M. Hoousendove v. PA BPP ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mark Hoousendove, :
Petitioner :
:
v. : No. 1443 C.D. 2015
: Submitted: November 25, 2015
Pennsylvania Board of Probation :
and Parole, :
Respondent :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge1
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
PRESIDENT JUDGE PELLEGRINI FILED: January 5, 2016
Mark Hoousendove petitions for review of the decision of the
Pennsylvania Board of Probation and Parole (Board) denying his petition for
administrative review of the Board’s order recommitting him to a state correctional
institution (SCI) as a technical and convicted parole violator to serve a total of 6
months backtime. We affirm.
1
This matter was assigned to this panel before January 1, 2016, when President Judge
Pellegrini assumed the status of senior judge.
In 2013, Hoousendove was initially sentenced to an 11-month, 8-day
to 2-year, 6-month term of imprisonment after his probation was revoked for his
retail theft conviction. The original minimum date for this sentence was May 13,
2014, and the maximum date was December 5, 2015. (Supplemental Certified
Record (SCR) 1).
In June 2014, the Board released Hoousendove on parole to answer a
Bergen County, New Jersey detainer and he was then moved to Monmouth
County, New Jersey, to answer a case for failure to pay a fine. (SCR 11). He was
released from the Monmouth County Jail on October 31, 2014, and was declared
delinquent by the Board effective November 1, 2014, after he failed to report to the
Joseph E. Coleman Center in Philadelphia. (Id. 10, 11, 36).
In January 2015, Hoousendove was arrested by the Baltimore County,
Maryland Police for theft and possession charges and the Board issued a detainer.
In February 2015, Hoousendove waived his right to a jury trial and was adjudged
guilty of the theft charge by the District Court of Maryland for Baltimore County
and sentenced to serve 18 months imprisonment that was suspended and to be
served as unsupervised probation; the possession charge was nolle prossed. (SCR
18-21).
Later that month, Hoousendove was returned to Pennsylvania in
parole violator pending status. In April 2015, the Board provided Hoousendove
with a Notice of Charges and Hearing on his parole violations; he waived his right
to counsel and to a revocation hearing; he admitted that he was convicted of theft
2
in a court of record, the District Court of Maryland for Baltimore County, and that
the offense was punishable by imprisonment; and he admitted to the violation of
the technical conditions of his parole. (SCR 23-27, 29). Relying on his
admissions, in May 2015, the Board recommitted Hoousendove as a technical and
convicted parole violator to serve concurrent terms of 6 months backtime. (Id. 42).
The Board recalculated his parole violation maximum date to July 27, 2016. (Id.
42-43, 46-47).
In June 2015, Hoousendove submitted a pro se petition for
administrative relief to the Board alleging that his maximum date should be
February 27, 2016, not July 27, 2016, because he was only at liberty for 83 days
from November 1, 2014, after he was released in New Jersey to January 23, 2015,
when he was arrested in Maryland. (SCR 48-51). In July 2015, the Board denied
Hoousendove’s petition for relief explaining:
When you were released on parole from your
original sentence on June 2, 2014, your maximum
sentence date was December 5, 2015, which left 551 days
remaining to serve on your original sentence. While on
parole, you were arrested and placed into SCI-Camp Hill
on February 13, 2015 for possible parole violation. The
Board lodged its warrant to commit and detain you on
January 23, 2015 due [to] violations of your parole. You
were arrested on January 23, 2015 by the Baltimore
County Police Department and convicted out of state on
February 9, 2015 and placed in SCI-Camp Hill in “parole
violator pending” status. The Board decision recorded
May 14, 2015 recommitted you as a convicted parole
violator.
With the above facts in mind, as a convicted parole
violator you automatically forfeited credit for all of the
time that you spent on parole. See 61 Pa. C.S.
3
§6138(a)(2).[2] You are not entitled to a back time served
credit, (i.e. time that you were held solely on the Board’s
warrant prior to your recommitment order) because you
were never incarcerated solely on the Board’s warrant.
You received back time credit from January 23, 2015
(date Board lodged its detainer) to February 9, 2015 (date
of conviction) or 17 days. You received credit for this
period because the Board’s detainer was the sole source
of your incarceration. Applying 17 days to 551 days
yields a total of 534 days owed (or 1 year, 5 months, 16
days). You became available to begin serving your back
time on February 9, 2015 when you were convicted and
released by Maryland to Pennsylvania authorities.
Adding 534 days to February 9, 2015 yields a new parole
violation maximum date of July 27, 2016. Therefore,
your parole violation maximum sentence date is correct.
(SCR 52) (emphasis in original and citation omitted).
2
Section 6138(a) of the Prisons and Parole Code states, in relevant part:
(a) Convicted violators.—
(1) A parolee under the jurisdiction of the Board released
from a correctional facility who, during the period of parole or
while delinquent on parole, commits a crime punishable by
imprisonment, for which the parolee is convicted or found guilty
by a judge … at any time thereafter in a court of record, may at the
discretion of the board be recommitted as a convicted parole
violator.
(2) If the parolee’s recommitment is so ordered, the parolee
shall be reentered to serve the remainder of the term which the
parolee would have been compelled to serve had the parole not
been granted and shall be given no credit for the time at liberty on
parole.
61 Pa. C.S. §6138(a)(1), (2).
4
In this appeal,3 Hoousendove argues that the Board erred in
recommitting him as a convicted parole violator because the District Court of
Maryland for Baltimore County in which he was convicted and sentenced for the
theft offense is not a “court of record” as required by Section 6138(a)(1) of the
Prisons and Parole Code for such a recommitment.
However, as noted above, on the form that he signed waiving his right
to a revocation hearing and his right to counsel, Hoousendove specifically admitted
that “while I was on parole/delinquent on parole, I have been convicted of the
offense(s) in a court of record and the offense(s) was punishable by
imprisonment.” (SCR 24). As a result, by his own admission, Hoousendove’s
theft conviction in the District Court of Maryland for Baltimore County meets the
requirements for recommitment as a convicted parole violator under Section
6138(a)(1) of the Prisons and Parole Code and provides substantial evidence to
support the Board’s revocation order. Heckrote v. Pennsylvania Board of
Probation and Parole, 465 A.2d 118, 119 (Pa. Cmwlth. 1983). See also (SCR 18-
21); Chapman v. Pennsylvania Board of Probation and Parole, 484 A.2d 413 (Pa.
Cmwlth. 1984) (holding that certified copies of convictions are sufficient by
themselves to support recommitment as a convicted and technical parole violator).
3
Our scope of review is limited to determining whether constitutional rights were
violated, whether the adjudication was in accordance with law, or whether the necessary findings
of fact were supported by substantial evidence. Section 704 of the Administrative Agency Law,
2 Pa. C.S. §704; Reavis v. Pennsylvania Board of Probation and Parole, 909 A.2d 28 (Pa.
Cmwlth. 2006).
5
Additionally, the District Court of Maryland for Baltimore County is a
“court of record” pursuant to the Maryland Constitution and statutes. See Md.
Const. art. IV, §1 (“The Judicial power of the State is vested in a Court of Appeals,
such intermediate courts of appeal as the General Assembly may create by law,
Circuit Court, Orphans’ Courts, and a District Court. These shall be Courts of
record, and each shall have a seal to be used in the authentication of all process
issuing from it.”); Md. Code Courts and Judicial Proceedings §1-601 (“The District
Court of Maryland is established. It is the court of limited jurisdiction created by
Article IV, §§1 and 41A through 41-I of the Maryland Constitution. It is a court of
record and shall have a seal.”).
Moreover, the case law and statute cited by Hoousendove do not
support his claim of Board error. In Chesson v. Pennsylvania Board of Probation
and Parole, 47 A.3d 875, 880 (Pa. Cmwlth. 2012), this Court explained:
Chapter 4 [of the Rules of Criminal Procedure] provides
that summary offenses, whether brought by citation or
complaint, are filed with an “issuing authority.”
Pa. R.Crim. P. 406; Pa. R.Crim. P. 420. The summary
offense charged is then either disposed of by a guilty plea
or by a trial before the “issuing authority.” Pa. R.Crim.
P. 424; Pa. R.Crim. P. 454. “Issuing Authority” is
defined under the Rules as “any public official having the
power and authority of a magistrate, a Philadelphia
arraignment court magistrate, or a magisterial district
judge.” Pa. R.Crim. P. 103.
As a result, this Court held that because Pa. R.Crim. P. 1002(A)
provides that “all criminal proceedings in which a person is accused only of …
non-traffic summary offenses … shall proceed as provided in Chapter 4 of the
6
Rules of Criminal Procedure,” “a conviction for a summary offense before the
Municipal Court of Philadelphia County is the functional equivalent of a
conviction before a magisterial district judge. As such, a conviction for a summary
offense before the Municipal Court of Philadelphia County is not a conviction in a
court of record for the purposes of Section 6138(a)(1) of the Code.” Id.
In contrast, Chapter 4 of the Rules and Pa. R.Crim. P. 1002(A) do not
apply to the conviction underlying the instant parole revocation because
Hoousendove was not convicted by the District Court of Maryland for Baltimore
County for a “non-traffic summary offense” under the relevant Pennsylvania Rules
and the relevant statutes. See Section 106(c) of the Pennsylvania Crimes Code, 18
Pa. C.S. §106(c) (“An offense defined by this title constitutes a summary offense if
… it is so designated in this title, in a statute other than this title; or … if a person
convicted thereof may not be sentenced to a term of imprisonment, the maximum
of which is not more than 90 days.”); Section 3903(b) of the Pennsylvania Crimes
Code, 18 Pa. C.S. §3903(b) (“Theft not [designated as a felony], constitutes a
misdemeanor of the first degree, except that if the property was not taken from the
person or by threat, or in breach of fiduciary obligation, and: … the amount
involved was $50 or more but less than $200 the offense constitutes a
misdemeanor of the second degree; or … the amount involved was less than $50
the offense constitutes a misdemeanor of the third degree.”). See also (SCR at 20)
(“CHARGE: 001 … CR 7104 18 M &/or $500.00 THEFT: LESS $1,000
VALUE”); Md. Code Crim. Law §7-104(g)(2) (“[A] person convicted of theft of
property or services with a value of less than $1,000, is guilty of a misdemeanor
7
and … is subject to imprisonment not exceeding 18 months or a fine not exceeding
$500 or both….”).
Likewise, Hoousendove’s citation to Section 1515 of the Judicial
Code, 42 Pa. C.S. §1515, relating to the jurisdiction of Pennsylvania magisterial
district judges, does not support his claim of error. Section 1515(a)(6)(i) of the
Judicial Code provides, in relevant part:
(a) Jurisdiction.—Except as prescribed by general rule
… district justices shall, under procedures prescribed by
general rule, have jurisdiction of all of the following
matters:
* * *
(6)(i) Offenses under Title 18 (crimes and
offenses) … which are classified as misdemeanors of the
third degree, if the following criteria are met:
(A) The misdemeanor is not the result of a
reduced charge.
(B) Any personal injury or property damage
is less than $500.
(C) The defendant pleads guilty.
(D) The defendant is not subject to the
provisions of [the Juvenile Act, 42 Pa. C.S. §§6301-
6375].
42 Pa. C.S. §1515(a)(6)(i). In turn, Section 106(b)(8) of the Crimes Code provides
that “[a] crime is a misdemeanor of the third degree if it is so designated in this
8
title or if a person convicted thereof may be sentenced to a term of imprisonment,
the maximum of which is not more than one year.” 18 Pa. C.S. §106(b)(8).
It is undisputed that Hoousendove pleaded not guilty to the
misdemeanor theft offense; waived his right to a jury trial and was tried for that
crime by a judge of the District Court of Maryland for Baltimore County; was
found guilty by that court of the misdemeanor theft offense; and was sentenced by
that court to an 18-month term of imprisonment that was suspended and directed to
be served as unsupervised probation. (SCR 18-21). As outlined above, such a trial
and sentence are not within the jurisdiction of a Pennsylvania magisterial district
judge under Section 1515(a)(6)(i) of the Judicial Code. As a result,
Hoousendove’s reliance on Chesson and Section 1515 of the Judicial Code are
misplaced because they are patently inapplicable to the charges or sentence
underlying the revocation of his parole as a convicted parole violator.
Accordingly, the Board’s order is affirmed.
___________________________________
DAN PELLEGRINI, President Judge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mark Hoousendove, :
Petitioner :
:
v. : No. 1443 C.D. 2015
:
Pennsylvania Board of Probation :
and Parole, :
Respondent :
ORDER
AND NOW, this 5th day of January, 2016, the order of the Pennsylvania
Board of Probation and Parole bearing a mailing date of July 13, 2015, is affirmed.
___________________________________
DAN PELLEGRINI, President Judge