Opinion
No. 1226 C.D. 2013
06-12-2014
Cecil Grow, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Cecil Grow (Grow) petitions for review of the final determination of the Pennsylvania Board of Probation and Parole (Board) that stated that the Board did not have the authority to address the issues he raised in his petition for review concerning the commencement and duration of his probation.
Grow was effectively sentenced on November 20, 1994, to a term of one to two years for corruption of minors. He was also sentenced consecutively to a term of six months to one year for indecent assault and to a term of six years three months to twelve years six months for rape, for a total sentence of seven years nine months to fifteen years six months.
At some point after the expiration of his minimum sentence on August 20, 2002, Grow was released on parole. While on parole, Grow was charged with theft of services for using his employer's cellular telephone to make $5,121.11 worth of unauthorized calls between October 28, 2005, and December 12, 2005. Pursuant to a plea agreement, the Court of Common Pleas of Allegheny County (sentencing court) sentenced Grow to seven years probation effective "consec[utive] to any jail now serving" and ordered him to pay restitution of $5,603.00. Order of Court, November 14, 2006, at 1; Certified Record (C.R.) at 16.
The Board recommitted Grow as a convicted parole violator and established his new maximum sentence date for the rape and related convictions as September 3, 2010. On December 17, 2007, the Board reparoled Grow to a community corrections center.
On May 7, 2009, the Board accepted Grow for state supervision of his probation sentence. The Board stated that the effective date of the commencement of the seven years of probation was September 3, 2010, the maximum date on the rape sentence, and the new maximum date was September 3, 2017. Grow signed an acknowledgement of his conditions of probation on July 9, 2009.
On December 6, 2010, the sentencing court held a probation violation hearing for Grow. Thomas Wolfe (Wolfe) of the Board alleged that Grow failed to comply with sexual offender conditions which were not part of the sentencing court's sentencing order but were part of the Board's protocols. Notes of Testimony, December 6, 2010, (N.T.) at 6; Supplemental Certified Record (S.C.R.) at 10. Wolfe testified that the probation ran from September 3, 2010, to September 3, 2017. N.T. at 2; S.C.R. at 6. The common pleas court continued Grow's probation under the condition that he cooperate with Mercy Behavioral Health in terms of sexual behavior treatment.
On April 16, 2013, Grow requested that the Board change the dates of his probation from September 3, 2010, to September 3, 2017, to December 17, 2007, to December 17, 2014:
As this sentencing Order confirms, Mr. Grow was sentenced on November 14, 2006 to seven years of probation, 'consecutive to any jail now serving.' Mr. Grow was released from jail on December 17, 2007; thus his consecutive sentence of probation should have started on that date.Letter from Jessica L. Herndon, April 16, 2013, at 2; C.R. at 31.
However, Undersigned Counsel confirmed that the PBPP [Board] is calculating Mr. Grow's probation from September 3, 2010 through September 3, 2017. . . . This is contrary to the plain language of the sentencing Order which states that his probation was to run consecutive to the jail time that he was serving. The sentencing Order sentencing Mr. Grow to probation does not say that his probation should begin consecutive to the completion of any other sentence or consecutive to the completion of parole on another sentence. The Order is clear in its terms. Once he was released from jail on December 17, 2007, his seven year probation sentence should have started running.
The sentencing order is unambiguous and that unambiguous order must be obeyed. The Board has no jurisdiction to alter sentencing conditions. . . . I accordingly ask that PBPP [Board] obey that order and calculate Mr. Grow's probation start date as December 17, 2007. (Citations omitted).
The Board responded to the letter and indicated that it could not address the issue of the term of probation:
Please be advised that it is the sentencing court who determines the period of special probation. The Board supervises offenders as a courtesy to the sentencing court and does not calculate the probationary period of their sentences. The Board follows and complies with the calculation as provided by the sentencing court. Therefore, to the extent you are seeking relief regarding any issue arising from Mr. Grow's special probation, you must address your concerns to the sentencing court. To the extent you are contesting the original sentencing portion of Mr. Grow's sentence, you must address your concerns to the sentencing court. To the extent you are contesting the original sentencing portion of Mr. Grow's sentence, you must address your concerns to the Department of Corrections. It is the DOC who calculates sentences of new criminal convictions. The Board does not calculate probationary terms and therefore cannot address the issues you raise in your petition.Board Decision, June 18, 2013, at 1; C.R. at 33.
Grow contends that the Board ignored the clear language of the sentencing order regarding the start of his probation.
This Court's review is limited to determining whether the Board's findings are supported by substantial evidence, are in accordance with the law, and whether constitutional rights have been violated. Krantz v. Pennsylvania Board of Probation and Parole, 483 A.2d 1044 (Pa. Cmwlth. 1984). This Court will interfere with the Board's exercise of administrative discretion only where it has been abused or exercised in an arbitrary or capricious manner. Green v. Pennsylvania Board of Probation and Parole, 664 A.2d 677 (Pa. Cmwlth. 1995).
Grow asserts that the sentencing order stated that the seven years of probation to which he was sentenced was consecutive to "any jail now serving." Because he was released on parole from the rape sentence on December 17, 2007, Grow asserts his probation should have started on that date rather than on September 3, 2010, the date that the rape sentence ended. As a result, Grow asserts that the Board erred when it stated in its acceptance for state supervision dated May 7, 2009, that the probation sentence was "consecutive to any sentence now serving." Acceptance for State Supervision, May 7, 2009, at 1; C.R. at 10. Grow argues that the Board erred when it calculated the seven year term of probation from the expiration of the maximum date of the rape sentence rather than from the date that he was paroled from the rape sentence.
Grow agrees that the sentencing court determines the period of probation. He is not contesting the period of probation. He is requesting that the Board start his period of probation as directed by the sentencing court.
The Board argues that it correctly denied Grow's petition for administrative relief because the sentencing court is responsible for determining the effective date of his probation.
Section 9754(a) of the Sentencing Code, 42 Pa.C.S. §9754(a), provides:
In imposing an order of probation the court shall specify at the time of sentencing the length of any term during which the defendant is to be supervised, which term may not exceed the maximum term for which the defendant could be confined, and the authority that shall conduct the supervision.
In addition, Section 9771 of the Sentencing Code, 42 Pa.C.S. §9771, provides that the court which imposed probation "may at any time terminate continued supervision or lessen or increase the conditions upon which an order of probation has been imposed." Additionally, the sentencing court has the authority to revoke an order of probation upon proof of the violation of specified conditions of probation.
On the other hand, the Board has the authority under Section 6133 of the Prisons and Parole Code, 61 Pa.C.S. §6133, "to supervise any person placed on probation by any judge of a court having criminal jurisdiction, when the court by special order directs supervision by the board."
In Commonwealth v. Mitchell, 955 A.2d 433 (Pa. Super. 2008), petition for allowance of appeal denied, 964 A.2d 894 (Pa. 2009), our Pennsylvania Superior Court reiterated that the sentencing court retains the authority to determine whether someone on probation violated his probation, to revoke probation, and to resentence following revocation of probation even though the Board supervises the individual on special probation.
Given the statutes and case law, the Board is correct that the sentencing court determined the term of Grow's probation and that it is not within the power and authority of the Board to recalculate Grow's term of probation. While the Board did interpret the sentencing court's order to read that the term of probation commenced after the maximum date of the rape sentence, Grow's recourse or attempt to get a clarification as to what the sentencing court meant concerning the term of probation must be with the sentencing court.
This Court notes that at the probation violation hearing before the sentencing court, Wolfe testified that Grow's probation ran from September 3, 2010, to September 3, 2017. Grow did not contest the dates and in fact testified that his probation was to run "after the State time [for the rape conviction] was over." N.T. at 8; S.C.R. at 12. When asked when his state time ended, Grow responded, "In September of this year." N.T. at 8; S.C.R. at 12. The hearing was conducted in 2010. At that time, Grow had the opportunity to raise this issue. He did not and actually agreed with the Board's calculation of his probation. --------
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 12th day of June, 2014, the order of the Pennsylvania Board of Probation and Parole in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge