Opinion
No. 1074 C.D. 2014
06-09-2015
Ramon Soto, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Ramon Soto (Soto) petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) that denied his request for administrative relief from the recalculation of his maximum parole expiration date after his recommitment as a convicted parole violator. Soto contends that he should have received credit toward his original sentence for the time spent in custody prior to conviction and sentencing on the new criminal charges because that time served exceeded the length of his new sentence. After review, we remand to the Board to recalculate Soto's maximum parole expiration date in accordance with this opinion.
The record shows the following relevant facts. Soto was originally serving concurrent five to ten year sentences for his conviction on two counts of Manufacture, Sale, Deliver, or Possession with Intent to Deliver a Controlled Substance. (Certified Record (C.R.) Item 1). Soto's original maximum parole expiration date was August 12, 2010. Soto was paroled from this sentence in August 2005. While on parole, Soto committed new crimes, as a result of which he was recommitted by the Board as a technical parole violator and later as a convicted parole violator. The Board recalculated Soto's maximum parole expiration date from August 12, 2010 to November 1, 2012.
On March 22, 2007, the Board recommitted Soto as a technical parole violator to serve 6 months back time when available. (C.R., Item 3, p. 11).
On March 13, 2008, the Board recommitted Soto as a convicted parole violator to serve 24 months concurrently for a total of 24 months back time. (Id. at p. 14).
Soto was once again paroled on January 10, 2010, but was arrested on new drug charges by Harrisburg Police on May 23, 2011. Soto was granted unsecured bail, but remained incarcerated on the Board's detainer, lodged that same day. Soto's bail was modified to monetary bail by the trial court on July 14, 2011, but Soto did not post bail and remained incarcerated until November 1, 2012, when the court again granted unsecured bail and the Board lifted its detainer due to the expiration of Soto's maximum parole expiration date. Soto was released from SCI-Somerset on that date.
See C.R. Item 14, Department of Corrections Moves Report, p. 71.
On October 21, 2013, Soto pled guilty to two counts of Manufacture, Sale, Deliver, or Possession with Intent to Deliver a Controlled Substance and one count of Use/Possession of Drug Paraphernalia, and was sentenced that same day to a term of 23 days to 11 and ½ months followed by 60 months probation for the new convictions. Soto was awarded credit for time served from July 14, 2011 to June 26, 2012 and granted immediate parole. Nearly two months after these convictions, Soto was taken into custody on the Board's detainer lodged on December 9, 2013. Soto admitted being convicted of the new charges and was recommitted by the Board as a convicted parole violator and his maximum parole expiration date was recalculated from November 1, 2012 to August 9, 2016.
The Board calculated that Soto had 1026 days remaining on his original sentence at the time of his parole but awarded him 52 days credit on this sentence for the period he was incarcerated from May 23, 2011 to July 14, 2011, which left a total of 974 days remaining on his sentence. The Board did not give Soto any credit for any period he was incarcerated between July 14, 2011 and December 9, 2013. When Soto became available on December 9, 2013 to commence service of his original sentence again, the Board added the 974 days owed to that date to arrive at the August 9, 2016 new maximum parole expiration date. After an administrative appeal was denied by the Board, Soto filed a petition for review with this court. Thereafter, the Board filed a Motion for Remand in which it asserted error in the calculation of Soto's maximum parole expiration date, both of which are now before us for review.
By order dated December 16, 2014, we ordered that the Board's motion be decided along with the merits of Soto's petition for review.
On appeal, Soto argues that the Board erred by not giving him credit for the time period from June 26, 2012 to December 9, 2013, which exceeded the sentence of 23 days to 11 and 1/2 months on the new charges because he was credited with time served from May 11, 2011 until June 26, 2012, and then immediately paroled by the sentencing court. Soto contends, however, that the time period in question, from June 26, 2012 until December 9, 2013, was "unaccounted for." Petitioner's Brief at 13. Relying on the Supreme Court's holding in Martin v. Pennsylvania Board of Probation and Parole, 840 A.2d 299, 309 (Pa. 2003), that all time spent in confinement must be credited to either the new sentence or the original sentence, Soto argues that the period from June 26, 2012 to December 9, 2013, must be credited to his original sentence.
In its motion, the Board concedes that Soto should have received credit for the period he was confined from June 26, 2012 to November 1, 2012, even though his confinement was due to both the Board's detainer (originally lodged on May 23, 2011), and the new charges stemming from Soto's May 23, 2011 arrest. The Board acknowledges that when Soto was convicted and sentenced in October 2013 on the new charges, the trial court sentenced Soto to a term of 23 days to 11 and ½ months, crediting Soto with time served from July 14, 2011 until June 26, 2012 (348 days), and ordered Soto's immediate parole. The Board gave Soto 52 days credit towards his original sentence from May 23, 2011 until July 14, 2011, because he was held solely on its detainer. The 476 days he was incarcerated from July 14, 2011 until November 1, 2012, exceeded the trial court's 11 and ½ month sentence on the new charges by 128 days. The Board, citing Martin, agrees that because this time cannot be applied to Soto's new sentence, it must be applied to his original sentence and he should be awarded additional credit on his original sentence for the 128 days he was incarcerated solely on the Board's detainer. Application of this credit of 128 days will change Soto's maximum parole expiration date from August 9, 2016 to April 3, 2016.
With respect to Soto's contention that he is entitled to additional credit on his original sentence from November 1, 2012 to December 9, 2013, the Board disagrees, and argues that the record shows that Soto was not incarcerated on any sentence from the time it lifted its detainer on November 1, 2012, up until it re-lodged the detainer on December 9, 2013. Specifically, the Board asserts that on November 1, 2012, the trial court granted Soto unsecured bail on the new charges which continued until the date of Soto's conviction and sentencing on those new charges on October 21, 2013, meaning that Soto was not confined on the new charges from November 1, 2012 to December 9, 2013. Secondly, the Board argues that even if Soto was confined for some or all of this time, he was clearly not confined on his original sentence because it had lifted its original detainer on November 1, 2012, at the expiration of his original maximum parole expiration date and Soto was released from SCI. It was not until it re-lodged its detainer on December 9, 2013, that Soto was again confined on his original sentence.
According to the docket entry for November 1, 2012, the trial court granted the motion for modification of bail and Soto's bail was modified to $100,000 unsecured. Soto was ordered to be released from Dauphin County Prison and posted bail on that same date. See C.R. Item 11, p. 52.
According to the Supervision History, "[Soto] reached his maximum sentence of 11/01/2012 while he was incarcerated on the new charges and our detainer was removed. [Soto] posted bail and was released. [Soto] was delinquent for control until he pled guilty to the new felony drug charges [on 10/21/2013]." Id. at p. 59.
See C.R. Item 10, Board's Warrant to Commit and Detain, dated 12/09/2013.
In Martin, our Supreme Court granted allocator to review its decision in Gaito v. Pennsylvania Board of Probation and Parole, 412 A.2d 568 (Pa. 1980), and its application to instances in which a parolee's pre-trial confinement exceeds the sentence imposed for the new crimes. The Court explained that while there is no constitutional right to pre-sentence confinement credit, the General Assembly recognized that "pre-sentence detention is often the result of indigency" and that "[u]nderpinning credit statutes is the principle that an indigent offender, unable to furnish bail, should serve no more and no less time in confinement than an otherwise identically situated offender who succeeds in furnishing bail." Martin, 840 A.2d at 304. The Court went on to state that, "[i]n Gaito . . . we essentially construed our credit statute to mandate that an offender is to receive credit for all incarceration served before sentencing for which he is being detained in custody." Id. (Citation omitted; emphasis added). The Court accordingly held that, "where an offender is incarcerated on both a Board detainer and new criminal charges, all time spent in confinement must be credited to either the new sentence or the original sentence." Id. at 309.
Here, when Soto was arrested on new criminal charges on May 23, 2011, he was initially granted unsecured bail, but he remained incarcerated because the Board had lodged its detainer against him for parole violations that same day. Thereafter, Soto's bail on the new charges was modified on July 14, 2011, but he was unable to post the monetary bail, so he remained incarcerated until November 1, 2012, on both the Board's detainer and the new criminal charges until the trial court once again modified his bail to $100,000 unsecured and he was released. On that same date, the Board lifted its detainer due to the expiration of his maximum parole expiration date. Thus, when he was convicted and sentenced on October 21, 2013 on the new charges to 23 days to 11 and ½ months, the trial court awarded him credit from July 14, 2011 to June 26, 2012 and ordered his immediate parole. Although the Board thereafter credited Soto with the 52 days he was confined solely on its detainer from May 23, 2011 until July 14, 2011 when it initially recalculated Soto's maximum parole expiration date to August 9, 2016, it did not credit Soto with the period of his incarceration that exceeded his sentence on the new charges. Because this time cannot be credited to his new sentence, and under the equitable principles espoused in Martin and its progeny, we must remand the matter to the Board for a recalculation of Soto's maximum parole expiration date, giving him credit for his pre-sentence incarceration from June 26, 2012 until November 1, 2012, or 128 days, toward his original sentence.
Lastly, we address Soto's contention that he should be awarded credit for all of the time spent in pre-sentence confinement, which he asserts includes time from November 1, 2012 until December 9, 2013. We disagree.
As stated previously, we agree that the Board erred in failing to award Soto credit for the period he was confined from June 26, 2012 to November 1, 2012. However, Soto does not aver, and the record does not show, that he was incarcerated after November 1, 2012, until he was detained by the Board's warrant on December 9, 2013. The record shows that on November 1, 2012, the sentencing court granted Soto unsecured bail on his new criminal charges which continued until his conviction and sentencing on those charges on October 21, 2013, and that Soto posted bail and was released on November 1, 2012. Moreover, as he had reached his maximum parole expiration date on November 1, 2012, the Board had lifted its detainer. Thus, there is nothing in the record to show that Soto was confined on any sentence from November 1, 2012 to December 9, 2013. Therefore, there is no period of confinement which must be credited, and Soto's argument must fail.
See C.R. Item 11, pp. 52, 59.
It is well settled that a parolee who is convicted of committing a crime while out on parole shall be given no credit for the time spent at liberty on parole. Commonwealth ex rel. Thomas v. Myers, 215 A.2d 617, 619 (Pa. 1966). --------
Accordingly, we grant the Board's motion and remand this matter to the Board for a recalculation of Soto's maximum parole expiration date in accordance with this opinion. In all other respects, we affirm.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 9th day of June, 2015, the Pennsylvania Board of Probation and Parole's Motion for Remand is GRANTED and this matter is REMANDED for a recalculation of Petitioner's maximum parole expiration date in a manner consistent with the attached opinion. In all other respects, the Board's order is AFFIRMED.
Jurisdiction is relinquished.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge