Opinion
No. 1757 C.D. 2014
05-15-2015
Shawn Thomas, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Shawn Thomas (Thomas) petitions for review of the decision of the Pennsylvania Board of Probation and Parole (Board) denying his request for administrative relief from its decision denying credit for the time that he spent at Coleman Hall and Minsec Halfway House because the Board deemed it to be a second or subsequent request to review its prior 2007 and 2010 decisions recommitting him as a convicted parole violator which had denied him credit for the time that he was previously "at liberty on parole" and extended his sentence maximum date. We affirm.
Section 73.1 of the Board's regulations states, in pertinent part:
(a) Appeals.37 Pa. Code §73.1(a)(1), (4); (b)(1), (3). See also Section 6113(d)(1) of the Prisons and Parole Code (Code), 61 Pa. C.S. §6113(d)(1) ("An interested party may appeal a revocation decision within 30 days of the board's order....").
(1) An interested party, by counsel unless unrepresented, may appeal a revocation decision. Appeals shall be received at the Board's Central Office within 30 days of the mailing date of the Board's order....
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(4) Second or subsequent appeals and appeals which are out of time under these rules will not be received.
(b) Petitions for administrative review.
(1) A parolee, by counsel unless unrepresented, may petition for administrative review under this subsection of determinations relating to revocation decisions which are not otherwise appealable under subsection (a). Petitioners for administrative review shall be received at the Board's Central Office within 30 days of the mailing date of the Board's determination....
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(3) Second or subsequent petitions for administrative review and petitions for administrative review which are out of time under this part will not be received.
Section 6138 of the Code states, in relevant part:
(a) Convicted violators.—61 Pa. C.S. §6138(a)(1)-(2.1).
(1) A parolee under the jurisdiction of the board released from a correctional facility who, during the period of parole or while delinquent on parole, commits a crime punishable by imprisonment, for which the parolee is convicted or found guilty by a judge or jury or to which the parolee pleads guilty or nolo contendere at any time thereafter in a court of record, may at the discretion of the board be recommitted as a parole violator.
(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).
The foregoing was not in effect at the time of Thomas's parole revocation in 2007. Rather, the former Section 21.1(a) of the act commonly known as the Parole Act, Act of August 6, 1941, P.L. 861, added by the Act of August 24, 1951, P.L. 1401, as amended, 61 P.S. §331.21a(a), repealed by the Act of August 11, 2009, P.L. 147, gave the Board discretion to recommit as a convicted parole violator any parolee who was convicted, found guilty or pleaded nolo contendere to any crime punishable by imprisonment and directed that the recommitted parolee shall "serve the remainder of the term which said parolee would have been compelled to serve had he not been paroled, and he shall be given no credit for the time at liberty on parole."
In 1993, Thomas was originally convicted of second degree murder and sentenced to imprisonment for life, but that sentence was vacated by the Superior Court in 1994 and he was convicted of third degree murder and sentenced to a 9- to 18-year term of imprisonment in 1995. Thomas was also sentenced to a concurrent 7- to 14-year term of imprisonment for a robbery conviction. His minimum sentence date on his murder conviction was June 16, 2001 and his maximum sentence date was June 16, 2010.
On October 9, 2007, the Board recommitted Thomas as a convicted parole violator to serve six months backtime based on his conviction on two counts of disorderly conduct before a "court of record." (Certified Record (CR) at 18.) The Board also recalculated Thomas's maximum date to March 20, 2015. The Board released Thomas on reparole on January 23, 2008.
The Board imposed a concurrent period of nine months backtime as a technical parole violator. (CR at 18).
Disorderly conduct is graded as either a third degree misdemeanor or a summary offense. Section 5503(b) of the Crimes Code, 18 Pa. C.S. §5503(b). There is nothing in the certified record indicating the grading of Thomas's disorderly conduct convictions other than his assertion that they were graded as summary offenses.
On March 10, 2010, the Board again recommitted Thomas as a convicted parole violator based on his conviction "in a court of record" for public drunkenness. (CR at 27). The Board also recalculated Thomas's maximum date to June 10, 2016. The Board again released Thomas on reparole on September 20, 2010.
In September 2012, the Board again recommitted Thomas as a convicted parole violator to serve 12 months backtime based on his convictions for driving under the influence; possession of a small amount of marijuana; and accidents involving damage to vehicles/property. Thomas then filed a pro se request for administrative relief raising a number of issues not relevant here except that he alleged that the Board erred in failing to credit time that he spent in SCI Cresson, the 90-day program at Coleman Hall, and Minsec Halfway House.
The Board imposed a concurrent period of 18 months backtime as a technical parole violator. (CR at 36).
While that was going on, on January 3, 2013, the Board again recommitted Thomas as a convicted parole violator based on his conviction for simple assault to serve 15 months backtime concurrent with the backtime imposed in September 2012. The Board also recalculated Thomas's maximum date to February 20, 2018. Thomas again filed a request for administrative relief in which he again sought credit for the period that he stayed at Coleman Hall and Minsec Halfway House.
On May 24, 2013, the Board denied all the requests for administrative relief to his September 2012 recommitment not relevant here except that it scheduled an evidentiary hearing on Thomas's challenge to determine if he was entitled to credit for the period of September to November 2011 that he spent at Coleman Hall and the period of November 2011 to February 2012 that he spent at Minsec Halfway House. As a result, the Board issued a Notice of Charges and Hearing which stated, in relevant part, that "[t]he purpose of the Evidentiary Hearing is to determine the custodial nature of the inpatient programs at Minsec-Chester and Coleman Hall from September 2011-November 2011 and November 2011-February 2012 respectively." (CR at 47.)
At the evidentiary hearing, Thomas first argued that the Board was without jurisdiction to conduct the hearing because the maximum date of his sentence expired on June 16, 2010, and the Board could not extend his maximum sentence date in the 2007 and 2010 recommitment decisions because those summary offense convictions could not be used for his recommitment as a convicted parole violator under Section 6138 of the Code. His contentions were based on our decision in Hufmen v. Board of Probation and Parole, 58 A.3d 860, 865 (Pa. Cmwlth. 2012), where we held that "[A] conviction for a summary offense before a judge of the court of common pleas is the functional equivalent of a conviction before a magisterial district judge, which makes Petitioner's conviction of the summary offense of retail theft not a conviction in a court of record for the purposes of [recommitment as a convicted parole violator under] Section 6138(a)(1) of the Code...." He sought to introduce a certified letter from the common pleas court judge regarding the judge's "position" and "how he stood" at the time that Thomas entered his pleas to the disorderly conduct charges and the Delaware County judgment of sentence on those charges in 2007. (CR at 63.) Finally, Thomas argued that the Board's maximum sentence date was incorrect because he failed to get credit for the period from April 2009 to March 2012 that he spent in the Delaware County Jail, SCI Graterford, Chester County Prison, Coleman Hall, and Minsec Halfway House. (Id. at 62-63.)
Thomas's parole agent objected to Thomas's argument and the Board's hearing examiner stated that the purpose of the evidentiary hearing as explained in the Notice of Charges and Hearing was to see if Thomas would receive credit for the time that he spent at Coleman Hall and Minsec Halfway House and not to address his argument regarding the summary offenses underlying his prior parole revocations. As a result, the hearing examiner limited Thomas's testimony to whether he was entitled to receive credit for the time that he spent at those facilities based on the conditions of his housing there. The hearing examiner also heard testimony from the Program Directors for Coleman Hall and Minsec Halfway House, and Thomas conducted cross-examination.
The Board denied Thomas's request for the time that he spent at Coleman Hall and Minsec Halfway House and again stated that Thomas's maximum date was February 20, 2018, as determined in its January 2013 recommitment decision. On April 4, 2014, following an interview and review of his file, the Board denied Thomas reparole.
Thomas then filed a counseled Administrative Appeal/Request for Administrative Relief claiming that the Board did not have jurisdiction to extend his maximum released date as February 20, 2018, because it had twice previously extended the maximum date in the 2007 and 2010 recommitment decisions based solely on convictions for summary offenses. Contending that those extensions to his maximum release date were illegal under Hufmen, he argued that he had already served his maximum sentence and could not be subject to any further revocation or violation proceedings beyond the date of the Hufmen decision in December 2012. As a result, Thomas asked that his maximum date be set back to June 16, 2010, in accordance with Hufmen and that he be immediately discharged from custody. Finally, Thomas also argued that the Board erred in determining that he did not sustain his burden of proving that he was entitled to credit for the time that he spent at Coleman Hall and Minsec Halfway House (Id.)
The Board denied Thomas's request for relief stating, in relevant part:
The decision in Hufmen is in reference to a challenge to a parole revocation itself and not a subsequent evidentiary hearing determination. Per regulation 37 Pa. Code §[73.1], all such petitions must be submitted within 30 days of the recommitting Board action. In this case, Mr. Thomas filed numerous pro se petitions for relief from the Board decisions recorded October 9, 2007 and March 10, 2010, all of which were answered by the Board. Therefore, to the extent you are challenging these specific decisions; your petition must be dismissed as a second and subsequent request for relief.(CR at 124.) The Board also rejected his claim that he sustained his burden of proving his entitlement to credit for the time that he spent at Coleman Hall and Minsec Halfway House and Thomas filed this petition for review.
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).
In his petition for review, Thomas contends that the Board was without jurisdiction to extend his maximum date to February 20, 2018, because the extensions of his maximum date in 2007 and 2010 were due to lost street time for convictions for summary offenses which were heard in a common pleas court. He asserts that under Hufmen, a summary offense is not an offense that allows street time to be taken away, and that his sentence expired on June 16, 2010, if he is given credit for that time.
Initially we note that the Board properly determined that Thomas cannot collaterally attack the 2007 and 2010 recommitment decisions by first raising this issue in the 2013 evidentiary hearing that was limited to determining whether he was entitled to credit for the time that he spent at Coleman Hall and Minsec Halfway House or in the 2014 request for administrative relief from the Board's decision to deny such credit. 37 Pa. Code §73.1(a)(4), (b)(3). Like the Board, though, we will go on to address the substance of his claim.
However, Thomas has waived any claim regarding the Board's failure to credit his street time in its 2007 and 2010 recommitment orders by failing to contest those determinations that he was "convicted in a court of record" within the time that he was required to seek administrative review of those recommitment decisions. 37 Pa. Code §73.1(a)(4), (b)(3); McCaskill v. Pennsylvania Board of Probation and Parole, 631 A.2d 1092, 1094-95 (Pa. Cmwlth. 1993), appeal denied, 644 A.2d 739 (Pa. 1994). See also Tecce v. Hally, 106 A.3d 728, 732 (Pa. Super. 2014) ("Parties may waive rights, even due process rights and other rights of constitutional magnitude.").
See, e.g., Merriwether v. Pennsylvania Board of Probation and Parole, 693 A.2d 1000, 1001 (Pa. Cmwlth. 1997) ("[I]t is evident that the recommitment of fifteen months was ordered in the Board's June 11, 1996 decision and Merriwether thus had thirty days from that date to challenge that decision. However, Merriwether did not petition the Board until July 18, 1996. Therefore, although he ostensibly appealed the Board's June 28, 1996 decision [establishing his review date], any challenge to the Board's June 11, 1996 action, including its imposition of fifteen months backtime, would be untimely, thereby divesting the Board of jurisdiction to consider Merriwether's petition and, in turn, prompting this Court to reject the contest on procedural grounds. For these reasons, without deciding the merits of the argument on the recommitment time ordered in the June 11, 1996 decision we must affirm the Board's determination denying administrative relief as to the amount of backtime imposed.") (citations omitted); McCaskill, 631 A.2d at 1095 n.4 ("This Court has also held that where a tribunal issues an order in a case after the jurisdictional time limit for issuing such order has expired, any such order is a nullity. Because McCaskill's request for administrative relief was not filed with the Board until 1992, 6 years after the Board's 1986 determination was issued, and 4 years after the Board's 1988 determination was issued, any allegations concerning such determinations would have been untimely and the Board would have been required to dismiss the appeal as it related to those issues.") (citation omitted); Ayers v. Pennsylvania Board of Probation and Parole, 565 A.2d 1257, 1258 (Pa. Cmwlth. 1989), appeal denied, 588 A.2d 511 (Pa. 1990) ("[U]nder the provisions of 37 Pa. Code §73.1, a petition for administrative review of a board determination relating to revocation decisions is to be received within 30 days of the mailing date of the determination.... Because Petitioner did not file his request for reconsideration of the Board's October 26, 1987 order until April of 1989 it was untimely, and since the timeliness of an appeal is jurisdictional, the Board was without authority to consider it.") (citation omitted). --------
Moreover, as to his claim that he could raise Hufmen as a challenge to his new maximum release date, in Davis ex rel. Davis v. Government Employees Insurance Company, 775 A.2d 871, 875 (Pa. Super. 2001), appeal denied, 812 A.2d 1230 (Pa. 2002), the Superior Court explained that "when a case is given 'retroactive' application in this Commonwealth, it only affects future cases and cases that are pending at the time the new rule is announced. Moreover, of those pending cases, only cases that have preserved the issue decided in the new case will benefit from the new rule." Id. Because the time for challenging the 2007 and 2010 recommitment decisions initially extending his maximum date are long past, the decisions in those cases are final and those recommitment orders cannot now be collaterally attacked in a challenge to a subsequently extended maximum release date.
Accordingly, the Board's decision is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 15th day of May, 2015, the decision of the Pennsylvania Board of Probation and Parole dated September 5, 2014, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge