IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Qua Hanible, : Petitioner : : v. : : Pennsylvania Board : of Probation and Parole, : No. 721 C.D Respondent : Submitted: November 7, 2014 BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McGINLEY FILED: January 8, 2015 Qua Hanible (Hanible) petitions for review from a final determination of the Pennsylvania Board of Probation and Parole (Board) that recalculated Hanible s maximum date as December 25, Hanible was effectively sentenced on July 22, 2008, to a term of one year six months to three years for the violation of his probation for a conviction for the manufacture/sale/delivery of drugs or possession with intent to deliver. Hanible was released on parole on January 24, This Court s review is limited to determining whether the Board s findings are supported by substantial evidence, are in accordance with the law, and whether constitutional rights have been violated. Krantz v. Pennsylvania Board of Probation and Parole, 483 A.2d 1044 (Pa. Cmwlth. 1984). This Court will interfere with the Board s exercise of administrative discretion where it has been abused or exercised in an arbitrary or capricious manner. Green v. Pennsylvania Board of Probation and Parole, 664 A.2d 677 (Pa. Cmwlth. 1995).

2 On January 5, 2011, the Board ordered that Hanible be detained pending the disposition of criminal charges following his arrest on November 5, 2010, by the Philadelphia Police Department. Hanible was charged with possession with intent to deliver, misdemeanor possession, criminal conspiracy, and possession of drug paraphernalia. On July 27, 2011, the Board declared Hanible delinquent for control purposes effective November 5, 2010, after he reached his original maximum date. On August 5, 2013, Hanible was convicted in the Court of Common Pleas of Philadelphia County (common pleas court) of possession with intent to deliver and was sentenced to a term of one year six months to three years with three years consecutive probation with credit for time served. On August 8, 2013, the Board issued a warrant to commit and detain Hanible. The Board revoked his parole on November 3, In a decision recorded November 26, 2013, and mailed December 5, 2013, the Board recommitted Hanible to serve his unexpired term of one year, one month, and twenty-three days as a convicted parole violator and established his new maximum date as December 25, review and alleged: On or about December 30, 2013, Hanible requested administrative 6. Mr. Hanible plead [sic] guilty to the new charges on August 5, 2013 and was sentenced to 1½ to three years to 2

3 be followed by a consecutive three year probationary term. 7. The sentence was to run concurrent to any other sentence On November 26, 2013, the Board of Probation and Parole ordered Mr. Hanible recommitted to serve the unexpired term of his parole on his original case. 10. The Board calculated the unexpired term as 1 year, 1 month and 23 days. 11. In so doing, the Board credited Mr. Habile [sic] 127 days of time already served Notwithstanding the well-settled rule that a parolee is entitled to credit for time served on a detainer warrant... the Board erred when it recomputed Parolee Hanible s maximum term expiration date on his original sentence because: a. The Board incorrectly calculated the amount of credit Mr. Hanible received; we submit that Mr. Hanible has already served the balance of his back time while incarcerated pending the outcome of his new case; b. The Board incorrectly credited Mr. Hanible 127 days of back time; we submit that the Board should have credited Mr. Hanible additional time; c. The Board erroneously ignored the Court of Common Pleas judgment of sentence insomuch as the Court specified that the sentence on the new case was to be served concurrent with any other criminal justice sentence and that Mr. Hanible was to receive credit for all time served; and d. The Board erroneously used November 3, 2013 as the custody for return date; to the extent it may be pertinent, Mr. Hanible returned to SCI-Graterford on August 8,

4 Petition for Administrative Appeal and/or an Administrative Review, December 30, 2013, Paragraph Nos. 6-7, 9-11, and 14 at 1-2; Reproduced Record (R.R.) at 46a-47a. The Board denied the review and affirmed: When Mr. Hanible was released on parole from his original sentence on January 24, 2010, his maximum sentence date was July 22, 2011, which left 544 days remaining to serve on his original sentence. While on parole, Mr. Hanible was arrested and placed into SCI- Coal Township on July 22, 2011 for possible parole violation. The Board lodged its warrant to commit and detain Mr. Hanible on November 6, 2010, lifted it on July 22, 2011 (max sentence date at time of last release) and relodged it on August 8, 2013 due to violations of his parole. Mr. Hanible was arrested on November 5, 2010 by the Philadelphia City Police Department of Philadelphia County... and convicted on August 5, Mr. Hanible was released to Pennsylvania authorities on November 3, 2013 and placed in SCI- Graterford in parole violator pending status. The Board decision recorded November 26, 2013 recommitted Mr. Hanible as a convicted parole violator. With the above facts in mind, as a convicted parole violator you automatically forfeited credit for all of the time that Mr. Hanible spent on parole.... Mr. Hanible is not entitled to a back time served credit (i.e. time that Mr. Hanible was held solely on the Board s warrant prior to his recommitment order) because he was never incarcerated solely on the Board s warrant.... Mr. Hanible received back time credit from March 17, 2011 (date bail posted/made unsecured) to July 22, 2011 (date Board lifted its warrant) or 127 days. Mr. Hanible is not entitled to additional time because the Board s warrant was not relodged until August 8, Thus, when applying 127 days to 544 days yields a total of 417 days owed (or 1 year, 1 month, 23 days). Mr. Hanible became 4

5 available to Pennsylvania authorities on November 3, 2013, when the Board obtained the necessary signatures to recommit him as a parole violator.... Adding 417 days to November 3, 2013 yields a new parole violation maximum date of December 25, Therefore, Mr. Hanible s parole violation maximum sentence date is correct. (Citations omitted). (Emphasis in original). Board Decision, April 9, 2014, at 1; R.R. at 54a. Hanible contends that the Board incorrectly calculated the amount of credit he received because he had already served the balance of his backtime, that the Board should have credited Hanible with time from July 27, 2011, until October 9, 2011, when bail was raised by $1,000.00, that the Board erred when it determined that the common pleas court s sentence on the new conviction was not to be served concurrently with the prior case, and that the Board erroneously used November 3, 2013, as the custody for return date when Hanible actually returned to the State Correctional Institution at Graterford (SCI-Graterford) on August 8, Initially, Hanible contends that he had served the balance of his sentence by April 30, 2014, because the common pleas court ordered that Hanible receive credit for time served when he was originally sentenced on July 22, Because of this alleged order for time served, Hanible asserts that the Board originally miscalculated his maximum date. Hanible argues that he should have received credit for time served from November 26, 2007, to July 22, 2008, or 239 days so his maximum date should have been November 25, According to Hanible, he owed only 305 days not 544, as the Board calculated. So with the 127 days of credit, he owed only 178 days when he became available to the Board on 5

6 November 3, As a result, he would have reached his maximum on April 30, Hanible s argument is flawed because the Board does not calculate the minimum and maximum terms of a prisoner s sentence. The Department of Corrections is responsible for calculating the minimum and maximum terms of prisoners committed to its jurisdiction. Gillespie v. Department of Corrections, 527 A.2d 1061, 1065 (Pa. Cmwlth. 1987), petition for allowance of appeal denied, 540 A.2d 535 (Pa. 1988). This right and responsibility is exclusive to the Department of Corrections. Nickson v. Pennsylvania Board of Probation and Parole, 880 A.2d 21, 24 (Pa. Cmwlth. 2003). If Hanible had a problem with his original maximum date, he should have raised the issue with the Department of Corrections. He did not, so this argument fails. Hanible next contends that the Board erroneously credited him with 127 days when he should have received credit for time served until October 9, 2012, when bail was raised. Hanible argues that he should have received credit from February 1, 2011, the date the Board issued a detainer until October 9, 2011, the date bail was raised by $1, on the subsequent case. Hanible argues that he should receive credit for 251 days rather than 127. The record does not reflect that Hanible posted bail. On March 17, 2011, he was released on his own recognizance. Bail was reinstated on July 27, From February 1, 2011, to March 17, 2011, Hanible was not incarcerated solely on the Board s warrant. Any pre-sentence period of confinement where a 6

7 convicted parole violator is incarcerated on new criminal charges and a Board detainer must apply to the new sentence. Gaito v. Pennsylvania Board of Probation and Parole, 412 A.2d 568, 571 (Pa. 1980). Therefore, Hanible was not eligible for credit for this period. The Board did give Hanible credit from March 17, 2011, until July 22, 2011, when it lifted its warrant. The Board did not err in this calculation of the credit. Hanible next contends that the August 5, 2013, sentence should be deemed to run concurrently with the original sentence because the common pleas court did not indicate whether the sentence would be concurrent or consecutive. Section 6138(a)(5) of the Prisons and Parole Code (Code), 61 Pa.C.S. 6138(a)(5), provides that if a parolee is convicted of a new crime, the sentence for the new conviction shall precede the commencement of the balance of the sentence originally imposed subject to certain exceptions not applicable here. Hanible is not entitled to have the sentences run concurrently. Hanible next contends that because he was returned to SCI-Graterford on August 8, 2013, the Board should have used that date rather than November 3, 2013, as his custody return date. Hanible refers to Section 6138(a)(4) of the Code, 61 Pa.C.S. 6138(a)(4), which provides that [t]he period of time for which the parole violator is required to serve shall be computed from and begin on the date that the 7

8 parole violator is taken into custody to be returned to the institution as a parole violator. Hanible, however, was not a parole violator on August 8, He was returned to SCI-Graterford on that date. His parole was not revoked until November 3, 2013, when the revocation was signed. Therefore, Section 6138(a)(4) of the Code did not apply to Hanible. It is well settled law that convicted parole violators who are paroled from state correctional institutions and then receive new sentences to be served in a state correctional institution do not become available to commence the original sentence until parole has been revoked. See Hill v. Pennsylvania Board of Probation and Parole, 683 A.2d 699 (Pa. Cmwlth. 1996). Time spent in state custody following a conviction for a new sentence and before the revocation of parole is assessed to the new sentence. Campbell v. Pennsylvania Board of Probation and Parole, 409 A.2d 980 (Pa. Cmwlth. 1980). The Board did not err in its calculations. Accordingly, this Court affirms. BERNARD L. McGINLEY, Judge 8

9 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Qua Hanible, : Petitioner : : v. : : Pennsylvania Board : of Probation and Parole, : No. 721 C.D Respondent : AND NOW, this 8 th O R D E R day of January, 2015, the order of the Pennsylvania Board of Probation and Parole in the above-captioned matter is affirmed. BERNARD L. McGINLEY, Judge