A.R. Wilson v. PA BPP , 124 A.3d 767 ( 2015 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Antwaun Raymoan Wilson, :
Petitioner :
:
v. : No. 329 C.D. 2015
: Submitted: July 24, 2015
Pennsylvania Board of Probation :
and Parole, :
Respondent :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
PRESIDENT JUDGE PELLEGRINI FILED: August 11, 2015
Antwaun Raymoan Wilson (Wilson) petitions for review of the
decision of the Pennsylvania Board of Probation and Parole (Board) denying his
Petition for Administrative Review of the Board’s order recommitting him as a
convicted parole violator to serve 24 months backtime and recalculating his new
parole violation maximum date as October 2, 2017. Citing Section 6138(a)(4) of
the Prisons and Parole Code, 61 Pa. C.S. §6138(a)(4),1 Wilson sought credit from
1
Section 6138 of the Code states, in relevant part:
(a) Convicted violators.—
(1) A parolee under the jurisdiction of the board released from a
correctional facility who, during the period of parole … commits a
(Footnote continued on next page…)
either July 8, 2014, the date on which the Berks County Court of Common Pleas
(trial court) discharged Wilson to the Department of Corrections (Department), or
from July 22, 2014, the date that he was actually returned to the state correctional
institution; instead, the Board gave him credit on his original sentence from
September 19, 2014, the date on which he was recommitted as a convicted parole
violator to serve 24 months backtime. We affirm.
(continued…)
crime punishable by imprisonment, for which the … parolee pleads
guilty … at any time thereafter in a court of record, may at the
discretion of the board be recommitted as a parole violator.
(2) If the parolee’s recommitment is so ordered, 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, except as provided under paragraph (2.1), shall be
given no credit for the time at liberty on parole.
* * *
(4) The period of time for which the parole violator is required to
serve shall be computed from and begin on the date that the parole
violator is taken into custody to be returned to the institution as a
parole violator.
(5) 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….
61 Pa. C.S. §6138(a)(1), (2), (4), and (5)(i).
2
Wilson was originally sentenced to two concurrent two-year and six-
month to six-year terms of imprisonment based on his guilty pleas to two counts of
robbery and one count of criminal conspiracy. With an effective date of February
27, 2010, the minimum date of Wilson’s sentence was August 27, 2012, and the
maximum date was February 27, 2016. Wilson was released on parole on
February 13, 2013.
On October 25, 2013, Wilson was arrested by the Reading Police
Department Vice Unit for selling drugs that tested positive for cocaine to an
undercover officer and a confidential informant on two separate occasions and
charged with two felony counts of delivery of a controlled substance and
possession with the intent to deliver a controlled substance and one misdemeanor
count of possession of a controlled substance. Wilson did not post bail on the new
charges. On December 5, 2013, the Board issued a detainer pending disposition of
the criminal charges.
On July 1, 2014, Wilson pleaded guilty in the trial court to the two
felony counts of delivery of a controlled substance and the other counts were
dismissed. The trial court sentenced Wilson on the new convictions to serve
concurrent terms of 16 to 60 months with 220 days credit.
On July 22, 2014, Wilson was transferred from the Berks County
Prison to SCI-Graterford. On August 6, 2014, Wilson signed a waiver of his
parole revocation hearing and the right to counsel and acknowledged his new
felony convictions. On August 26, 2014, and September 19, 2014, the hearing
3
examiner and a panel member2 signed a Hearing Report accepting Wilson’s
admissions and recommitting him as a convicted parole violator to serve 24
months backtime. As a result, the Board issued a decision recorded on September
29, 2014, and mailed on October 10, 2014, recommitting Wilson as a convicted
parole violator to serve 24 months backtime and recalculating his maximum
sentence date from February 27, 2016, to October 2, 2017.3
On October 29, 2014, Wilson submitted an Administrative Appeal in
which he challenged his recommitment, stating:
I arrived at SCI Graterford on 7/22/14 and I had my
hearing with parole on 8-6-14, but when I received my
green sheet it states that I’m not eligible for reparole until
9/19/16 and I was told my hit [sic] starts on the day I got
to the S.C.I. or the day I seen [sic] parole.
(CR at 75).
He also submitted a Petition for Administrative Review challenging
his sentence credit and reparole eligibility date as follows:
2
Section 6113(b) of the Code states that “[t]he board may make decisions on parole,
reparole, return or revocation in panels of two persons. A panel shall consist of one board
member and one hearing examiner or of two board members….”
3
It is undisputed that Wilson owed 1,109 days on his original sentence when he was
released on parole on February 13, 2013. Using September 19, 2014, the date that the revocation
and recommitment Hearing Report was signed by the second panel member thereby effectively
revoking Wilson’s parole under Section 6113(b), the Board added 1,109 days to arrive at the new
maximum date of October 2, 2017. (Certified Record [CR] at 63, 71).
4
I was released from the Halfway house on 2/13/13
but my original minimum date was 8/27/12. I was
currently on pre-release which means I was still on
[Department] count. But when I received my green sheet
it say [sic] that my new max is 10/02/17. But I was only
on the street for 8 months which will make my new max
10/2/17 cause [sic] my original max date was 2/27/16.
(Id.).
On February 3, 2015, the Board issued a decision denying Wilson’s
Petition for Administrative Review explaining, in relevant part:
In your case, you remained incarcerated on secured bail
at your new charges until the date of your conviction so
you are not entitled to the same time credit at this parole
number. You became available to Pennsylvania
authorities on September 19, 2014, when the Board
obtained the necessary signatures to recommit you as a
parole violator. See Campbell v. Pennsylvania Board of
Probation and Parole, 409 A.2d 980 (Pa. [Cmwlth].
1980). Adding 1,109 days (or 3 years, 14 days) to
September 19, 2014 yields a new parole violation
maximum date of October 2, 2017. Therefore, your
parole violation maximum sentence date is correct.
(Id. at 77).
In this appeal,4 Wilson claims that the Board erred in recalculating his
maximum date from September 19, 2014. As noted above, he argues that his
4
Our scope of review is limited to determining whether the Board’s decision is supported
by substantial evidence, whether an error of law was committed, or whether constitutional rights
(Footnote continued on next page…)
5
maximum date should have been calculated from either July 8, 2014, the date on
which the trial court discharged Wilson to the Department, or from July 22, 2014,
the date that he was actually returned to the state correctional institution.
However, convicted parole violators must serve the backtime on their
original state sentence before they can begin to serve time on their newly-imposed
state sentence under Section 6138(a) of the Code. As this Court has explained:
[The predecessor statute to Section 6138(a)(4) of the
Code] provide[d] in part that “[t]he period of time for
which the parole violator is required to serve shall be
computed from and begin on the date that he is taken into
custody to be returned to the institution as a parole
violator.”
This Court, however, in [Campbell], held that
where the Board pursuant to [the prior statute] recommits
a convicted parole violator to serve the balance of an
original sentence before beginning service of a new term,
the prisoner’s service of backtime on the original
sentence must be computed from the date the Board
revokes the prisoner’s parole. The Court further noted in
Campbell that the time served by the prisoner prior to the
date parole is revoked must be applied to the new
sentence.
(continued…)
have been violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Moroz v.
Pennsylvania Board of Probation and Parole, 660 A.2d 131, 132 (Pa. Cmwlth. 1995).
6
Hill v. Pennsylvania Board of Probation and Parole, 683 A.2d 699, 701-02 (Pa.
Cmwlth. 1996).5 As a result, the Board did not err in calculating Wilson’s new
maximum date from September 19, 2014, the date on which the Board obtained the
second signature from a panel member that was necessary to recommit him as a
convicted parole violator.6
5
See also Williams v. Pennsylvania Board of Probation and Parole, 654 A.2d 235, 237
(Pa. Cmwlth. 1994) (“[P]ursuant to [Campbell], credit for time a convicted parole violator
spends in custody between the imposition of a new sentence and revocation of parole must be
applied to the new sentence.”); Richmond v. Commonwealth, 402 A.2d 1134, 1135 (Pa. Cmwlth.
1979) (“Although petitioner is correct that [the predecessor to Section 6138(a)] requires a
convicted parole violator to serve the balance of his original sentence before service of the newly
imposed term is commenced, this rule only becomes operative when parole has been revoked
and the remainder of the original sentence becomes due and owing.”).
6
Pursuant to Section 414 of this Court’s Internal Operating Procedures, 210 Pa. Code
§69.414(a), unreported decisions may be cited for their persuasive value. See, e.g., Seilhamer v.
Pennsylvania Board of Probation and Parole, (Pa. Cmwlth. No. 551 C.D. 2009, filed September
15, 2010), slip op. at 9-10 (“Although Seilhamer may have been returned to SCI-Camp Hill on
October 7, 2008, Seilhamer did not become available to begin serving his backtime on his
original sentence until the Board revoked his parole. See Hill, 683 A.2d at 701. The Board
issued its revocation decision recommitting Seilhamer as a convicted parole violator on
December 31, 2008; however, the Board used the earlier date of November 17, 2008, the date the
necessary signatures were obtained to recommit Seilhamer as parole violator, for purposes of
determining Seilhamer’s new parole violation maximum date. (C.R. at 72.) Adding the eighty
six days discussed above to November 17, 2008 yields a new parole violation minimum date of
February 11, 2009. Therefore, the Board properly recalculated Seilhamer’s new parole violation
maximum date as February 11, 2009, following his recommitment as a convicted parole
violator.”); Sanders v. Pennsylvania Board of Probation and Parole, (Pa. Cmwlth. No. 2177
C.D. 2007, filed August 6, 2008), slip op. at 7 (“[The predecessor statute to Section 6113(b) of
the Code] authorizes the Board to act on revocation decisions in panels consisting of two
persons. Here, a hearing examiner conducted Sanders’ revocation hearing and determined his
parole should be revoked. Two weeks later, a Board member agreed with the hearing examiner’s
determination, as evidenced by the member’s August 15, 2007 signature on the revocation
hearing report. (C.R. at 45.) Once the Board obtained the second required signature, it was
authorized to revoke Sanders’ parole. Hence, the remainder of Sanders’ original state sentence
became due and owing on August 15. Campbell.”).
7
Accordingly, the Board’s decision is affirmed.
____________________________________
DAN PELLEGRINI, President Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Antwaun Raymoan Wilson, :
Petitioner :
:
v. : No. 329 C.D. 2015
:
Pennsylvania Board of Probation :
and Parole, :
Respondent :
ORDER
AND NOW, this 11th day of August, 2015, the decision of the
Pennsylvania Board of Probation and Parole dated February 9, 2015, at Parole No.
221GG, is affirmed.
____________________________________
DAN PELLEGRINI, President Judge