Opinion
No. 1698 C.D. 2012
10-31-2013
Wayne Outlaw, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Before this Court is the petition of Wayne Outlaw (Inmate) for review of the August 13, 2012 determination of the Pennsylvania Board of Probation and Parole (Board), which affirmed its recalculation of his maximum sentence date. For the reasons that follow, we affirm.
This matter was previously before this Court on the application of Richard C. Shiptoski, Esq., Assistant Public Defender of Luzerne County (Counsel) for leave to withdraw as attorney for Inmate on the ground that the petition for review was frivolous. On May 14, 2013, we denied the application for leave to withdraw without prejudice because Counsel had not adequately addressed all issues and directed Counsel to file a renewed application for leave to withdraw, along with a no-merit letter adequately addressing all of Inmate's claims, or submit a brief on the merits of the petition for review. On June 5, 2013, Counsel filed a brief on the merits and the appeal has now been briefed by both parties on the merits.
On May 18, 2010, Inmate was paroled from a state prison sentence of two to four years. (Certified Record (C.R.) at 19.) His maximum date at that time was January 27, 2012, leaving 619 days remaining on that sentence. (C.R. at 19, 53, 61.) Inmate was paroled to a Virginia detainer. (C.R. at 18-19.) The Board's parole order provided that upon release from that detainer, he was to be placed in a community corrections residential facility, Kintock Erie, CCF. (C.R. at 20, 23.) Inmate remained incarcerated on the Virginia detainer until October 14, 2010, when he was released to Kintock Erie, CCF. (C.R. at 28; C.R. at 57.) Inmate was released from Kintock Erie, CCF on February 1, 2011. (C.R. at 28.)
On May 17, 2011, Inmate was arrested by the Philadelphia Police on new criminal charges. (C.R. at 39.) The Board issued a Warrant to Commit and Detain him for violation of his parole that same day. (C.R. at 24.) Bail on the new charges was set at $50,000 and Inmate did not post bail. (C.R. at 40, 45.) On June 14, 2011, the Philadelphia County Court of Common Pleas lowered Inmate's bail to release on his own recognizance. (C.R. at 40, 45.) Inmate remained in custody, however, because of the Board's detainer and a July 22, 2011 decision of the Board recommitting him to a state correctional institution as a technical parole violator. (C.R . at 24-25, 39, 44.)
On December 19, 2011, Inmate entered a negotiated guilty plea to the charge of Criminal Attempt-Burglary, and was sentenced to one and one-half to three years imprisonment, with credit for time served, to be followed by an additional three years probation. (C.R. at 27, 46-47.) On January 10, 2012, Inmate signed a Waiver of Revocation Hearing and Counsel/Admission Form admitting that he had been convicted of Criminal Attempt-Burglary in violation of his parole. (C.R. at 38.) In that form, Inmate asserted that the only backtime that he owed was for the period from February 1, 2011, when he was released from the community corrections facility, to May 17, 2011, when he was arrested on the new charges. (C.R. at 38.)
In February 2012, the Board issued a decision recommitting Inmate to a state correctional institution as a convicted parole violator and recalculating a new maximum date of February 22, 2013. (C.R. at 53-54, 56.) This new maximum date was based on the Board's determination that Inmate was entitled to backtime credit only for the 188 days between June 14, 2011 and December 19, 2011, when he was incarcerated awaiting trial on the new charges after his bail was reduced, and that Inmate therefore owed 431 days of backtime, which he began serving on December 19, 2011, when he was sentenced on his guilty plea to the new charges. (C.R. at 53, 61.)
Although Inmate's maximum date of February 22, 2013 on his original sentence has expired, this matter is not moot because Inmate is still incarcerated under his sentence for the subsequent guilty plea to Criminal Attempt-Burglary, and a reduction in his maximum date here could impact the time credited to that new sentence. See Seilhamer v. Pennsylvania Board of Probation and Parole, 996 A.2d 40, 42 n.2 (Pa. Cmwlth. 2010).
Inmate filed a request for administrative relief with the Board, asserting that his maximum date was not correctly calculated because the Board did not give him credit for the periods when he was incarcerated on the Virginia detainer and between his arrest on the new charges and his guilty plea. (C.R. at 57-58.) By decision mailed August 13, 2012, the Board denied the request for administrative relief and affirmed Inmate's maximum date of February 22, 2013. (C.R. at 61-62.) On September 7, 2012, Inmate timely appealed that determination to this Court.
Our scope of review in this appeal is limited to determining whether necessary findings are supported by substantial evidence, an error of law was committed, or constitutional rights of the parolee were violated. Slaymaker v. Pennsylvania Board of Probation and Parole, 768 A.2d 417, 418 n.1 (Pa. Cmwlth. 2001).
Inmate argues only that the Board erred in denying him credit for the period from May 18, 2010 to February 1, 2011 and does not challenge the Board's calculation of his backtime for the period from February 1, 2011 to December 19, 2011. (Petitioner's Brief at 8-12.) With respect to the period from May 18, 2010 to October 14, 2010, Inmate argues that the Board's denial of backtime credit is not supported by substantial evidence. (Petitioner's Brief at 9-10.) We do not agree. Inmate has repeatedly admitted that he was incarcerated on Virginia state charges from the date he was paroled until he reported to Kintock Erie, CCF. (C.R. at 57; Petition for Review ¶¶4, 6; Anders Brief at 4, 6.) Inmate is not entitled to backtime credit for periods during which he was incarcerated for a different reason unrelated to the sentence from which he was paroled. Hines v. Pennsylvania Board of Probation and Parole, 491 Pa. 142, 148-49, 420 A.2d 381, 384 (1980); Hernandez v. Pennsylvania Board of Probation and Parole, 548 A.2d 380, 381-82 (Pa. Cmwlth. 1988); Rosenberger v. Pennsylvania Board of Probation and Parole, 510 A.2d 866, 867 (Pa. Cmwlth. 1986).
Although Inmate had previously contended that the Board erred in denying him credit for the period after his arrest on the new charges (Anders Brief in Support of Petition to Withdraw as Counsel at 8, 11), as Counsel demonstrated in his previous Anders Brief, the record is clear that the Board's determination with respect to that period is correct. Inmate was not in custody from February 1, 2011 to May 17, 2011. (C.R. at 38.) The Board gave Inmate backtime credit for the 188-day period from June 14, 2011 to December 19, 2011, when he was in custody on the Board's detainer after his bail on the new charges was reduced. (C.R. at 53, 61.) While Inmate was also in custody from May 17, 2011 to June 14, 2011, the Board correctly denied him backtime credit for that period because bail had been set at $50,000 on the new charges and Inmate did not post bail. (C.R. at 40, 45.) A parolee is not entitled to backtime credit for periods when he is held on new charges for failure to post bail. Gaito v. Pennsylvania Board of Probation and Parole, 488 Pa. 397, 403-04, 412 A.2d 568, 571 (1980); Slaymaker, 768 A.2d at 419.
With respect to the period from October 14, 2010 to February 1, 2011, Inmate requests a remand to the Board for a hearing on whether he is entitled to backtime credit for the period he was at Kintock Erie, CCF. (Petitioner's Brief at 8, 10-12.) A parolee can be entitled to backtime credit for periods of time spent in a residential facility if he shows specific characteristics of the residential facility that make it equivalent to incarceration. Cox v. Pennsylvania Board of Probation and Parole, 493 Pa. 614, 619-20, 493 A.2d 680, 683-84 (1985); Harden v. Pennsylvania Board of Probation and Parole, 980 A.2d 691, 697-701 (Pa. Cmwlth. 2009) (en banc).
As the Board correctly asserts (Respondent's Brief at 6, 11-14), however, Inmate waived this claim because he failed to raise it in his administrative appeal to the Board. The law is well settled that issues not raised in the parolee's administrative appeal to the Board are waived and cannot be considered by this Court. White v. Pennsylvania Board of Probation and Parole, 833 A.2d 819, 821 (Pa. Cmwlth. 2003); Joyce v. Pennsylvania Board of Probation and Parole, 811 A.2d 73, 78 (Pa. Cmwlth. 2002); Newsome v. Pennsylvania Board of Probation and Parole, 553 A.2d 1050, 1052 (Pa. Cmwlth. 1989). In his administrative appeal, Inmate made no assertion that the Kintock Erie, CCF facility was custodial and made no request for any hearing. (C.R. at 57-58.) Indeed, Inmate affirmatively stated that he did not dispute that his maximum date could be extended for the entire period from his release from the Virginia detainer until his May 17, 2011 arrest on the new charges. (Id.)
We also note that Inmate's failure to contend to the Board that he was entitled to any credit for his time at Kintock Erie, CCF is not surprising in light of other parolees' lack of success in showing that the restrictions at Kintock Erie, CCF are equivalent to imprisonment. See Rosa-Perez v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth. No. 2548 C.D. 2010, filed August 2, 2011); VanHook v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth. No. 1675 C.D. 2010, filed April 15, 2011); Armstrong v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth. No. 851 C.D. 2010, filed February 1, 2011); Wise v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth. No. 1054 C.D. 2008, filed November 7, 2008). --------
For the foregoing reasons, we affirm the Board's determination.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 31st day of October, 2013, the August 13, 2012 determination of the Pennsylvania Board of Probation and Parole in this matter is hereby AFFIRMED.
/s/_________
JAMES GARDNER COLINS, Senior Judge