Opinion
No. 957 C.D. 2011
01-06-2012
Cristian Maracine, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JOHNNY J. BUTLER, Judge
This case was decided before Judge Butler's term ended on January 2, 2012.
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Cristian Maracine (Petitioner) petitions for review of an adjudication of the Pennsylvania Board of Probation and Parole (Board) denying his petition for administrative relief from the recalculation of his maximum sentence expiration date. Finding no error in the Board's decision, we affirm.
On April 30, 2007, the Board paroled Petitioner from a five-year state prison sentence for possessing a firearm with an altered manufacturer's number. At the time of his parole his maximum sentence expiration date was April 5, 2011. Petitioner was declared delinquent on October 16, 2007, and was recommitted by the Board as a technical parole violator on January 8, 2008, and required to serve nine months backtime. His maximum sentence date was recomputed to October 17, 2011.
The Board paroled Petitioner again on December 5, 2008. On March 10, 2010, he was once again declared delinquent by the Board. Petitioner was arrested on March 22, 2010, in Berks County for driving under the influence (DUI). As a result of this arrest he was recommitted to a state correctional institution as a technical parole violator to serve nine months backtime when available, pending resolution of outstanding criminal charges for DUI. Petitioner was returned to SCI Mahanoy on May 18, 2010.
The Board lodged a detainer against Petitioner on March 23, 2010.
On August 18, 2010, Petitioner pled guilty to the DUI charge and was sentenced to serve not less than 72 hours or more than six months in the Berks County jail. Certified Record at 32 (C.R. ___). Petitioner was given 47 days of presentence credit, leaving 134 days remaining on his DUI sentence. In its order, the Berks County Court of Common Pleas (trial court) noted that Petitioner "may be released without a petition upon approval of a suitable parole plan." Id.
On August 24, 2010, Petitioner waived his right to a parole revocation hearing. On October 15, 2010, as a result of his DUI conviction, the Board recommitted Petitioner as a convicted parole violator. The Board then issued an order on March 31, 2011, which recalculated Petitioner's maximum sentence date as June 26, 2013. In its calculation, the Board used December 30, 2010, as the date on which Petitioner became "available" to serve his backtime. The Board chose December 30th because it was 134 days after the August 18th DUI sentencing order.
Petitioner appealed the Board's March 31, 2011, recalculation order. Petitioner argued that he had not received credit for all the time served. Specifically, Petitioner alleged that he was entitled to credit for the 134 days of incarceration from August 18, 2010, to December 30, 2010. On May 19, 2011, the Board denied Petitioner's appeal. In doing so, the Board noted that Petitioner had 1008 days remaining on his original sentence when he was recommitted as a convicted parole violator. He was incarcerated solely on account of the Board's detainer from May 11, 2010, to August 18, 2010, or 99 days. Petitioner was credited for 99 days, leaving 909 days remaining on his sentence. Because Petitioner served his DUI sentence from August 18, 2010, to December 30, 2010, he was not available to begin serving the 909 days until December 30th. Therefore, the recalculated maximum date of June 26, 2013, was proper. Petitioner then sought this Court's review.
Our review is limited to determining whether substantial evidence supports the Board's decision, and whether the Board erred as a matter of law or violated the parolee's constitutional rights. Harden v. Pennsylvania Board of Probation and Parole, 980 A.2d 691, 695 n.3 (Pa. Cmwlth. 2009).
On appeal, Petitioner contends that the Board arbitrarily set his custody return date as December 30, 2010. In support, Petitioner notes that he was incarcerated at a state correctional institution on May 11, 2010, where he remained except for his transfer to Berks County for sentencing. He suggests that the trial court sentenced him to 47 days incarceration, which was time served, for his DUI conviction. It follows, he argues, that he was immediately paroled on August 18, 2010, and became "available" to the Board that day when he was returned to SCI Mahanoy. Relying on Gaito v. Pennsylvania Board of Probation and Parole, 563 A.2d 545, (Pa. Cmwlth. 1989), Petitioner argues that the calculation of his new sentence date should have taken into account the fact that he has been incarcerated in a state correctional institution since May 11th, not December 30th. Thus, his correct maximum date is February 12, 2013.
Petitioner's reliance on Gaito is misplaced. Gaito provides that a parolee is entitled to credit his original sentence with time spent in custody pursuant to a detainer warrant when he has remained in custody "only by reason of the detainer warrant." Gaito, 563 A.2d at 547 (emphasis added). In fact, Gaito implicitly recognizes that parolees cannot use time served pursuant to a separate, subsequent, conviction to reduce backtime owed on their original sentence. Id. (noting that the Board does not have the power to alter a parolee's judicially imposed sentence, and can only mandate the parolee serve the balance of the unexpired term).
In response, the Board argues that the trial court imposed a six-month sentence on Petitioner for his DUI conviction. The trial court stated that he could be released upon approval of a parole plan, but no such parole plan was ever approved. Accordingly, Petitioner was required to serve the full six-month DUI sentence. The Board also notes that Petitioner was on parole from a state sentence at the time he was arrested, convicted, and sentenced for the DUI. The Board contends that under Monroe v. Pennsylvania Board of Probation and Parole, 725 A.2d 223 (Pa. Cmwlth.), appeal denied, 560 Pa. 733, 745 A.2d 1226 (1999), Petitioner had to serve his county sentence, i.e., the DUI sentence, before he could resume serving his original sentence. Further, the time served from August 18, 2010, to December 30, 2010, cannot be credited towards both sentences. For the reasons that follow, we agree with the Board.
The order in which a parolee convicted of a subsequent crime must serve the sentences imposed is governed by statute. Section 6138 of the Prisons and Parole Code provides, in relevant part, as follows:
If a new sentence is imposed on the parolee, the service of the balance of the term originally imposed by a Pennsylvania court shall precede the commencement of the new term imposed in the following cases:
61 Pa. C.S. §6138(5) (emphasis added).(i) If a person is paroled from a State correctional institution and the new sentence imposed on the person is to be served in the State correctional institution.
(ii) If a person is paroled from a county prison and the new sentence imposed upon him is to be served in the same county prison.
(iii) 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.
In Monroe, this Court interpreted a prior version of Section 6138(5), to determine if a parolee was entitled to aggregate the time served on a state sentence and subsequent county sentence. We held that Section 6138(5) prohibited such aggregation. We reasoned:
In Monroe, this Court was interpreting the prior version of Section 6138(5), Section 21.1(a) of the Act commonly known as the Parole Act, Act of August 6, 1941, P.L. 861, as amended, added by Section 5 of the Act of August 24, 1951, P.L. 1401, formerly 61 P.S. §331.31a(a). The Parole Act was repealed by the Act of August 11, 2009, P.L. 147, No. 33.
Section [6138(5)] sets forth a method for determining whether a convicted parole violator must serve the original or the new sentence first. . . . In this case Section [6138(5)] requires that Petitioner's county sentences precede his backtime. If Petitioner's sentences were aggregated then at any given moment during Petitioner's confinement he could not be characterized as serving one particular sentence, but rather he
would continuously be serving all of them pursuant to the single aggregated sentence. Therefore, aggregating Petitioner's sentences would make it impossible for the Board to comply with Section [6138(5)].Monroe, 725 A.2d at 225-226.
Under the foregoing principles, Petitioner was statutorily required to first serve his county sentence, in its entirety, before he could begin serving the remainder of his backtime, which was a state sentence. Nor could Petitioner use the incarceration for his county sentence towards his state sentence.
We turn next to the crux of Petitioner's argument: that he finished serving his county sentence, in its entirety, on August 18, 2010, the date he was sentenced. Petitioner premises this argument on the fact that after sentencing he was returned to a state correctional institution, rather than to the Berks County jail, where he was ordered to serve his DUI sentence. Petitioner argues that his placement in a state institution proves that he was paroled and immediately available to continue serving the remainder of his backtime. Petitioner's argument lacks merit.
Petitioner also claims that the Board's criminal arrest and disposition report notes that he was only sentenced to 47 days time served. See C.R. 46. However, the Board's criminal arrest and disposition report notes that Petitioner was given credit for 47 days time served, but does not list that as his sentence. Rather the report expressly notes that Petitioner was sentenced to no less than 72 hours nor more than six months imprisonment. Id. Thus, Petitioner's argument has no merit.
Petitioner was convicted and sentenced to no less than 72 hours and no more than six months imprisonment on the DUI charge. The sentencing order required him to serve this time at the Berks County jail and gave him credit for 47 days time served from March 26, 2010, to May 11, 2010. Id. The trial court did not parole Petitioner when it sentenced him; rather, it expressly noted that he could be released if a suitable parole plan was approved. Id.
Inexplicably, Petitioner was returned to a state correctional institution rather than to the Berks County jail. The trial court ordered Petitioner to serve his sentence at the Berks County jail, but where he served his DUI sentence is irrelevant. The only relevant question is whether Petitioner was, in fact, paroled on August 18, 2010.
Petitioner has not alleged any error in this regard. --------
Petitioner's parole was conditioned on the approval of a suitable parole plan, and no such plan was ever approved. The record lacks any record of a parole plan being submitted or approved, and Petitioner does not allege that a suitable plan was approved. Rather, he characterizes his, apparently accidental, transfer to a state correctional institution as evidence that he was paroled immediately. Petitioner's position is untenable. The trial court expressly stated that a suitable parole plan had to be approved before parole could take place.
Because Petitioner was never paroled from his county sentence for the DUI conviction, Petitioner was required to serve the full six-month sentence. Under Section 6138(5) of the Prisons and Parole Code, Petitioner had to serve the remaining 134 days on his county sentence before he became "available" to serve the remainder of his backtime. Therefore, Petitioner was not "available" to serve his backtime until December 30, 2010.
Accordingly, we affirm.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 6th day of January, 2012, the order of the Pennsylvania Board of Probation and Parole in the above-captioned matter, dated May 19, 2011, is AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge