A. Foster v. PPB ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Anias Foster, :
Petitioner :
:
v. :
:
Pennsylvania Parole Board, : No. 1022 C.D. 2020
Respondent : Submitted: April 16, 2021
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: May 25, 2021
Anias Foster (Foster) petitions this Court for review of the
Pennsylvania Parole Board’s (Board) September 11, 2020 order denying his request
for administrative relief. Foster presents three issues for this Court’s review: (1)
whether the Board erred by failing to properly credit his time served under the
Board’s detainer; (2) whether Foster served his sentences in the correct order under
Pennsylvania law; and (3) whether the Board erred by failing to provide a
contemporaneous statement explaining the rationale behind its decision to deny
Foster credit for the time he spent at liberty on parole. After review, this Court
affirms in part, and vacates and remands in part.
On December 12, 2005, Foster was sentenced to 3 to 8 years of
incarceration after pleading guilty to drug charges (Original Sentence). See Certified
Record (C.R.) at 1-3. At that time, his maximum sentence release date was January
3, 2014. See C.R. at 2.
On January 15, 2009, Foster was paroled from his Original Sentence.
See C.R. at 4-10. At that time, he had 1,814 days remaining to be served on his
Original Sentence. See C.R. at 52. As a condition of his parole, Foster signed and,
therefore agreed to, Conditions of Parole/Reparole (Parole Conditions). Foster did
not object, inter alia, to the following parole condition:
[i]f you are convicted of a crime committed while on
parole/reparole, the Board has the authority, after an
appropriate hearing, to recommit you to serve the balance
of the sentence or sentences which you were serving when
paroled/reparoled, with no credit for time at liberty on
parole.
C.R. at 8.
On January 19 or 20, 2011,1 the United States Marshals Service arrested
and charged Foster with new drug charges (Federal Charges). See C.R. at 12-13,
15-19, 29, 32. On January 20, 2011, Foster was placed in the Adams County Prison
“as a hold for the United States Marshals[.]” C.R. at 81. On January 21, 2011, the
Board issued a warrant to commit and detain Foster. See C.R. at 11. On January 28,
2011, the Board served Foster with a Notice of Charges and Hearing based on the
Federal Charges, and notified him of the Board’s intent to hold a detention hearing.
See C.R. at 13. That same day, Foster waived his right to counsel and a detention
hearing. See C.R. at 14. According to Foster’s January 31, 2011 Criminal Arrest
and Disposition Report, Foster did not post bail on the Federal Charges. See C.R. at
19, 29. On March 7, 2011, the Board detained Foster pending disposition of his
Federal Charges. See C.R. at 18-25.
1
According to the federal Arrest Warrant and the Board’s Notice of Charges, federal
authorities arrested Foster on January 19, 2011. See C.R. at 12-13, 18. However, the Board’s
Criminal Arrest and Disposition Report and its Hearing Report represent that federal authorities
arrested Foster on January 20, 2011. See C.R. at 19, 29, 32.
2
On March 12, 2012, Foster pled guilty to the Federal Charges. See C.R.
at 26. On April 3, 2012, the Board received official verification of Foster’s
conviction. See C.R. at 30, 32. On April 12, 2012, the Board served Foster with a
Notice of Charges and Hearing based on the Federal Charges, and notified him of
the Board’s intent to hold a revocation hearing. See C.R. at 28. That same day,
Foster admitted to his conviction on the Federal Charges and waived his right to
counsel and a revocation hearing. See C.R. at 27. On May 18, 2012, the Board
voted to recommit Foster to a State Correctional Institution (SCI) as a convicted
parole violator (CPV) to serve 18 months of backtime “when available pending
sentencing on [his] federal conviction.” C.R. at 38. On August 29, 2012, Foster was
sentenced to, inter alia, an aggregated term of 120 months (Federal Sentence). See
C.R. at 40. Foster remained in the Adams County Prison until September 10, 2012,
when he was returned to the United States Marshals’ custody and moved to a federal
correctional institution. See C.R. at 81. On January 10, 2013, the Board issued a
warrant to retake and return Foster to the Board’s jurisdiction as a CPV. See C.R. at
45.
By June 12, 2019 Detainer Action Letter, the United States Department
of Justice, Federal Bureau of Prisons, notified the Board that Foster was being
released, and the Board should be prepared to take him into custody on July 26,
2019. See C.R. at 46-47. The Board took Foster into custody on July 26, 2019. See
C.R. at 48.
By decision issued on July 31, 2019,2 the Board referred to its May 18,
2012 action recommitting Foster to an SCI as a CPV to serve 18 months’ backtime.
See C.R. at 54. The Board recalculated Foster’s Original Sentence maximum release
date as July 13, 2024. See C.R. at 54-55.
2
Foster received the Board’s July 31, 2019 decision on August 8, 2019. See C.R. at 54.
3
On August 28, 2019, Foster submitted an Administrative Remedies
Form to the Board challenging its July 31, 2019 decision, claiming that he was
entitled to credit for the time he was incarcerated from January 20, 2011 to August
29, 2012, because he was being held solely under the Board’s detainer. See C.R. at
67-68. Foster also argued that the Board violated Section 6138(a)(5.1) of the Prisons
and Parole Code (Parole Code), 61 Pa. C.S. § 6138(a)(5.1), which required that he
serve his Original Sentence before his Federal Sentence, particularly since he was
being held in Adams County Prison. See id. Lastly, Foster claimed that the Board
erred by denying him credit for the time he spent at liberty on parole and failing to
articulate its basis for doing so.3 See C.R. at 67, 69. By November 1, 2019
Confirmation of Incarceration, the Adams County Prison acknowledged that Foster
was incarcerated there “as a hold for the United States Marshals . . . [from] January
20, 2011 [to] September 10, 2012[.]” C.R. at 81.
On September 11, 2020, the Board denied Foster’s request for
administrative relief, explaining:
The Board paroled [Foster] from a[n SCI] on January 15,
2009[,] with a max[imum] date of January 3, 2014[,]
leaving [Foster] 1,814 days remaining on [his] [O]riginal
[S]entence the day [he was] released. The Board’s
decision to recommit [Foster] as a [CPV] authorized the
recalculation of [Foster’s] max[imum] date to reflect that
[he] received no credit for the time spent at liberty on
parole. 61 Pa.C.S. § 6138(a)(2). The Board denied
[Foster] credit for the time spent at liberty on parole in this
case, thus, [Foster] owed 1,814 days on [his] [O]riginal
[S]entence.
The record shows that [Foster was] arrested by federal
authorities for [the Federal C]harges on January 20,
2011[,] and there is no indication that [Foster] posted bail.
A Board detainer was lodged the following day, January
3
On October 2, 2019 and February 18, 2020, Foster sent letters to the Board requesting the
Board’s response to his appeal. See C.R. at 71-82.
4
21, 2011. On August 29, 2012, [Foster was] sentenced in
the United States District Court to a new term of federal
incarceration of 120 months. [Foster was] released from
[his] new [F]ederal [S]entence on July 26, 2019[,] when
[Foster] returned to an SCI for the first time since [his]
release on [] parole. Based on these facts, [Foster is] not
entitled to any pre-sentence credit because the Board did
not hold [Foster] solely on its warrant prior to sentencing
in the United States District Court. Gaito v. Pa. B[d.] of
Prob[.] [&] Parole, 412 A.2d 568 (Pa. 1980). Thus,
[Foster] still owed 1,814 days on [his] [O]riginal
[S]entence. Adding that total to [his] July 26, 2019
availability date yields a recalculated max[imum] date of
July 13, 2024.[4]
C.R. at 83. Foster timely appealed to this Court.5
Foster argues that the Board erred by failing to properly credit his time
served under the Board’s detainer. Specifically, Foster asserts that he is entitled to
credit toward his Original Sentence for the time he was incarcerated on the Federal
Charges and the Board’s detainer from January 21, 2011 to August 29, 2012.
The law is well established:
[I]f a defendant is being held in custody solely because of
a detainer lodged by the Board and has otherwise met the
requirements for bail on the new criminal charges, the time
which he spent in custody shall be credited against his
original sentence. If a defendant, however, remains
incarcerated prior to trial because he has failed to satisfy
bail requirements on the new criminal charges, then the
time spent in custody shall be credited to his new sentence.
Gaito, 412 A.2d at 571.
[Foster] failed to make bail on these new charges.
Therefore, [Foster] was not incarcerated solely on the
4
Foster is currently “out of [Federal] custody.”
https://vinelink.com/classic/#/searchResults/1 (last visited May 24, 2021).
5
This Court’s review of a Board decision denying administrative relief “is limited to
determining whether constitutional rights were violated, whether the adjudication is in accordance
with the law, and whether necessary findings were supported by substantial evidence.” Plummer
v. Pa. Bd. of Prob. & Parole, 216 A.3d 1207, 1210 n.4 (Pa. Cmwlth. 2019).
5
Board’s warrant. “[O]nce a parolee is sentenced on a new
criminal offense, the period of time between arrest and
sentencing, when bail is not satisfied, must be applied to
the new sentence, and not to the original sentence.”
Armbruster v. Pa. Bd. of Prob. & Parole, 919 A.2d 348,
352 (Pa. Cmwlth. 2007). As a result, [Foster’s] claim for
credit from [January 21, 2011 to August 29, 2012] fails.
Palmer v. Pa. Bd. of Prob. & Parole, 134 A.3d 160, 166 (Pa. Cmwlth. 2016).
Foster also contends that he did not serve his sentences in the correct
order under Section 6138(a)(5.1) of the Parole Code. The Board did not address this
issue in its September 11, 2020 decision.
Section 6138(a) of the Parole Code states, in pertinent part:
(1) A parolee under the jurisdiction of the [B]oard released
from a correctional facility who, during the period of
parole or while delinquent on parole, commits a crime
punishable by imprisonment, for which the parolee is
convicted or found guilty by a judge or jury or to which
the parolee pleads guilty or nolo contendere at any time
thereafter in a court of record, may at the discretion of the
[B]oard be recommitted as a parole violator.
....
(5.1) If the parolee is sentenced to serve a new term of total
confinement by a [f]ederal court or by a court of another
jurisdiction because of a verdict or plea under paragraph
(1), the parolee shall serve the balance of the original term
before serving the new term.
61 Pa.C.S. § 6138(a).
In its brief to this Court, the Board declares:
After receiving his new federal sentence, [Foster], by law,
was to serve the remainder of his [Original Sentence]
before the commencement of his new [F]ederal
[S]entence. The federal courts are either unaware of such
nuances, or simply continue its prosecution unimpeded by
such state legalistic peccadillos. The question arises,
what, as a practical matter[,] do [we do] about it. The state
lacks the authority to direct the federal authorities in the
furtherance of completing its mission to protect the
6
citizens of the United States. [Foster] is correct in his[]
legal position, as a practical matter, but [Foster] fails to
provide an enforceable game plan to force the federal
authorities to turn over inmates subject to state
jurisdictional oversight in furtherance of following the
Pennsylvania statutes on the matter.
The Court can duly note though, that [Foster] does not
specify what specific harm he has suffered from the failure
to have him serve his [F]ederal [S]entence before being
returned back to the state to finish the completion of his
[O]riginal [S]entence.
Board Br. at 7-8.
This Court has explained:
Section 71.4(1)(i) of the Board’s Regulations specifies
that “[i]f a parolee is confined outside the jurisdiction of
the Department of Corrections, such as . . . confinement in
a [f]ederal correctional institution . . . , a revocation
hearing shall be held within 120 days of the official
verification of the return of the parolee to a [s]tate
correctional facility.” 37 Pa. Code § 71.4(1)(i). In
addition, Section 71.5(a) of the Board’s Regulations
states: “If the parolee is . . . in [f]ederal custody, the Board
may lodge its detainer[,] but other matters may be deferred
until the parolee has been returned to a [s]tate correctional
facility in this Commonwealth.” 37 Pa. Code § 71.5(a).
Section 71.5(c)(1) of the Board’s Regulations further
provides that parole revocation proceedings may be
deferred during any period in which a parolee is
unavailable. See 37 Pa. Code § 71.5(c)(1).
In Brown v. Pennsylvania Board of Probation & Parole,
184 A.3d 1021 (Pa. Cmwlth. 2017), wherein Brown
similarly argued that Section 6138(a)(5.1) of the Parole
Code required the Board to obtain him from federal
custody to serve his state sentence, this Court declared:
[U]nder [Sections 71.4(1)(i), 71.5(a) and
71.5(c)(1) of the Board’s R]egulations, when a
parolee is in federal custody, confined in a federal
facility, or is otherwise unavailable, the Board’s
duty to . . . take other action beyond issuing a
detainer, is deferred until the parolee is returned to
7
a[n] SCI regardless of when the Board received
official verification of a parolee’s new conviction.
Id. at 1025.
Stroud v. Pa. Bd. of Prob. & Parole, 196 A.3d 667, 672-73 (Pa. Cmwlth. 2018).
The Stroud Court expounded:
Moreover, when analyzing the interplay between the
Regulations and Section 6138(a)(5.1) of the Parole Code’s
sentence order requirements, the Brown Court ruled, based
on circumstances similar to the instant case:
[Brown’s] argument presumes that the Board had
the ability to obtain him from federal custody in
order to hold a revocation hearing and recommit
him as a CPV to serve the remainder of his original
sentence in accordance with Section 6138(a)(5.1)
[of the Parole Code]. However, the Board asserts
that it does not have the ability to acquire a
Pennsylvania parolee from the custody of another
jurisdiction in order to recommit the parolee to
serve the remainder of the original sentence.
Brown has not provided any legal authority that
grants the Board this authority. Thus, . . . Brown
was already unavailable to the Board when he
pled guilty and was sentenced, as well as when it
received official verification of his conviction.
The Board could not have acquired Brown until
after his release from federal custody . . . .
Id. at 1027 (emphasis in original); see also Dill v. Pa. Bd.
of Prob. & Parole, 186 A.3d 1040, 1046 (Pa. Cmwlth.
2018) (“We rejected the parolee’s claim that Section
6138(a)(5.1) of the Parole Code made him available to the
Board prior to his release from the federal prison
system.”)[.] Id. “Simply, there is no legal authority for
the notion that the Board could or should ‘pluck’ [the
parolee] from federal prison to hold a revocation hearing.”
Id. (quoting Santosusso v. Pa. Bd. of Prob. & Parole . . .
(Pa. Cmwlth. No. 574 C.D. 2017, filed January 30,
2018));[6] Santosusso, slip op. at 6 (“As in Brown, we are
6
This Court acknowledges that its unreported memorandum opinions may only be cited
“for [their] persuasive value, but not as binding precedent.” Section 414(a) of the Commonwealth
8
unaware of any authority supporting . . . that the Board has
the power to pluck a Pennsylvania parolee from a federal
prison for the purpose of recommitting him as a parole
violator.”); Steward v. Pa. Bd. of Prob. & Parole, . . . (Pa.
Cmwlth. No. 684 C.D. 2017, filed March 16, 2018), slip
op. at 11[] (“We are not persuaded by [parolee’s]
argument that Section 6138(a)(5.1) of the Parole Code
made him available to the Board prior to his release from
Maryland’s Department of Corrections and return to [the]
SCI.”).
Stroud, 196 A.3d at 673.
Here, as in [Stroud,] Brown[,] and Dill, this Court is not
aware of any legal authority under which the Board could
have retrieved [Foster] from federal custody in order to
conduct his revocation hearing and serve his state sentence
pursuant to Section 6138(a)(5.1) of the Parole Code. The
Board issued its [January 21, 2011] warrant to commit and
detain [Foster], which could not occur until his return from
federal custody. Federal authorities did not return [Foster]
to the Board’s custody until after he completed his federal
sentence in [July 2019]. Therefore, he was unavailable to
the Board until [July 2019]. Thereafter, the Board
promptly recommitted him to serve his state sentence.
Accordingly, [Foster’s] argument that the Board should
have obtained him from federal custody to first serve the
backtime on his Original Sentence has no merit.
Stroud, 196 A.3d at 673-74 (footnote omitted).
Finally, Foster asserts that the Board erred by failing to provide a
contemporaneous statement explaining the rationale behind its decision to deny
Foster credit for the time he spent at liberty on parole, in violation of the
Pennsylvania Supreme Court’s ruling in Pittman v. Pennsylvania Board of
Probation & Parole, 159 A.3d 466 (Pa. 2017). The Board did not address this issue
in its September 11, 2020 decision.
Where the [Board] determines to recommit a parolee as a
[CPV],
Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a). This Court cites to the
unreported cases herein for their persuasive value.
9
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),[7] shall be given no credit for the
time at liberty on parole.
61 Pa. C.S. § 6138(a)(2) (emphasis added). Section
6138(a)(2.1) of the Parole Code provides that, ‘[t]he
[Board] may, in its discretion, award credit to a parolee
recommitted . . . for the time spent at liberty on parole,’
with [] enumerated exceptions, none of which are
applicable in this case. 61 Pa. C.S. § 6138(a)(2.1).
Recently, in Pittman, our Supreme Court explained that,
when the [Board] exercises its discretion under Section
6138(a)(2.1) [of the Parole Code], it ‘must articulate the
basis for its decision to grant or deny a convicted parole
violator credit for time served at liberty on parole.’
[Pittman,] 159 A.3d at 474.
Smoak v. Talaber, 193 A.3d 1160, 1163-64 (Pa. Cmwlth. 2018) (footnotes omitted).
Based on this record, at the time of his parole (on January 15, 2009),
Foster had 1,814 days remaining on his Original Sentence. Because he violated a
parole condition and committed a crime, the Board had jurisdiction to and did
recommit Foster to serve 18 months of his Original Sentence. Foster was arrested
7
Section 6138(a)(2.1) of the Parole Code states, in relevant part:
The [B]oard may, in its discretion, award credit to a parolee
recommitted under paragraph (2) for the time spent at liberty on
parole, unless any of the following apply:
(i) The crime committed during the period of parole or
while delinquent on parole is a crime of violence as defined
in [Section 9714(g) of the Sentencing Code] . . . (relating
to sentences for second and subsequent offenses) or a crime
requiring registration under 42 Pa.C.S. Ch. 97 Subch. H
(relating to registration of sexual offenders).
61 Pa.C.S. § 6138(a)(2.1). Because Foster’s charges did not involve a crime of violence as
specified in Section 9714(g) of the Sentencing Code, the Board had the discretion to award Foster
credit, but did not.
10
by the United States Marshals Service on January 19, 2011. The Board properly
calculated Foster’s new July 13, 2024 maximum sentence release date by adding
1,814 days to July 26, 2019. The Board had the discretion to, but denied Foster
credit for the time he spent in good standing at liberty on parole. However, the Board
admits that it “failed to enunciate the basis for denying [Foster] any credit as required
by [Pittman] and the matter should be remanded for the Board to reconsider its
position and rectify this apparent error.” Board Br. at 6.
Accordingly, the Board’s recalculation of Foster’s maximum sentence
date is vacated, and the matter is remanded for the Board to consider whether to
credit Foster with the time he spent at liberty on parole and, if such credit is denied,
for the Board to explain its reasons in accordance with Pittman. See Plummer v. Pa.
Bd. of Prob. & Parole, 216 A.3d 1207 (Pa. Cmwlth. 2019).
For the above reasons, the portion of the Board’s September 11, 2020
order reaffirming the revocation of Foster’s parole and recommitment as a CPV to
serve 18 months of backtime after he served his Federal Sentence and without credit
for the time he served from January 21, 2011 to August 29, 2012 is affirmed. The
portion of the Board’s order reaffirming Foster’s maximum sentence release date is
vacated, and this case is remanded for the Board to issue a new decision on whether
to credit Foster for time he spent at liberty on parole and, if such credit is denied, the
Board shall state its explanation in accordance with Pittman. The Board shall then
recalculate Foster’s maximum sentence release date accordingly.
_________________________________
ANNE E. COVEY, Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Anias Foster, :
Petitioner :
:
v. :
:
Pennsylvania Parole Board, : No. 1022 C.D. 2020
Respondent :
ORDER
AND NOW, this 25th day of May, 2021, the portion of the Pennsylvania
Parole Board’s (Board) September 11, 2020 order reaffirming the revocation of
Anias Foster’s (Foster) parole and recommitment as a convicted parole violator is
affirmed. The portion of the Board’s order recalculating Foster’s maximum sentence
release date is vacated, and this matter is remanded to the Board to issue a new
decision consistent with this opinion.
Jurisdiction relinquished.
_________________________________
ANNE E. COVEY, Judge