Opinion
No. 1775 C.D. 2012
08-28-2013
Wayne James Oliphant, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Scott B. Bennett, Esquire (Counsel) of the Wayne County Public Defender's Office, petitions the Court for leave to withdraw as counsel on behalf of Wayne James Oliphant (Oliphant). Oliphant petitions for review of the September 11, 2012 order of the Pennsylvania Board of Probation and Parole (Board), which dismissed his petition for administrative review and affirmed the July 9, 2012 determination that Oliphant was properly denied credit for time spent at a community corrections residency and that his parole violation maximum date of September 18, 2013, had been properly calculated. Upon review, we grant Counsel's application to withdraw and affirm the Board's order.
Oliphant was sentenced to a term of imprisonment of three years, six months to ten years, effective December 6, 1998, with a minimum expiration date of June 6, 2002, and a maximum expiration date of December 6, 2008. (Certified Record (C.R.) at 1.) Oliphant was released on parole on July 18, 2002. (C.R. at 4, 6.) Less than a month later, on August 19, 2002, Oliphant was recommitted to the State Correctional Institution at Somerset (SCI-Somerset) as a technical parole violator (TPV) and ordered to serve nine months backtime. (C.R. at 9.) Oliphant subsequently was released on parole on August 3, 2003. (C.R. at 10, 13.) The Board declared Oliphant delinquent as of September 16, 2003, and recommitted him as a TPV to SCI-Somerset on November 28, 2003, with a new maximum parole violation date of February 18, 2009. (C.R. at 16, 17.)
The statute in effect at the time was found in section 21.1 of the law known as the Parole Act (Parole Act), Act of August 6, 1941, P.L. 861, as amended, added by the Act of August 24, 1951, P.L. 1401, formerly 61 P.S. §331.21a. In relevant part section 21.1(b) of the Parole Act stated that a parolee recommitted as a TPV "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." 61 P.S. §331.21a(b). The former Parole Act was repealed by the Act of August 11, 2009, P.L. 147 and replaced by the Prisons and Parole Code (Parole Code), 61 Pa.C.S. §§101-6309, which includes an identical provision at 61 Pa.C.S. §6138(c)(2).
The recalculation of Oliphant's parole violation maximum date reflects that the Board granted Oliphant credit for the time he spent on parole in good standing from August 3rd until September 16th and added seventy-four days, from September 16th to November 28th, representing the time he was delinquent. (C.R. at 17.)
Oliphant was reparoled on February 22, 2005. (C.R. at 21.) Oliphant was subsequently convicted of drug-related charges, and, on September 11, 2006, was sentenced to a term of one year, three months to two years, six months' imprisonment (the 2006 sentence). (C.R. at 37.) On September 19, 2006, Oliphant was incarcerated as a TPV and a Convicted Parole Violator (CPV); by order dated October 19, 2006, the Board ordered Oliphant to serve eighteen months backtime as a TPV and twenty-four months backtime as a CPV, concurrently, and recalculated the maximum parole violation date on his original sentence to November 30, 2010. (C.R. at 26-27.)
Section 21.1(a) of the former Parole Act, stated that when a parolee is recommitted as a CPV, the parolee "shall be reentered to serve the remainder of the term which said parolee would have been compelled to serve had he not been paroled, and he shall be given no credit for the time at liberty on parole." 61 P.S. §331.21a(a).
Effective July 1, 2008, Oliphant was constructively paroled from his original sentence to begin serving his 2006 sentence. (C.R. at 31-33.) Oliphant was released on parole from his 2006 sentence on August 3, 2009, with a maximum parole violation date of October 28, 2010. (C.R. 34-37.) As a condition of his parole, Oliphant resided at MinSec Scranton, a community corrections residency, from August 3, 2009, to October 10, 2009. (C.R. at 37, 38.)
A prisoner who is on constructive parole is not released from prison but is paroled from his original sentence to immediately begin serving a new sentence. Merritt v. Pennsylvania Board of Probation and Parole, 542 Pa. 577, 574 A.2d 597 (1990); Hines v. Pennsylvania Board of Probation and Parole, 491 Pa. 142, 420 A.2d 381 (1980).
On December 1, 2010, Oliphant was arrested in New Jersey, and he was convicted of the new charges on February 18, 2011. (C.R. at 101.) The Board lodged a detainer against Oliphant but he was not released to Pennsylvania authorities until March 8, 2011, when the Board issued a Warrant to Commit and Detain Oliphant due to violations of his parole. (C.R. at 43-44, 101). On March 23, 2011, Oliphant was arrested by the Scranton Police Department and he was convicted of new charges in Lackawanna County on May 6, 2011. (C.R. at 48-49.) By decision recorded August 2, 2011, the Board recommitted Oliphant to serve nine months as a TPV and six months as a CPV, concurrently, and recalculated the maximum parole violation date on his original sentence to July 18, 2013. (C.R. at 46-47.) On September 16, 2011, the Board issued a modified recommitment order establishing Oliphant's maximum parole violation date as September 18, 2013. (C.R. at 48-49.)
In the interim, Oliphant had filed a petition for administrative review with the Board, in which he claimed that he was entitled to credit for the time he resided at MinSec Scranton pursuant to Cox v. Pennsylvania Board of Probation and Parole, 507 Pa. 614, 493 A.2d 680 (1985), because the conditions at the facility were equivalent to incarceration. (C.R. at 54.) On June 18, 2012, a hearing examiner held an evidentiary hearing to determine the custodial nature of MinSec Scranton. (C.R. at 52.)
In Cox, our Supreme Court held that a convicted parole violator can be granted credit on his original sentence for time spent in a community corrections residency or similar facility by showing that the specific characteristics of the facility are sufficiently restrictive.
Oliphant testified that he voluntarily entered the program at MinSec Scranton, that the facility was locked, and that only the facility staff could let him in and out of the building. (C.R. at 55, 63, 64.) He also testified that the windows were barred and that if he tried to leave the program, the police would be called and he would receive disciplinary action and/or re-incarceration. (C.R. at 55, 63-64.) However, Oliphant subsequently admitted that there were no bars on the windows, that residents were permitted to leave the facility for work, appointments, and home passes, and that he was personally granted leave on multiple occasions. (C.R. at 63-64.)
Sean Stajkowski, the director of MinSec Scranton, testified that there is no perimeter fence along the grounds and that residents are not locked in their rooms at night. (C.R. at 72-73, 76.) He stated that the front door is locked at all times to prevent people from entering the facility, but there is a panic button that will unlock the door if a resident needs to leave. (C.R. at 74.) Stajkowski further testified that staff members do not carry weapons, restraints, or handcuffs, and they do not conduct strip searches when residents either enter or leave the facility. (C.R. at 75-77.) He also stated that residents could receive passes to leave the facility for work, errands, or religious purposes. (C.R. at 77.) Stajkowski said a resident who leaves for an unauthorized purpose is considered to have absconded from the program, but the staff at MinSec Scranton would not restrain a resident from leaving. (Id.)
The hearing examiner found that: residents leave the facility for work appointments, and home passes; facility staff do not restrain residents who decide to leave before successfully completing the program; doors are not locked from the inside; and residents can exit the facility by pressing an emergency bar. (Evidentiary Hearing Report, C.R. at 55-56.) Based upon these findings, the hearing examiner concluded that the specific characteristics of the program at MinSec Scranton were not the functional equivalent of incarceration and, therefore, Oliphant was not entitled to credit against his maximum sentence for his time at that facility. (Id.) By decision mailed July 9, 2012, the Board adopted the hearing officer's conclusions. (C.R. at 90-91.)
On July 23, 2012, Oliphant filed another request for administrative relief, challenging the Board's determination that he was not entitled to credit for his time at MinSec Scranton and asserting for the first time that the Board erred in calculating his parole violation maximum date as September 18, 2013. (C.R. at 92-94.) On September 11, 2012, the Board affirmed its determination that Oliphant is not entitled to backtime credit for the time he spent at MinSec Scranton and also concluded that Oliphant's parole violation maximum sentence was calculated correctly. (C.R. at 101-102.)
Thereafter, Oliphant filed a pro se petition for review with this Court, which issued an order appointing Counsel to represent him and provided an additional thirty days within which to file an amended petition for review. On January 15, 2013, Counsel filed a petition for leave to withdraw and a "Turner" letter, detailing the reasons why he determined that Oliphant's appeal lacked merit.
Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988).
In order to withdraw, counsel must satisfy the procedural requirements set forth in Craig v. Pennsylvania Board of Probation and Parole, 502 A.2d 758, 760-61 (Pa. Cmwlth. 1985). Under Craig, counsel must notify the parolee of his request to withdraw, furnish the parolee with either a copy of a brief complying with Anders v. State of California, 386 U.S. 738 (1967), or a no-merit letter satisfying the requirements of Turner, and inform the parolee of his right to retain new counsel or submit a brief on his own behalf. If counsel proceeds under Turner, the letter must substantively contain: (1) the nature and extent of counsel's review; (2) the issues the parolee wishes to raise; and (3) counsel's analysis in concluding the parolee's appeal is without merit. Hughes v. Pennsylvania Board of Probation and Parole, 977 A.2d 19, 22-23 (Pa. Cmwlth. 2009). We mandate that counsel comply with these requirements to ensure that a parolee's claims are considered and that counsel has substantial reasons for concluding that the claims are without merit. Id.
In the present case, Counsel notified Oliphant by letter dated January 14, 2013, that he was seeking leave to withdraw and provided Oliphant with a copy of the petition to withdraw. Counsel also advised Oliphant of his right to obtain substitute counsel or file a brief on his own behalf, and Counsel provided Oliphant with a copy of the Turner letter setting forth the reasons why he found Oliphant's arguments lack merit. Therefore, Counsel has complied with the procedural requirements of Craig.
Counsel's no-merit letter states that Counsel has reviewed the record in this matter, including all pro se filings, client correspondence, and applicable law. The letter addresses the claims raised by Oliphant in his petition for review and sets forth Counsel's analysis of the claims and his reasons for concluding that they are meritless. Specifically, Counsel stated that he performed his own calculations and confirmed the accuracy of September 18, 2013, as the maximum parole violation date. He also stated that, based on his examination of the facts and applicable law, the Board did not act arbitrarily or abuse its discretion in concluding that Oliphant was not entitled to credit for time served in MinSec Scranton. Thus, we conclude that Counsel has complied with Turner.
Having determined that Counsel has satisfied the necessary procedural and technical requirements to withdraw, we now conduct our own independent review to determine whether Oliphant's appeal is, in fact, without merit. An appeal is without merit when it lacks any basis in law or fact. Commonwealth v. Santiago, 602 Pa. 159, 168, 978 A.2d 349, 356 (2009).
On appeal, Oliphant claims that he is entitled to credit for the time he served on parole at MinSec Scranton between August 3, 2009, and October 10, 2010. Accordingly, he argues that his maximum parole violation date should be adjusted by 67 days to reflect the time he served at that facility.
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication was in accordance with law, and whether necessary findings were supported by substantial evidence. 2 Pa.C.S. §704; Adams v. Board of Probation and Parole, 885 A.2d 1121, 1122 n.1 (Pa. Cmwlth. 2005).
Under both section 21.1a of the former Parole Act and the equivalent provision at section 6138 of the Parole Code, 61 Pa.C.S. §6138(a)(2), a parolee recommitted as a CPV is not entitled to credit for time "at liberty on parole," a phrase that is not defined by either statutory provision. However, in Cox, our Supreme Court held that "at liberty" does not mean freedom from all types of confinement. Id. at 619, 493 A.2d at 683. Thus, a convicted parole violator may establish entitlement to credit on his original sentence for time spent in a community corrections residency by showing that the specific characteristics of the program are sufficiently restrictive so as to be equivalent to incarceration. Id. at 620, 493 A.2d at 683. In making this determination, the most important factors are whether the parolee is locked in and whether he may leave without being physically restrained. Detar v. Pennsylvania Board of Probation and Parole, 890 A.2d 27 (Pa. Cmwlth. 2006).
In Harden v. Pennsylvania Board of Probation and Parole, 980 A.2d 691 (Pa. Cmwlth. 2009), the parolee sought credit for time spent in two residential programs, Penn Pavilion and Renewal. On appeal, we first observed that:
Penn Pavilion and Renewal are physically constructed in ways that this Court has held, on numerous occasions, are unlike prisons. Facilities are not-prison-like if they lack fences or have fences with gates that open from the inside; have doors and windows locked from the outside, not the inside, to prevent entry not exit; lack guards stationed to prevent residents from leaving; and do not attempt to use physical force to stop an inpatient for leaving. Harden's testimony about the structural conditions at Penn Pavilion and Renewal did not make his case.Id. at 699 (citations omitted). We next determined that the rules at the most restrictive facility, Penn Pavilion, were not so restrictive as to make the facility the equivalent of a prison, particularly in light of the parolee's concession that he was allowed to leave the facility for personal errands and medical appointments.
Because the allegedly restrictive conditions cited by Oliphant are substantially similar to those in Harden, the holding in that case is dispositive here, and we conclude that neither the physical features nor the rules at MinSec were so restrictive as to be equivalent to incarceration. Accordingly, Oliphant's claim that he is owed credit for time served at MinSec Scranton lacks merit.
Oliphant also argues that he should have been given credit for the time he served on his 2006 sentence from July 1, 2008, to August 3, 2009. Oliphant acknowledges that he was on parole from his original sentence during that time but argues that he is entitled to credit because he remained incarcerated. However, it is well-settled that an individual who is on constructive parole is "at liberty on parole" on that particular sentence; thus, a parolee is not entitled to credit for time spent on constructive parole. Hines v. Pennsylvania Board of Probation and Parole, 491 Pa. 142, 420 A.2d 381 (1980); Yates v. Pennsylvania Board of Probation and Parole, 48 A.3d 496 (Pa. Cmwlth. 2012). Accordingly, we conclude that this claim also lacks merit.
Oliphant next argues that when he was released on parole from his 2006 sentence on August 3, 2009, he had only sixteen months remaining on his original sentence, and he should not be recommitted for more than sixteen months. Oliphant calculates that his maximum parole violation date should be set at June 11, 2012, which is approximately sixteen months from February 18, 2011, the date of his New Jersey conviction. However, Oliphant erroneously assumes that he was entitled to credit from July 1, 2008, to August 3, 2009, and also from February 18, 2011, to May 6, 2011. As noted above, Oliphant is not entitled to credit while on constructive parole from July 1, 2008, to August 3, 2009. Moreover, Oliphant is not entitled to credit for time he served in a New Jersey prison, beginning February 18, 2011, until May 6, 2011, when he first became available in Pennsylvania to serve backtime owed on his original sentence. Vance v. Pennsylvania Board of Probation and Parole, 741 A.2d 838, 840-41 (Pa. Cmwlth. 1999) (holding that a parolee was not entitled to credit for time served outside of the Commonwealth's jurisdiction). The Board calculated that Oliphant owed 866 days of backtime and, based upon our independent review of the record, we conclude the Board correctly set Oliphant's maximum parole violation date at September 18, 2013.
In his petition for review, Oliphant also asserts that his original and 2006 sentences were to run concurrently and that the Board erred in extending his maximum parole violation date by two months. Oliphant further asserts that the Board incorrectly recommitted him as a CPV for non-felony offenses. However, these claims were never raised before the hearing examiner or the Board; therefore, they are waived for purposes of this appeal. Pa.R.A.P. 1551(a); Newsome v. Pennsylvania Board of Probation and Parole, 553 A.2d 1050 (Pa. Cmwlth 1989) (holding that issues not raised before the Board either at the revocation hearing or in administrative appeal cannot be considered for the first time on appeal to this Court). --------
Accordingly, having made an independent evaluation of the issues presented, and having found that Counsel has satisfied the criteria set forth in Craig and Turner, we grant Counsel's petition for leave to withdraw and affirm the Board's denial of administrative relief.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 28th day of August, 2013, the petition for leave to withdraw as counsel filed by Scott B. Bennett, Esquire, is granted. The order of the Board of Probation and Parole, dated September 11, 2012, is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge