Opinion
129 C.D. 2021
08-27-2021
Derek Sherman, Petitioner v. Pennsylvania Parole Board, Respondent
OPINION NOT REPORTED
SUBMITTED: June 25, 2021
BEFORE: HONORABLE ANNE E. COVEY, Judge, HONORABLE J. ANDREW CROMPTON, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
MEMORANDUM OPINION
BONNIE BRIGANCE LEADBETTER, PRESIDENT JUDGEs
Petitioner, Derek Sherman, petitions for review of an order of the Pennsylvania Parole Board (Board) that (1) recommitted him as a convicted parole violator to serve 6 months' backtime; (2) declined to award him credit for time spent at liberty on parole; and (3) calculated his new parole violation maximum date as January 1, 2022. We affirm.
In October 2016, the Court of Common Pleas of Adams County sentenced Petitioner to 1 year, 6 months to 4 years for burglary with a maximum sentence date of November 17, 2019. (Certified Record "C.R." at 6.) In August 2017, the Board released him to an approved home plan in York, Pennsylvania. (Id. at 6-7.) Following a March 2018 move from his approved residence and an April 2018 failure to report for scheduled appointments, the Board declared Petitioner delinquent effective March 19, 2018. (Id. at 11-12.) His whereabouts were unknown until his September 2018 arrest. (Id. at 17 and 20.) Subsequently, the Board lodged a detainer against him. (Id. at 13 and 20.)
In September 2018, the Board determined that probable cause was established for violation of parole condition 2 (change of approved residence), ordered that Petitioner be detained in a parole violator center, and directed that any violation hearing be held in abeyance pending his completion of recommended programming. (Id. at 26.) Following Petitioner's failure to report for scheduled appointments, a wanted notice request was filed in December 2018. (Id. at 29 and 45.) When Petitioner turned himself in soon thereafter, the Board canceled the request and permitted him to remain on parole. (Id. at 31, 32, and 45.)
In June 2019, the same sequence of events repeated itself-Petitioner failed to report for scheduled appointments, he moved from his approved residence, and the Board declared him delinquent. (Id. at 35, 36, and 45.) On June 24, 2019, Petitioner was arrested and charged with driving under influence of alcohol or controlled substance (DUI) and several other violations. (Id. at 45, 48-52, and 88.) In July 2019, the Board detained him pending disposition of the new criminal charges. (Id. at 60.) Although Petitioner initially did not post bail, he ultimately did so on August 27, 2019. (Id. at 53, 87, and 110.) On November 17, 2019, Petitioner was released from the Board's warrant at the expiration of the maximum term on his original sentence. (Id. at 1 and 62.)
In February 2020, the trial court found him guilty of DUI and sentenced him to 72 hours to 6 months. (Id. at 88.) After the Board relodged its detainer against him, he was returned to the Department of Corrections' custody on February 19, 2020. (Id. at 72 and 155.) At that time, he also signed a waiver of revocation hearing and counsel/admission form, admitting to the new conviction. (Id. At 76.) In May 2020, the Board recommitted Petitioner as a convicted parole violator to serve 6 months' backtime for the offense of DUI. (Id. at 178-79.)
In a November 2020 decision, the Board recalculated Petitioner's maximum date as January 1, 2022. (Id. at 183-84.) It also exercised its discretion not to award Petitioner credit for time spent at liberty on parole, citing his abscondment while on parole supervision and continued demonstration of unresolved drug and/or alcohol issues. (Id. at 183.) Subsequently, Petitioner filed three petitions for administrative review contending that the Board miscalculated the backtime on his original sentence. (Id. at 188-204.) In January 2021, the Board affirmed its November 2020 decision. (Id. at 205-10.) Petitioner's petition for review followed.
Petitioner presents two issues for our review: (1) whether the Board abused its discretion in denying him credit for time spent at liberty on parole for failure to proffer adequate reasoning for its decision under Section 6138(a)(2.1) of the Prisons and Parole Code, 61 Pa.C.S. § 6138(a)(2.1); and (2) whether the Board failed to properly credit him for the time that he spent in county prison.
Turning to the first issue, we conclude that Petitioner waived his claim that the Board abused its discretion in denying him credit for time spent at liberty on parole for failure to challenge the Board's reasoning in any of his petitions for administrative review. "The law is well settled that issues not raised before the Board either at the revocation hearing or in the petitioner's administrative appeal are waived and cannot be considered for the first time on appeal." Chesson v. Pa. Bd. of Prob. & Parole, 47 A.3d 875, 878 (Pa. Cmwlth. 2012).
Moreover, we reject Petitioner's argument that the Board's stated rationale for its refusal to afford him credit is negated by an alleged failure to afford him an opportunity to present dispositional evidence. As noted, Petitioner waived his revocation hearing. By electing not to pursue the administrative appeal process, he necessarily waived the right to advance any claim of error that he could have raised at the hearing. Fisher v. Pa. Bd. of Prob. & Parole, 62 A.3d 1073, 1075-76 (Pa. Cmwlth. 2013). However, we perceive no error.
Even absent waiver, the Board's contemporaneous and detailed rationale for denying Petitioner credit satisfies Pittman v. Pennsylvania Board of Probation and Parole, 159 A.3d 466, 475 (Pa. 2017). Indeed, a history of supervision failures and abscondments constitutes adequate grounds for denying credit for time spent at liberty on parole. Plummer v. Pa. Bd. of Prob. & Parole, 216 A.3d 1207, 1212 (Pa. 2019) (history of supervision failures); King v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 875 C.D. 2019, filed Nov. 10, 2020) (abscondments while on supervision). [This Court's unreported memorandum opinions may only be cited "for [their] persuasive value, but not as binding precedent." Section 414(a) of the Commonwealth Court's Internal Operating Procedures, 210 Pa. Code § 69.414(a)]. In addition to the abscondments and failures to report for appointments, the record is replete with instances of positive tests for drugs and alcohol as well as admissions to using or possessing drugs and alcohol. (C.R. at 44-45.)
Petitioner next argues that the Board erred in recalculating his maximum sentence date because it failed to credit him for the time that he spent in county prison subject to the Board's detainer: June 24, 2019 (date criminal charges were filed), to August 26, 2019 (date he posted bail). In support, Petitioner rejects the Board's reliance on Gaito v. Pennsylvania Board of Probation and Parole, 412 A.2d 568, 571 (Pa. 1980), holding that "time spent in custody pursuant to a detainer 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 lodged against him." Instead, he asserts that "it is incumbent upon the Board to forego lodging a detainer in situations akin to the present circumstances and leave a parolee on constructive parole if its intent is to forfeit any pre-trial incarceration time." (Petitioner's Br. at 17.)
Petitioner's argument is without merit. In Smith v. Pennsylvania Board of Probation and Parole, 171 A.3d 759 (Pa. 2017), the Supreme Court reiterated its longstanding precedent that any period a convicted parole violator is incarcerated on both new criminal charges and the Board's warrant must be applied to the new sentence. Consequently, Petitioner was entitled to presentence credit toward his original sentence only for the 82 days that he was incarcerated solely on the Board's warrant (August 27, 2019, to November 17, 2019). Gaito. In any event, by waiving his parole revocation hearing, Petitioner waived the right to advance a claim of error pertaining to the amount of backtime owed. Fisher, 62 A.3d at 1075-76.
When Petitioner was paroled on August 23, 2017, with a maximum date of November 17, 2019, he had 816 days remaining on his original sentence. Upon recommitment as a convicted parole violator, the Board denied him credit for the time spent at liberty on parole. He was entitled to 46 days of confinement credit from September 6, 2018, to October 22, 2018. Subtracting 46 from 816 leaves 770 days on his original sentence. On June 24, 2019, he was arrested on new criminal charges and the Board lodged its detainer. On August 27, 2019, he procured unsecured bail. On November 17, 2019, the Board lifted its detainer once he reached his original maximum date. On February 13, 2020, he was sentenced to county prison, paroled from his new sentence, and the Board relodged its detainer. He was entitled to 82 days of presentence credit on his original sentence because the Board held him solely on its detainer from August 27, 2019, to November 17, 2019. Subtracting 82 from 770 leaves 688 days remaining on his original sentence. Because he was sentenced to county prison, he must first serve the new sentence. Consequently, he became available to start service on his original sentence on February 13, 2020, the day he was paroled from county prison and when the Board relodged its detainer. Adding 688 to that availability date yields a new maximum date of January 1, 2022. (C.R. at 176 and 183.)
ORDER
AND NOW, this 27th day of August, 2021, the order of the Pennsylvania Parole Board is hereby AFFIRMED.