Jones v. Pennsylvania Board of Probation & Parole

831 A.2d 162, 2003 Pa. Commw. LEXIS 612

Opinions

OPINION BY

JUDGE McGINLEY.

Jerry Jones (Jones) petitions for review from a final determination of the Pennsylvania Board of Probation and Parole (Board) that recommitted him to serve twelve months backtime and recalculated his maximum date as December 22, 2003.¹

Jones was effectively sentenced on July 27, 1988, to a term of two to ten years for aggravated assault.² On February 28, 2000, Jones was paroled to a community corrections center for a minimum of three months. On December 6, 2000, the Board issued a warrant to commit and detain Jones after the Department arrested him on December 5, 2000, and charged him with two violations of The Controlled Substance, Drug, Device, and Cosmetic Act, Act of April 14, 1972, P.L. 283, as amended, 35 P.S. § 780 — 113(a)(16). On January 18, 2001, the Board detained Jones pending the disposition of criminal charges. The Board released its warrant on January 7, 2002. Jones made bail on the new charges on January 7, 2002. On February 13, 2002, the Court of Common Pleas of Allegheny County convicted Jones and sentenced him to six to twelve months on Count 1 effective December 5, 2000, and paroled him from that sentence and sentenced him to one year of probation for Count 2 to be served consecutive to Count 1. Jones was credited with time served from December 6, 2000, to May 22, 2001. On February 13, 2002, the Board issued a warrant to commit and detain Jones.

After a revocation hearing, the Board on April 12, 2002, recommitted Jones to serve twelve months backtime as a convicted parole violator and recalculated his maximum date as December 22, 2003. On May 2, 2002, Jones petitioned for administrative relief.

In a decision mailed June 3, 2002, the Board denied Jones’s request for administrative relief:

Your original maximum expiration date of sentence was January 7, 2002. When you were paroled on February 28, 2000 there remained 1 year, 10 months and 9 days remaining on the sentence. You were arrested December 5, 2000 and did not post bail until your original maximum expiration date of sentence on January 7, 2002. You were sentenced in Allegheny County on February 13, 2002 to a term of 6 months to 12 months and were paroled February 13, 2002. Adding the 1 year, 10 months and 9 days remaining on your sentence to your availability date of February 13, 2002 results in a new maximum expiration date of December 22, 2003.

Board Decision, June 3, 2002, at 1; Certified Record at 90.

Jones contends that -the recalculated maximum date fails to accurately reflect the periods during which Jones was incarcerated and under the Board’s jurisdiction. Specifically, Jones argues that he was incarcerated for one year and twenty-six days but was only sentenced to six months and should receive credit for the remaining seven months and twenty-six days.

In Gaito v. Pennsylvania Board of Probation and Parole, 488 Pa. 397, 412 A.2d 568 (1980), our Pennsylvania Supreme Court addressed the issue of credit for time served:

[I]f a defendant is being held in custody solely because of a detainer lodged by the Board and has otherwise met the requirements for bail on the new criminal charges, the time spent in custody shall be credited against his original sentence. If a defendant, however, 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. (Emphasis in original. Footnote omitted).

Gaito, 488 Pa. at 403-404, 412 A.2d at 571. In Gaito, our Pennsylvania Supreme Court also noted in a footnote, “It is clear, of course, that if a parolee is not convicted, or if no new sentence is imposed for that conviction on the new charge, the pre-trial custody time must be applied to the parolee’s original sentence.” Gaito, 488 Pa. at 404, n. 6, 412 A.2d at 571, n. 6.

This Court addressed a similar issue in Berry v. Pennsylvania Board of Probation and Parole, 756 A.2d 135 (Pa.Cmwlth.2000). Anthony Berry (Berry) was originally sentenced to a term of one year six months to seven years on two counts of delivery of a controlled substance. On September 17,1998, while on parole, Berry was arrested by the Duquesne Police Department and charged with terroristic threats, simple assault, and firearms violations.³ That same day the Board issued a warrant to commit and detain Berry. On September 24, 1998, Berry was arrested by the Duquesne Police Department and charged with reckless driving, fleeing and eluding police and unauthorized use of a motor vehicle. The Board, by order dated January 11, 1999, recommitted Berry to serve nine months backtime as a technical parole violator when available. On July 8, 1999, Berry pled nolo contendere to the September 24, 1998, charges and was sentenced to time served plus twenty months probation. He received credit from September 24, 1998, to January 24, 1999, on his new sentence. Berry then was returned to SCI Frackville. After a hearing, the Board recommitted Berry to serve twelve months backtime as a convicted parole violator and nine months backtime as a technical parole violator, consecutively. Berry requested administrative relief and alleged that the Board failed to give him credit for time served solely under the Board’s warrant from January 24, 1999, to July 8, 1999. The Board denied the request and noted that Berry did not post bail following the September 24, 1998, charges and “was not entitled to credit as he had no right to deposit the five months and fourteen days into a ‘penal checking account and apply any pre-sentence custody credit in excess of his new sentence to his original sentence.’” Berry, 756 A.2d at 137.

Berry petitioned for review with this Court and contended that the Board erred when it did not provide him with credit from January 24, 1999, to July 8, 1999. He also argued that because his maximum term for the September 24, 1999, charges expired on January 24, 1999, any time he served subsequent to that date was served solely under the Board’s warrant. This Court reviewed Gaito and noted an exception created by our Pennsylvania Supreme Court that if a parolee is not convicted or if no new sentence is imposed for the conviction on new charges, then the pretrial custody time must be applied to the original sentence.

This Court declined to extend the exception and affirmed the Board:

In the case at bar, Petitioner [Berry] asks this Court to extend the exception such that a parolee who receives a shorter term of sentence than the period of time he is incarcerated at the time of sentencing is entitled to credit against his original sentence for this additional time. We refuse to do so. In this case, Berry pled nolo contendere to charges of reckless driving, fleeing and eluding police and driving under suspension. Hence, Berry was ‘convicted’ of these new charges. In addition, Berry was sentenced to time served (four months) plus twenty months probation as a result of this conviction. As Berry was ‘convicted’ of these new charges and a new ‘sentence’ was imposed, the exception as stated in Gaito and Davidson [v. Pennsylvania Board of Probation and Parole, 667 A.2d 1206 (Pa.Cmwlth.1995)] does not apply. Thus, we cannot say that the Board erred as a matter of law in failing to credit Berry for time served from January 24, 1999, to July 8, 1999.

Berry, 756 A.2d at 138.

Now, Jones argues that this Court’s decision in Williams v. Pennsylvania Board of Probation and Parole, 816 A.2d 366 (Pa.Cmwlth.2003) trumps Berry and controls the allocation of his pre-trial custody. In Williams, Thomas Williams (Williams) was sentenced to a term of five to ten years for criminal conspiracy to commit homicide. The Board granted Williams parole. One of the conditions of his parole required him to successfully complete a program at a Community Correction Center. On August 1, 1999, Williams left the Community Correction Center and did not return. The Board declared him delinquent as of that date. On October 22, 1999, Williams was arrested and charged with one third degree misdemeanor and three summary violations of the Vehicle Code, 75 Pa.C.S. §§ 101-9805. There was no record indication whether Williams was required to post bail. On October 28, 1999, the Board issued a warrant to commit and detain Williams for two technical parole violations that stemmed from his failure to complete the corrections program. On November 4, 1999, Williams was returned to a state correctional institution. On December 17, 1999, the Board recommitted Williams as a technical parole violator to serve twelve months backtime when available. On October 5, 2000, Williams pled guilty to driving with a suspended license, driving without required financial responsibility and unauthorized transfer or use of registration. The misdemeanor was dropped. The district justice fined Williams $200 plus costs for driving with a suspended license. As a result of the convictions, the Board conducted another violation hearing and recommitted Williams to serve nine months backtime as a technical parole violator for his failure to comply with all laws to be served concurrently with the earlier twelve month re-commitment. Williams petitioned for administrative relief which the Board denied. Williams, 816 A.2d at 367.

Williams petitioned for review with this Court and alleged that he was entitled to credit between October 22, 1999, the date of his arrest, and December 17, 1999, the date of the revocation of his parole. This Court agreed with Williams and reversed and remanded for a recalculation of Williams’s maximum date:

Here, credit for Williams’ prison time, much of which was served in a state institution, can only be applied to his original state sentence. We hold that where prison time is not related to new charges, and cannot be credited to a new sentence, a prisoner shall be credited with prison time against his original sentence.

Williams is entitled to no credit from the time he left the CCC [Community Correction Center] until his arrest on Vehicle Code charges. There is no indication that he was required to post bail for the Vehicle Code charges, but failed to do so. Therefore, there is no support for a finding that he remained in custody because of the Vehicle Code violations. Williams ultimately received only a fine for the Vehicle Code violations. As a result, there was no county sentence of confinement to which the prison time could be credited. Under these circumstances, Williams should receive credit for his prison time against his original sentence. (Citations omitted. Footnote omitted).

Williams, 816 A.2d at 369.

Jones argues that his situation is similar to Williams’ because he was arrested on new criminal charges while on parole. Shortly after his arrest he was returned to a state correctional facility, where he remained incarcerated prior to his sentencing. Because his new county sentence was less than the time he spent incarcerated between the date of his arrest and the date of the revocation of his parole, Jones argues that seven months and twenty-six days were neither credited to his new sentence nor to the original sentence from which he was paroled. As Williams received credit for time spent in prison because that prison time was unrelated to new charges, and could not be credited to a new sentence, Jones asserts he is entitled to have that excess portion of the time he spent incarcerated, that was not applied to his new charges and could not be credited to his new sentence, credited against his new maximum expiration date. This Court disagrees.

First, both Berry and Jones were convicted parole violators while Williams was a technical parole violator. Under the act popularly known as the Parole Act-(Act)⁴, convicted parole violators and technical parole violators are treated differently. Section 21.1 of the Act⁵, 61 P.S. § 331.21a, provides that service of the new term for a subsequent crime shall precede the commencement of the recommitment of backtime in all but two situations.⁶ Here, Jones did serve his term on the new charges in compliance with the Act. The Act does not provide that a parolee is entitled to a “penal checking account”. In contrast, Section 21.1(c) of the Act, 61 P.S. § 331.21a(c), provides in pertinent part that technical parole violators “shall be recommitted for service of the balance of said term originally imposed to penal or correctional institutions.... ” The Act does not account for any other sentence because a technical parole violator is recommitted not because of a subsequent criminal conviction but for a violation of the conditions of parole. For example, Williams was not recommitted for his fines under the Vehicle Code. Instead, he was recommitted for his violation of the terms of his parole because he was not law abiding. Convicted and technical parole violators do not come under the same subsection of the Act. The Board properly treated Jones as a convicted parole violator just like Berry and Gaito, other convicted parole violators.

Another key difference between Jones and Berry, on the one hand, and Williams on the other is the issue of bail. Berry did not post bail on the new charges so that he was not held in prison solely on the Board’s detainer. Jones did not post bail on the new charges until the Board released its detainer on January 7, 2002. Critically, in Williams the record did not indicate whether Williams posted bail or was required to post bad. Under Gaito, if a defendant remains incarcerated prior to trial because he fails to satisfy bail requirements on the new criminal charges, then the time spent in custody shall be credited to his new sentence. Berry did not receive credit for the time spent in prison from January 24, 1999, the date for which he was given credit for time served on his new charges, and July 8, 1999, the date that he was sentenced on the new charges. Here, Jones did not receive credit from the time spent in prison from the date for which he was given credit for time served until the date when he posted bail on the new charges. The Board properly followed Berry and Gaito. Jones is not entitled to a “penal checking account.” ⁷

Accordingly, we affirm.⁸

ORDER

AND NOW, this 22nd day of August, 2003, the order of the Pennsylvania Board of Probation and Parole in the above-captioned matter is affirmed.

FRIEDMAN, J., dissented and filed opinion, in which SMITH-RIBNER and COHN, JJ. joined.

1

. Our 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, 86 Pa.Cmwlth. 38, 483 A.2d 1044 (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

. Jones was released on parole on July 27, 1990. On May 14, 1992, the Board detained Jones pending the disposition of criminal charges and recommitted him to serve nine months backtime as a technical parole violator when available for multiple technical parole violations. On September 2, 1992, Jones was recommitted based on the May 14, 1992, Board action. Jones was released on parole on October 9, 1992. On August 13, 1993, the Board detained Jones pending the disposition of criminal charges after the City of Pittsburgh Police Department (Department) arrested him on June 21, 1993. On May 3, 1994, the Board recommitted Jones to serve six months backtime as a convicted parole violator after he was convicted of criminal trespass. The Board established a new maximum date of February 6, 2001. Jones was released on parole on August 26, 1994. On November 21, 1994, the Board declared Jones delinquent. On December 29, 1995, the Board detained Jones pending the disposition of criminal charges after the Department arrested him on July 25, 1995. On October 16, 1996, the Board recommitted Jones to serve eighteen months backtime for multiple technical parole violations and twelve months back-time to be served concurrently as a convicted parole violator following Jones’s conviction for simple assault. The Board established a new maximum date of January 7, 2002.

3

. The charges were dropped at a preliminary hearing because the alleged victim failed to appear.

4

. Act of August 6, 1941, P.L. 861, as amended, 61 P.S. §§ 331.l-331.34a.

5

. This section was added by the Act of August 24, 1951, P.L. 1401.

6

. Section 21.1(a) of the Act, 61 P.S. § 331.21a(a), provides in pertinent part:

If a new sentence is imposed upon such parolee, the service of the balance of said term originally imposed shall precede the commencement of the new term imposed in the following cases:

(1) If a person is paroled from any State penal or correctional institution under the control and supervision of the Department of Justice and the new sentence imposed upon him is to be served in any such State penal or correctional institution.

(2) If a person is paroled from a county penal or correctional institution and the new sentence imposed upon him is to be served in the same county penal or correctional institution.

In all other cases, the service of the new term for the latter crime shall precede commencement of the balance of the term originally imposed.

7

. Jones asserts that the fact that he was placed in a state correctional institution rather than a county facility when he was arrested on the new charges bolsters his argument that additional credit should be applied to his original sentence. This Court has previously rejected that argument. In Gaito v. Pennsylvania 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) (Gaito II), Joseph Gaito (Gai-to) was on parole when he was arrested for burglary. Gaito did not post bail and was confined in the State Correctional Institution at Pittsburgh. The Board lodged a detainer on April 24, 1986. On April 23, 1987, Gaito was convicted on the burglary charge and

sentenced to serve a term of one and a half to three years. Gaito argued that the time he spent in official detention at the State Correctional Institution at Pittsburgh before his sentencing should be applied to his original sentence because he was placed in the institution as a result of the Board’s detainer not the new burglary charge. Gaito argued that the fact that he was incarcerated in the state prison supported his argument. This Court rejected Gaito’s argument:

Time spent in custody pursuant to a detain-er warrant shall be credited to a convicted parole violator’s original term only when the parolee was eligible for, and had satisfied, bail requirements for the new offense and thus remained incarcerated only by reason of the detainer warrant against him.

Gaito, 563 A.2d at 547.

8

. Jones also suggests that Section 9760 of the Judicial Code, 42 Pa.C.S. § 9760, which outlines how a sentencing court credits time spent in custody as a result of a criminal charge for which one is convicted, for time spent in custody for which a prisoner is later reprosecuted and resentenced, for time spent on multiple sentences where one is set aside, and for time spent after an arrest on one charge where the individual is later convicted on another charge arising out of the same act, supports his position. However, Section 9760 pertains to a sentencing court and not to the Board.