Houser v. Pennsylvania Board of Probation & Parole

675 A.2d 787, 1996 Pa. Commw. LEXIS 180
CourtCommonwealth Court of Pennsylvania
DecidedMay 1, 1996
StatusPublished
Cited by4 cases

This text of 675 A.2d 787 (Houser v. Pennsylvania Board of Probation & Parole) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Houser v. Pennsylvania Board of Probation & Parole, 675 A.2d 787, 1996 Pa. Commw. LEXIS 180 (Pa. Ct. App. 1996).

Opinion

McGINLEY, Judge.

This case is before us on counsel’s petition to withdraw from his representation of Alan Troy Houser (Houser) who appeals from a denial of the Pennsylvania Board of Probation and Parole (Board) for administrative relief from an order recommitting him as a convicted parole violator.

Houser was originally sentenced to six to fifteen years imprisonment by the Honorable Gilfert M. Mihalich of the Court of Common Pleas of Westmoreland County for burglary, aggravated assault and robbery. His minimum term expiration date was November 7, 1991, and the maximum date was November 7, 2000. He was paroled on February 5, 1993. Thereafter, the Board recommitted Houser to a state correctional institution for multiple technical violations, effective November 19,1993.

On May 19, 1994, Houser was reparoled until July 10,1994, when he was arrested and charged with aggravated assault and simple assault. Houser was held in the Westmore-land County Prison (county prison) for failure to post bail. On October 4,1994, Houser pled guilty to the simple assault charge and was sentenced to serve eight to twenty-three months. He remained in county prison serving time on the new sentence until he was granted county parole and released to the Board’s custody effective January 29, 1995.

While Houser was detained in county prison, the Board held a parole revocation hearing for the purpose of considering Houser’s second criminal conviction. In a decision dated February 27, 1995, the Board recommitted Houser as a convicted parole violator to serve fifteen months backtime and recomputed his maximum term expiration date as April 22, 2002.

Houser requested administrative review of the Board’s decision. By letter dated August 2, 1995, the Board denied Houser’s request and he appealed to this Court. On August 23, 1995, the Cumberland County Public Defender’s Office (Public Defender) was assigned to represent Houser. Thereafter, Houser’s counsel filed a “no-merit” letter and applied for leave to withdraw asserting that Houser’s case is without merit.

Houser raises four issues for our consideration. First, Houser contends that the Board erred in failing to credit his original sentence for the time spent in county prison [789]*789from July 10, 1994, the date of Ms arrest for simple assault, to October 4,1994, the date of his conviction for simple assault. Second, Houser contends that the Board erred in failing to credit Ms original sentence with the time he spent in county prison after his conviction for simple assault. Third, Houser contends that the Board’s imposed sentence of fifteen months back-time was excessive for a conviction of simple assault. Finally, Houser contends that the Board erred in recomputing his maximum expiration date.1

Initially, Houser argues that he is entitled to credit on Ms original sentence for time he spent in county prison from July 10, 1994, until Ms conviction for simple assault on October 4,1994. Pre-sentence time spent in prison by a parolee for failure to post bail is properly allocated to Ms sentence on the new charge rather than Ms original sentence. Gaito v. Board of Probation and Parole, 128 Pa.Cmwlth. 253, 563 A.2d 545 (1989), petition for allowance of appeal denied, 525 Pa. 589, 575 A.2d 118 (1990). Houser did not post bail while awaiting disposition on the new charges. Therefore, the Board properly de-Med him credit for his pre-sentence time in county prison.

Houser also argues that he is entitled to credit against his original sentence for the time he spent in county prison while on parole after he was convicted on new charges. A parolee in prison on a second sentence while on parole from a first sentence, is nevertheless “at liberty on parole” and shall not be given credit for the time he was incarcerated for the second sentence. Hines v. Pennsylvania Board of Probation and Parole, 491 Pa. 142, 420 A.2d 381 (1980). The entire six months and nineteen days Houser spent in county prison was allocated to his second sentence and not credited to Ms original sentence. The Board did not err in denying Houser credit against his original sentence for the time he served on Ms second sentence.

Next, Houser alleges that the imposed backtime was excessive. “This court will not review the Board’s exercise of discretion in imposing backtime for parole violations where the violations are supported by substantial evidence and the backtime imposed is within the published presumptive ranges for those violations.” Lotz v. Pennsylvania Board of Probation and Parole, 120 Pa.Cmwlth. 538, 548 A.2d 1295 (1988), affirmed, 525 Pa. 567, 583 A.2d 427 (1990). Pursuant to 37 Pa.Code § 75.2, the presumptive range for simple assault is nine to fifteen months. The Board’s fifteen month imposition of backtime for Houser’s simple assault conviction is within the presumptive range and will not be disturbed.

The final issue for our consideration is whether the Board erred by extending Houser’s maximum date in violation of Section 21.1(b) of the Act of August 6,1941, P.L. 861, as amended, (commonly referred to as the Parole Act), 61 P.S. § 331.21a, wMeh requires that a parolee, recommitted for techmcal parole violations only, must be given credit for time on parole in good standing.2 [790]*790Houser contends that the Board exceeded its statutory authority when it extended the maximum date of his original sentence.

According to the Board, Houser lost all credit for time served while at liberty on parole in good standing when he was recommitted as a convicted parole violator pursuant to the provisions of Section 21.1(a) of the Parole Act, 61 P.S. § 381.21a, which specifically provides that convicted parolees shall receive no credit for time spent on parole.3 In the no-merit letter the Public Defender asserts that the time Houser spent on parole prior to his recommitment for technical violations from February 5, 1993, until November 19, 1993, a period of nine months and 14 days, was correctly added to his maximum release date. No case law is cited to support this contention.

The computation with respect to credit for time spent on parole for convicted parole violators is dramatically different from the computation for technical parole violators. A convicted parole violator cannot receive credit against his maximum sentence for time spent at liberty while on parole. Sherrell v. Pennsylvania Board of Probation and Parole, 111 Pa.Cmwlth. 209, 533 A.2d 1089 (1987). However, Section 21.1(b) mandates that technical parole violators receive credit against their maximum sentence for time spent at liberty on parole in good standing. Smith v. Pennsylvania Board of Probation and Parole, 131 Pa.Cmwlth. 360, 570 A.2d 597 (1990).

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Bluebook (online)
675 A.2d 787, 1996 Pa. Commw. LEXIS 180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/houser-v-pennsylvania-board-of-probation-parole-pacommwct-1996.