Opinion
128 C.D. 2021
10-04-2021
Scott Alan Looney, Petitioner v. Pennsylvania Parole Board, Respondent
OPINION NOT REPORTED
Submitted: July 9, 2021
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE J. ANDREW CROMPTON, Judge
MEMORANDUM OPINION
RENÉE COHN JUBELIRER, JUDGE
Petitioner Scott Alan Looney (Looney) petitions for review of a January 14, 2021 Order of the Pennsylvania Parole Board (Board) that affirmed the Board's decision mailed on March 10, 2020. The Board's March 10, 2020 decision modified the Board's October 25, 2019 decision to correct Looney's maximum sentence date to October 1, 2025. It otherwise affirmed the October 25, 2019 decision recommitting Looney to serve six months' backtime as a convicted parole violator (CPV) and denying him credit for time spent at liberty on parole, also known as "street time." Looney argues that the Board violated Penjuke v. Pennsylvania Board of Probation and Parole, 203 A.3d 401 (Pa. Cmwlth. 2019), appeal denied, 228 A.3d 254 (Pa. 2020), by revoking previously granted street time credit, and, therefore, his maximum sentence date should be September 20, 2023, rather than October 1, 2025. For the following reasons, we affirm the Board's Order.
On October 16, 2012, Looney was sentenced by the Court of Common Pleas of Crawford County (trial court) to serve 1 year, 6 months to 10 years in a state correctional institution (SCI) for violation of probation - aggravated assault with bodily injury to officer. (Certified Record (C.R.) at 1-2.) His original minimum and maximum sentence dates were September 14, 2013, and March 14, 2022, respectively. (Id. at 1.) Looney was paroled from SCI-Pittsburgh to Erie Community Corrections Center (CCC) on April 28, 2014. (Id. at 30.) On May 10, 2014, Erie CCC staff determined that Looney possessed synthetic marijuana. (Id.) That same day, Looney was returned to the Board's custody. (Id.) By decision mailed on July 31, 2014, the Board recommitted Looney as a technical parole violator (TPV) to serve six months of backtime at a CCC/community corrections facility/parole violator center based on his failure to successfully complete the Erie CCC program. (Id. at 4-6.) The Board's decision indicated that Looney would be reparoled automatically, subject to specified conditions, before November 10, 2014, and further that Looney's maximum sentence date remained March 14, 2022. (Id.) On October 21, 2014, Looney was reparoled to Gateway Rehabilitation Center-Erie. (Id. at 7-8, 11.) Prior to being released, Looney signed conditions governing his parole/reparole, which included the following language:
If you violate a condition of your parole/reparole and, after the appropriate hearing(s), the Board decides that you are in violation of a condition of your parole/reparole[, ] you may be recommitted to prison for such time as may be specified by the Board.
If you are convicted of a crime committed while on parole/reparole, the Board has the authority, after an appropriate hearing, to recommit you to serve the balance of the sentence or sentences which you were
serving when paroled/reparoled, with no credit for time at liberty on parole.(Id. at 8.)
On May 11, 2015, the Meadville City Police Department arrested Looney in connection with an incident that occurred on May 8, 2015, and charged him with two counts of driving under the influence of alcohol (DUI), one count of accidents involving damage to attended vehicle/property, and two summary traffic offenses. (Id. at 15, 20-21.) On January 7, 2016, Looney pleaded guilty to one count of DUI and the accidents involving damage charge, and the remaining charges were nolle prossed. (Id. at 22.) On March 3, 2016, Looney was sentenced to 72 hours to 6 months' imprisonment in Crawford County Correctional Facility for the DUI - general impairment with refusal charge and 12 months' probation, concurrent with the DUI sentence, for the accidents involving damage to attended vehicle/property charge. (Id. at 16-19.) By decision recorded on April 20, 2016, the Board noted Looney's new convictions and continued Looney on parole. (Id. at 24.) His maximum sentence date again remained March 14, 2022. (Id.)
On November 1, 2016, due to Looney's consumption of alcohol in violation of his parole conditions, the Board issued a warrant to commit and detain Looney for a technical parole violation, detained him that same day, and placed him in a parole violator center. (Id. at 25-26, 29, 31.) The Board issued a notice of charges and hearing to Looney. (Id. at 26.) Looney waived his right to counsel and a violation hearing, and he admitted to using alcohol in violation of his parole. (Id. at 27-28.) By decision recorded on November 23, 2016, the Board noted that probable cause on Looney's technical violation had been established, directed that Looney be detained in a parole violator center, and held the violation hearing/decision on the technical violation in abeyance pending Looney's completion of recommended programming. (Id. at 34.) On January 1, 2017, Looney was released from the parole violator center. (Id. at 43.)
Looney was cited for public intoxication on October 29, 2016. (C.R. at 26.) Looney later failed a portable breath test given to him by his parole agent on November 1, 2016. (Id.)
On June 11, 2018, Looney was charged by the Pennsylvania State Police at Meadville with DUI: general impairment/incapable of driving safely - 1st offense; DUI: highest rate of alcohol ([Blood Alcohol Content (BAC)] .16+) - 1st offense; and various other traffic offenses for an incident that occurred on May 28, 2018. (Id. at 45-52, 79-80.) On July 10, 2018, the Board issued a warrant to commit and detain Looney based on these new charges, and Looney was taken into custody and transported to SCI-Albion. (Id. at 35, 43.) The Board issued a notice of charges and hearing to Looney, noting the new charges, and, on July 18, 2018, Looney waived his right to counsel and a detention hearing. (Id. at 36-38.) After waiving a preliminary hearing on July 31, 2018, Looney was released on his own recognizance the same day. (Id. at 79-80.) By decision recorded on August 31, 2018, the Board detained Looney pending disposition of the new criminal charges. (Id. at 55.)
On April 18, 2019, Looney pleaded guilty in the trial court to one count of DUI: highest rate of alcohol (BAC .16+) - 1st offense, and one count of driving while operating privilege is suspended or revoked (driving while BAC .02 or greater while license suspended). (Id. at 65-67, 83-84.) The remaining charges were nolle prossed. (Id.)
On May 7, 2019, the Board issued a notice of charges and hearing to Looney, reflecting Looney's new Crawford County convictions based upon his guilty plea and that a revocation hearing would be held. (Id. at 56.) Looney waived the right to counsel and a revocation hearing and admitted to the new convictions. (Id. at 57- 58.) Based on Looney's guilty plea, a hearing examiner recommended recommitting Looney as a CPV to serve six months of backtime and granting him partial credit for the period from April 28, 2014 (the date of release), to May 4, 2016 (the date of Looney's first violation after being continued on parole for the first DUI conviction). (Id. at 71.) A Board member, on the other hand, recommended denying credit for time spent at liberty on parole. (Id.) The hearing examiner and the Board member based their recommendations on Looney's "[u]nresolved drug and alcohol issues." (Id.) The hearing examiner signed the revocation hearing report on June 14, 2019, and, on June 18, 2019, a Board member executed the revocation hearing report, denying Looney credit for time spent at liberty on parole. (Id. at 71-74.)
By decision delivered to Looney on June 25, 2019 (recorded on June 20, 2019), the Board recommitted Looney as a CPV to serve six months of backtime, when available, pending sentencing on the outstanding Crawford County conviction. (Id. at 94.) The Board's decision did not recalculate Looney's maximum sentence date or state whether the Board awarded Looney credit for time spent at liberty on parole.
Looney subsequently withdrew his guilty plea on July 21, 2019, and, on August 22, 2019, entered a new guilty plea to the offenses of (1) DUI: general impairment/incapable of driving safely - 2nd offense; (2) driving while operating privilege is suspended or revoked; and (3) failure to drive on the right side of the highway. (Id. at 90-93.) The remaining charges were nolle prossed. (Id. at 90, 93.) On October 4, 2019, the trial court sentenced Looney to three to six months' imprisonment in an SCI. (Id. at 101.)
In a decision delivered to Looney on October 25, 2019 (recorded on October 24, 2019), the Board modified its June 25, 2019 decision to reflect Looney's revised guilty plea by changing the reason for Looney's recommitment to: "DUI: general impairment/incapable of driving safely - 2nd offense." (Id. at 106.) The Board also denied Looney credit for his street time due to Looney's "unresolved drug and alcohol issues." (Id.) After crediting Looney for 61 days between November 1, 2016, and January 1, 2017, for the time Looney was confined, and 268 days between July 10, 2018, and April 4, 2019, for backtime, the Board recalculated Looney's maximum sentence date as April 2, 2026. (See id. at 98-99, 106-07.)
Looney filed a pro se administrative remedies form with the Board on November 20, 2019 (received on November 26, 2019), arguing that the Board erred in recalculating Looney's maximum sentence date in its October 25, 2019 decision because it revoked street time that it previously granted Looney for the period from October 21, 2014, to November 1, 2016. (Id. at 116-17.) Looney also claimed that he did not receive all credit to which he was entitled from April 4, 2019, to October 4, 2019. (Id. at 118.)
Looney filed a second administrative remedies form on November 25, 2019 (received on December 2, 2019), raising the same arguments. (C.R. at 120-22.)
In a decision mailed on March 10, 2020 (recorded on March 3, 2020), the Board modified its October 25, 2019 decision to correct Looney's maximum sentence date to October 1, 2025, noting "technician error," and indicated that the rest of its prior decision remains the same. (Id. at 112.) Looney received credit for the 61 days he was confined between November 1, 2016, and January 1, 2017, and 451 days of backtime for the period from July 10, 2018, through October 4, 2019. (Id. at 100-01.) Looney then filed a third pro se administrative remedies form on April 3, 2020 (received on April 8, 2020), challenging the Board's March 10, 2020 decision and arguing that the Board again erred in recalculating his maximum sentence date because it improperly revoked street time credit that it previously granted to him. (Id. at 123-26.)
Looney sent additional correspondence to the Board on June 24, 2020, which the Board received on June 26, 2020. (C.R. at 127-28.)
The Board responded to Looney's requests for administrative relief and additional correspondence on January 14, 2021, and affirmed its March 10, 2020 decision. (Id. at 129-30.) The Board first explained that its October 25, 2019 decision was based on Looney having received a new county sentence; however, the Board noted that it thereafter received additional information that the county sentence was actually a state sentence to be served in an SCI. (Id. at 129.) The Board therefore determined that Looney's challenges to the Board's October 25, 2019 decision were rendered moot by the Board's March 10, 2020 decision, which modified the recalculation of his maximum sentence date. (Id. at 129-30.) The Board then explained that Looney was given backtime from July 10, 2018, when the detainer was lodged, to April 4, 2019, so that Looney would serve his six-month sentence from April 4, 2019, to October 4, 2019. (Id. at 129.) The Board also explained that after Looney's sentence was changed to a state sentence, Looney received additional backtime from April 4, 2019, to October 4, 2019. (Id.) Finally, the Board explained that Looney received credit for the time he was confined from November 1, 2016, to January 1, 2017. (Id.) As a result of the change from a county to a state sentence, the Board explained Looney's maximum sentence also changed. (Id..) The Board did not directly address Looney's claim that the Board improperly revoked street time credit that it previously granted him for the period from October 21, 2014, to November 1, 2016. Looney, with the assistance of counsel, petitioned this Court for review of the Board's Order.
On appeal, Looney argues that, by maintaining his original March 14, 2022 maximum sentence date in its November 23, 2016 decision, the Board effectively granted him street time credit for the period of October 21, 2014 (the date he was reparoled), to November 1, 2016 (the date of the Board's warrant/his placement in a parole violator center), which it then improperly revoked when it recommitted him as a CPV in 2019. (Looney's Brief (Br.) at 18-19.) Looney relies on Penjuke, 203 A.3d 401, in which this Court held that the Board cannot revoke street time credit that was previously granted in a prior parole that resulted in recommitment as a TPV. (Looney's Br. at 19.) While Looney acknowledges that the Board did not formally recommit him as a TPV in 2016, he argues that this Court's holding in Penjuke, "by logical extension," also prohibits the Board from taking his street time prior to the Board's resolution of the technical parole violation charge. (Id.) According to Looney, if Penjuke is not extended in this way, then Looney will be treated more harshly than parolees formally recommitted as TPVs. (Id.) Moreover, it would "ignore the plain language" of the Board's November 23, 2016 decision, which did not recalculate Looney's maximum sentence date and, thus, awarded him credit for the period of street time at issue. (Id. at 19-20.) Looney asks that this Court remand the matter for the Board to recalculate Looney's maximum sentence date as September 20, 2023, to account for the 742 days of street time from October 21, 2014, to November 1, 2016, that he claims the Board previously granted him but ultimately improperly revoked. (Id. at 20.)
Our standard of review in parole revocation cases "is limited to determining whether the Board committed a constitutional violation or an error of law and whether the findings of fact are supported by substantial evidence." Lee v. Pa. Bd. of Prob. & Parole, 885 A.2d 634, 637 (Pa. Cmwlth. 2005).
The Board responds that Penjuke does not apply because Looney was not previously recommitted as a TPV at any point between his October 21, 2014 reparole date and June 18, 2019, the date he was recommitted as a CPV. (Board's Br. at 11-12.) The Board further argues that it properly recalculated Looney's maximum sentence date, as it provided him with 451 days of backtime credit from July 10, 2018 (the date of the Board's warrant), to October 4, 2019 (the date he was sentenced in Crawford County). (Id. at 10.) It also provided Looney with 61 days of confinement credit from November 1, 2016, to January 1, 2017, which reflects the period during which Looney was detained by the Board in a parole violator center but not recommitted as a TPV or CPV. (Id.) The Board argues that Looney received all credit to which he was entitled and that this Court should therefore affirm the Board's January 14, 2021 Order. We agree with the Board.
Initially, we note that, at the time Looney was paroled on October 21, 2014, Section 6138(c) of the Prisons and Parole Code (Parole Code), 61 Pa. C.S. § 6138(c), provided, in pertinent part, as follows:
We note that various sections of the Parole Code, including Section 6138(c), have recently been amended by the Act of June 30, 2021, P.L. 260, No. 59.
(c) Technical violators.--
(1) A parolee under the jurisdiction of the [B]oard who violates the terms and conditions of his parole, other than by the commission of a new crime of which the parolee is convicted or found guilty by a judge or jury or to which the parolee pleads guilty or nolo contendere in a court of record, may be detained pending a hearing before the [B]oard or waiver of the hearing or recommitted after a hearing before the [B]oard or a waiver of the hearing.
(2) If the parolee is recommitted under this subsection, the parolee 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 the original sentence or sentences.(Emphasis added.) Thus, per Section 6138(c)(2) of the Parole Code, a parolee "shall be given credit for the time served on parole in good standing[, ]" but only if the parolee is recommitted for technical violations. Id. In Penjuke, this Court held that, pursuant to Section 6138(c)(2) of the Parole Code, the Board could not, in a subsequent revocation proceeding recommitting the parolee as a CPV, revoke street time that was credited to the parolee's original sentence in a prior parole period resulting in the parolee's recommitment as a TPV. Penjuke, 203 A.3d at 420.
Here, the Board is correct that Looney was never recommitted as a TPV during the parole period in question. Although the Board sent Looney to a parole violator center in 2016 because he violated his parole, the Board never held a parole revocation hearing, recommitted Looney as a TPV, or revoked his parole prior thereto. (C.R. at 25-26, 29, 31.) Rather, the Board, in its November 23, 2016 decision, chose instead to detain Looney in a parole violator center for consuming alcohol in violation of his parole and hold in abeyance any technical parole violation hearing or decision thereon. (Id. at 34.) The Board then held Looney in the parole violator center until January 1, 2017, and subsequently awarded him credit toward his backtime for this period. (Id. at 100-01.) However, the Board never awarded, or denied, any of the street time Looney accrued from the date Looney was reparoled on October 21, 2014, to the time Looney was detained by the Board on November 1, 2016, and it was not legally required to do so. Accordingly, because the Board neither recommitted Looney as a TPV nor awarded or denied Looney street time credit, Penjuke does not apply. We therefore reject Looney's argument that the Board improperly stripped him of street time allegedly awarded to him prior to disposition of his technical parole violation charge. See Pittman v. Pa. Parole Bd. (Pa. Cmwlth., No. 1075 C.D. 2020, filed Aug. 19, 2021), slip op. at 9 (rejecting same argument); Shaffer v. Pa. Parole Bd. (Pa. Cmwlth., No. 700 C.D. 2020, filed July 15, 2021), slip op. at 4, petition for allowance of appeal (Pa., No. 49 WT 2021, filed Aug. 13, 2021) (rejecting same argument).
Even assuming, arguendo, that Looney had been recommitted as a TPV and awarded credit for the time spent on parole in good standing via the Board's November 23, 2016 decision, which we reiterate he was not, the criminal conduct that led to Looney's recommitment as a CPV occurred during the same parole period in which he committed the technical parole violation that would have led to his recommitment as a TPV. Therefore, we would still hold that Penjuke does not control. See Kazickas v. Pa. Bd. of Prob. & Parole, 226 A.3d 109, 116 (Pa. Cmwlth.), appeal denied, 238 A.3d 1170 (Pa. 2020) (explaining that the Board is precluded from reaching back in time into past periods of parole to revoke street time credit that was previously granted to a TPV; however, when the criminal conduct that led to a parolee's recommitment as a CPV occurred during the same period of parole as the violation that led to the parolee's recommitment as a TPV, Penjuke does not apply).
Pittman and Shaffer are cited for their persuasive value in accordance with Pennsylvania Rule of Appellate Procedure 126(b), Pa.R.A.P. 126(b), and Section 414(a) of this Court's Internal Operating Procedures, 210 Pa. Code § 69.414(a).
Accordingly, because Looney does not raise any other specific claim or provide any argument as to how the Board erred in recalculating Looney's maximum sentence date aside from the above, we affirm the Board's Order.
ORDER
NOW, October 4, 2021, the Pennsylvania Parole Board's January 14, 2021 Order is AFFIRMED.