Summary
rejecting parolee's arguments that Board's order, which denied him credit for time at liberty on parole, improperly extended his maximum sentence in violation of his constitutional rights against double jeopardy and offending due process
Summary of this case from Freeman v. Pa. Bd. of Prob. & ParoleOpinion
March 8, 1989.
Pennsylvania Board of Probation and Parole — Credit for time on parole — Constitutional challenge — Frivolous appeal — Pa. R.A.P. 2744.
1. Statutory provisions which do not permit the granting of credit for time on parole to convicted parole violators are constitutional. [72-3]
2. The assessment of counsel fees under Pa. R.A.P. 2744, when an appeal is filed raising constitutional questions which have been repeatedly addressed and negatively answered in the past, is appropriate, but it would be inappropriate to make a blanket determination that all future constitutional challenges are wholly frivolous and without merit. [74-5]
Submitted on briefs November 9, 1988, to President Judge CRUMLISH, JR., Judge COLINS, and Senior Judge BLATT, sitting as a panel of three.
Appeal No. 1856 C.D. 1987, from the Order of the Pennsylvania Board of Probation and Parole, in the case of Michael Monroe, Parole No. 2135-J.
Parolee recommitted as technical and convicted parole violator. Parolee appealed to the Pennsylvania Board of Probation and Parole for administrative relief. Appeal denied. Parolee appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Bruce E. Mattock, Assistant Public Defender, with him, Dante G. Bertani, Public Defender, for petitioner.
Timothy P. Wile, Assistant Chief Counsel, with him, Robert A. Greevy, Chief Counsel, for respondent.
Michael Monroe appeals a Pennsylvania Board of Probation and Parole (Board) order recommitting him as a technical and convicted parole violator. We affirm.
Monroe, paroled after having served a term of two and one-half years for theft, was arrested and charged with burglary. The Board initially recommitted Monroe for twenty-four months for various technical violations. Monroe subsequently pleaded guilty to burglary charges and was recommitted as a convicted parole violator (CPV) to serve the unexpired portion of his theft sentence. Monroe's administrative appeal was denied by the Board.
Monroe had two and one-half years remaining on the theft sentence but was given credit for six days of incarceration pending disposition of the criminal charges. His recommitment for the convicted violations amounts to two years, five months, twenty-four days.
Monroe contends on appeal that the Board's order denies him credit for time at liberty on parole ("street time"), which he argues should be applied against the backtime imposed for the CPV recommitment. He maintains that the Board's order extends his maximum sentence, thereby violating his constitutional rights against cruel and unusual punishment, double jeopardy, and offends due process. We disagree.
Id.
Section 21.1 of the Parole Act, which provides that parolees convicted of crimes while on parole shall not be given credit for street time, has withstood identical constitutional challenges in both federal and state appellate courts. See United States ex rel. Lawson v. Cavell, 425 F.2d 1350 (3rd Cir. 1970); Gaito v. Pennsylvania Board of Probation and Parole, 488 Pa. 397, 412 A.2d 568 (1980); Jezich v. Pennsylvania Board of Probation and Parole, 109 Pa. Commw. 226, 530 A.2d 1031 (1987). Monroe presents no novel constitutional challenge nor does he distinguish the bulk of authority against him.
Act of August 6, 1941, P.L. 861, as amended, added by Section 5 of the Act of August 24, 1951, as amended, P.L. 1401, 61 P. S. § 331.21a (a).
The Board argues that Monroe's appeal is wholly frivolous and without merit; therefore, it seeks an assessment of costs and counsel fees against Monroe individually pursuant to Pa. R.A.P. 2744.
This Court has assessed counsel fees in probation and parole appeals deemed to be "wholly frivolous." Smith v. Pennsylvania Board of Probation and Parole, 117 Pa. Commw. 220, 543 A.2d 221 (1988). In Smith, we noted that "all doubts about the frivolity of a particular appeal should be resolved in favor of the appellant and against the imposition of costs." Smith at 223 n. 3, 543 A.2d 222 n. 3.
We have previously defined a "wholly frivolous" appeal as one that is completely devoid of points which might arguably support an appeal. Reale v. Pennsylvania Board of Probation and Parole, 99 Pa. Commw. 16, 512 A.2d 1307 (1986).
The Board, in requesting counsel fees in this case, asks this Court to characterize all future constitutional challenges to the Section 21.1 street time forfeiture provision as wholly frivolous.
Having carefully reviewed relevant case law and considered Monroe's arguments, we conclude that in this instance, an award of costs and attorney's fees is warranted. Monroe's constitutional arguments have been repeatedly addressed in this Commonwealth and in the federal courts. Moreover, Monroe's questions regarding the computation of his backtime were answered by the Board in a clarifying letter.
Letter of Board dated 6/15/87, Record, pp. 4-5.
However, we decline to make a blanket determination, as the Board suggests, that future constitutional challenges are wholly frivolous and without merit. To do so would place a chilling effect on related challenges. Furthermore, we will not impose costs on the public defender in this case. In this matter, the Board seeks costs and fees against Monroe only, not the public defender. See Smith (this Court, in its discretion, may impose costs against the litigant, witnesses, or counsel).
Therefore, we affirm the Board's order and assess costs to Monroe individually.
ORDER
The decision of the Pennsylvania Board of Probation and Parole, No. 2135J dated July 2, 1987, is affirmed.
The Board is directed to submit a bill of reasonable costs and fees to this Court within fourteen (14) days.