H. Hoover v. PA BPP ( 2017 )


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  •               IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Harvey Hoover,                           :
    Petitioner            :
    :   No. 609 C.D. 2017
    v.                           :
    :   Submitted: October 27, 2017
    Pennsylvania Board of                    :
    Probation and Parole,                    :
    Respondent             :
    BEFORE:     HONORABLE P. KEVIN BROBSON, Judge
    HONORABLE PATRICIA A. McCULLOUGH, Judge
    HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION
    BY JUDGE McCULLOUGH                                      FILED: December 14, 2017
    Harvey Hoover (Petitioner) petitions for review of the April 28, 2017
    decision of the Pennsylvania Board of Probation and Parole (Board), which dismissed
    his petition for administrative review and affirmed the determination to recommit him
    as a convicted parole violator and extend his maximum sentence expiration date.
    Facts and Procedural History
    Petitioner was originally sentenced to a term of incarceration of 6 to 15
    years following his plea of guilty to a charge of manslaughter in 2007. His original
    maximum sentence date was October 10, 2022. Petitioner was released on parole in
    2013 following expiration of his minimum sentence. In August 2014, Petitioner was
    arrested and charged with public drunkenness after he was involved in a fight with his
    ex-girlfriend who obtained a protection from abuse order as a result of the incident.
    Petitioner was arrested again in November 2014 following a home invasion and
    charged with robbery, aggravated assault, simple assault, and criminal mischief.
    During this home invasion, Petitioner stomped the victim in the face and torso, punched
    the victim, and ransacked the victim’s apartment. (Certified Record (C.R.) at 1-16,
    41.)
    The Board issued a warrant to commit and detain Petitioner. Petitioner
    remained in the county prison unable to post bail. On October 1, 2015, Petitioner pled
    guilty to simple assault and disorderly conduct in return for having all other charges
    nolle prossed. The Board thereafter issued a notice of charges and a parole revocation
    hearing. Petitioner, however, waived his right to a hearing and admitted to the
    aforementioned convictions.      By decision dated December 2, 2015, the Board
    recommitted Petitioner as a convicted parole violator to serve 24 months backtime
    pending his return to a state correctional institution. The Board noted that it relied on
    Petitioner’s admissions as evidence for its decision. Additionally, while the normal
    backtime for a simple assault was only 9 to 15 months, the Board noted an aggravating
    reason of continued violent convictions for the increased backtime. The Board did not
    modify Petitioner’s maximum sentence date in this order.      (C.R. at 17-68.)
    Petitioner submitted an administrative remedies form alleging that he was
    convicted of a summary offense of disorderly conduct and that simple assault was not
    a violent conviction. Having received no response from the Board, Petitioner sent a
    letter dated March 29, 2016, inquiring as to his appeal. The Board thereafter issued a
    decision dated April 13, 2016, which modified its December 2, 2015 decision by
    deleting the reference to the offense of disorderly conduct. Petitioner again submitted
    an administrative remedies form alleging that the Board should have reconsidered the
    2
    imposition of 24 months backtime in light of the removal of the disorderly conduct
    offense. By decision mailed May 18, 2016,1 the Board affirmed its previous decision.
    The Board noted that the recommitment for the disorderly conduct conviction was a
    typo that was corrected by its April 13, 2016 decision. The Board also concluded that
    the enhanced 24 months backtime was justified in light of Petitioner’s continued
    violent convictions. While acknowledging that simple assault was not a statutory
    violent offense, the Board stated that the offense was still assaultive in nature and,
    therefore, could be classified as violent.2 (C.R. at 69-80.)
    By decision dated September 1, 2016, the Board recalculated Petitioner’s
    maximum sentence date to November 24, 2024. Petitioner submitted an administrative
    remedies form challenging this recalculation in excess of 24 months. Petitioner noted
    that the time period between his parole and arrest on new criminal charges was only 13
    months and, hence, his recalculation should be limited to this time period. By decision
    mailed April 28, 2017,3 the Board affirmed its previous decision. The Board explained
    that at the time Petitioner was paroled on October 10, 2013, he had 3,287 days
    remaining on his maximum sentence. The Board noted that it chose not to grant
    Petitioner any credit for time spent at liberty on parole. The Board also noted that
    Petitioner did not become available to serve his original sentence until January 7, 2016,
    and adding 3,287 days to that date results in a new maximum sentence date of
    1
    The Board does not state the reason for the extensive delay in responding to Petitioner’s
    administrative appeal.
    2
    The Board appears to have mailed an identical decision to Petitioner dated May 31, 2016.
    3
    Again, the Board does not state the reason for the extensive delay in responding to
    Petitioner’s administrative appeal.
    3
    November 24, 2024. Petitioner thereafter filed a petition for review with this Court.4
    (C.R. at 81-92.)
    Discussion
    On appeal,5 Petitioner argues that the Board erred in: (1) improperly
    modifying a judicially-imposed maximum sentence and improperly denying him credit
    for time spent in good standing on parole; (2) recommitting him to a period of backtime
    in excess of the presumptive range; and (3) forcing him to serve his new sentence
    before his original sentence.
    Modification of Maximum Sentence/Credit for Time at Liberty on Parole
    Petitioner first argues that the Board erred in improperly modifying a
    judicially-imposed maximum sentence and improperly denying him credit for time
    spent in good standing on parole. We disagree with the former but agree with
    Petitioner’s latter argument.
    With respect to the modification of his maximum sentence, Petitioner
    argues that the Board does not have the authority to alter a judicially-imposed sentence
    and that any detention beyond the original maximum sentence date constitutes cruel
    and unusual punishment and an ex post facto violation. However, both our Supreme
    4
    While Petitioner’s petition for review and brief reflect that he is appealing from the Board’s
    prior 2016 decisions and its April 28, 2017 decision, presumably because the Board referenced the
    earlier decisions in its latest decision, any appeal from those earlier decisions is untimely and not
    properly before this Court. The only matter properly on appeal is the Board’s April 28, 2017 decision.
    5
    Our scope of review is limited to determining whether constitutional rights were violated,
    whether the adjudication was in accordance with the law, and whether necessary findings were
    supported by substantial evidence. 2 Pa.C.S. §704; Adams v. Pennsylvania Board of Probation and
    Parole, 
    885 A.2d 1121
    , 1122 n.1 (Pa. Cmwlth. 2005).
    4
    Court and this Court have previously considered and rejected such arguments. See
    Gaito v. Pennsylvania Board of Probation and Parole, 
    412 A.2d 568
     (Pa. 1980); Young
    v. Pennsylvania Board of Probation and Parole, 
    409 A.2d 843
     (Pa. 1979); Monroe v.
    Pennsylvania Board of Probation and Parole, 
    555 A.2d 295
     (Pa. Cmwlth. 1989);
    Bellamy v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No. 439 C.D.
    2014, filed May 7, 2015).
    With respect to the denial of credit for time spent in good standing on
    parole, Petitioner argues that the Board failed to consider whether he should receive
    such credit, and failed to provide specific reasons for denying the same, in violation of
    section 6138(a)(2.1) of the Prison and Parole Code, 61 Pa.C.S. §6138(a)(2.1). Section
    6138(a)(2.1) states that:
    The board 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 42 Pa.C.S. §9714(g)
    (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).
    (ii) The parolee was recommitted under section
    6143 (relating to early parole of inmates subject
    to Federal removal order).
    61 Pa.C.S. §6138(a)(2.1). The Board does not allege that either of these exceptions
    apply herein.
    Our Supreme Court recently discussed section 6138(a)(2.1) of the Parole
    Code in Pittman v. Pennsylvania Board of Probation and Parole, 
    159 A.3d 466
     (Pa.
    2017). In Pittman, the Court held that section 6138(a)(2.1) clearly and unambiguously
    5
    granted the Board discretion to award credit to a convicted parole violator recommitted
    to serve the remainder of his sentence. 159 A.3d at 473. The Court explained that
    simply checking a “No” box on a standard hearing form does not constitute a proper
    exercise of the Board’s discretion, as such action “renders appellate review a mere
    empty formality” and fails to comport with “basic notions of due process.” Id. at 474.
    Hence, the Supreme Court directed that the Board must articulate the basis for its
    decision to deny credit to a convicted parole violator for time served at liberty on
    parole. Id. In the present case, the Board concedes that it failed to comply with Pittman
    and provide Petitioner with specific reasons for denying him this credit. The Board
    requests that the Court remand this matter for further explanation consistent with
    Pittman, and we shall grant a limited remand in this regard.
    Presumptive Range
    Next, Petitioner argues that the Board erred in recommitting him to a
    period of backtime in excess of the presumptive range. We disagree.
    While Petitioner is correct that the Board’s regulations provide a
    presumptive range for recommitment based upon a conviction for simple assault of 9
    to 15 months,6 these regulations further provide that the Board “may deviate from the
    presumptive range or determine that recommitment should not occur, provided written
    justification is given.” 
    37 Pa. Code §75.1
    (c). Additionally, these regulations state,
    “The presumptive ranges of parole backtime are intended to structure the discretion of
    the Board while allowing for individual circumstances in terms of mitigation and
    aggravation to be considered in the final decision.” 
    37 Pa. Code §75.1
    (b).
    6
    
    37 Pa. Code §75.2
    .
    6
    In this case, the Board clearly exceeded the presumptive range, but it
    provided written justification for the same, citing Petitioner’s continued violent
    convictions. Indeed, the record in this case reveals the following: Petitioner’s original
    voluntary manslaughter conviction, with provocation by victim; a detainer from the
    state of New York for attempted robbery in the 2nd degree; an arrest for public
    drunkenness in August 2014, following a physical altercation with his ex-girlfriend;
    and the latest conviction for simple assault which was described in a criminal complaint
    as Petitioner stomping the face and torso of a victim several times during an attempted
    robbery in the victim’s apartment and ransacking that apartment looking for money.
    Hence, we cannot say that the Board erred in exceeding the presumptive range of
    recommitment.
    Service of Sentence
    Finally, Petitioner argues that the Board erred in forcing him to serve his
    new sentence before his original sentence. However, the Board contends that Petitioner
    waived this argument by failing to raise it in his administrative appeals. We agree with
    the Board that this argument was not raised. Hence, it is waived. See Newsome v.
    Pennsylvania Board of Probation and Parole, 
    553 A.2d 1050
    , 1052 (Pa. Cmwlth.
    1989) (“It is well-settled that failure to raise an issue before the Board results in a
    waiver and precludes this Court from review.”).
    However, even if not waived, Petitioner’s argument would fail. Section
    6138(a)(5) of the Parole Code addresses new sentences, providing as follows:
    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:
    7
    (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.
    61 Pa.C.S. §6138(a)(5).
    In this case, Petitioner was paroled from a state correctional institution,
    and the record reveals that his new sentence was a county sentence. Consistent with
    section 6138(a)(5)(iii), Petitioner was required to serve his new sentence prior to
    serving the remainder of his original sentence.
    Conclusion
    The recalculation of Petitioner’s maximum sentence date did not
    constitute an alteration of a judicially-imposed sentence and did not violate the
    prohibitions against cruel and unusual punishment or ex post facto laws. However, the
    Board did err to the extent that it failed to give specific reasons for refusing to grant
    Petitioner a credit for time spent in good standing on parole, which is required by
    Pittman. The Board provided sufficient written justification for imposing backtime
    beyond the presumptive range for his simple assault conviction. Additionally, because
    Petitioner’s new sentence was a county sentence, the Board did not err in requiring
    Petitioner to serve his new sentence prior to serving the remainder of his original
    sentence.
    8
    Accordingly, the decision of the Board, insofar as it failed to give specific
    reasons for refusing to grant Petitioner a credit for time spent in good standing on
    parole, is vacated. The matter is remanded to the Board for the limited purpose of
    providing an explanation for this refusal consistent with Pittman. In all other respects,
    the Board’s decision is affirmed.
    ________________________________
    PATRICIA A. McCULLOUGH, Judge
    9
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Harvey Hoover,                           :
    Petitioner            :
    :    No. 609 C.D. 2017
    v.                           :
    :
    Pennsylvania Board of                    :
    Probation and Parole,                    :
    Respondent             :
    ORDER
    AND NOW, this 14th day of December, 2017, the decision of the
    Pennsylvania Board of Probation and Parole, dated April 28, 2017, is affirmed in
    part and vacated and remanded in part consistent with this opinion.
    Jurisdiction retained.
    ________________________________
    PATRICIA A. McCULLOUGH, Judge
    

Document Info

Docket Number: 609 C.D. 2017

Judges: McCullough, J.

Filed Date: 12/14/2017

Precedential Status: Non-Precedential

Modified Date: 12/13/2024