.3d 466, 475 (Pa. 2017). So long as the Board provides a reason for denying credit for time spent at liberty on parole, it has sufficiently exercised its discretionary power. See id.
In Penjuke, this Court considered an appeal filed by a parolee (Penjuke) from a final determination of the Board, which recommitted him as a convicted parole violator and, in recalculating his parole violation maximum date, failed to honor sentencing credit previously awarded to Penjuke for time spent at liberty on parole during a prior period of parole that resulted in his recommitment as a technical parole violator. The pertinent facts in Penjuke are as follows. Penjuke was sentenced to a term of imprisonment with a maximum sentence date of June 28, 2020. The Board released him on parole, and he spent 793 days at liberty on parole in good standing until the Board declared him delinquent. The Board recommitted him as a technical parole violator and recalculated his parole violation maximum date as December 12, 2021, to account for 167 days that he spent in delinquency. Consistent with Section 6138(c)(2) of the Code, 61 Pa. C.S. § 6138(c)(2), which provides that a parolee who is recommitted as a technical parole violator "shall be given credit for time served on parole in good standing," the applicable statutory provision, the Board did not add the 793 days that Penjuke spent in good standing to his recalculated parole violation maximum date. The Board later reparoled Penjuke, and he was arrested eight days later on July 28, 2016, for drug-related offenses. He pleaded guilty and was sentenced to one year of probation. The Board recommitted Penjuke as a convicted parole violator and recalculated his parole violation maximum date as February 22, 2023. In so doing, the Board credited Penjuke with 214 days for the days he spent in confinement on the criminal charges, but the Board did not provide him with credit for any of the days that he spent on reparole. Furthermore, and at issue in Penjuke, the Board effectively rescinded the 793 days that Penjuke spent at liberty on parole in good standing when he served his prior period of parole and added that amount onto his sentence when recalculating his parole violation maximum date.
Penjuke submitted a request for administrative relief, challenging the Board's authority to revoke the 793 days of credit that he acquired for time spent at liberty on parole during the parole period that led to his recommitment as a technical parole violator. Penjuke also challenged the statutory basis for the Board's recalculation. The Board denied the request, citing then-dispositive case law from this Court, and explaining that when Penjuke was recommitted as a convicted parole violator, he automatically forfeited all of his street time, including credit for the days that he previously accumulated during the original parole period. Penjuke then petitioned this Court for review.
In light of the 2012 statutory amendment to the Code set forth in Section 6138(a)(2.1) of the Code, 61 Pa. C.S. § 6138(a)(2.1), which granted the Board the discretion under certain circumstances to grant credit to a convicted parole violator for time spent at liberty on parole, we concluded in Penjuke that "the Board lacks the statutory authority to revoke street time credit previously granted to a parolee as a [technical parole violator] when it subsequently recommits the parolee as a [convicted parole violator]." Penjuke, 203 A.3d at 420. As a result, we further concluded that "the Board erred when it revoked the 793 days of good standing street time that Penjuke acquired in the parole period that led to his recommitment as a [technical parole violator, ] and we reverse[d] this portion of the Board's order." Id.
In applying Penjuke to subsequent cases, we acknowledged that "Penjuke announced a new rule of law, holding for the first time that when the Board recommits a parolee as a [convicted parole violator], it cannot revoke credit that the parolee was granted in a previous parole that resulted in recommitment as a [technical parole violator]." Passarella v. Pa. Bd. of Prob. & Parole, 217 A.3d 919, 926 (Pa. Cmwlth. 2019). In other words, under Penjuke, the Board is "not [permitted to] 'reach back' into past periods of parole and take away or revoke credit that was previously granted to a parolee as a [technical parole violator]." Id. at 928. In Kazickas v. Pennsylvania Board of Probation and Parole, 226 A.3d 109 (Pa. Cmwlth.), appeal denied, 238 A.3d 1170 (Pa. 2020), however, this Court made clear that Penjuke does not apply when "the criminal conduct that led to [a parolee's] . . . recommitment [as a convicted parole violator] occurred during the same parole period as the violation that led to his . . . recommitment [as a technical parole violator]." Kazickas, 226 A.3d at 116.
In Kazickas, the parolee (Kazickas) was sentenced to a term of imprisonment that resulted in a maximum sentence date of July 2, 2016. The Board released him on parole, and, while on parole, he was arrested for driving under the influence (Bucks County charge). The Board lodged a 48-hour detainer against him, and he was later released with instructions to report to his parole agent. Kazickas failed to report, and the Board declared him delinquent; that same day, he reported to the parole office, tested positive for controlled substances, and was placed in prison for detoxification. He was subsequently transferred to an in-patient treatment center and later moved to a community corrections center from which he absconded, resulting in the Board again declaring him delinquent. Two months later, Kazickas was arrested on new criminal charges (Northampton County charges) unrelated to the Bucks County charge, and the Board issued a warrant to commit and detain. By decision recorded on June 1, 2016, the Board recommitted Kazickas as a technical parole violator and recalculated his parole violation maximum date to be September 1, 2016, in order to account for the 61 days he was delinquent. The order to recommit reflected that Kazickas did not forfeit any days of his prior parole liberty. Once he reached his parole violation maximum date, the Board released him from its detainer but declared him delinquent for parole purposes. He entered into a plea agreement on the Northampton County charges, following which the Board re-lodged its warrant to commit and detain. The Board recommitted Kazickas as a convicted parole violator as a result of the Northampton County charges. Shortly thereafter, Kazickas pleaded guilty to the Bucks County charge, and the Board again recommitted him as a convicted parole violator based on that charge. The Board recalculated his parole violation maximum date to be March 12, 2019 (later changed to March 7, 2019), denying him credit for the period that he had spent at liberty on parole. On appeal to this Court, Kazickas's sole argument was that the Board, in light of our decision in Penjuke, erred by forfeiting his time spent at liberty on parole upon his recommitment as a convicted parole violator. As noted above, we rejected that argument and, instead, concluded that Penjuke did not apply because the criminal conduct that led to the recommitment as a convicted parole violator-i.e., the conduct that led to the Bucks County charge and Northampton County charges- occurred during the same period of parole as the violation that led to his recommitment as a technical parole violator.
Here, Kazickas, not Penjuke, is applicable, because Espaillat's conduct that resulted in the new criminal charges occurred during the same period of parole as the violation that led to his recommitment as a technical parole violator. Thus, the Board did not err when it failed to grant him credit for the 222 days he spent at liberty on parole.
With the foregoing established, at the time Espaillat was paroled on November 13, 2016, his maximum sentence date was October 9, 2018, and he had 695 days left on his original sentence. Espaillat then spent 222 days at liberty on parole, at which time he was declared delinquent effective June 23, 2017. Espaillat was arrested on August 7, 2017, and he was held solely on the Board's detainer until November 29, 2017, a period of 114 days. When Espaillat was recommitted as a convicted parole violator by decision recorded on December 10, 2019, the Board chose not to credit the time he spent at liberty on parole. In accordance with the Supreme Court of Pennsylvania's decision in Gaito, however, the Board properly credited the 114 days Espaillat was held solely on the Board's detainer between August 7, 2017, and November 29, 2017, resulting in 581 days remaining on Espaillat's original sentence. Espaillat became available to serve his original sentence on September 11, 2019, the date he was returned to the custody of the Board. See Section 6138(a)(4) of the Code, 61 Pa. C.S. § 6138(a)(4) ("The period of time for which the parole violator is required to serve . . . shall begin on the date that the parole violator is taken into custody to be returned to the institution as an offender."). Thus, beginning on September 11, 2019, Espaillat owed 581 days on his original sentence, which results in a recalculated parole violation maximum date of April 14, 2021. The Board, therefore, did not err in its decision recorded on July 23, 2020, when it recalculated Espaillat's parole violation maximum date as April 14, 2021.
Accordingly, we affirm the Board's final determination.
ORDER
AND NOW, this 9th day of September, 2021, the final determination of the Pennsylvania Parole Board is hereby AFFIRMED.