Opinion
No. 2090 C.D. 2011
05-03-2012
Corday Wise, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Corday Wise petitions for review of an adjudication of the Pennsylvania Board of Probation and Parole (Board) setting May 7, 2012, as his maximum sentence date. Wise argues that the Board erred in this calculation because it did not give him credit for time served in a state correctional institution where he was confined on county criminal charges. Because Wise cannot be given concurrent credit on backtime and a new criminal sentence, his appeal lacks merit.
On December 19, 2003, Wise was sentenced to eight years in state prison for aggravated assault, with a maximum sentence date of July 26, 2011. On January 1, 2009, the Board paroled Wise, and he was released on parole on April 20, 2009. On July 14, 2009, the Board declared him delinquent.
On January 31, 2010, Wise was arrested and incarcerated in Dauphin County Prison on new criminal charges of possession of drug paraphernalia and driving under the influence. The Board filed a warrant to commit and detain Wise on the same day. On February 5, 2010, the Commonwealth charged Wise with intent to manufacture or deliver drugs. Wise did not post bail for any of the charges.
Dauphin County Court of Common Pleas, CP-22-CR-0001055-2010.
Dauphin County Court of Common Pleas, CP-22-CR-0000672-2010.
On April 2, 2010, the Board recommitted Wise as a technical parole violator pending resolution of the new criminal charges. Wise continued to be confined at Dauphin County Prison.
On May 12, 2010, Wise was sentenced to 15 to 36 months in a state correctional institution on the intent to manufacture or deliver charge. That same day, Wise was also sentenced to 3 to 12 months in Dauphin County Prison for the paraphernalia and DUI charges. Wise remained at Dauphin County Prison until June 1, 2010, when he was transferred to the State Correctional Institution at Camp Hill (SCI-Camp Hill). The next day, he was transferred to SCI-Retreat. It is not clear from the record or briefs why he served his sentence on the 2010 charges in state correctional institutions.
On October 20, 2010, the Board recommitted Wise as a convicted parole violator as a result of his guilty plea to the paraphernalia charge and assessed him 12 months of backtime. Wise began serving that backtime on January 31, 2011, when he completed his one-year sentence on the Dauphin County paraphernalia and DUI sentences.
On March 21, 2011, the Board calculated Wise's maximum sentence date on his original conviction as May 2, 2013. When it discovered a calculation error, the Board added 5 days to the recalculated maximum sentence date, making it May 7, 2013.
Wise filed an administrative appeal, asserting that he was entitled to credit on his original sentence for time served in a state correctional institution. The Board denied his petition and affirmed the recalculation order. Wise then petitioned for this Court's review.
In his petition, Wise sought a credit of 244 days, for the time served at a state correctional institution from June 1, 2010, to January 31, 2011. He did not claim credit for January 31, 2010, to June 1, 2010.
Our scope of review is limited to determining whether necessary findings are supported by substantial evidence, the Board committed an error of law, or constitutional rights were violated. Kirkland v. Pennsylvania Board of Probation and Parole, 528 A.2d 711, 713 n.6 (Pa. Cmwlth. 1987).
Wise argues that the Board incorrectly calculated his maximum sentence because it should have given him credit on his backtime starting on June 1, 2010, when he was transferred to a state correctional institution. The Board did not give him backtime credit until January 31, 2011, when he served his one-year sentence for the paraphernalia and DUI convictions. Wise argues that under Section 6138(a)(5) of the Prisons and Parole Code, 61 Pa. C.S. §6138(a)(5), his backtime should have begun on June 1, 2010, when he was transferred to SCI-Camp Hill, regardless of which sentence he was serving at that time.
The Board argues that it is irrelevant where Wise served his sentence for the 2010 convictions. The Board argues that his sentence on the new criminal charges must be served first, regardless of whether it is actually served in Dauphin County Prison or in a state correctional institution.
It is well-settled that where a parolee is paroled from a state correctional institution and thereafter sentenced to serve a term in county prison for a new conviction, the parolee must serve the new county sentence prior to serving any backtime on the original state sentence. 61 Pa. C.S. §6138(a)(5)(iii); Presley v. Pennsylvania Board of Probation and Parole, 748 A.2d 791, 794 (Pa. Cmwlth.), appeal denied, 568 Pa. 674, 795 A.2d 982 (2000). The Board is not permitted to credit a parolee with backtime while the parolee is serving time for a criminal conviction that occurred while on parole. Walker v. Pennsylvania Board of Probation and Parole, 729 A.2d 634, 638 (Pa. Cmwlth. 1999).
Section 6138(a)(5) of the Prisons and Parole Code states:
If a new sentence is imposed on the parolee, the service of the balance of the term originally imposed by a Pennsylvania court shall precede the commencement of the new term imposed in the following cases:
(i) If a person is paroled from a State correctional institution and the new sentence imposed on the person is to be served in the State correctional institution.
(ii) If a person is paroled from a county prison and the new sentence imposed upon him is to be served in the same county prison.
(iii) In all other cases, the service of the new term for the latter crime shall precede commencement of the balance of the term originally imposed.
Wise was sentenced to 3 to 12 months in Dauphin County Prison for the paraphernalia and DUI charges. Section 6138(a)(5) of the Prisons and Parole Code requires Wise to serve the county sentence before he can begin serving the backtime owed on his original sentence. Wise was credited with 101 days of presentence credit on his one-year Dauphin County sentence because he was confined in Dauphin County Prison on his new charges and did not post bail. Thus, when he was sentenced on May 12, 2010, Wise had 264 days remaining on his Dauphin County sentence, which ended on January 31, 2011. Therefore, Wise became eligible to begin serving his backtime on January 31, 2011, as the Board correctly calculated. Section 6138(a)(5) of the Prisons and Parole Code prohibits the Board from crediting Wise with backtime while he is serving a new criminal conviction; he must serve his county sentence prior to serving backtime.
For the above-stated reasons, the order of the Board is affirmed.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 3rd day of May, 2012, the order of the Pennsylvania Board of Probation and Parole dated September 30, 2011, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge