Opinion
No. 1148 C.D. 2013
04-03-2014
Leslie Postley, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Leslie Postley petitions for review of the Order of the Pennsylvania Board of Probation and Parole (Board) that denied Postley's Petition for Administrative Review challenging his parole violation maximum sentence date of December 24, 2016. On appeal, Postley argues that his parole violation maximum date fails to properly credit him for time served due solely to the Board's detainer and when he was under the Board's jurisdiction. Discerning no error, we affirm.
Postley was sentenced, effective December 24, 2002, by the Court of Common Pleas of Philadelphia to serve 7 to 14 years for aggravated assault resulting in a minimum sentence date of December 24, 2009, and a maximum sentence date of December 24, 2016. (C.R. at 1-2.) Postley was released on parole on January 7, 2010 and arrested on September 3, 2011 by the Philadelphia Police Department. (C.R. at 7, 15.) On October 14, 2011, the Board issued a notice to detain Postley pending disposition of new criminal charges. (C.R. at 12.) These criminal charges were nolle prossed on January 15, 2013. (C.R. at 16.) On January 17, 2013, the Board issued a warrant to commit and detain Postley pending disposition of technical violations of his parole. (C.R. at 14-15.) Postley was charged as a technical parole violator (TPV) for violating condition 5B of his parole by possessing a weapon on September 3, 2011. (C.R. at 17.) Postley waived his right to a panel violation hearing and counsel and admitted that he violated condition 5B of his parole. (C.R. at 24.) By notice mailed March 12, 2013, the Board recommitted Postley as a TPV to serve 6 months backtime. (C.R. at 28.) By notice mailed April 30, 2013, the Board amended the March 12, 2013 notice and recommitted Postley as a TPV to serve 12 months backtime. (C.R. at 31.) The notice indicated Postley's parole violation maximum date as December 24, 2016. (C.R. at 31.)
"A nolle prosequi is the voluntary withdrawal by the prosecuting attorney of the present proceedings on a criminal charge." Brantley v. Pennsylvania Board of Probation and Parole, 506 A.2d 970, 973 (Pa. Cmwlth. 1986).
"Backtime" is the portion of a judicially-imposed sentence that a parole violator must serve as a consequence of violating parole before he is eligible to be re-paroled. Krantz v. Pennsylvania Board of Probation and Parole, 483 A.2d 1044, 1047 (Pa. Cmwlth. 1984).
Postley filed a timely Petition for Administrative Review with the Board wherein he alleged that the time he spent incarcerated on his new criminal charges must be applied to his "original sentence 'backtime' and violations" because the charges were nolle prossed. (C.R. at 32.) In denying Postley's Petition for Administrative Review, the Board explained that the notice mailed on April 30, 2013 established his parole maximum sentence date as December 24, 2016, which is the same sentence maximum date as when Postley was released on parole; therefore, no delinquency time had been added to Postley's original sentence. (C.R. at 45.) The Board explained further that, because Postley was recommitted as a TPV, no time at liberty on parole had been taken from Postley's original sentence and, as a result, the credit Postley was seeking had already been accounted for in establishing his December 24, 2016 parole violation maximum date. (C.R. at 45.) Postley now petitions this Court for review.
In reviewing a recommitment decision, this Court's review is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether the decision is in accordance with the law, and whether the Board violated any of the parolee's constitutional rights. Larkin v. Pennsylvania Board of Probation and Parole, 555 A.2d 954, 956 n.1 (Pa. Cmwlth. 1989).
Relying upon this Court's decision in Morrison v. Pennsylvania Board of Probation and Parole, 578 A.2d 1381 (Pa. Cmwlth. 1990), Postley argues in this appeal that because the criminal charges against him were nolle prossed, the time he spent incarcerated awaiting disposition of these new charges must be credited toward his original sentence. Postley's argument is misplaced for several reasons.
Postley also raises the issue in the Statement of Questions Involved section of his brief of whether the Board erred by failing to comply with Pennsylvania law in certain procedures relating to the order in which Postley served his sentences, which caused Postley to improperly serve consecutive time. However, Postley does not set forth any argument with respect to this issue in the argument portion of his brief; therefore, the issue is waived. See Rule 2119(a) of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 2119(a) (requiring the argument section of a party's brief "be divided into as many parts as there are questions to be argued" and include "such discussion and citation of authorities as are deemed pertinent"); City of Philadelphia v. Berman, 863 A.2d 156, 161 n. 11 (Pa. Cmwlth. 2004) (holding that a party's failure to develop an issue in the argument section of his or her brief constitutes waiver of the issue). --------
First, we note that Postley was recommitted by the Board as a TPV based upon his admission that he violated condition 5B of his parole. This recommitment was well within the authority of the Board. See Section 6138(c) of the Prisons and Parole Code, 61 Pa. C.S. § 6138(c) (providing that a parolee who violates the terms and conditions of his parole may be recommitted as a TPV and reentered to serve the remainder of his original sentence(s)). Second, when the Board recommitted Postley to serve 12 months backtime as a TPV it did not add any delinquency time to his sentence or take away any time at liberty on parole; thus, the Board did not extend Postley's original maximum sentence date. Accordingly, as stated by the Board, the credit that Postley is seeking was accounted for by the Board when it recommitted him as a TPV.
Moreover, because the Board's notice mailed April 30, 2013 establishing Postley's parole violation maximum date as December 24, 2016 did not result in Postley being incarcerated beyond his original maximum sentence date, this Court's decision in Morrison supports a determination that the Board did not err in this matter. In Morrison, the Board recalculated Morrison's maximum sentence expiration when it recommitted him as a convicted parole violator and as a TPV. Morrison contended that that the Board illegally extended his maximum sentence date when it recommitted him to serve fifty-four months of backtime. However, because Morrison was only required to serve the fifty-two months and thirteen days that remained on his original sentence, he would not be incarcerated for a period greater than called for by his original sentence; therefore, we held that his claim was wholly frivolous. Morrison, 578 A.2d at 1383.
Finally, any dispute that Postley may have with regard to the calculation of his original maximum sentence should be directed to the Department of Corrections since the Board has no authority to reduce his original sentence. Gillespie v. Pennsylvania Department of Corrections, 527 A.2d 1061, 1065 (Pa. Cmwlth. 1987) (holding that "[t]he Department [of Corrections], not the Board, is responsible for calculating the minimum and maximum terms of prisoners committed to its jurisdiction").
For the foregoing reasons, the Board's Order is affirmed.
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RENÉE COHN JUBELIRER, Judge ORDER
NOW, April 3, 2014, the Order of the Pennsylvania Board of Probation and Parole entered in the above-captioned matter is AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge