Opinion
No. 1538 C.D. 2011
05-10-2012
Darryl Salley, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Darryl Salley petitions for review, pro se, from the Order of the Pennsylvania Board of Probation and Parole (Board) recommitting Mr. Salley for eighteen months as a convicted parole violator (CPV) and recalculating Mr. Salley's maximum date as August 20, 2015. On appeal, Mr. Salley argues that the Board erred because it: (1) exceeded the presumptive range for his violation of Section 13(a)(30) of The Controlled Substance, Drug, Device and Cosmetic Act (Drug Act), 35 P.S. § 780.113(a)(30), for which he was sentenced to a maximum five-year term; (2) did not give him credit for the period of time from November 3, 2010, through March 2, 2011, for which Mr. Salley contends he is entitled because he was free on unsecured bond from his new criminal charges during that time; and (3) exceeded its authority in calculating his maximum date when it recommitted him for a period of 1 ½ years and he was only at liberty on parole for less than one year. For the following reasons, we affirm.
Act of April 14, 1972, P.L. 233, as amended.
The facts in this matter are undisputed. Mr. Salley was released on parole from his original sentence of three to eight years on September 9, 2009. (Conditions Governing Parole at 3, C.R. at 36.) When he was released, Mr. Salley's maximum date was May 7, 2014, and he had 1,701 days remaining on that sentence. On June 16, 2010, Mr. Salley was arrested for Possession of a Controlled Substance with Intent to Deliver in violation of Section 13(a)(30) of the Drug Act. (Philadelphia Police Department Arrest Report, C.R. at 39-42.) The Board lodged its detainer warrant on June 17, 2010. (Warrant to Commit and Detain, C.R. at 44.) On August 26, 2010, the Court of Common Pleas of Philadelphia County (trial court) released Mr. Salley on an unsecured bond, but Mr. Salley remained detained on the Board's warrant. (Criminal Docket CP-51-CR-0009497-2010 at 1, C.R. at 76.) Mr. Salley accepted a negotiated plea agreement on November 3, 2010, and the trial court sentenced him to one to five years on the new charge. (Trial Court Order, November 3, 2010, C.R. at 55.) The Board received verification of Mr. Salley's conviction on January 12, 2011, (Criminal Arrest and Disposition Report, C.R. at 60), and Mr. Salley waived his right to a revocation hearing on January 28, 2011, (Waiver of Revocation Hearing and Admission Form, C.R. at 65). On March 2, 2011, the Board recommitted Mr. Salley as a CPV. (Order To Recommit, C.R. at 77.) The Board mailed its decision recommitting Mr. Salley as a CPV for eighteen months of backtime on March 31, 2011. (Notice of Board Decision, March 31, 2011, C.R. at 79.) The Board also recalculated Mr. Salley's maximum date from May 7, 2014, to August 20, 2015, giving Mr. Salley credit for the 69 days from August 26, 2010, through November 3, 2010. (Order To Recommit, C.R. at 77.) The Board did not credit him for the periods of June 17, 2010, through August 26, 2010, (the time he was incarcerated prior to posting bail on the new charges), and November 3, 2010, through March 2, 2011, (the time after he was sentenced on the new charges and the date the second Board member voted to recommit Mr. Salley). (Order To Recommit, C.R. at 77.) Mr. Salley filed an administrative appeal from the Board's decision, which the Board denied. (Mr. Salley's Appeal, C.R. at 80-81; Letter from Board to Mr. Salley (July 20, 2011), C.R. at 98-99.) Mr. Salley now petitions this Court for review.
In reviewing the Board's Order, our review "is limited to determining whether the Board's findings are supported by substantial evidence, an error of law [was] committed, or whether any of the parolee's constitutional rights were violated." Andrews v. Pennsylvania Board of Probation and Parole, 516 A.2d 838, 841 n.10 (Pa. Cmwlth. 1986).
Mr. Salley first argues that the Board erred in using Section 13(f)(1.1) of the Drug Act, 35 P.S. § 780-113(f)(1.1), to calculate his presumptive range of backtime pursuant to Section 75.2 of the Board's regulations, 37 Pa. Code § 75.2, because: (1) he pled guilty to violating Section 13(a)(30) of the Drug Act and there was no reference to Section 13(f)(1.1) in his conviction or sentencing sheet; and (2) the trial court imposed a maximum sentence of only five years. Mr. Salley contends that, because the trial court's maximum sentence was five years, the Board should have used the presumptive range for a felony with a maximum of five years, which is nine to fifteen months, rather than the eighteen to twenty-four months presumptive range based on a felony with a maximum of ten years. According to Mr. Salley, the Board erred because his recommitment to serve eighteen months of backtime exceeds the relevant presumptive range and the Board did not provide a written justification to explain why it was deviating from the relevant presumptive range as required by Green v. Pennsylvania Board of Probation and Parole, 664 A.2d 677, 679 (Pa. Cmwlth. 1995) and Section 75.1(c) of the Board's regulations, 37 Pa. Code § 75.1(c).
Section 13(a)(30) of the Drug Act prohibits, inter alia, "the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this [A]ct." 35 P.S. § 780.113(a)(30). Section 13(f)(1.1) states, in relevant part, that:
(f) Any person who violates clause . . . (30) of subsection (a) with respect to:35 P.S. § 780.113(f)(1.1) (emphasis added). "Under the Crimes Code, the crime of possession of cocaine with intent to deliver carries a maximum term of imprisonment of ten years." Commonwealth v. Wallace, 582 Pa. 234, 237 n.1, 870 A.2d 838, 840 n.1 (2005). Section 75.2 of the Board's regulations provides the presumptive ranges for the recommitment of a parolee as a CPV. 37 Pa. Code § 75.2. In pertinent part, Section 75.2 provides as follows:
. . . .
(1.1) . . . coca leaves and any salt, compound, derivative or preparation of coca leaves; . . . is guilty of a felony and upon conviction thereof shall be sentenced to imprisonment not exceeding ten years, or to pay a fine not exceeding one hundred thousand dollars ($100,000), or both . . . .
If the Board orders the recommitment of a parolee as a convicted parole violator, the parolee shall be recommitted to serve an additional part of the term which the parolee would have been compelled to serve
had he not been paroled, in accordance with the following presumptive ranges:
Id. (emphasis added). Section 75.1(d) of the Board's regulations states that "[t]he presumptive ranges are intended to directly relate to the severity of the crime for which the parolee has been convicted." 37 Pa. Code § 75.1(d). "As long as the period of recommitment is within the presumptive range for the violation, the Commonwealth Court will not entertain challenges to the propriety of the term of recommitment." Smith v. Pennsylvania Board of Probation and Parole, 524 Pa. 500, 504, 574 A.2d 558, 560 (1990).Drug Law Violations:
Felony with a Statutory
Maximum of 10 years 18 months to 24 months
Felony with a Statutory
Maximum of 5 years 9 months to 15 months
We agree with the Board that Mr. Salley's challenge to his backtime is without merit. Although Mr. Salley argues that he should not be subject to the presumptive range associated with the ten year maximum sentence because the trial court sentenced him to a maximum of five years, Section 75.2 refers to the "statutory maximum" sentence not the actual sentence. 37 Pa. Code § 75.2. Here, the statutory maximum for an individual violating Section 13(a)(30) is ten years per Section 13(f)(1.1). 35 P.S. § 780.113(f)(1.1); Wallace, 582 Pa. at 237 n.1, 870 A.2d at 840 n.1. Consequently, the Board properly determined that the correct presumptive range for Mr. Salley's backtime was eighteen to twenty-four months. To the extent that Mr. Salley asserts that he was charged and pled guilty to violating Section 13(a)(30) and not Section 13(f)(1.1), Section 13(f)(1.1) sets forth the punishment for a violation of Section 13(a)(30), which includes a statutory maximum of up to ten years imprisonment, a monetary fine not to exceed $100,000, or both. 35 P.S. § 780.113(f)(1.1). That the trial court did not sentence Mr. Salley to ten years does not alter the fact that the statutory maximum for the charge to which he pled guilty was ten years. Because the amount of backtime Mr. Salley has to serve falls within the presumptive range, the Board did not have to provide written justification for its determination, and this Court will not "entertain challenges to the propriety of the term of recommitment." Smith, 524 Pa. at 504, 574 A.2d at 560.
The Board notes that Mr. Salley's challenge to the length of his recommitment is frivolous, which may warrant the award of attorneys' fees to the Board. However, the Board did not include an express request for such relief in its brief. Accordingly, we will not address this further.
Mr. Salley next asserts that the Board erred when it denied him credit for the period between November 3, 2010, and March 2, 2011, because, according to Mr. Salley, he remained detained solely on the Board's warrant during that time and was waiting for the Board's disposition as a CPV. He contends that this time period would not be credited to his new sentence because he was out on unsecured bond and, if the Board does not give him credit towards his original sentence, he will not receive credit for that time at all.
The law is well settled that the time a CPV spends incarcerated after his sentencing on the new charges and the date the Board recommits the parolee, is credited to the new sentence. In Plummer v. Pennsylvania Board of Probation and Parole, 926 A.2d 561 (Pa. Cmwlth. 2007), we stated that
[u]nder Campbell v. Pennsylvania Board of Probation and Parole, [], 409 A.2d 980[, 982] ([Pa. Cmwlth.] 1980) and Hill v. Pennsylvania Board of
Probation and Parole, 683 A.2d 699[, 701-02] (Pa. Cmwlth. 1996), the general rule applied in calculations of minimum and maximum release dates 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 [CPV], as in this case, to the new sentence.Id. at 563. Accordingly, pursuant to Plummer, Hill, and Campbell, the Board did not err in not crediting the period from November 3, 2010, the date Mr. Salley pleaded guilty to the new charge and was sentenced on the new charge, to March 2, 2011, the date the Board recommitted Mr. Salley as a CPV.
Finally, Mr. Salley contends that the Board erred in recommitting him for nearly 1½ years beyond his original maximum date when he was only at liberty on parole for less than a year. Mr. Salley argues that, in extending his maximum date to August 20, 2015, the Board impermissibly extended his original sentence. According to Mr. Salley, the Board can only require that he serve the remaining balance of his unexpired term pursuant to McCauley v. Pennsylvania Board of Probation and Parole, 510 A.2d 877, 879 n.8 (Pa. Cmwlth. 1986), "since the Board does not have the power to alter a judicially-imposed sentence."
We conclude that the Board did not err in recalculating Mr. Salley's maximum date. The fact that Mr. Salley was at liberty on parole for less than a year is irrelevant for the purposes of calculating the amount of credit he should receive and his new maximum date. Mr. Salley was on parole for 539 days, from September 9, 2009, until March 2, 2011, when he was recommitted as a CPV to serve eighteen months backtime. Of that time, Mr. Salley was at liberty on parole from September 9, 2009, to June 16, 2010; however, as a CPV, he is not entitled to credit against his sentence for that period. Melendez v. Pennsylvania Board of Probation and Parole, 944 A.2d 824, 825 (Pa. Cmwlth. 2008). Additionally, Mr. Salley is not entitled to any credit from June 16, 2010, to August 26, 2010, because he was in custody on the new charges and not solely on the Board's warrant. Gaito v. Pennsylvania Board of Probation and Parole, 488 Pa. 397, 403-04, 412 A.2d 568, 571 (1980). Finally, as stated above, Mr. Salley was not entitled to any credit for the period of November 3, 2010, through March 2, 2011. Plummer, 926 A.2d at 563. Because of these factors, Mr. Salley forfeited 470 days and was entitled to credit for the 69 days he was detained solely on the Board's warrant from August 26, 2010, through November 3, 2010. Adding 470 days to Mr. Salley's original maximum date, May 7, 2014, results in Mr. Salley's new maximum date of August 20, 2015. Accordingly, the Board did not improperly extend Mr. Salley's sentence, but simply declined to give him credit for the period of time he was out on parole, either at liberty or not detained on a Board warrant, as permitted by Section 6138(a)(2) of the Prison and Parole Code. 61 Pa. C.S. § 6138(a)(2). That section states that, if a parolee is recommitted as a CPV, the parolee "shall be reentered to serve the remainder of the term which the parolee would have been compelled to serve had the parole not been granted and shall be given no credit for the time at liberty on parole." Id. (emphasis added). Thus, in ordering Mr. Salley to serve backtime and extending his maximum date to account for the days Mr. Salley forfeited as a CPV, the Board simply was taking into account the amount of time he had remaining on the original sentence imposed and required him to serve that sentence.
Alternatively, adding 1632 days, the number of days remaining on Mr. Salley's original sentence after he received credit for the 69 days he was in custody solely on the Board's warrant, to March 2, 2011, the date he became eligible to start serving his original sentence, also results in a new maximum date of August 20, 2015. --------
Moreover, McCauley is distinguishable because the parolee in that case "had only one year, three months, and twenty-two days," i.e, fifteen months and twenty-two days, remaining on his original sentence, but the Board attempted to recommit him to serve eighteen months backtime. McCauley, 510 A.2d at 879 n.8. We noted, however, that "the Board could only require that he serve the remaining balance of his unexpired sentence since the Board does not have the power to alter a judicially-imposed sentence." Id. In other words, the Board could only order the parolee to serve fifteen months and twenty-two days of backtime. Here, the Board is not extending Mr. Salley's original sentence; he is still serving a maximum of eight years, but his maximum date is extended to reflect the time he was either at liberty on parole or on parole and in custody not solely on the Board's warrant.
Accordingly, the Order of the Board is affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, May 10, 2012, the Order of the Pennsylvania Board of Probation and Parole in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge