G.A. Happel v. PPB ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
George Anthony Happel, :
:
Petitioner :
:
v. : No. 1001 C.D. 2020
: Submitted: April 9, 2021
Pennsylvania Parole Board, :
:
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge1
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: February 15, 2022
George Anthony Happel (Parolee) petitions for review of an order of
the Pennsylvania Parole Board (Board), which denied his administrative appeal of
the Board’s decision recommitting him to serve 12 months’ backtime as a convicted
parole violator (CPV) and denying him credit for the time that he spent at liberty on
parole. Parolee contends that the Board erred by revoking his street time credit
because it was previously granted to him when he was recommitted as a technical
parole violator (TPV). For the following reasons, we affirm the Board.
On June 14, 2011, Parolee pleaded guilty to two counts of possession
with intent to manufacture, sell, or deliver a controlled substance, and was sentenced
1
This matter was assigned to the panel before January 3, 2022, when President Judge
Emerita Leavitt became a senior judge on the Court.
by the Berks County Court of Common Pleas to serve two years and three months
to six years in a state correctional institution. Certified Record (C.R.) at 1-2. At the
time of sentencing, his maximum sentence date was March 10, 2017. Id. However,
because Parolee owed backtime as a CPV, his maximum sentence date was extended
to September 9, 2019. Id. at 1-2, 24.
Parolee was paroled on February 24, 2017. C.R. at 7. On March 29,
2019, the Board declared Parolee delinquent, effective March 13, 2019, because he
failed to make contact with his parole agent. Id. at 11-13. On April 2, 2019, Parolee
was arrested by the Whitehall Township Police Department in Lehigh County for
driving under the influence of alcohol or a controlled substance (DUI), unlawful
possession of a controlled substance, and possession of drug paraphernalia (two
counts). Id. at 14, 16-17. The Board lodged a detainer warrant that same day. Id.
at 20.
On April 5, 2019, the Board issued a notice of charges and hearing
based on Parolee’s new criminal charges and technical parole violation for failing to
maintain regular contact with parole supervision staff. C.R. at 30. Parolee waived
his rights to be represented by counsel and to violation and detention hearings, and
he admitted to his technical violation. Id. at 28-29.
By decision mailed on April 19, 2019, the Board referred to its prior
decision detaining Parolee pending disposition of the new criminal charges and
recommitted him as a TPV to serve his unexpired term of 5 months and 27 days for
failing to report to his parole officer as instructed. C.R. at 47-48. Parolee’s
maximum sentence date was recalculated as September 29, 2019;2 however, the
Board advised that the date was subject to change if Parolee was convicted on the
2
Parolee was delinquent from March 13, 2019, through April 2, 2019. Certified Record
(C.R.) at 45.
2
new criminal charges. Id. On May 3, 2019, Parolee posted bail on the new criminal
charges, but he remained incarcerated pursuant to the Board’s detainer warrant. Id.
at 182.3
On August 20, 2019, Board staff was informed that Parolee had been
arrested by the Pennsylvania State Police in Berks County on March 19, 2019, and
charged with DUI, driving while impaired, and careless driving. C.R. at 49-51, 78,
81, 171. On September 23, 2019, Parolee posted bail on the charges, but remained
detained pursuant to the Board’s warrant. Id. at 78, 171.
On November 27, 2019, Parolee pleaded guilty to DUI in Berks
County, and the remaining charges were dismissed. C.R. at 172. He was sentenced
to 72 hours to 6 months in the Berks County Jail System and scheduled to be released
upon completion of his minimum sentence. Id. at 72. On December 17, 2019,
Parolee pleaded guilty to DUI in Lehigh County, and the remaining charges were
withdrawn. Id. at 183. He was sentenced to time served to six months in the Lehigh
County Jail and was immediately paroled. Id. at 74, 187.
On January 7, 2020, the Board provided Parolee with notice that a
parole revocation hearing would be held regarding his new Berks and Lehigh County
convictions. C.R. at 84. Parolee waived his right to a panel hearing, and the matter
was heard by a hearing examiner on January 27, 2020. Id. at 87-88. At the hearing,
at which Parolee was represented by counsel, Parolee admitted to the new
convictions and did not present any mitigation testimony. Notes of Testimony at
19-20; C.R. at 106-07. Instead, he argued that the Board, in recommitting him as a
3
On May 8, 2019, Parolee was released from the detainer warrant because he was returned
to the Board’s custody pending disposition of the new criminal charges. C.R. at 55. On September
29, 2019, the Board canceled its detainer warrant because Parolee reached his maximum sentence
date. Id. at 56, 205. The detainer warrant was reinstated on December 19, 2019, following his
new criminal convictions. Id. at 160, 206.
3
CPV, could not revoke his street time credit that was previously granted to him when
he was recommitted as a TPV.4 Id.
By Board action recorded on March 11, 2020,5 the Board referred to its
prior action recommitting Parolee as a TPV and recommitted him as a CPV to serve
12 months’ backtime concurrent to the 5 months and 27 days he was ordered to serve
as a TPV. C.R. at 179. The Board, in its discretion, did not award credit for the time
Parolee spent at liberty on parole based on his unresolved drug and/or alcohol issues.
Id. As a result, Parolee’s maximum sentence date was recalculated as March 10,
2022. Id.
On March 6, 2020, Parolee filed an administrative remedies form
challenging his recommitment as a CPV.6 C.R. at 196-97. He argued that he already
received credit for his street time as a TPV, and, therefore, the Board could not forfeit
that time based on his recommitment as a CPV. By decision mailed on September
16, 2020, the Board rejected Parolee’s claim.7 Id. at 205-06. The Board explained
that Parolee’s recommitment as a CPV involved the same parole period as his
recommitment as a TPV. Therefore, based upon its recommitment of Parolee as a
4
When he was recommitted as a TPV, Parolee received credit for all of his street time,
except for the 20 days that he spent in delinquency. See Section 6138(c)(2) of the Prisons and
Parole Code, 61 Pa. C.S. §6138(c)(2) (providing that a technical parole violator “shall be given
credit for the time served in good standing but with no credit for delinquent time . . . .”).
5
There is no mailing date on the decision.
6
Parolee submitted three additional documents to the Board. The first, received on
February 4, 2020, was sent prior to the Board’s decision and referenced his recommitment as a
TPV. C.R. at 193-94. The second, received on June 1, 2020, reiterated that his street time should
not have been forfeited by the Board. Id. at 199. The third, received on August 25, 2020,
complained that the Board had yet to rule on his administrative appeal. Id. at 201.
7
The Board indicated that it was only considering Parolee’s petition regarding the credit
allocation toward his new maximum sentence date, i.e., his March 6, 2020 request. C.R. at 205.
4
CPV, the Board was authorized to deny him credit for the time he spent at liberty on
parole, even though that time had previously been credited to him when he was
recommitted as a TPV.
The Board then addressed its recalculation of Parolee’s maximum date.
It explained that when Parolee was paroled on February 24, 2017, with a maximum
date of September 9, 2019, he had 927 days remaining on his original sentence. C.R.
at 205. The Board then extended his maximum date to September 29, 2019, upon
the revocation of his parole due to a technical violation. Id. Because Parolee posted
bail on both his Lehigh and Berks County criminal charges, he received credit for
the 115 days he was incarcerated solely on the Board’s detainer warrant, i.e., from
May 3, 2019, to August 20, 2019, and from September 23, 2019, to September 29,
2019. Id. at 206. Subtracting the 115 days of credit from the 927 days remaining
on his original sentence left him with 812 days to serve on his original sentence.
Parolee became available to begin serving his original sentence on December 19,
2019, the date the Board relodged its warrant against Parolee for revocation
proceedings, and adding 812 days to that date yielded a new maximum sentence date
of March 10, 2022. Id. at 206. The Board therefore affirmed its decision recorded
on March 11, 2020.
Parolee petitions this Court for review, raising one issue.8 He claims
that the Board erred by recommitting him as a CPV and denying him credit for the
time he spent at liberty on parole, when it had previously awarded him credit for that
time when the Board recommitted him as a TPV. Parolee argues that pursuant to
8
Our scope of review of a Board’s recommittal order is limited to determining whether
necessary findings were supported by substantial evidence, whether error of law was committed,
or whether constitutional rights were violated. Johnson v. Pennsylvania Board of Probation and
Parole, 706 A.2d 903, 904 (Pa. Cmwlth. 1998).
5
Penjuke v. Pennsylvania Board of Probation and Parole, 203 A.3d 401 (Pa. Cmwlth.
2019), appeal denied, 228 A.3d 254 (Pa. 2020), the Board cannot revoke street time
credit that was previously granted. Therefore, because he received street time credit
as a TPV, the Board had no authority to revoke it later when he was recommitted as
a CPV.
The Board responds that Penjuke does not apply in this case. It explains
that in Kazickas v. Pennsylvania Board of Probation and Parole, 226 A.3d 109 (Pa.
Cmwlth.), appeal denied, 238 A.3d 1170 (Pa. 2020), this Court held that Penjuke
does not apply when the criminal conduct that led to a parolee’s recommitment as a
CPV occurred during the same period of parole as the violation that led to his
recommitment as a TPV.
We agree with the Board. In Young v. Pennsylvania Board of
Probation and Parole, 225 A.3d 810 (Pa. 2020), the Board revoked the street time
of a CPV, including the street time that the Board had previously granted to the
parolee in a prior revocation proceeding. The Pennsylvania Supreme Court held that
if the Board exercised its discretion to award street time credit under Section
6138(a)(2.1) of the Prisons and Parole Code (Parole Code), 61 Pa. C.S.
§6138(a)(2.1), it could not, in a subsequent revocation proceeding, revoke that
credit. Id. at 813-14. Young involved prior revocation proceedings; in Penjuke, the
issue was whether the Board could forfeit the street time of a CPV that was
previously credited to his original sentence, pursuant to Section 6138(c)(2) of the
Parole Code, in a prior period of parole resulting in his recommitment as a TPV.
This Court held that the Board could not, in a subsequent revocation proceeding,
revoke street time that was credited in the prior parole period resulting in the
parolee’s recommitment as a TPV. Penjuke, 203 A.3d at 420.
6
However, in both Young and Penjuke, two separate periods of parole,
and thus street time credit, were at issue. In Kazickas, 226 A.3d at 116-17, we
explained that the Board is precluded from reaching back in time into past periods
of parole to revoke street time credit that was previously granted to a TPV.
However, when the criminal conduct that led to a parolee’s recommitment as a CPV
occurred during the same period of parole as the violation that led to his
recommitment as a TPV, Penjuke does not apply. Id. at 116.
Here, Parolee was paroled on February 24, 2017. By decision mailed
on April 19, 2019, he was recommitted as a TPV to serve his unexpired term and the
Board gave him credit for his time spent at liberty on parole in good standing, except
for the 20 days that he spent in delinquency from March 13, 2019, through April 2,
2019, pursuant to Section 6138(c)(2) of the Parole Code. The Board was authorized
to and did make Parolee’s recalculated maximum sentence date of September 29,
2019, subject to change, if he was ultimately convicted of the new criminal charges.
C.R. at 47. Upon his conviction, by Board decision recorded on March 11, 2020,
the Board referred to its April 2019 decision recommitting Parolee as a TPV and
recommitted him as a CPV to serve 12 months’ backtime concurrent to his TPV
backtime. Thus, unlike in Penjuke, the events that led to Parolee being recommitted
as a TPV, and later as a CPV, occurred during the same parole period. Pursuant to
Kazickas, because the conduct that led to Parolee’s recommitment as a TPV and as
a CPV occurred during the same parole period, Penjuke does not apply. As such,
the Board did not violate the holding of Penjuke by revoking the credit that Parolee
received as a TPV for the time that he spent at liberty on parole in good standing
when it recommitted him as a CPV.
7
For the above reasons, we affirm the Board’s order.
MICHAEL H. WOJCIK, Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
George Anthony Happel, :
:
Petitioner :
:
v. : No. 1001 C.D. 2020
:
Pennsylvania Parole Board, :
:
Respondent :
ORDER
AND NOW, this 15th day of February, 2022, the order of the
Pennsylvania Parole Board, dated September 16, 2020, is hereby AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge