B. Johnson v. PPB ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Breeze Johnson, :
Petitioner : CASES CONSOLIDATED
:
v. : No. 873 C.D. 2020
: No. 1235 C.D. 2020
Pennsylvania Parole Board, : Submitted: August 6, 2021
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge1
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: February 25, 2022
Breeze Johnson (Johnson) petitions for review of the October 27, 2020 Order
of the Pennsylvania Parole Board (Board), which granted his petition for
administrative review in part and determined that Johnson’s new maximum sentence
date was to be recalculated to account for 286 days that he resided in inpatient or
community corrections facilities, making his new maximum sentence date October
10, 2022.2 Johnson is represented by Jessica A. Fiscus, Esquire (Counsel), of the
1
This case was assigned to the opinion writer before January 7, 2022, when Judge Cohn
Jubelirer became President Judge.
2
By way of background, on August 24, 2020, Johnson filed a pro se Petition for Review
in this Court at docket No. 873 C.D. 2020, followed by a counseled Ancillary Petition for Review,
challenging the Board’s July 31, 2020 Order, which reversed an August 28, 2019 Decision that set
Johnson’s new maximum sentence date to May 8, 2023, based on the revocation of his parole and
recommitment as a convicted parole violator and recalculated Johnson’s maximum sentence date
Erie County Office of the Public Defender. Counsel has filed an Application to
Withdraw Appearance (Application to Withdraw) and a No-Merit Letter, which are
based on her conclusion that Johnson’s Petitions for Review lack merit. Upon
review, we grant Counsel’s Application to Withdraw and affirm the Board’s October
27, 2020 Order.
I. BACKGROUND
After pleading guilty in the Court of Common Pleas of Lackawanna County
(Lackawanna Common Pleas) to simple assault, resisting arrest, and the
manufacture, sale, or delivery of, or possession with intent to deliver, a controlled
substance, Johnson was sentenced on February 28, 2012, to an aggregate term of 1
year, 11 months, and 30 days’ to 6 years’ imprisonment. (Certified Record (C.R.)
at 1-2.) Johnson also received probationary sentences for the resisting arrest and
as July 23, 2023. (Certified Record (C.R.) at 151-52.) Prior to the filing of this Petition for
Review, the Board mailed a separate decision to Johnson on August 7, 2020, setting a new July
23, 2023 maximum date. (Id. at 165.) Johnson thereafter filed an administrative remedies form
with the Board on September 3, 2020, challenging that decision and arguing, inter alia, that he
was entitled to credit for time spent at various inpatient and community corrections facilities. (Id.
at 163-64, 166-68.) The Board mailed an Order to Johnson on October 27, 2020, granting his
September 3, 2020 petition for administrative review in part and reversing the Board’s August 7,
2020 Decision by recalculating Johnson’s maximum sentence date as October 10, 2022. (Id. at
176-77.) Johnson filed a second, counseled Petition for Review in this Court on November 27,
2020, challenging the Board’s October 27, 2020 Order, which we docketed at No. 1235 C.D. 2020.
On March 22, 2021, we granted Johnson’s request to consolidate the matters and
designated the record filed on January 19, 2021, at No. 1235 C.D. 2020, as the Certified Record in
this matter. Thus, all citations to the Certified Record in this opinion refer to the record filed at
No. 1235 C.D. 2020. Additionally, given the above procedural history of this case and the Board’s
reference to its October 27, 2020 Order as “the Board’s final adjudication in this matter,” (C.R. at
177), our review will focus on the Board’s October 27, 2020 Order, rather than the Board’s July
31, 2020 Order appealed at No. 873 C.D. 2020. Further, because the new maximum date set by
the July 31, 2020 Order is no longer in effect and the Board restated the reasons for rejecting
Johnson’s arguments beyond the credit issue in the October 27, 2020 Order, Johnson’s petition for
review from the July 31, 2020 Order is moot and shall be dismissed as such.
2
possession with intent to deliver charges, as well as for recklessly endangering
another person and disorderly conduct. (Id. at 2-3.) At the time of his sentencing,
Johnson’s minimum sentence date was August 2, 2013, and his maximum sentence
date was August 3, 2017. (Id. at 2.)
On August 8, 2013, Johnson was released on parole to a specialized
community corrections center (CCC). (Id. at 8.) On October 7, 2013, the Board
declared Johnson delinquent, effective that date, for failing to report for a scheduled
appointment and moving from his approved residence. (Id. at 13-14.) By Board
action recorded on November 4, 2013, the Board cancelled Johnson’s delinquency
and continued him on parole, based on parole supervision staff’s recommendation
that Johnson “be diverted to the ADAPPT program as a half-way back” to undergo
drug and alcohol counseling. (Id. at 15-16.) On May 21, 2014, Johnson was
successfully discharged from ADAPPT to an approved residence. (Id. at 31.)
On June 13, 2016, the Board issued a warrant to commit and detain Johnson
after the Pennsylvania State Police arrested and charged him with numerous traffic
violations and drug charges in Carbon County. (Id. at 17-23.) Specifically, Johnson
was charged with the manufacture, delivery, or possession with intent to
manufacture or deliver controlled substances (heroin) (two counts), possession of a
controlled substance by a person not registered (two counts), possession of drug
paraphernalia (two counts), following too closely (one count), disregarding traffic
lanes (one count), careless driving (one count), and driving without a license (one
count). (Id. at 19-21, 72.) Johnson was confined in the Carbon County Prison, and
he did not post bail on these new charges. (Id. at 37, 71.) On June 24, 2016, the
Board issued a notice of charges and hearing to Johnson, notifying him of his new
criminal charges and indicating that a detention hearing would be held on July 11,
3
2016. (Id. at 28.) Johnson waived his rights to counsel and a detention hearing on
the same date. (Id. at 29-30.) By Board action recorded on July 27, 2016 (mailed
on August 24, 2016), the Board detained Johnson pending disposition of his new
criminal charges. (Id. at 34.) On September 18, 2016, Johnson submitted an
administrative remedies form requesting that the Board reconsider detaining him and
instead order house arrest, which the Board denied by decision mailed on February
6, 2018, on the basis such decision was not subject to appeal. (Id. at 45-46, 48.)
On March 8, 2017, Lackawanna Common Pleas ordered that Johnson be
detained as a special probation violator because of his arrest on the new Carbon
County charges. (Id. at 147.) On May 31, 2017, Johnson’s special probationary
sentences relating to his original resisting arrest and possession with intent to deliver
charges were revoked, and he received an aggregate violation of probation (VOP)
sentence of 10 months and 15 days’ to 4 years’ imprisonment (Recidivism Risk
Reduction Incentive (RRRI) eligible) to be served concurrently with Johnson’s
backtime. (Id. at 39-42, 154.) His maximum VOP sentence date was calculated as
May 31, 2021.3 (Id. at 39, 41.)
On August 29, 2017, the Board cancelled its June 13, 2016 warrant to commit
and detain Johnson.4 (Id. at 38.) However, on September 14, 2017, the Board again
declared Johnson delinquent for control purposes effective June 13, 2016. (Id. at
44.)
On June 3, 2019, Johnson pleaded guilty to possession of a controlled
substance by a person not registered in the Court of Common Pleas of Carbon
3
A Carbon County detainer was also lodged on June 14, 2016, as to Johnson’s new Carbon
County charges. (C.R. at 40, 42.) Moreover, Lackawanna Common Pleas noted in its order that
Johnson was not entitled to any time credit because he was “currently held in lieu of bail” on the
new offenses in Carbon County. (Id. at 154.)
4
Johnson’s original maximum sentence date expired on August 3, 2017. (C.R. at 1-2.)
4
County (Carbon Common Pleas) and was sentenced to 6 to 12 months’
imprisonment in a state correctional institution (SCI). (Id. at 50, 73, 98.) He was
credited 351 days for time served against this sentence and directed to serve the
sentence consecutively with any other sentence Johnson was then serving. (Id. at
50.) Johnson also pleaded guilty to possession of drug paraphernalia and was
sentenced to 4 to 12 months’ imprisonment in an SCI to be served consecutively
with his sentence for possession by a person not registered and any other sentence
he was then serving. (Id. at 51, 73, 98.) The remaining counts were dismissed. (Id.
at 73-74.)
On June 25, 2019, the Board issued a notice of charges and hearing to
Johnson, advising him that a revocation hearing would be held due to his new
convictions. (Id. at 54.) That same day, Johnson waived his rights to counsel and
revocation and panel hearings, and he admitted to his new convictions. (Id. at 57-
59.) Based on Johnson’s new convictions, the hearing examiner and a Board
member recommended that Johnson be recommitted as a convicted parole violator
(CPV) to serve six months’ backtime in an SCI without credit for time spent at liberty
on parole (street time). (Id. at 62, 64-66.) The hearing examiner and a Board
member recommended denying Johnson credit for his street time because Johnson’s
new conviction was the same/similar to his original offense and due to Johnson’s
“[u]nresolved drug and alcohol issues.” (Id. at 62.) The hearing examiner signed
the revocation hearing report on July 17, 2019, and the Board member executed the
revocation hearing report on July 28, 2019. (Id. at 66.)
By Board Decision recorded on August 1, 2019 (delivered to Johnson on
August 28, 2019), the Board recommitted Johnson as a CPV to serve six months’
backtime in an SCI based on his new convictions. (Id. at 67-68.) The Board, in its
5
discretion, denied Johnson credit for his street time because his “new conviction
[was the] same/similar to [his] original offense” and due to Johnson’s “unresolved
drug and alcohol issues.” (Id.) The Board further determined that Johnson would
not be eligible for reparole until September 18, 2019, and recalculated his maximum
sentence date as March 14, 2023. (Id.) Consistent with this Decision, on August 19,
2019, the Board issued an Order to Recommit, therein noting that Johnson’s original
maximum sentence date was August 3, 2017, and that he was released on parole on
August 8, 2013. (Id. at 103-04.) The Board gave Johnson backtime credit for 76
days from June 14, 2017, to August 29, 2017. (Id.) After accounting for this credit,
the Board calculated that Johnson had 1,380 days remaining on his original sentence.
(Id.) Adding the 1,380 days to the custody for return date of June 3, 2019, i.e., the
date he was sentenced in Carbon County, yielded a recalculated maximum sentence
date of March 14, 2023. (Id.)
On August 28, 2019, the Board issued a second (Modified) Order to
Recommit, substituting July 28, 2019, i.e., the date the Board member signed the
revocation hearing report and voted to recommit Johnson, as the proper custody for
return date. (Id. at 105-06.) The Board added 1,380 days to that date and
recalculated Johnson’s new maximum sentence date as May 8, 2023. (Id.) By Board
action recorded on the same day, the Board modified its August 1, 2019 Decision,
“due to receipt of additional information,” to reflect Johnson’s new maximum
sentence date of May 8, 2023, and to change his reparole eligibility date to
November 13, 2019. (Id. at 107-08.)
On August 28, 2019 (received on September 18, 2019), Johnson submitted an
administrative remedies form, arguing that the Board used the wrong custody for
return date and incorrectly recalculated his maximum sentence date. (Id. at 114-15.)
6
Johnson contended that the Board erred by failing to grant him credit for his street
time spent in good standing and that his guilty pleas occurred after his maximum
sentence date had expired. (Id. at 115.) On April 27, 2020, Johnson submitted
additional correspondence further explaining his administrative challenges.5 (Id. at
122-23.)
The Board responded to Johnson’s September 18, 2019 administrative appeal
on July 31, 2020, and reversed its August 28, 2019 Decision with respect to
Johnson’s maximum sentence date of May 8, 2023. (Id. at 151-52.) In doing so, the
Board first explained that its decision to recommit Johnson as a CPV authorized the
recalculation of his maximum sentence date to reflect that he received no credit for
his street time. Thus, at the time Johnson was paroled on August 8, 2013, with a
maximum sentence date of August 3, 2017, and because the Board denied him credit
for his street time, Johnson had 1,456 days remaining on his original sentence. (Id.
at 151.) The Board then explained that Johnson was not entitled to presentence
confinement credit for any of the time he spent in prison prior to his parole
revocation on July 28, 2019, because he was never held solely on the Board’s
warrant during that period. (Id.) The Board noted, however, that any time Johnson
already served would be calculated by the Department of Corrections (DOC) and
credited to his new state sentence. (Id.) The Board also noted that Johnson’s
probation had been revoked and that he was resentenced to one to four years in an
SCI with a maximum expiration date of May 31, 2021. (Id.) The Board next
explained that because Johnson received a new state sentence to be served in an SCI,
he was required to serve his backtime on his original sentence first. However,
Johnson did not become available to commence service of his original sentence until
5
By Board action recorded on May 26, 2020, the Board denied Johnson parole and directed
him to serve the remainder of his unexpired maximum sentence. (C.R. at 109-10.)
7
July 28, 2019, the date the Board member voted to revoke his parole and recommit
him as a CPV. Adding 1,456 days to that availability date yielded a recalculated
maximum sentence date of July 23, 2023. (Id. at 152.) The Board’s decision thus
reversed its August 28, 2019 Decision as to Johnson’s maximum sentence date and
noted that a new Board decision would be mailed to Johnson. The Board also stated
that Johnson could file a petition for administrative review from the Board’s
forthcoming decision if he disagreed with the Board’s recalculation of his maximum
sentence date. (Id.) On August 31, 2020, Johnson petitioned this Court for review
of the Board’s July 31, 2020 Order, which was docketed at No. 873 C.D. 2020.
On July 29, 2020, the Board issued a third (Modified) Order to Recommit,
this time determining that Johnson was not entitled to the 76 days of backtime credit
that had been initially awarded in its August 19, 2019, and August 28, 2019 Orders
to Recommit. (Id. at 111-12.) The Board thus recalculated how many days Johnson
had left to serve on his original sentence to 1,456 days, and adding those days to his
custody for return date of July 28, 2019, yielded a new maximum sentence date of
July 23, 2023. (Id. at 111.) Consistent with the third (Modified) Order to Recommit,
the Board, by Decision recorded on July 29, 2020 (mailed on August 7, 2020),
modified its August 1, 2019, August 28, 2019, and May 26, 2020 Decisions to reflect
Johnson’s new maximum sentence date of July 23, 2023. (Id. at 113.)
On September 3, 2020 (received on September 9, 2020), Johnson submitted a
counseled administrative remedies form, challenging the Board’s August 7, 2020
Decision. Therein, Johnson argued that the Board erred by: (1) “fail[ing] to award
credit against [his] original sentence for time that exceeded the maximum sentence
allowable by law on the new sentence”; (2) determining that his new Carbon County
sentences were to be served consecutively rather than concurrently; (3) using the
8
wrong custody for return date; (4) failing to award confinement credit for the period
of June 13, 2016, through June 3, 2019 (aside from the 351 days of credit he received
for time served on the new sentences); and (5) failing to award credit for time
Johnson spent at inpatient facilities or community corrections facilities. (Id. at 163-
64.) Johnson subsequently filed a pro se administrative remedies form on September
8, 2020, raising issues similar to those raised in his counseled administrative
remedies form. (Id. at 166-73.)
On October 26, 2020, the Board issued a fourth (Modified) Order to
Recommit and accompanying Board action recorded the same day, reflecting that,
in its discretion, the Board awarded Johnson partial credit for the time he spent at
inpatient facilities and/or CCCs and modified his maximum sentence date to October
10, 2022. (Id. at 155-57.) Consistent with this Order to Recommit and Board action,
the Board formally responded to Johnson on October 27, 2020, and granted his
request for credit. (Id. at 176-77.) In so doing, the Board first explained that while
all the other substantive issues raised in Johnson’s correspondence to the Board were
addressed in its July 31, 2020 Order, those reasons were set forth again. (Id. at 176.)
It then explained that Johnson was entitled to partial credit, 286 days, for the time
he served in inpatient facilities or CCCs from August 8, 2013, to May 21, 2014. (Id.)
Subtracting 286 days from the 1,456 days remaining on Johnson’s original sentence
at the time he was paroled left Johnson with 1,170 days remaining on his original
sentence. Adding 1,170 to his custody for return date of July 28, 2019, yielded a
recalculated maximum sentence date of October 10, 2022. (Id. at 177.)
Accordingly, the Board reversed its Decision mailed on August 7, 2020, with respect
to Johnson’s maximum sentence date and its previous decision to deny him credit
for all of Johnson’s street time. (Id.) The Board also noted that its October 27, 2020
9
Order would serve as the Board’s final adjudication in the matter and that Johnson
was required to file a petition for review with this Court if he wished to challenge
his new maximum sentence date. (Id.) Johnson, with the assistance of Counsel,
petitioned this Court for review of the Board’s October 27, 2020 Order on November
27, 2020, which was docketed at No. 1235 C.D. 2020. By order dated March 22,
2021, we consolidated Johnson’s appeals at Nos. 873 and 1235 C.D. 2020.
In his Petitions for Review, Johnson essentially argues that the Board erred
by: (1) using the wrong custody for return date; (2) determining that his new Carbon
County sentences were to be served consecutively rather than concurrently; (3)
failing to award credit against Johnson’s original sentence for “time that exceeded
the maximum sentence allowable by law on the new sentence”; and (4) failing to
award Johnson credit for the time he was incarcerated between June 13, 2016, and
June 3, 2019, aside from the 351 days Carbon Common Pleas credited to the new
sentence. (Petitions for Review ¶¶ 6-10.)6 According to Johnson, these errors
caused the Board to miscalculate his “re-parole eligibility date and new maximum
sentence.” (Id. ¶ 10.)7
6
We have reordered Johnson’s issues to reflect the order in which they appear in Counsel’s
No-Merit Letter.
7
In his Petition for Review filed at No. 873 C.D. 2020, Johnson additionally challenged
the Board’s failure to award him credit for time he spent in inpatient or community corrections
facilities. (See Petition for Review No. 873 C.D. 2020 ¶ 11.) This issue is not included in
Johnson’s Petition for Review filed at No. 1235 C.D. 2020, presumably because the Board
addressed it in its October 27, 2020 Order. Because the Board ruled on the issue in Johnson’s
favor in the October 27, 2020 Order and he did not reassert it in his Petition for Review of that
Order filed at No. 1235 C.D. 2020, we will not address it further.
10
II. COUNSEL’S APPLICATION TO WITHDRAW
On March 23, 2021, Counsel filed the Application to Withdraw on the basis
that the Petitions for Review lack merit. Before appointed counsel may withdraw
from representation in a case in which the right to counsel does not derive from the
United States Constitution, such as here, the Turner or no-merit letter must contain:
(1) the nature and extent of counsel’s review; (2) the issues the petitioner wishes to
raise; and (3) counsel’s analysis in concluding that the petitioner’s appeal is without
merit. Commonwealth v. Turner, 544 A.2d 927, 928 (Pa. 1988); Hughes v. Pa. Bd.
of Prob. & Parole, 977 A.2d 19, 24-25 (Pa. Cmwlth. 2009). In addition, counsel
must send the petitioner a copy of the no-merit letter, “a copy of counsel’s petition
to withdraw,” and a statement advising the petitioner of his right to proceed with
new counsel or pro se. Zerby v. Shanon, 964 A.2d 956, 960 (Pa. Cmwlth. 2009).
Once counsel satisfies the procedural requirements of Turner, this Court will
“conduct its own review of the merits of the case.” Id. (citation omitted).
In support of the Application to Withdraw, Counsel filed the No-Merit Letter,
which she sent to Johnson and the Board, along with the Application to Withdraw,
detailing her review of the Certified Record and relevant law. After summarizing
the relevant factual and procedural history, Counsel addressed the issues Johnson
raised in the Petitions for Review, as well as the other issues Johnson raised in his
administrative appeals to the Board. Regarding the Board’s determination as to
Johnson’s custody for return date, Counsel explained that, pursuant to Section
6138(a)(5) of the Prisons and Parole Code (Parole Code), 61 Pa.C.S. § 6138(a)(5),
because Johnson received a new sentence to be served in an SCI, he must serve the
backtime on his original sentence first. That backtime only became due and owing
after his parole was revoked, i.e., on July 28, 2019, when the second Board member
11
signed the revocation hearing report per Wilson v. Pennsylvania Board of Probation
and Parole, 124 A.3d 767, 770 n.6 (Pa. Cmwlth. 2015), and Campbell v.
Pennsylvania Board of Probation and Parole, 409 A.2d 980, 981-82 (Pa. Cmwlth.
1980). (No-Merit Letter at 5.) Counsel therefore concluded that the Board used the
correct custody for return date of July 28, 2019. (Id.) Counsel also explained the
Board’s recalculation of the new maximum sentence date and concluded that it was
properly calculated as October 10, 2022, particularly where Johnson did not post
bail, received credit for 351 days toward his new charges, and received credit
through his custody return date toward his probation revocation sentence. (Id. at 6-
7 (citing Smith v. Pa. Bd. of Prob. & Parole, 171 A.3d 759, 761 n.7 (Pa. 2017)).)
Counsel then confirmed the Board’s calculations and agreed that the October 10,
2022 maximum sentence date was accurate. (Id.)
As to whether the Board erred in determining that Johnson’s new sentences
were to be served consecutively to the original sentence, Counsel pointed out that
Johnson is statutorily required, under Section 6138(a)(5) of the Parole Code, to serve
his backtime first and his new state sentence second. (No-Merit Letter at 7.) Further,
Counsel noted that courts are prohibited by the Parole Code from imposing
concurrent sentences for new convictions. (Id. (citing Walker v. Pa. Bd. of Prob. &
Parole, 729 A.2d 634, 638 (Pa. Cmwlth. 1999)).) Regarding whether the Board
erred when it failed to credit Johnson’s original sentence with any time that exceeded
the maximum sentence allowable by law on the new sentences, Counsel explained
that Johnson’s argument was based on an incorrect factual premise. According to
Counsel, Johnson has not lost credit for any of the time he served from his arrest to
his recommitment as a CPV because such time was credited either to his new state
sentence or to his VOP sentence. (Id.)
12
Counsel also addressed, in an abundance of caution, other issues raised in
Johnson’s pro se administrative appeal to the Board but not asserted in the Petitions
for Review. (Id. at 7-8.) Regarding the Board’s refusal to award Johnson credit for
all of his street time, Counsel stated that the Board had the discretion to award or
deny credit for street time based on the type of new conviction Johnson had. (Id.)
Counsel also explained that the Board provided contemporaneous reasons for the
Board’s exercise of discretion to deny credit, as required under the Pennsylvania
Supreme Court’s decision in Pittman v. Pennsylvania Board of Probation and
Parole, 159 A.3d 466, 475 (Pa. 2017). (No-Merit Letter at 8.) A review of the
Certified Record, Counsel indicated, reveals that the Board’s reasons are supported
by Johnson’s convictions and supervision history. (Id.) Moreover, Counsel
explained, the Board did, in its discretion, grant Johnson partial credit for time he
spent in a CCC and inpatient facility from August 8, 2013, to May 21, 2014. (Id.)
Finally, regarding whether the Board erred in revoking Johnson’s parole because he
did not plead guilty on his new criminal charges until after the expiration of his
original maximum sentence, Counsel notes that it is well settled that the Board has
jurisdiction to recommit a parolee after his maximum sentence expires, so long as
the crime(s) for which he is recommitted occurred while he was on parole. (Id. at 8-
9 (citing Miskovitch v. Pa. Bd. of Prob. & Parole, 77 A.3d 66, 73-74 (Pa. Cmwlth.
2013)).)
Having concluded that the Petitions for Review lack merit, Counsel informed
Johnson of his right to hire another attorney or file a brief on his own behalf raising
any new points he might deem worthy of consideration. (Application to Withdraw
¶ 3.) Counsel also served Johnson with this Court’s March 26, 2021 order informing
13
Johnson that he could obtain substitute counsel at his own expense or file a brief on
his own behalf. Johnson did not file a brief on his own behalf.
Reviewing Counsel’s submissions, we conclude that Counsel has complied
with the procedural requirements of Turner. As set forth above, Counsel has
explained the nature and extent of her review of the record, addressed the issues
Johnson raised in his Petitions for Review and in his administrative appeals to the
Board, and provided a thorough analysis of those issues and Counsel’s reasons for
concluding that they lack merit. Counsel served copies of both the Application to
Withdraw and the No-Merit Letter on Johnson and the Board. In the Application to
Withdraw, and by serving Johnson with the Court’s March 26, 2021 order, Counsel
has informed Johnson that he could retain substitute counsel or file a brief on his
own behalf. Thus, Counsel has satisfied the procedural requirements of Turner, and
we now independently review Johnson’s Petitions for Review to determine whether
they are without merit.8
III. REVIEW OF THE MERITS
A. Whether the Board used the wrong custody for return date, thereby
affecting the recalculation of Johnson’s maximum sentence date.
Section 6138(a)(5)(i) of the Parole Code9 provided:
(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:
8
Our standard of review in parole revocation cases “is limited to determining whether the
Board committed a constitutional violation or an error of law and whether the findings of fact are
supported by substantial evidence.” Lee v. Pa. Bd. of Prob. & Parole, 885 A.2d 634, 637 (Pa.
Cmwlth. 2005).
9
We note that various sections of the Parole Code have recently been amended by the Act
of June 30, 2021, P.L. 260, No. 59. We nevertheless reference the version of the Parole Code that
was in effect at the time the Board rendered its decision in this matter.
14
(i) If a person is paroled from a[n SCI] and the new sentence
imposed on the person is to be served in the [SCI].
Former 61 Pa.C.S. § 6138(a)(5)(i). However, it is well settled that the requirement
that a CPV serve the balance of the original sentence “only becomes operative when
parole has been revoked and the remainder of the original sentence becomes due and
owing.” Campbell, 409 A.2d at 982 (quoting Richmond v. Commonwealth, 402 A.2d
1134, 1135 (Pa. Cmwlth. 1979)). “Parole revocation occurs once a hearing examiner
and Board member . . . sign a hearing report recommitting a prisoner as a CPV.”
Barnes v. Pa. Bd. of Prob. & Parole, 203 A.3d 382, 392 (Pa. Cmwlth. 2019)
(citations omitted). Here, the Board’s revocation of Johnson’s parole occurred on
July 28, 2019, when the Board member signed the revocation hearing report
recommitting Johnson as a CPV. Thus, that is the date when Section 6138(a)(5)(i)
became operative and the remainder of Johnson’s original sentence became due and
owing. See Barnes, 203 A.3d at 392; Campbell, 409 A.2d at 982; (C.R. at 66).
Accordingly, the Board did not err in using July 28, 2019, as Johnson’s custody for
return date from which the new maximum sentence date could be calculated, and
Johnson’s argument in this regard is without merit.
B. Whether the Board erred in determining that Johnson’s two new sentences
were to be served consecutively, rather than concurrently, with Johnson’s
backtime.
Section 6138(a)(5)(i) of the Parole Code requires that a CPV who receives a
new sentence to be served in an SCI must serve the backtime on the original state
sentence first before beginning to serve time on the new sentence. 61 Pa.C.S.
§ 6138(a)(5)(i). Thus, when the Board orders that a parolee serve backtime, “the
original sentence and any new sentences must be served consecutively rather than
15
concurrently.” Kerak v. Pa. Bd. of Prob. & Parole, 153 A.3d 1134, 1138 (Pa.
Cmwlth. 2016) (emphasis added). Here, the Board followed the mandate of Section
6138(a)(5)(i) by concluding that Johnson’s new Carbon County sentences run
consecutively to his backtime and that Johnson must serve the backtime before he
can begin to serve time on his new state sentences. This issue is therefore without
merit.
C. Whether the Board erred by failing to award Johnson credit against his
original sentence for time that exceeded the maximum sentence allowable by
law on the new sentences.10
In Gaito v. Pennsylvania Board of Probation and Parole, 412 A.2d 568, 571
(Pa. 1980), the Pennsylvania Supreme Court held that if the parolee has met bail on
the new charges but remains in custody solely on the Board’s detainer, then the time
the parolee spends in custody “shall be credited against [the] original sentence.” On
the other hand, if the parolee “remains incarcerated prior to trial because [the
parolee] has failed to satisfy bail requirements on the new criminal charges, then the
time spent in custody shall be credited to [the] new sentence.” Id. Similarly, when
a parolee “[i]s detained under both the Board’s warrant and the new criminal
charges, this time is properly allocated to [the] new criminal sentence.” Hammonds
v. Pa. Bd. of Prob. & Parole, 143 A.3d 994, 999 (Pa. Cmwlth. 2016). Only if “it is
not possible to award all of the credit on the new sentence because the period of
pre[]sentence incarceration exceeds the maximum term of the new sentence” may
the excess time be applied to the parolee’s original sentence. Armbruster v. Pa. Bd.
of Prob. & Parole, 919 A.2d 348, 355 (Pa. Cmwlth. 2007) (emphasis omitted).
10
Our disposition of this issue also disposes of Johnson’s separate but closely related
argument that the Board erred when it failed to award him credit for the time he was incarcerated
between June 13, 2016, and June 3, 2019, aside from the 351 days that was credited to his new
sentences.
16
Johnson appears to be arguing that the entire period of time that he was
incarcerated prior to being sentenced on the new Carbon County charges exceeds
the maximum terms of his new sentences, and, therefore, the Board was required
under Armbruster to apply the excess time to reduce the backtime he must serve on
his original sentence. We disagree.
Johnson was arrested on new criminal charges in Carbon County on June 13,
2016, the Board issued its detainer warrant the same day, and Johnson did not post
bail. Johnson remained incarcerated on both the Board’s warrant and the new
Carbon County charges until March 8, 2017, when Lackawanna Common Pleas
ordered that Johnson be detained for violating his special probation. (C.R. at 147.)
That court thereafter revoked Johnson’s special probation and resentenced him on
May 31, 2017, to an aggregate sentence of 10 months and 15 days’ to 4 years’
imprisonment in an SCI to be served concurrently with his backtime, without any
credit due to the fact that Johnson was then being held in lieu of bail on the new
Carbon County charges. (Id. at 39-42, 154.) Also on that date, DOC detainers were
lodged as to his new VOP sentence pertaining to his original special probationary
sentences. (Id. at 39-40.) Thereafter, on August 29, 2017, the Board cancelled its
detainer warrant. (Id. at 38.) Johnson was ultimately sentenced to another new term
of state incarceration (a total of 10 to 24 months), on June 3, 2019, for his new
Carbon County convictions and was awarded 351 days of presentence confinement
credit against his new 6- to 12-month sentence for possession by a person not
registered for the period of June 13, 2016, until his special probation resentencing
on May 31, 2017. (Id. at 50-51, 73, 98.) Johnson explicitly does not challenge those
351 days of credit awarded to him.
17
Johnson apparently contends, rather, that he is also entitled to presentence
confinement credit for the 733-day period from May 31, 2017, the date he appears
to have begun serving his VOP sentence, to June 3, 2019, the date he was sentenced
on the Carbon County charges, because the entirety of his presentence confinement
– 1,085 days – exceeds the maximum terms of his new Carbon County sentences,
731 days, and, therefore, the excess should be applied to reduce his original sentence.
However, Johnson is not entitled to presentence confinement credit for the 733-day
period from May 31, 2017, to June 3, 2019, because during that time, Johnson was
not in custody awaiting sentencing in Carbon County but was instead actively
serving his VOP sentence from Lackawanna County. While “an offender is to
receive credit for all incarceration served before sentencing for which he is being
detained in custody,” Martin v. Pennsylvania Board of Probation and Parole, 840
A.2d 299, 304 (Pa. 2003) (citing Gaito, 412 A.2d at 571 n.6), Johnson did not offer
any legal support, and, like Counsel, we have not found any, for the proposition that
he is entitled to receive credit for incarceration that is unrelated to new charges for
which sentencing has not yet occurred but to the revocation of probation from
another conviction. Moreover, we note that Johnson was not detained on the Board’s
warrant for that entire time period. Rather, Johnson was incarcerated on the Board’s
detainer only until August 29, 2017, when the Board cancelled its detainer warrant,
thus reducing the period at issue to 643 days, which is less than the new sentences
Johnson received in Carbon County. As such, Armbruster does not apply, and
Johnson is not entitled to any further credit against his original sentence.
Accordingly, the Board did not err by failing to award Johnson credit against his
original sentence for time that he was incarcerated prior to his Carbon County
sentencing, and Johnson’s argument in this regard is without merit.
18
D. Whether the Board erred by denying Johnson credit for all of his street
time.
Section 6138(a)(2) and (2.1) of the Parole Code provided:
(2) If a [CPV’s] recommitment is so ordered, the [CPV] shall be
reentered to serve the remainder of the term which the [CPV] 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.
(2.1) The [B]oard may, in its discretion, award credit to a [CPV]
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 . . . or a
crime requiring registration under 42 Pa.C.S. Ch. 97
Subch. H (relating to registration of sexual offenders).
(ii) The [CPV] was recommitted under [S]ection 6143 [of
the Parole Code] (relating to early parole of inmates
subject to Federal removal order).
Former 61 Pa.C.S. § 6138(a)(2), (2.1). Our Supreme Court held in Pittman that
Section 6138(a)(2.1) “clearly and unambiguously grants the Board discretion to
award credit to a CPV recommitted to serve the remainder of his sentence,” other
than in the enumerated exceptions. 159 A.3d at 473. The Supreme Court further
held that “the Board must provide a contemporaneous statement explaining its
reason for denying a CPV credit for time spent at liberty on parole.” Id. at 475.
Here, none of the exceptions of Section 6138(a)(2.1) of the Parole Code apply,
as Johnson’s new Carbon County convictions were not for violent crimes or required
his registration as a sexual offender, and he was not recommitted under Section 6143
of the Parole Code. As such, the Board had the discretion to grant or deny Johnson
credit for his street time. The Board exercised its discretion and granted Johnson
19
relief and awarded him partial credit against his original sentence for the 286 days
he resided in inpatient or community corrections facilities from August 8, 2013, to
May 21, 2014. (C.R. at 155.) However, the Board’s decision to award Johnson
partial credit for this period does not mean that he is entitled to all credit on his
original sentence for the rest of the time he spent at liberty on parole. The Board
denied Johnson credit for the remainder of his street time, which decision was clearly
within the Board’s discretion once it recommitted Johnson as a CPV and provided
contemporaneous reasons for doing so, as required by Pittman. Johnson does not
challenge the sufficiency of the Board’s stated reasons for denying him full credit
for his time spent at liberty on parole. We, therefore, agree with Counsel that it was
not an abuse of discretion for the Board to deny Johnson credit for all his street time
and that this issue likewise lacks merit.
To the extent Johnson argues that the Board’s credit allocations affected the
calculation of his new maximum sentence date, we note that at the time Johnson was
paroled on August 8, 2013, with a maximum date of August 3, 2017, Johnson had
1,456 days remaining on his original sentence. Subtracting the above 286 days left
him with 1,170 days remaining on his original sentence. Johnson was arrested in
Carbon County on June 13, 2016, and did not post bail, and the Board lodged a
detainer warrant against him the same day. On August 29, 2017, the Board lifted its
detainer. On June 3, 2019, Johnson was sentenced by Carbon Common Pleas to a
new term of incarceration to be served in an SCI. On July 28, 2019, the Board
recommitted Johnson. (C.R. at 66.) In its Decision, the Board noted that any time
Johnson spent incarcerated that was not allocated toward his original sentence would
be calculated by DOC and credited toward his new state sentence. Adding the 1,170
days remaining on Johnson’s original sentence to July 28, 2019, yields a maximum
20
date of October 10, 2022, as the Board calculated. Accordingly, the Board did not
err in recalculating Johnson’s maximum sentence date, and Johnson’s claim in this
regard is without merit.
E. Whether the Board erred by revoking Johnson’s parole after the
expiration of his original maximum sentence date.
Section 6138(a)(1) of the Parole Code provided:
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.
Former 61 Pa.C.S. § 6138(a)(1) (emphasis added). Thus, if a parolee commits a
crime while on parole and is convicted “at any time thereafter,” he may be
recommitted as a CPV. Id. As explained in Miskovitch, 77 A.3d at 74, “[i]t is well-
settled law that the Board retains jurisdiction to recommit an individual as a parole
violator,” and thus recalculate a maximum sentence date, “after the expiration of the
maximum term, so long as the crimes that lead to the conviction occurred while the
individual [was] on parole.”11 See also Adams v. Pa. Bd. of Prob. & Parole, 885
A.2d 1121, 1124 (Pa. Cmwlth. 2005) (“There is no doubt that the Board can
recommit and recompute the sentence of a parolee who commits a crime while on
parole but is not convicted until after his original sentence expired.”).
In this case, there is no dispute that the crimes to which Johnson ultimately
pleaded guilty occurred on June 13, 2016, when he was on parole from his original
11
In Miskovitch, 77 A.3d at 74, the parolee was arrested on new charges while on parole
in 2004, his original sentence expired in 2008, and he was not convicted on the new charges until
2010.
21
state sentence which had a maximum date of August 3, 2017. (C.R. at 2, 17-23.)
The fact that Johnson did not plead guilty until June 3, 2019, after the expiration of
his original sentence “is irrelevant.” Miskovitch, 77 A.3d at 74. Accordingly, the
Board had jurisdiction to revoke Johnson’s parole for the crimes committed during
parole and to recalculate his original maximum sentence date, and Johnson’s
argument in this regard is without merit.
IV. CONCLUSION
Based on the foregoing, we conclude that Counsel has met the technical
requirements for seeking to withdraw as Johnson’s counsel based on Counsel’s
conclusion that Johnson’s Petitions for Review are without merit. Upon our
independent review of those Petitions for Review, we agree the issues Johnson
asserts are without merit. Accordingly, we grant Counsel’s Application to Withdraw
and affirm the Board’s October 27, 2020 Order.
_____________________________________
RENÉE COHN JUBELIRER, Judge
22
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Breeze Johnson, :
Petitioner :
: CASES CONSOLIDATED
v. : No. 873 C.D. 2020
: No. 1235 C.D. 2020
Pennsylvania Parole Board, :
Respondent :
ORDER
NOW, February 25, 2022, Jessica A. Fiscus, Esquire’s Application to
Withdraw Appearance is GRANTED, the Pennsylvania Parole Board’s October 27,
2020 Order at issue in Docket No. 1235 C.D. 2020 is AFFIRMED, and the petition
for review filed at Docket No. 873 C.D. 2020 is DISMISSED as moot.
_____________________________________
RENÉE COHN JUBELIRER, Judge