Opinion
No. 1443 C.D. 2012
02-25-2014
Kenneth Rhine, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Kenneth Rhine petitions for review of an adjudication by the Pennsylvania Board of Probation and Parole (Board) that denied Rhine's administrative appeal from the Board's Order to Release on Parole/Reparole. Rhine argues that the Board impermissibly relied upon sentences not previously included in his sentence summaries when it modified his maximum sentence date. We affirm the Board.
Rhine is currently incarcerated at SCI-Houtzdale for multiple convictions in Schuylkill County. On November 9, 2007, Rhine was granted conditional parole on six sentences:
• Schuylkill County Court of Common Pleas docket number 000000902-Count 1 (CP 902) imposed on February 27, 2001;
• Schuylkill County Court of Common Pleas docket number 000000682 (CP 682) imposed on February 27, 2001;Certified Record at 35-38, 45 (C.R. ___). On March 10, 2008, Rhine was released on parole to a community corrections center.
• Schuylkill County Court of Common Pleas docket number 000000109 (CP 109) imposed on October 24, 2000;
• Schuylkill County Court of Common Pleas docket number 000000717-Count 1 (CP 717), imposed on February 27, 2001;
• Schuylkill County Court of Common Pleas docket number 000000850-Count 1 (CP 850), imposed on February 27, 2001;
• Schuylkill County Court of Common Pleas docket number 000000704-Count 1 (CP 704), imposed on February 27, 2001.
The Department of Corrections (Department) initially aggregated the sentences for CP 902, CP 682 and CP 109, resulting in a term of confinement of 6 to 19 years, with a minimum sentence date of June 11, 2007, and a maximum sentence date of June 11, 2020. The Department initially aggregated the sentences for CP 717 and CP 850 for a term of confinement of 3 to 10 years, with a minimum sentence date of June 13, 2004, and a maximum sentence date of June 11, 2020. The Department's initial calculation of the sentence for CP 704 resulted in a minimum sentence date of May 15, 2004, and a maximum sentence date of May 15, 2011.
On May 15, 2009, Rhine was arrested by the Pennsylvania State Police for various crimes in Schuylkill County. On June 29, 2009, the Board issued an order recommitting Rhine as a technical parole violator and modifying his maximum sentence date from June 11, 2020, to March 1, 2021. On June 14, 2010, Rhine pled guilty to the charges in Schuylkill County, docketed there at docket number 1121-2009, and was sentenced to a term of confinement of 21 months to 42 months. On June 25, 2010, the Department again modified Rhine's sentence status summary. The new sentence summary included numerous sentences that were not listed on the previous summary the Board relied upon when it released him on parole on March 10, 2008. C.R. 1-7.
On July 22, 2010, the Board sent Rhine a notice of alleged parole violations and revocation hearing. C.R. 59. Rhine waived his right to a revocation hearing and admitted to violating his parole. C.R. 60. On September 16, 2010, the Board issued an order recommitting Rhine as a convicted parole violator; changing his maximum sentence date from March 1, 2021, to September 8, 2022; and changing his minimum sentence date to June 7, 2012.
On October 25, 2010, and again on November 1, 2010, Rhine filed an administrative appeal of the Board's September 16, 2010, recommitment order. Rhine raised three issues. First he challenged his 24-month recommitment period as improper. Second, he claimed the Board erred in determining that he was not eligible for reparole until June 7, 2012. Finally, he claimed that the Board erred in calculating his maximum sentence date to be September 8, 2022.
By decision of January 10, 2011, the Board changed Rhine's minimum sentence date from June 7, 2012, to July 20, 2011, and his maximum sentence date from September 8, 2022, to October 21, 2021. The Board responded to Rhine's administrative appeal on March 7, 2011, holding that his 24-month recommitment period was appropriate. The Board denied Rhine's other claims as moot because it had recalculated his minimum and maximum sentence dates in its January 10, 2011, order. On May 24, 2011, the Board issued a decision denying Rhine reparole. Rhine did not appeal that decision.
On April 18, 2012, the Board recorded a decision changing Rhine's maximum sentence date from October 21, 2021, to December 30, 2020. In doing so, the Board relied upon an updated sentence status summary from the Department, which included 16 different sentences; previous sentence summaries listed only six sentences. C.R. 146-149. On May 1, 2012, Rhine filed an administrative appeal challenging the aggregated sentences in the Board's decision.
The sentence summary lists approximately 64 sentences, however many of these sentences are listed more than once. C.R. 146-149.
On June 28, 2012, the Board denied Rhine's administrative appeal. The Board determined that, to the extent Rhine alleged that the Board improperly recommitted him as a convicted parole violator, his appeal was an untimely challenge to the Board's September 16, 2010, recommitment order. The Board also denied Rhine's appeal insofar as it alleged his sentences were improperly aggregated, resulting in an improper sentence calculation. The Board noted that Rhine had to seek relief on that claim from the Department, which is responsible for the aggregation of sentences. Rhine now petitions this Court for review.
On appeal, Rhine argues that the Board violated his due process rights by modifying his maximum sentence date. Specifically, Rhine challenges the number of sentences that the Board used in calculating the maximum sentence date. Rhine also argues that it is disingenuous for the Board to find his appeal untimely because, at the time of his parole revocation hearing, he was not given notice of which sentences the Board would be considering.
Our scope of review is limited to a determination of whether constitutional rights have been violated, an error of law has been committed or necessary findings of fact are supported by substantial evidence. Carter v. Pennsylvania Board of Probation and Parole, 936 A.2d 155, 156 n.3 (Pa. Cmwlth. 2007).
We begin by reviewing the relevant duties of the Board and the Department. The Board does not determine the minimum and maximum sentence dates; that is the responsibility of the Department. Gillespie v. Department of Corrections, 527 A.2d 1061, 1065 (Pa. Cmwlth. 1987) (citing 42 Pa. C.S. §9757). The Board is bound by those dates and is prohibited from paroling an inmate prior to the minimum sentence date set by the Department. Id. at 1066.
Section 9757 of the Sentencing Code provides:
Whenever the court determines that a sentence should be served consecutively to one being then imposed by the court, or to one previously imposed, the court shall indicate the minimum sentence to be served for the total of all offenses with respect to which sentence is imposed. Such minimum sentence shall not exceed one-half of the maximum sentence imposed.
The case at bar is similar to Forbes v. Department of Corrections, 931 A.2d 88 (Pa. Cmwlth. 2007). In that case, on February 19, 1981, Forbes was sentenced to serve 10 to 20 years, with a minimum sentence date of February 23, 1990, and a maximum sentence date of February 23, 2000 (Sentence 1). On February 11, 1982, Forbes was sentenced on another conviction to serve 7 to 15 years (Sentence 2), consecutive to Sentence 1. On February 23, 2000, Forbes completed serving Sentence 1, and the Board and Department informed him that he was now serving Sentence 2, which would expire on February 23, 2006. On February 24, 2006, a day after he was to be released from Sentence 2, the Department realized Sentence 1 and Sentence 2 should have been aggregated, resulting in a total sentence of 17 to 35 years. Thus, Forbes' correct minimum and maximum sentence dates were May 21, 1997, and May 21, 2015, respectively.
Forbes petitioned this Court for a writ of mandamus to order the Department to vacate its decision to aggregate his sentence. Forbes argued, inter alia, that the Department's aggregation of his sentences violated his due process rights.
This Court rejected Forbes' arguments. We explained that because the sentences had been ordered to be served consecutively, the Department had an automatic and mandatory duty to aggregate the sentences, pursuant to Section 9757 of the Sentencing Code, 42 Pa. C.S. §9757. Forbes, 931 A.2d at 92. We explained:
Forbes argues that the Department is barred from performing its mandatory duty because performing it would violate Forbes' right to due process, which protects individuals from government conduct that shocks the conscience and from fundamental unfairness. However, the Department's correction of its error does not shock the conscience. Forbes does not allege that the Department deliberately misled Forbes to torment him. The Department simply made a mistake and did not realize it until the Department prepared for Forbes' release at the expiration of his erroneous maximum date. Moreover, it is not fundamentally unfair to allow the Department to correct its error and to require that Forbes serve the sentence he actually received.Forbes, 931 A.2d at 94.
In the present case, the Board is similarly bound to apply the aggregated sentence computations that it receives from the Department when the Board calculates a prisoner's parole eligibility date. Rhine's administrative appeal to the Board challenging the aggregation of his sentences was misplaced. Insofar as Rhine seeks to correct an alleged error in his sentence structure, which was set by the Department, he must seek relief in an action against the Department.
Rhine also argues that he was deprived of due process at his revocation hearing because he was not given proper notice of all of the sentences for which his parole was being revoked. We disagree. This Court has held that due process is satisfied so long as the Board provides a parolee with notice of the revocation hearing and the issues to be addressed at the hearing. Bunner v. Pennsylvania Board of Probation and Parole, 379 A.2d 1368, 1370 (Pa. Cmwlth. 1977) (holding that parole revocation notice that informed parolee of the fact of parole revocation and the grounds therefor was sufficient to satisfy due process). In the present case, the issue at the revocation hearing was whether Rhine violated his parole, not what sentences he was currently serving. Because Rhine received notice that his alleged parole violation was at issue in the hearing, the Board did not violate his due process rights.
For these reasons, we affirm the decision of the Board.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 25th day of February, 2014, the order of the Pennsylvania Board of Probation and Parole dated June 28, 2012, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge