Opinion
No. 1519 C.D. 2014
03-19-2015
Jesus Samuels-Ortiz, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Jesus Samuels-Ortiz (Parolee) petitions for review of the decision of the Pennsylvania Board of Probation and Parole (Board) denying his request for administrative relief from the Board's order recalculating his maximum sentence date following his recommitment as a convicted parole violator in which he sought credit for the period at which he was at liberty on parole under Section 6138(a)(2), (2.1) of the Prisons and Parole Code (Code), 61 Pa. C.S. §6138(a)(2), (2.1). We affirm.
Sections 6138(a)(2) and (a)(2.1) states:
(2) If the parolee's recommitment is so ordered, the parolee shall be reentered to serve the remainder of the term which the parolee would have been compelled to serve had the parole not been granted and, except as provided under paragraph (2.1), shall be given no credit for the time at liberty on parole.
(2.1) The board may, in its discretion, award credit to a parolee recommitted under paragraph (2) for the time spent at liberty on parole, unless any of the following apply:
(i) The crime committed during the period of parole or while delinquent on parole is a crime of violence as defined in 42 Pa. C.S. §9714(g) (relating to sentences for second and subsequent offenses) or a crime requiring registration under 42 Pa. C.S. Ch. 97 Subch. H (relating to registration of sexual offenders).
(ii) The parolee was recommitted under section 6143 (relating to parole of inmates subject to Federal removal order.)
Following Parolee's pleas of guilty to two counts of robbery, 18 Pa. C.S. §3701(a), and one count of criminal attempt, 18 Pa. C.S. §901(a), he was sentenced to concurrent terms of imprisonment of two years, six months to six years with a minimum date of June 13, 2010, and a maximum date of December 13, 2013. (Certified Record (CR) at 1-3). In April 2010, he was denied parole based on his institutional behavior including reported misconducts and his failure to demonstrate motivation for success. (CR at 4). Ultimately, Parolee was released on parole on July 11, 2011.
The parole conditions that Parolee signed state, in relevant part, that "[i]f 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." (CR at 9).
On March 24, 2012, Parolee was arrested by the Broward County, Florida Sheriff's Office for two felony counts of possessing counterfeit bank bills/checks/draft notes and released that same day on his own recognizance. (CR at 14). In December 2012, Parolee pleaded no contest to both counts and was adjudged guilty and sentenced to 30 days in jail with credit for 39 days and a three-year probationary term. (CR 15-25).
On June 5, 2012, Parolee was again arrested by the Hollywood, Florida Police for possession of drug paraphernalia and possession of 20 grams or less of cannabis and released that same day on posting bail. (CR at 26). In November 2013, Parolee pleaded no contest to the possession of drug paraphernalia charge and was adjudged guilty and sentenced to 59 days in jail. (Id. at 27-31).
In September 2013, the Board lodged a warrant to arrest and detain Parolee for the conviction and new charges and in January 2014, the Board issued an administrative action to return him as a convicted parole violator and to schedule a revocation hearing. Parolee was returned to SCI-Graterford after completing his Florida sentence. In January 2014, Parolee waived his right to a revocation hearing and representation by counsel and admitted to the fact of his new Florida convictions. (CR at 35).
In March 2014, the Board circulated a Hearing Report regarding the revocation of Parolee's parole that was signed by two panel members of the Board. (CR at 36-43). The Hearing Report noted Parolee's hearing waiver and his admission of the new Florida convictions. (Id. at 36-38). The panel decided to recommit Parolee as a convicted parole violator to serve 12 months backtime and denied him credit for time spent at liberty on parole, noting "Violent offender" and "drug para [sic] arrest while on bail for counterfeit check charges, then violated this prob [sic]." (Id. at 38, 39, 43).
On April 1, 2014, the Board issued an Order to Recommit indicating Parolee's original maximum date of December 13, 2013, for the sentence imposed on his original robbery and criminal attempt convictions; his original minimum date of June 13, 2010; his parole date of July 11, 2011 from that sentence; he owed 886 days in backtime on that sentence and he was in custody for return on January 6, 2014, so that his recomputed maximum date is June 10, 2016. (CR at 45-46). The Order to Recommit also indicated that Parolee was recommitted on his other original robbery conviction with a minimum date of May 22, 2010, and a new maximum date of May 20, 2016. (Id. at 46).
On April 7, 2014, the Board mailed a Notice of Board decision recommitting Parolee as a convicted parole violator to serve 12 months backtime for the offenses of possession of a counterfeit payment instrument and possession of drug paraphernalia. (CR at 47). The Notice stated that the evidence relied on was a certified court record proving his convictions and that he was recommitted because his convictions in a court of record were established and that he is not amenable to parole supervision. (Id.). The Notice also stated that Parolee would not be eligible for reparole until January 6, 2015, and recalculated his parole violation maximum date to June 10, 2016. (Id.).
In May 2014, Parolee filed an administrative appeal of the Board's revocation decision because it was an error of law; a violation of constitutional law; and a recommitment challenge because "Revocation hearing was not timely." (CR at 48, 49-54). Parolee also submitted a petition for administrative review as a sentence credit challenge; review of his reparole eligibility date; the order of the service of his sentences; and because it "Exceeded Max date. Please reinstate original Max date of December 13, 2013." (Id. at 48, 54-58). Specifically, Parolee argued that the Board was without jurisdiction to extend the maximum date of a judicially-imposed sentence without written authorization by the sentencing judge, and the Board's extension of his sentence is an increase in punishment in violation of the Fifth and Eighth Amendments to the United States Constitution. (Id. at 54-56). Parolee also asserted that the Code does not authorize the Board to extend the parole maximum date under a breach of contract theory, and that the extension of a judicially-imposed sentence requires due process. (Id. at 56-57). Finally, Parolee argued that every time that a Board calculation is made pursuant to Section 6138(a)(2) and a return is made with a recomputed maximum date, a parolee's "status sheet" is amended to reflect the new maximum date and he is forced to serve the recomputed maximum date without due process in violation of the Pennsylvania and United States Constitutions. (Id. at 57-58). In July 2014, the Board denied Parolee's request for administrative relief on both grounds and Parolee filed the instant appeal.
Specifically, the Board's decision stated the following, in pertinent part:
[Y]ou signed a form waiving your right to a revocation hearing and admitting that you were convicted of the offense indicated in violation of your parole. The waiver/admission form you signed specifically indicates that you chose to take said action of your own free will, without promise, threat or coercion. You also failed to withdraw the waiver/admission within the prescribed ten-day grace period. Thus, it is clear that the waiver/admission was knowing and voluntary. Because you knowingly and voluntarily waived your right to a revocation hearing, you cannot now claim that the Board failed to provide you with a timely revocation hearing.(CR at 62) (citations omitted).
Additionally, because the Board recommitted you as a convicted parole violator, the Board also had statutory authority to recalculate your sentence to reflect that you received no credit for the period you were at liberty on parole. 61 Pa. C.S. §6138(a)(2). The Board advised you of this potential penalty on the parole conditions you signed on July 7, 2011. Additionally, the ability to challenge the recalculation decision after it is imposed satisfied your due process rights. Therefore, the Board's recalculation of your maximum sentence date did not violate any constitutional provisions.
Our scope of review is limited to determining whether the Board's decision is supported by substantial evidence, whether an error of law was committed, or whether constitutional rights have been violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Moroz v. Pennsylvania Board of Probation and Parole, 660 A.2d 131, 132 (Pa. Cmwlth. 1995). --------
Parolee argues that the Board abused its discretion in summarily extending his maximum date and in refusing to give him credit for his street time because his Florida convictions underlying the revocation of his parole are non-violent crimes and are not those violent crimes referenced in Section 6138(2.1) of the Code that preclude the grant of such credit. Parolee submits that the case should be remanded because the Board failed to comply with Section 6138(2.1) which requires the Board to consider whether credit for street time should be granted where the revocation convictions are not the enumerated disqualifying violent offenses and to explain why such credit is not granted in such circumstances.
However, as argued by the Board, Parolee did not raise any of these claims in his administrative appeal or petition for administrative review of the Board's recommitment order and recalculation of his maximum date. As outlined above, none of the issues that Parolee raised in this appeal could be deemed to be a subsidiary of the issues that he raised before the Board in his administrative appeal or petition for administrative review. As a result, Parolee's claims will not be addressed for the first time by this Court in this appeal. Pa. R.A.P. 1551(a) ("No question shall be heard or considered by the court which was not raised before the government unit...."); Section 703(a) of the Administrative Agency Law, 2 Pa. C.S. §703(a) ("[A] party may not raise upon appeal any other question not raised before the agency...."); Newsome v. Pennsylvania Board of Probation and Parole, 553 A.2d 1050, 1052 (Pa. Cmwlth. 1989) ("It is well-settled that failure to raise an issue before the Board results in a waiver and precludes this Court from review.") (citations omitted).
Accordingly, the Board's decision is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 19th day of March, 2015, the decision of the Pennsylvania Board of Probation and Parole dated July 30, 2014, at Parole No. 004EW, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge