Opinion
No. 1875 C.D. 2011
05-15-2012
Robert A. Rosen, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Robert A. Rosen (Rosen) petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) that denied his request for administrative relief. Rosen asserts the Board did not afford him a timely parole revocation hearing. In addition, he argues the Board did not properly credit his original sentence with the time he served prior to his revocation hearing. Upon review, we affirm.
In February 2007, the Board paroled Rosen. Thereafter, authorities arrested Rosen on new criminal charges. Rosen did not post bail on his new charges and was held in county custody. On the same day, the Board lodged a detainer against Rosen as a result of his arrest.
On December 2, 2010, Rosen entered a guilty plea, and the Court of Common Pleas of Bucks County (trial court) sentenced him to an 18 month to five-year term of confinement. Ultimately, on December 6, Rosen was transferred to Pennsylvania Department of Corrections (DOC) custody.
Thereafter, the Board scheduled Rosen's parole revocation hearing for March 29, 2011, 113 days after he reentered DOC custody. On March 23, the trial court, by writ, ordered Rosen transferred to county custody to attend a hearing on his post-sentencing motion. As a result, Rosen was removed from DOC custody until March 31, 2011. Because Rosen was not in DOC custody on the day of his scheduled revocation hearing, the Board issued a seven-day continuance, and rescheduled the hearing for April 5, 2011.
On April 5, upon his request, the Board granted Rosen a continuance to secure legal representation. In so doing, the Board rescheduled Rosen's hearing for April 12, 2011, 127 days after Rosen initially returned to DOC custody. Ultimately, the Board held the revocation hearing as rescheduled, and recommitted Rosen as a convicted parole violator.
Subsequently, the Board issued a revocation decision and recalculation order. In the recalculation order, the Board did not credit Rosen's original sentence with any of the time he spent in DOC custody prior to the Board's revocation decision. In response, Rosen filed an administrative appeal, which the Board denied. Rosen petitions for review.
On appeal, Rosen argues the Board erred in not crediting his original sentence with the time he served between reentering DOC custody on December 6, 2011 (following sentencing on the new charges) and his parole revocation hearing on April 12, 2011. Additionally, Rosen contends the Board did not conduct his revocation hearing within 120 days of his return to DOC custody.
Our review is limited to determining whether the necessary findings of fact were supported by substantial evidence, whether errors of law were committed, or whether constitutional rights were violated. Reavis v. Pa. Bd. of Prob. & Parole, 909 A.2d 28 (Pa. Cmwlth. 2006). Failure to raise an issue before the Board results in the waiver of that issue on appeal. Id. --------
In response, the Board contends Rosen waived the first issue by only challenging the Board's determination with regard to "time served exclusively pursuant to the [Board's] warrant" in his administrative appeal. See Certified Record, Item No. 14. Furthermore, the Board argues Rosen's waived argument is meritless, and that it timely held his parole revocation hearing.
Here, Rosen raises an issue on appeal that he did not present to the Board. Specifically, in his appeal to the Board, Rosen claimed the Board erred in denying him credit for the time he served exclusively on the Board's detainer. Such argument raises an issue of credit for time spent before sentencing on new charges pursuant to Gaito v. Pennsylvania Board of Probation and Parole, 488 Pa. 397, 412 A.2d 568 (1980) (credit for time served exclusively on Board warrant before trial on new charges). The Board addressed this issue when disposing of Rosen's administrative appeal, noting that at the relevant time Rosen did not make bail and was therefore held both on the new charges and on the Board's warrant.
However, on appeal to this Court, Rosen's argument shifts into a claim that he is entitled to credit on his original sentence for the time he served in DOC custody following sentencing on new charges and prior to his revocation hearing. See Plummer v. Pa. Bd. of Prob. & Parole, 926 A.2d 561 (Pa. Cmwlth. 2007) (addressing which sentence is credited with the time served between a parolee's conviction on new charges and the Board's revocation of parole). The Board did not address this issue in its decision on Rosen's administrative appeal; nevertheless, it is obvious that after sentencing on the new charges Rosen was held both on the new sentence and on the Board's warrant on the original sentence.
In short, because a different period was involved, and the bases on which Rosen was held were different, the credit issue Rosen raises on appeal to this Court was not comprised within his administrative appeal to the Board. See Plummer; cf. Gaito (credit for pre-trial confinement). Therefore, the credit question Rosen raises on appeal to this Court is waived. See Reavis v. Pa. Bd. of Prob. & Parole, 909 A.2d 28 (Pa. Cmwlth. 2006).
Moreover, we discern no error in the Board's determination that Rosen is not entitled to credit toward his original sentence for the time he spent in DOC custody prior to his revocation hearing. See Plummer (when the Board recalculates a convicted parole violator's release date, the general rule is that the Board must credit time a parolee spent in custody between the date of conviction for the new charge and the date the Board recommits him as a direct violator to the new sentence); see also Campbell v. Pa. Bd. of Prob. & Parole, 409 A.2d 980 (Pa. Cmwlth. 1980) (en banc) (although a convicted parole violator must serve the balance of his original sentence before any subsequent sentence, a convicted parole violator may only begin accruing credit toward his original sentence after the Board revokes his parole). Here, Rosen spent 127 days in DOC custody prior to the Board recommitting him as a convicted parole violator; therefore, that period must accrue against his new, 2010 sentence, and not his original sentence.
Next, we address whether the Board held a timely revocation hearing. Under the Board's regulations, where a parolee is confined outside of DOC's jurisdiction, such as in a county correctional institution, and he is subsequently convicted on new charges, the Board must hold a parole revocation hearing within 120 days of the parolee's return to DOC custody. 37 Pa. Code §71.4(1)(i). In calculating the 120-day period, the Board may exclude any period of delay that is directly or indirectly attributable to, among other things: "(1) [t]he unavailability of a parolee or counsel[;] [or] (2) [c]ontinuances granted at the request of a parolee or counsel ... ." 37 Pa. Code §71.5 (c).
Here, the Board held Rosen's parole revocation hearing on April 12, 2011, 127 total days after his return to DOC custody. However, two seven-day periods are excludable from the computation of the 120-day period.
First, the seven-day period between March 29 and April 5, 2011 is not included in the calculation. Initially, the Board scheduled Rosen's revocation hearing on March 29, 2011. However, from March 23 to March 31, Rosen was in county custody, pursuant to a judicial writ, to attend a post-sentencing hearing before the trial court. Thus, because Rosen was unavailable for his March 29 parole revocation hearing, the Board issued a seven-day continuance. As the seven-day postponement resulted from Rosen's unavailability, that period is excluded from the computation of the 120-day period. See Pastuszek v. Pa. Bd. of Prob. & Parole, 544 A.2d 1051 (Pa. Cmwlth. 1988).
In addition, the seven-day period between April 5, and April 12, 2011, is excluded from the calculation of 120 days as that delay was attributable to Rosen's request for a continuance to secure legal counsel. Pierce v. Pa. Bd. of Prob. & Parole, 525 A.2d 1281 (Pa. Cmwlth. 1987) (a parolee's request for a continuance tolls the 120-day period). Therefore, as a result of the Board's March 29, and April 5, 2011 continuances, 14 days must be subtracted from the 127 days that passed before the Board held Rosen's revocation hearing. Thus, as Rosen's hearing was held within 120 eligible days of his return to DOC's jurisdiction, it was timely. Therefore Rosen's argument lacks merit.
Accordingly, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 15th day of May, 2012, the order of the Pennsylvania Board of Probation and Parole is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge