Opinion
99 C.D. 2023
11-17-2023
David Strothers, Petitioner v. Pennsylvania Parole Board, Respondent
OPINION NOT REPORTED
Submitted: October 10, 2023
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge
MEMORANDUM OPINION
RENÉE COHN JUBELIRER, PRESIDENT JUDGE
David Strothers (Strothers) petitions for review of the Decision of the Pennsylvania Parole Board (Board), mailed January 20, 2023, that denied in part Strothers' Administrative Appeal and affirmed the Board's determination recommitting Strothers as a convicted parole violator (CPV) and recalculating his parole violation maximum date. On appeal, Strothers argues that the Board did not give him credit toward his original sentence for all of the time he spent detained on the Board's warrant and/or while otherwise incarcerated that was not credited to another sentence. Upon review, we affirm.
Strothers was released on parole from multiple sentences on August 12, 2019, at which time he had a maximum date of August 9, 2027 (original sentence). (Certified Record (C.R.) at 8-9.) By Board action recorded July 28, 2020, the Board declared Strothers delinquent effective July 24, 2020, when Strothers' parole agent was contacted by the Williamsport Police Department to advise that Strothers was involved in domestic violence incidents the prior day, Strothers had fled, and Strothers' whereabouts were unknown. (Id. at 16, 35, 49.) The Board issued multiple Warrants to Commit and Detain (Warrants) for Strothers on November 30, 2020 (when he was apprehended by the Board's agents), June 22, 2021, and August 26, 2021. (Id. at 17, 23, 25, 35.) It likewise recorded multiple Board actions detaining Strothers pending the disposition of new criminal charges. (Id. at 20-22, 24, 26.)
On July 22, 2021, Strothers was arrested on multiple charges arising from domestic violence incidents occurring on July 23, 2020, including simple assault. (Id. at 26-27, 31, 48, 59-60.) Following his arraignment on August 3, 2021, bail was set at $7,500.00, which Strothers did not post. (Id. at 59-60.) On July 14, 2022, Strothers pled guilty to a single charge of simple assault (new charge) and was sentenced to four to eight months in the Lycoming County Prison (County Prison) by the Court of Common Pleas of Lycoming County (common pleas). (Id. at 43-44.) Common pleas gave Strothers credit toward his new sentence for the time he served from August 3, 2021, to December 3, 2021, which was the length of his four-month minimum sentence, and paroled Strothers from that county sentence to the Board's detainer. (Id. at 44.)
The Board issued a Notice of Charges and Hearing on August 9, 2022, based on Strothers' conviction on the new charge. (Id. at 27.) The same day, Strothers waived his rights to a revocation hearing and counsel, and admitted to that conviction. (Id. at 29-30.) Based on common pleas' records and Strothers' admission, the Board recommitted Strothers as a CPV to serve 15 months of backtime. (Id. at 75-76.) The Board gave Strothers no credit for his street time, citing Strothers' absconding while on parole and Strothers' behavior that reflected domestic violence issues, but did credit him for 246 days for the period of November 30, 2020, to August 3, 2021, when he was being held solely on the Board's Warrant. (Id. at 73, 76.) Subtracting 246 days from the 2,919 days remaining on his original sentence resulted in 2,673 days remaining on Strothers' original sentence. (Id. at 73.) Adding 2,673 days to Strothers' Custody for Return date, July 14, 2022, the Board set Strothers' parole violation maximum date as November 7, 2029. (Id.)
With the assistance of counsel, Strothers filed an Administrative Remedies form, and Strothers submitted additional pro se filings, that relevantly argued that the Board erred in its credit calculations, which, in turn, resulted in an erroneous recalculation of Strothers' parole violation maximum date. (Id. at 82-88.) The Board granted Strothers relief and denied it in part. The Board granted Strothers credit toward his original sentence for the 102 days between April 3, 2022, and July 14, 2022, because that was the period of pre-sentence confinement which exceeded the maximum eight-month sentence on the new charge and, thus, he could not receive a credit toward his new sentence. (Id. at 91.) Subtracting that 102 days, the Board revised Strothers' parole violation maximum date to July 28, 2029. (Id. at 79, 91.) The Board also noted that, even though he would receive credit for those 102 days, because Strothers had to serve his county sentence before returning to serve his original sentence, Strothers was not available to commence service on the original sentence until July 14, 2022, when he was sentenced on the new charge. (Id. at 91.) The Board otherwise affirmed the August 19, 2022 decision, as modified. (Id. at 92.) Strothers now petitions this Court for review.
Our review in parole revocation cases "is limited to a determination of whether necessary findings are supported by substantial evidence, [whether] an error of law was committed, or whether constitutional rights of the parolee were violated." Johnson v. Pa. Bd. of Prob. & Parole, 706 A.2d 903, 904 (Pa. Cmwlth. 1998).
Strothers argues he is entitled to credit toward his original sentence for the period he was confined on the Board's Warrant from December 4, 2021, to July 13, 2022. According to Strothers, he only received "credit from April 3, 2022[,] to July 14, 2022," and he should be awarded an additional 221 days of credit for the period of December 4, 2021, to July 13, 2022. (Strothers' Brief (Br.) at 13.) In essence, Strothers maintains that his Custody for Return date should have been December 4, 2021, the last day Strothers received credit toward his new sentence, and not July 14, 2022, the date of his sentencing.
The Board responds it properly recalculated Strothers' parole violation maximum date. The Board maintains that Strothers' argument that he is owed additional credit based on an allegedly erroneous Custody for Return date, made without citation to legal authority, impermissibly seeks double credit. According to the Board, Strothers' arguments are contrary to Smith v. Pennsylvania Board of Probation and Parole, 171 A.3d 759 (Pa. 2017), Martin v. Pennsylvania Board of Probation and Parole, 840 A.2d 299 (Pa. 2003), and Gaito v. Pennsylvania Board of Probation and Parole, 412 A.2d 568 (Pa. 1980), and should be rejected.
Initially, we note that, notwithstanding Strothers' arguments, the period at issue here is really between December 4, 2021, and April 2, 2022, not December 4, 2021, through July 13, 2022. As Strothers' brief itself acknowledges, the Board credited him for time spent in pre-sentence confinement from April 3, 2022, to July 14, 2022. (Strothers' Br. at 13.) Strothers is not entitled to double credit for the 102 days between April 3, 2022, and July 13, 2022, which is what he appears to seek in his brief. See Barndt v. Pa. Dep't of Corr., 902 A.2d 589, 595 (Pa. Cmwlth. 2006) (precluding the award of double credit). Accordingly, we consider whether the Board erred in not awarding Strothers credit for the time he spent in pre-sentence confinement between December 4, 2021, and April 2, 2022, or 121 days.
The seminal case on how to allocate credit for time spent in pre-sentence confinement is Gaito. In that case, our Supreme Court held that if a parolee is detained on both a Board detainer and the new charges, the time spent in custody is to be credited to the sentence imposed for the new charges. Gaito, 412 A.2d at 571. But, if a parolee met the bail requirements of the new charges, which leaves the parolee confined only on the Board detainer, the time spent in custody is to be credited to the original sentence. Id. The Supreme Court also recognized that, where there is no conviction or no new sentence imposed for a conviction on the new charge, the pre-sentence confinement "must be applied to the parolee's original sentence." Id. at 571 n.6.
The Supreme Court clarified Gaito in Martin, wherein it held that there may be other circumstances in which applying the general rule results in a parolee not receiving credit for the full amount of time spent in pre-sentence confinement, such as where the pre-sentence confinement exceeds the maximum sentence of imprisonment on the new charges. Martin, 840 A.2d at 309. In those circumstances, "all time spent in confinement must be credited to either the new sentence or the original sentence," id., and credit toward the original sentence may occur where it is not possible to award all credit toward the new sentence because the new sentence was shorter than the period of pre-sentence confinement, see Smith, 171 A.3d at 769.
Attempts to expand these equitable principles have been rejected by our Supreme Court, which succinctly stated the standard for allocating credit for pre-sentencing confinement as follows:
See, e.g., Baasit v. Pa. Bd. of Prob. & Parole, 90 A.3d 74 (Pa. Cmwlth. 2014), disapproved of by Smith, 171 A.3d 759.
Gaito remains the general law in this Commonwealth respecting how credit should be allocated for a [CPV] who receives a new sentence of incarceration, and the exception to Gaito set forth at footnote 6 and further developed in Martin, is limited to cases in which a [CPV] receives a term of incarceration for new charges that is shorter than his pre-sentence confinement, such that application of the general Gaito rule would result in excess incarceration.Smith, 171 A.3d at 768-69 (emphasis added).
Applying Smith's holding here, the Board did not err in its credit decisions and recalculation of Strothers' parole violation maximum date. The Board credited Strothers for November 30, 2020, to August 3, 2021, the time that he spent confined solely on the Board's Warrant. On August 3, 2021, bail was set on the new charges, which Strothers did not post. Thus, beginning August 3, 2021, Strothers was confined on both the new charges and the Board's Warrant. Under Gaito, the pre-sentence confinement as of that date would be credited to Strothers' new sentence, not his original sentence, unless one of the exceptions discussed in Martin and Smith applied. On July 14, 2022, common pleas sentenced Strothers to serve four to eight months' incarceration in County Prison, but gave Strothers credit for four months of pre-sentence confinement, from August 3, 2021, to December 3, 2021, and paroled him from that new sentence. While Strothers maintains he should receive credit toward his original sentence beginning December 4, 2021, the minimum date of his new sentence, this is not consistent with the law.
Martin held that credit for pre-sentence confinement served under both new charges and a Board detainer can be made toward an original sentence where the confinement exceeds the maximum sentence of the new sentence. 840 A.2d at 309. Smith reiterated this principle, stating that credit can be awarded toward the original sentence where the "term of incarceration for new charges [] is shorter than his pre-sentence confinement." 171 A.3d at 768-69 (emphasis added). Strothers' maximum sentence on the new charges was eight months, and it was possible for Strothers to receive credit for the entire eight-month sentence from the pre-sentence confinement. Eight months from August 3, 2021, is April 3, 2022, not December 3, 2021. However, as recognized by the Board, the pre-sentence confinement period, after accounting for the full eight-month maximum sentence, exceeded the term of incarceration for Strothers' new charges, and it awarded credit for that remaining period - that is between April 3, 2022, and July 14, 2022. The Board's credit decisions are in accord with Smith, Martin, and Gaito, and adopting Strothers' position would effectively award him double credit for that time, which is impermissible, Barndt, 902 A.2d at 595.
Accordingly, the Board's January 20, 2023 Decision is affirmed.
ORDER
NOW, November 17, 2023, the January 20, 2023 Decision of the Pennsylvania Parole Board, entered in the above-captioned matter, is AFFIRMED.