J. Almodovar v. PA BPP ( 2015 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joseph Almodovar, :
:
Petitioner :
:
v. : No. 390 C.D. 2015
:
Pennsylvania Board of Probation : Submitted: September 25, 2015
and Parole, :
:
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER FILED: December 18, 2015
Joseph Almodovar petitions this Court for review of an Order of the
Pennsylvania Board of Probation and Parole (Board) denying his request for
administrative relief. On appeal, Almodovar argues that the Board did not credit
his original sentence with all the time to which he is entitled. Discerning no error,
we affirm.
Almodovar was convicted of criminal charges in Philadelphia County on
July 22, 2009 and sentenced to three to six years’ incarceration. His original
maximum sentence date was October 15, 2014. Almodovar was released on parole
on September 30, 2012. After violating the terms of his parole, on January 14,
2013, Almodovar was recommitted as a technical parole violator to serve six
months in a state correctional institution; his parole violation maximum date
remained October 15, 2014.
Almodovar was reparoled and released from incarceration on July 14, 2013.
On August 30, 2013, he was arrested for criminal conspiracy, manufacture/delivery
or possession with intent to deliver a controlled substance, and possession of a
controlled substance. Although monetary bail was set, Almodovar did not post
bail. The Board lodged a warrant to commit and detain Almodovar on August 31,
2013. On September 26, 2013, the Court of Common Pleas of Philadelphia
County released Almodovar on his own recognizance. On March 11, 2014,
Almodovar pled guilty to the aforementioned charges in Philadelphia County and
was sentenced to serve 11.5 to 23 months. Because Almodovar was released on
his own recognizance, between September 26, 2013, and March 11, 2014, he was
being held solely on the Board’s warrant.
By Notice of Decision mailed June 26, 2014, the Board recommitted
Almodovar as “a convicted parole violator to serve [his] unexpired term, when
available pending parole from (or completion of) [his] Philadelphia County
sentence.” (Notice of Board Decision, June 26, 2014, C.R. at 71.) On October 20,
2014, after serving his Philadelphia County sentence, Almodovar was returned to
SCI-Frackville to serve the time on his original sentence. By Notice of Decision
mailed January 12, 2015, the Board recalculated Almodovar’s parole violation
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maximum date from October 15, 2014 to November 22, 2015. Almodovar filed a
timely Petition for Administrative Relief (Petition), challenging the Board’s
recalculation of his parole violation maximum date.
By Order mailed February 18, 2015, the Board denied Almodovar’s Petition.
The Board explained that when Almodovar was reparoled on July 14, 2013, his
maximum sentence date was October 15, 2014; therefore, he had 458 days
remaining on his original sentence. However, the Board further explained that: (1)
as a convicted parole violator, Almodovar forfeited credit for the 106 days he spent
at liberty on parole from September 30, 2012 to January 14, 2013; (2) adding 106
days to 458 resulted in a total of 564 days remaining; (3) because the Board’s
warrant was the sole reason for Almodovar’s incarceration between September 26,
2013 and March 11, 2014 (166 days), he was entitled to credit for that period; (4)
subtracting 166 from 564 days left 398 days remaining to be served on
Almodovar’s sentence; and (5) adding 398 days to October 20, 2014, which is the
date that Almodovar became available to serve his original sentence, yields a
parole violation maximum date of November 22, 2015. (Board Order, C.R. at 106-
07.) Almodovar now petitions this Court for review of the Board’s Order.1
On appeal, Almodovar argues that the Board erroneously recalculated his
parole violation maximum date as November 22, 2015. Almodovar contends that
he is entitled to credit from January 14, 2013, the date he was recommitted as a
1
“Our scope of review of the Board’s decision denying administrative relief is limited to
determining whether necessary findings of fact are supported by substantial evidence, an error of
law was committed, or constitutional rights have been violated.” Yates v. Pennsylvania Board of
Probation and Parole, 48 A.3d 496, 498 n.2 (Pa. Cmwlth. 2012).
3
technical parole violator, until August 30, 2013, the date he was arrested and
unable to post bail on the new charges in Philadelphia County. In other words,
Almodovar argues that he is entitled to credit of 228 days, which when subtracted
from the recalculated parole violation maximum date of November 22, 2015,
results in a parole violation maximum date of April 8, 2015.
In response, the Board avers that Almodovar’s argument mischaracterizes
the record. First, the Board maintains that Almodovar was, in fact, given credit for
the time he was incarcerated as a technical parole violator between January 14,
2013, and July 14, 2013. Second, the Board maintains that Almodovar is not
entitled to credit for the 47-day period between his reparole on July 14, 2013 and
his arrest on August 30, 2013 as he was not incarcerated or detained during this
period. The Board contends that the decision to deny an offender credit for time at
liberty on parole is within the sound discretion of the Board. Therefore, the Board
argues, it did not err in recalculating the new parole violation maximum date as
November 22, 2015.
Where a parolee violates the terms or conditions of parole, the Board may
order the parolee to be recommitted as a technical violator. Section 6138(c) of the
Prisons and Parole Code (Parole Code), 61 Pa. C.S. § 6138(c). In such
circumstances, the parolee receives credit for time served in confinement as a
technical violator, as well as for “time served on parole in good standing but with
no credit for delinquent time.” 61 Pa. C.S. § 6138(c)(2). However, where a
parolee is recommitted as a convicted parole violator, the Board may, at its
discretion, refuse to provide credit for time spent at liberty on parole. Section
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6138(a)(2.1) of the Parole Code, 61 Pa. C.S. § 6138(a)(2.1).2 Furthermore, a
convicted parole violator who was previously recommitted as a technical violator
may forfeit time credited toward an original sentence while at liberty on parole.
Armbruster v. Pennsylvania Board of Probation and Parole, 919 A.2d 348, 351 (Pa.
Cmwlth. 2007) (stating that “upon recommitment as a convicted parole violator, in
addition to losing all time spent at liberty during the current parole, a parolee will
also forfeit all credit received for time spent in good standing while on parole prior
to his previous recommitment as a technical parole violator”); see also Houser v.
Pennsylvania Board of Probation and Parole, 682 A.2d 1365, 1368 (Pa. Cmwlth.
1996) (stating that a convicted parole violator “do[es] not receive credit for time
served while at liberty on parole in good standing prior to technical violations
when recommitted as a convicted parole violator[]”).
Here, Almodovar was credited with all the time to which he is entitled.
Almodovar’s argument that the Board erred in failing to credit him with time
2
Section 6138(a)(2.1) provides:
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)
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served between January 14, 2013 and August 30, 2013 belies the record and
misstates the law. First, despite his assertion to the contrary, Almodovar received
credit for the time he spent in confinement as a technical parole violator between
January 14, 2013 and July 14, 2013. Upon his reparole on July 14, 2013,
Almodovar’s parole violation maximum date was October 15, 2014 – the same
date as it was when he was originally paroled on September 30, 2012. Second,
although Almodovar is correct that he did not receive credit for time spent at
liberty on parole between July 14, 2013 and August 30, 2013, his argument that he
is entitled to credit for that period is not persuasive. As a convicted parole violator,
Almodovar is not entitled to credit for time served at liberty on parole. 61 Pa. C.S.
§ 6138(a)(2.1). Therefore, the Board did not err in refusing to provide Almodovar
credit for the 47-day period between July 14, 2013 and August 30, 2013.
For the foregoing reasons, the Board’s Order denying Almodovar’s Petition
is affirmed.
________________________________
RENÉE COHN JUBELIRER, Judge
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joseph Almodovar, :
:
Petitioner :
:
v. : No. 390 C.D. 2015
:
Pennsylvania Board of Probation :
and Parole, :
:
Respondent :
ORDER
NOW, December 18, 2015, the Order of the Pennsylvania Board of
Probation and Parole, entered in the above-captioned matter, is hereby affirmed.
________________________________
RENÉE COHN JUBELIRER, Judge