IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Richard W. Smeal, : Petitioner : : v. : No C.D : Submitted: November 26, 2008 Pennsylvania Board of Probation and : Parole, : Respondent : BEFORE: HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SMITH-RIBNER FILED: January 28, 2009 Richard W. Smeal (Petitioner), an inmate at SCI-Mahanoy, petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) denying administrative relief from the Board's decision and order mailed May 19, In that decision the Board recalculated Petitioner's maximum expiration date to January 20, 2009 based on Board action to recommit him as a convicted parole violator to serve twelve months of backtime. Petitioner's question is whether the Board failed to give him credit for all time served solely under its warrant. Petitioner was granted parole in October 2004 from a six to twentyfour months sentence for violating his probation by fleeing or attempting to elude a police officer. Petitioner was recommitted in January 2006 as a technical parole violator and was reparoled on June 12, 2007 with a maximum expiration date of August 31, The Board declared Petitioner delinquent on July 19, On July 26 Petitioner was stopped by the Brookville Police Department for hindering apprehension, driving under suspension, false reports and false identification to

2 law enforcement, and on the same day the Board issued a detainer warrant under which Petitioner was returned to SCI-Mahanoy. On September 21 Petitioner was recommitted as a technical violator to serve twelve months of backtime with a maximum expiration date of September 28, The police did not arrest Petitioner on the new charges until November 14, He did not post bail. On February 20, 2008, the Jefferson County Common Pleas Court accepted Petitioner's guilty plea to the charges of false reports, false identification and driving under suspension. The charge of hindering apprehension was nolle prosequied. For the false reports, Petitioner was sentenced to two to four months in the Jefferson County jail to be followed by sixteen months of probation. The sentencing court immediately paroled Petitioner from that sentence and ordered the sentence to run concurrently with his original sentence. For driving under suspension, Petitioner was sentenced to ninety days in the Jefferson County jail, also to run concurrently, and the order stated: "Credit shall be given for time served." Certified Record (C.R.) at 54. For false identification, Petitioner was sentenced to twelve months of probation to run consecutively. Petitioner filed his petition for administrative review to challenge the January 20, 2009 maximum expiration date, alleging that he was not given credit for time served from November 14, 2007 to February 20, 2008 on the original sentence. By letter of June 20, 2008, the Board denied relief reasoning as follows: Briefly, when Mr. Smeal was released on parole from his original sentence on June 12, 2007, his maximum sentence date was August 31, 2008, which left 446 days remaining to serve on his original sentence. The Board provided Mr. Smeal with 111 days of back time served credit (i.e. time that he was held solely on the Board's warrant.) for the period of July 26, 2007 to November 14, See Gaito v. Pa. Board of Probation and Parole, [488 Pa. 397, 412 A.2d 568 2

3 (1980)]. Thus, his 446 days of back time owed was reduced by 111 days, resulting in 335 days of back time. Mr. Smeal became available to begin serving his back time on February 20, 2008, when he was paroled from his Jefferson County Court of Common Pleas conviction. [A] convicted parole violator is required to serve their new sentence and the back time on their original sentence consecutively. See 61 P.S a(a) [Act of August 6, 1941, P.L. 861, added by Section 5 of the Act of August 24, 1951, P.L. 1401, as amended ("Parole Act")]. This means that in Mr. Smeal's situation, the time he served in SCI-Mahanoy from the date of his arrest on the Jefferson County charges (11/15/07) to the date he was sentenced on his Jefferson County conviction (02/20/08) went toward service of the Jefferson County sentence. The court cannot make his Jefferson County sentence concurrent with the back time he owes as a matter of law. Id. Therefore, adding 335 days (or 10 months, 30 days) of to February 20, 2008, yields a new parole violation maximum date of January 20, Response to Petition for Administrative Review; C.R. at (citation omitted). The Court's review here is limited to determining if the Board violated Petitioner's constitutional rights, committed an error of law or made findings of fact that were not supported by substantial evidence of record. Morgan v. Pennsylvania Board of Probation and Parole, 814 A.2d 300 (Pa. Cmwlth. 2003). Petitioner argues that the Board failed to credit him for all of the time served solely under its warrant. Because he has remained at SCI-Mahanoy since July 26, 2007, he argues that time served from that date and thereafter should be credited toward his original sentence. Petitioner asserts without citing to the record that he had about one month and two weeks left to serve on his original sentence when he was re-incarcerated on July 26, Adding that time to his original maximum expiration date of August 31, 2008 would yield a new maximum date of October 15, 2008, not January 20, The sentencing order of two to four 3

4 months for false reports does not set forth the dates that credit is to be given on this sentence because Petitioner was paroled pursuant to that order. Petitioner refers to Krantz v. Pennsylvania Board of Probation and Parole, 483 A.2d 1044, 1047 (Pa. Cmwlth. 1984), to define backtime as "that part of an existing judicially-imposed sentence which the Board directs a parolee to complete following a finding after a civil administrative hearing that the parolee violated the terms and conditions of parole[.]" Service of backtime therefore is not related to the conviction of the other crime. Petitioner contends that the Board has legal custody over him until he completes his original sentence. He asserts that the record does not indicate that he failed to post bail on new criminal charges and that all of the time he served was solely on the Board's warrant. He argues that under Martin v. Pennsylvania Board of Probation and Parole, 576 Pa. 588, 840 A.2d 299 (2003), considerations related to the award of credit are equitable in nature and that unique facts may affect a particular allocation of credit. Pursuant to 61 P.S a, a parolee must receive credit on his original sentence for time spent in jail after he has been taken into custody as a parole violator. Petitioner concedes that the Parole Act prevents serving a new county sentence and backtime concurrently and that, in this case, service of the new sentence must precede commencement of the remaining original terms. Nonetheless, he argues that because he did not serve time in the Jefferson County jail for his new sentence, the time served at SCI-Mahanoy should count toward his original sentence. The Board counters that it did not err by denying Petitioner credit on his original sentence for the period he was imprisoned on both the new criminal charges and the Board's warrant. Citing Gaito the Board acknowledges that time served solely on the Board's warrant must apply to the original sentence of a parole 4

5 violator and that a parole violator cannot receive credit on a new sentence and on an original sentence for the same period of imprisonment. Additionally, Petitioner had 446 days remaining on his original sentence when he was paroled on June 12, 2007; he was detained on a Board warrant on July 26, 2007; he was arrested on new criminal charges on November 14, 2007 and convicted on February 20, 2008; he was sentenced to two-to-four months with credit for time served; and he was paroled from the new sentence on February 20, Based upon these facts, the Board submits, Petitioner could receive credit only for the period July 26 to November 14, 2007 when he was detained solely on the Board's warrant. The Board describes Petitioner's sole argument as being that he should be credited for the period November 14, 2007 to February 20, 2008 because he was imprisoned at SCI-Mahanoy instead of at the Jefferson County jail. The Board contends that he would create a new rule of credit allocation based solely upon the place of confinement and points out that the Court declined to adopt such a rule in Bowman v. Pennsylvania Board of Probation and Parole, 930 A.2d 599 (Pa. Cmwlth. 2007). Petitioner's challenge on the bail issue lacks support where the Board's 257C form in the record confirms that bail was not posted, Petitioner does not allege that he posted bail and his counsel confirmed that he did not post bail. As a consequence, Petitioner was held in custody on the Board's warrant and new criminal charges from November 14, 2007 to February 20, 2008, and therefore the time served during that period applied to the new sentence under Gaito. The Board further asserts that the fact that the February 20, 2008 court order did not specify a period for credit on Petitioner's new sentence does not justify requiring the Board to confer credit on Petitioner's original sentence. As support, the Board cites Melhorn v. Pennsylvania Board of Probation and Parole, 5

6 883 A.2d 1123 (Pa. Cmwlth. 2005), rev'd, 589 Pa. 250, 908 A.2d 266 (2006), and Armbruster v. Pennsylvania Board of Probation and Parole, 919 A.2d 348 (Pa. Cmwlth. 2007) (holding that inmate may not seek remedy through the Board for sentencing court's error in awarding credit). It adds that Martin is inapplicable because the contested period of imprisonment does not exceed the four-month term imposed by the sentencing court. Pursuant to Gaito, where a defendant "remains incarcerated prior to trial because he has failed to satisfy bail requirements on the new criminal charges, then the time spent in custody shall be credited to his new sentence." Id., 488 Pa. at , 412 A.2d at 571. In McCray v. Department of Corrections, 582 Pa. 440, 872 A.2d 1127 (2005), the Supreme Court held that if a sentencing court fails to properly apply credit for time served, then the remedy is to object before the sentencing court and to preserve the issue for appeal to the Superior Court. This Court therefore lacks the authority to correct sentencing errors of trial courts under Commonwealth v. Holmes, 593 Pa. 601, 933 A.2d 57 (2007) (holding that trial courts have inherent power to correct patent and obvious sentencing errors). The Court holds that the Board was correct in denying administrative relief to Petitioner. The record establishes that Petitioner did not post bail, and accordingly the time that he served from November 14, 2007 to February 20, 2008 had to be credited to his new sentence. Gaito. The record also establishes that the trial court ordered credit for time served on the ninety-day jail sentence for driving under suspension. Ninety days fall short of the ninety-eight days served from November 14, 2007 to February 20, 2008, and the sentencing court should have credited Petitioner's prison term for false reports with the remaining eight days but the record does not indicate that such action was taken. Nonetheless, his remedy 6

7 was to raise an objection before the sentencing court. Holmes; McCray. See also Armbruster (holding that Martin applies only where it is not possible to award full credit on a new sentence because period of time served exceeds maximum term of new sentence). The Court likewise rejects the argument of allocating credit based on the location of confinement. Bowman. Based on this record, the Court must affirm the Board's order. DORIS A. SMITH-RIBNER, Judge 7

8 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Richard W. Smeal, : Petitioner : : v. : No C.D : Pennsylvania Board of Probation and : Parole, : Respondent : O R D E R AND NOW, this 28th day of January, 2009, the Court affirms the order of the Pennsylvania Board of Probation and Parole. DORIS A. SMITH-RIBNER, Judge