IN THE COMMONWEALTH COURT OF PENNSYLVANIA Joseph Tillery, Petitioner v. No. 518 C.D. 2013 Pennsylvania Board of Probation and Parole, Respondent AMENDING ORDER AND NOW, this 24th day of April, 2014, upon consideration of Petitioner s motion for clarification, the Court s opinion in the above matter, which was filed March 12, 2014, is amended as follows On page 2, line 17 (i.e., the last line of the first paragraph on page 2), the reference to the year 2015 is changed to 2025 so that the relevant sentence now provides In early October 2012, the Board issued a decision recommitting Tillery as a convicted parole violator, imposing 30 months backtime; his new maximum date was determined to be August 15, 2025. A corrected copy of the opinion and order is attached. Other than the above amendment, the Petitioner s motion for clarification is DENIED. BONNIE BRIGANCE LEADBETTER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Joseph Tillery, Petitioner v. No. 518 C.D. 2013 SUBMITTED November 15, 2013 Pennsylvania Board of Probation and Parole, Respondent BEFORE HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER FILED March 12, 2014 Joseph Tillery petitions for review of the order of the Pennsylvania Board of Probation and Parole (Board) that denied his administrative appeal from an order recommitting him as a convicted parole violator. In addition, Tillery s court-appointed attorney petitions for leave to withdraw his representation of Tillery, asserting that no grounds exist for the appeal and that the appeal is frivolous. After review, we grant the petition to withdraw and affirm the Board s order recommitting Tillery.
It is undisputed that Tillery was paroled on August 15, 1989, and at that time his sentence was scheduled to expire on August 15, 2002. 1 Thereafter, he was arrested in Georgia on the charge of aggravated child molestation. The Board issued its warrant to arrest and detain Tillery on September 15, 2000. Tillery was subsequently convicted of the charge in January 2001 and sentenced to a term of imprisonment of 30 years, with probation possible after service of 12 years. 2 On August 13, 2012, the Board issued a decision to both return Tillery as a convicted parole violator and schedule a revocation hearing. 3 Tillery was returned to a state correctional institution on August 16 and approximately five days later, he signed a notice of charges regarding his conviction as well as a waiver of revocation hearing, admitting therein that the conduct underlying his conviction occurred while he was on parole and that he was ultimately convicted of Agg. Child Molestation in violation of his parole. See Certified Record (C.R.) at 14 (Waiver of Revocation Hearing and Counsel/Admission Form, signed on August 21, 2012). In early October 2012, the Board issued a decision recommitting Tillery as a convicted parole violator, imposing 30 months backtime; his new maximum date was determined to be August 15, 2025. Tillery filed a pro se administrative appeal, contending that the Board s failure to contact him between March 5, 2000, and February 28, 2009, deprived him of the right to appeal the Board s charges. He also challenged the Board s authority to recommit him in light of the fact that his original sentence 1 At the time of parole, he was serving a seven to ten-year sentence for third degree murder; his minimum and maximum sentence dates were August 15, 1989, and August 15, 2002, respectively. 2 Tillery was convicted under the alias Yusef Shabazz. 3 According to the Board s supervision history, the Georgia Department of Corrections advised that Tillery would be made available under the Board s detainer on August 15, 2012. 2
expired in 2002, contending that such action violated the United States constitutional prohibition against double jeopardy. The Board denied Tillery s administrative appeal. In doing so, it noted that Tillery s waiver of a revocation hearing and admission to a criminal conviction in violation of parole served to waive any claim that he had that the Board lacked authority to recommit him as a convicted parole violator. Citing to Section 6138 of the act commonly referred to as the Prison and Parole Code, 61 Pa. C.S. 6138, and Choice v. Pennsylvania Board of Probation and Parole, 357 A.2d 242 (Pa. Cmwlth. 1976), the Board further noted that it is authorized to recommit a parolee for a crime that is committed while on parole even if the maximum sentence date expires before the parolee is convicted, sentenced or recommitted. Tillery then filed the instant pro se petition for review, raising the above arguments as well as others. Kent D. Watkins was appointed as counsel and after a review of the petition for review and record, he filed his petition to withdraw and a Turner letter in support thereof. 4 In his Turner letter, Watkins sufficiently details the issues raised, including one that was not properly preserved before the Board, 5 as well as the nature and extent of his review and analysis in concluding that Tillery s appeal lacks merit and is frivolous. See Hont v. Pa. Bd. 4 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988). 5 In his petition for review to this court, Tillery avers that Georgia has a recorded history of wrongful convictions and, therefore, the Board erred in relying on the GA records to base [his] violation on. Petition for Review at 1. He further asserts that the Board should have a record showing investigation of GA claims before committing double jeopardy against [him] as [he] had served the full sentence (maximum) in GA. Id. We note, however, that issues not raised before the Board are waived and will not be considered for the first time on appeal. Chesson v. Pa. Bd. of Prob. & Parole, 47 A.3d 875, 878 (Pa. Cmwlth. 2012). Accordingly, in addressing the petition to withdraw and the petition for review, we limit our consideration to only those issues that Tillery raised before the Board in his administrative appeal. 3
of Prob. & Parole, 680 A.2d 46 (Pa. Cmwlth. 1996) (establishing required elements of a Turner letter). Specifically, Watkins reviewed the history of Tillery s case and relevant legal authority and concluded that the Board properly recommitted him and that such recommitment did not violate constitutional prohibitions. 6 Watkins also provided Tillery with a copy of his petition to withdraw and Turner letter, and advised him of his rights to obtain substitute counsel and file a pro se brief. Thus, Watkins has fulfilled the requirements necessary to seek leave to withdraw. Id., Craig v. Pa. Bd. of Prob. & Parole, 502 A.2d 758 (Pa. Cmwlth. 1985). 7 Accordingly, we must independently determine whether Tillery s appeal lacks merit before granting the petition to withdraw. As noted above, the issues which have been properly preserved for our review are whether the Board s failure to contact Tillery between 2000 and 2009 deprived him of any appellate rights, whether the Board lost jurisdiction to recommit him once his original term expired, and whether his recommitment violates principles of double jeopardy. We conclude that these issues lack merit. First, regarding the suggestion that the Board unduly delayed in contacting him (presumably about the charges stemming from his conviction), we note that a similar contention was rejected in Smith v. Pennsylvania Board of Probation and Parole, 570 A.2d 597 (Pa. Cmwlth. 1990). There, the parolee argued that the Board violated his due process rights by failing to give him notice 6 Although Watkins cited to Section 21.1a of the former 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, repealed by the Act of August 11, 2009, P.L. 147, to support of his legal conclusion, that omission is not fatal in that 61 Pa. C.S. 6138 is substantially similar and commands the same conclusion. 7 By order of this court, Tillery was also advised of his rights to retain substitute counsel or file a brief on his own behalf. Tillery has filed a pro se brief. 4
of criminal parole violation charges until almost two months after his maximum term expiry. We rejected the contention, stating [W]e find no authority, administrative, statutory or otherwise, for the proposition linking maximum release date to timely notice of charges.... Id. at 600. Accordingly, because the Board provided the parolee with notice of the charges well before the revocation hearing, we concluded that no due process violation had occurred. We also note that under the Board s administrative regulations, if a parolee is in custody in another state, the Board may lodge its detainer but other matters may be deferred until the parolee has been returned to a State correctional facility in this Commonwealth. 37 Pa. Code 71.5. Accordingly, we conclude the Board was under no obligation to contact Tillery during the timeframe mentioned. Further, as evidenced by both his administrative appeal and the appeal to this court, Tillery s appeal rights have not been limited or infringed in any way. Next, we conclude the Board had jurisdiction and acted properly in recommitting Tillery after the expiration of his original sentence. Both the Prison and Parole Code (Code) and the Board s administrative regulations provide the Board with authority to recommit a parolee who commits a crime while on parole. Specifically, Section 6138(a) of the Code provides as follows 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. 61 Pa. C.S. 6138(a). See also 37 Pa. Code 63.3 ( If the parolee violates the conditions of parole, at a time during his period on parole, the Board may cause his 5
detention or return to a correctional institution ). In Adams v. Pennsylvania Board of Probation and Parole, 885 A.2d 1121 (Pa. Cmwlth. 2005), we rejected a similar argument under Section 21.1a of the former Parole Act, 8 the predecessor to Section 6138 of the Code, and similar for all relevant intents and purposes. In doing so, we recognized that former Section 21.1a provided the Board with jurisdiction to revoke parole, even after the expiration of the parolee s maximum date, for criminal offenses committed while on parole. Id. at 1124. Moreover, the Board retains such authority to revoke parole even if the parolee is not convicted until after the original sentence expired. Id. See also Choice v. Pa. Bd. of Prob. & Parole, 357 A.2d 242 (Pa. Cmwlth. 1976). Finally, we have held that the Board s recommitment of a parolee after his original sentence has expired for a crime committed while on parole does not implicate principles of double jeopardy, see Kuykendall v. Pennsylvania Board of Probation and Parole, 363 A.2d 866 (Pa. Cmwlth. 1976), Knisley v. Pennsylvania Board of Probation and Parole, 363 A.2d 1146 (Pa. Cmwlth. 1976), and that the Board is not interfering with a judicially imposed sentence in violation of the separation of powers doctrine. See Davidson v. Pa. Bd. of Prob. & Parole, 33 A.3d 682 (Pa. Cmwlth. 2011). Discerning no error on the Board s part and no merit to the appeal, we grant the petition to withdraw and affirm the order of the Board. BONNIE BRIGANCE LEADBETTER, Judge 8 See footnote 6 for full statutory history regarding former Section 21.1a. 6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Joseph Tillery, Petitioner v. No. 518 C.D. 2013 Pennsylvania Board of Probation and Parole, Respondent O R D E R AND NOW, this 12th day of March, 2014, Kent D. Watkins petition to withdraw representation in the above-captioned matter is hereby GRANTED and the order of the Pennsylvania Board of Probation and parole is AFFIRMED. BONNIE BRIGANCE LEADBETTER, Judge