R. Steward, Jr. v. PBPP ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Richard Steward, Jr., :
Petitioner :
:
v. : No. 684 C.D. 2017
: Submitted: December 1, 2017
Pennsylvania Board of :
Probation and Parole, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE J. WESLEY OLER, JR., Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: March 16, 2018
Richard Steward petitions for review of an adjudication of the
Pennsylvania Board of Probation and Parole (Board) denying his administrative
appeal. Steward’s appointed counsel, Huntingdon County Assistant Public
Defender Nicholas E. Newfield (Counsel), has filed an application for leave to
withdraw as counsel. For the reasons that follow, we grant Counsel’s request to
withdraw and affirm the Board’s decision.
On August 22, 2012, Steward was released on parole from the State
Correctional Institution (SCI) at Cresson to the State of Maryland to live with his
sister in Baltimore.1 At the time of his parole, his maximum sentence date was
March 27, 2015.
1
The Board transferred the supervision of Steward’s parole to Maryland authorities under the
Interstate Compact for the Supervision of Adult Offenders Act, 61 Pa. C.S. §§7111-7115. The
Interstate Compact is an agreement entered into by the states to govern the movement, supervision
and rehabilitation of parolees and probationers. 61 Pa. C.S. §7112.
In January 2015, while he was on parole, Steward was arrested by
Baltimore City Police for armed robbery and assault with a deadly weapon. Certified
Record at 119-120 (C.R. __). He was held without bail. Thereafter, on January 12,
2015, the Board issued a warrant to commit and detain Steward pending disposition
of the new criminal charges. When Steward reached his maximum sentence date of
March 27, 2015, the Board lifted its warrant and declared Steward delinquent for
control purposes.2 C.R. 94. Steward remained incarcerated in Maryland on the new
criminal charges.
On July 13, 2015, Steward was convicted in the Baltimore City Circuit
Court of conspiracy to commit armed robbery and sentenced to three years of
incarceration. Upon verifying the conviction, on January 5, 2016, the Board lodged
a detainer against Steward for a parole violation.
On November 22, 2016, Steward was released from Maryland’s
Department of Corrections and transported to SCI-Huntingdon. Steward requested
a parole revocation hearing before a panel, which was conducted on February 7,
2017.
At the hearing, Counsel raised the issue of the timeliness of Steward’s
revocation hearing, contending that the Board received verification of Steward’s
criminal conviction on September 28, 2015, and that Steward had been available to
the Board since July 2015. Parole Supervisor Linda Girard responded that Steward
2
An order declaring a parolee delinquent for control purposes is an administrative procedure,
“which simply mark[s a parolee’s] case to be reviewed after disposal of the new charges.” Jezick
v. Pennsylvania Board of Probation and Parole, 530 A.2d 1031, 1033 (Pa. Cmwlth. 1987); see
also Passaro v. Pennsylvania Board of Probation and Parole, 499 A.2d 725, 726 (Pa. Cmwlth.
1985). “[T]he Board retains jurisdiction to recommit an individual as a parole violator after the
expiration of the maximum term, so long as the crimes that le[d] to the conviction occurred while
the individual [wa]s on parole.” Miskovitch v. Pennsylvania Board of Probation and Parole, 77
A.3d 66, 73 (Pa. Cmwlth. 2013), appeal denied, 87 A.3d 322 (Pa. 2014) (table).
2
was not available to the Board until he was released by Maryland’s Department of
Corrections, which occurred on November 22, 2016.
On February 27, 2017, the Board recommitted Steward as a convicted
parole violator to serve his unexpired term of two years, seven months and five days.
C.R. 186. The Board recalculated Steward’s maximum sentence date from March
27, 2015, to June 27, 2019. Id.
On March 15, 2017, Steward, pro se, filed a petition for administrative
review, wherein he argued that his revocation hearing was untimely. Steward wrote:
On January 6, 2016, [a] Pennsylvania Parole Board detainer was
lodged on the petitioner[.] It is clear by the lodging of the said
detainer that even though the petitioner was sentenced back in
July of 2015, the Pennsylvania Board of Probation and Parole
was at the very least aware of the conviction and thus had official
verification as of January 6, 2016. It is reason for the 120-day
period under 37 Pa. Code §71.4 to begin to run on the date that
the Pennsylvania Board of Probation and Parole receive official
verification of a parolee’s conviction[.]
C.R. 197. On March 22, 2017, Counsel filed a petition for administrative review,
wherein he stated that “[t]he Board failed to conduct a timely revocation hearing….”
C.R. 192.
By decision mailed April 6, 2017, the Board denied Steward’s appeals.
The Board explained:
The Board recommitted [you] as a convicted parole violator for
the new convictions in the Baltimore City Circuit Court
(Maryland) at indictment number 115040011. While on parole,
[you] were arrested and detained by Maryland authorities on new
criminal charges. [You were] kept in Maryland’s custody prior
to and during the entire trial process. [You] pled guilty to the
new criminal charges on July 13, 2015, and received a new
prison sentence to be served with the Maryland Department of
3
Corrections. [You] subsequently remained in Maryland’s
custody until [you were] paroled from the new criminal charges
on November 22, 2016 to the Board[’s] detainer. [You were]
returned to a state correctional institution (“SCI”) on November
22, 2016.
The above facts reflect that [you were] confined outside the
jurisdiction of the Pennsylvania Department of Corrections at the
time of [your] conviction because [you] were in custody in
Maryland. As such, the Board was required to hold the
revocation hearing within 120 days of the date they [sic] received
official verification of [your] return to an SCI. 37 Pa. Code
§71.4(1)(i). In this case, [you were] returned to an SCI on
November 22, 2016[,] and the Board conducted the panel
revocation hearing 77 days later on February 7, 2017, which is
less than the 120 days allowed by the regulation. Thus, the Board
conducted a timely revocation hearing in this case.
The Board’s regulations provide that the scope of review of an
administrative appeal is limited to whether the decision is
supported by substantial evidence, an error of law has been
committed or there has been a violation of constitutional law. 37
Pa. Code §73.1(a)(2). The record in this matter establishes that
the Board decision mailed February 29, 2017 (recorded
02/27/2017) is supported by substantial evidence, does not
constitute an error of law, and does not violate your
constitutional rights.
Board Adjudication, 4/6/2017, at 1; C.R. 202. Steward then petitioned for this
Court’s review.3
3
This Court’s review determines whether the Parole Board’s adjudication is supported by
substantial evidence, whether an error of law has been committed, or whether constitutional rights
have been violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Moroz v.
Pennsylvania Board of Probation and Parole, 660 A.2d 131, 132 (Pa. Cmwlth. 1995).
4
In his petition for review, Steward states that “[t]he Board failed to
conduct a timely revocation hearing[.]”4 Petition for Review at 2. Steward contends
that he “became available to the Board upon his conviction in Maryland State
Court.” Steward’s Brief at 8. Essentially, Steward contends that the 120-day
deadline for holding his revocation should have begun on the date of his conviction
or, alternatively, the date the Board received official verification of his conviction.
It should not have begun on the date of his return to the Board’s custody. Counsel
has filed an application for leave to withdraw and a “no-merit” letter explaining why
there is no legal basis for Steward’s appeal.
In Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), our Supreme
Court set forth the technical requirements appointed counsel must meet in order to
withdraw from representation. Pursuant to Turner, once appointed counsel has
reviewed the case and determined that the petitioner’s claims are meritless,
counsel must then submit a “no-merit” letter to the trial court, or
brief on appeal to this Court, detailing the nature and extent of
counsel’s diligent review of the case, listing the issues which the
petitioner wants to have reviewed, explaining why and how those
issues lack merit, and requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the “no-
merit” letter/brief; (2) a copy of counsel’s petition to withdraw;
4
Additionally, in his petition for review, Steward states that “[t]he Board failed to properly credit
time served by [Steward] due solely to the Board’s detainer, and does not accurately reflect the
periods of time during which [Steward] was incarcerated under the Board’s jurisdiction.” Petition
for Review at 2. Steward has not addressed these arguments in his brief. Rule 2119(a) of the
Pennsylvania Rules of Appellate Procedure, PA. R.A.P. 2119(a), requires that the argument portion
of a brief be developed with pertinent discussion of the issues, including citations to relevant
authority. When parties fail to satisfy this requirement, a court cannot develop the argument for
them. See Skytop Meadow Community Association, Inc. v. Paige, 177 A.3d 377, 384 (Pa. Cmwlth.
2017). Because Steward did not address the time credit issue in the argument portion of his brief,
this Court cannot conduct meaningful appellate review; thus, this issue is waived.
5
and (3) a statement advising petitioner of the right to proceed pro
se or by new counsel.
Zerby v. Shanon, 964 A.2d 956, 960 (Pa. Cmwlth. 2009). If the requirements of
Turner are met, this Court must then consider the merits of the petitioner’s claim.
Id.
Here, Counsel has filed a no-merit letter that reviews Steward’s
criminal record and explains the basis for Counsel’s conclusion that Steward’s
appeal lacks merit. The record establishes that Counsel sent Steward a copy of this
no-merit letter; a copy of his petition to withdraw; and a letter advising Steward of
his right to obtain new counsel or proceed pro se. In short, Counsel has complied
with the requirements of Turner. Therefore, we turn to the merits of Steward’s
petition.
Steward contends that the Board failed to conduct a timely revocation
hearing. According to Steward, the date of his Maryland conviction and sentencing
control the start of the 120-day period to hold a revocation hearing.
When a parolee challenges the timeliness of a revocation hearing, the
Board has the burden of proving that the hearing was timely. Taylor v. Pennsylvania
Board of Probation and Parole, 931 A.2d 114, 116 (Pa. Cmwlth. 2007). If the Board
fails to meet its burden, “the appropriate remedy is dismissal of the parole violation
charges with prejudice.” Id.
Section 71.4(a)(1)(i) of the Board’s regulations sets forth the
procedures for holding a revocation hearing. It states, in relevant part, that:
(1) A revocation hearing shall be held within 120 days from
the date the Board received official verification of the plea
of guilty or nolo contendere or of the guilty verdict at the
highest trial court level except as follows:
6
(i) If a parolee is confined outside the
jurisdiction of the Department of
Corrections, such as confinement out-of-
State, confinement in a Federal correctional
institution or confinement in a county
correctional institution where the parolee has
not waived the right to a revocation hearing
by a panel in accordance with
Commonwealth ex rel. Rambeau v. Rundle, []
314 A.2d 842 ([Pa.] 1973), the revocation
hearing shall be held within 120 days of the
official verification of the return of the
parolee to a State correctional facility.
37 Pa. Code §71.4(1)(i) (emphasis added). Additionally, Section 71.5(a) and (c)(1)
of the Board’s regulations provide:
(a) If the parolee is in custody in another state, or in Federal
custody, the Board may lodge its detainer but other matters
may be deferred until the parolee has been returned to a
State correctional facility in this Commonwealth.
***
(c) In determining the period for conducting hearings under
this chapter, there shall be excluded from the period, a
delay in any stage of the proceedings which is directly or
indirectly attributable to one of the following:
(1) The unavailability of a parolee or counsel.
37 Pa. Code §71.5(a), (c)(1). Accordingly, under the Board’s regulations, where a
parolee is in the custody of another state or otherwise unavailable, the Board’s duty
to hold a revocation hearing is deferred until the parolee is returned to Pennsylvania,
regardless of when the Board received official verification of his new conviction.
7
See Brown v. Pennsylvania Board of Probation and Parole, (Pa. Cmwlth., No. 262
C.D. 2017, filed December 14, 2017), slip op. at 8 (unreported).5
Because Steward was incarcerated in Maryland, the 120-day period did
not begin to run until the Board received official verification of his return to an SCI.
37 Pa. Code §71.5(a). It is undisputed that Steward returned to SCI-Huntingdon on
November 22, 2016. Steward’s revocation hearing had to be held within 120 days,
i.e., by March 22, 2017. The Board held Steward’s revocation hearing on February
7, 2017, well within 120 days of his return to an SCI. Thus, Steward’s revocation
hearing was timely.
Steward contends that under Section 6138(a)(5.1) of the Prisons and
Parole Code (Parole Code), 61 Pa. C.S. §6138(a)(5.1),6 he must serve the remainder
of his original sentence first. Thus, Steward argues, he became available to the
Board on July 13, 2015, the date he was convicted in Maryland. Steward contends
that the revocation hearing should have been held within 120 days of September 28,
2015, the date on which the Board received official verification of his conviction.
In support of his contention, Steward relies upon this Court’s decisions in Baasit v.
Pennsylvania Board of Probation and Parole, 90 A.3d 74 (Pa. Cmwlth. 2014), and
Thomas v. Pennsylvania Board of Probation and Parole, (Pa. Cmwlth., No. 279
C.D. 2015, filed March 7, 2016) (unreported).
5
Pursuant to Commonwealth Court Internal Operating Procedure §414(a), 210 Pa. Code
§69.414(a), an unreported opinion of this Court may be cited for its persuasive value and not as
binding precedent.
6
Added by the Act of October 27, 2010, P.L. 931. This section states:
If the parolee is sentenced to serve a new term of total confinement by a Federal
court or by a court of another jurisdiction because of a verdict or plea under
paragraph (1), the parolee shall serve the balance of the original term before serving
the new term.
61 Pa. C.S. §6138(a)(5.1).
8
In Baasit, the parolee was arrested on federal drug charges, and the
Board lodged a detainer. As a result, the parolee was held on both the federal and
Board detainers from the date of his arrest until sentencing. The federal court’s
sentencing order stated that he was to serve his original state sentence prior to
serving his new federal sentence.
Following a revocation hearing, the Board recommitted the parolee as
a convicted parole violator and recalculated his parole violation maximum sentence
date, without giving him credit for any time he was incarcerated prior to his federal
conviction because he was not incarcerated solely on the Board’s detainer. On
appeal, this Court explained why the parolee’s pre-sentence confinement time
should be applied to his original state sentence:
Under [Section 6138(a)(5.1)] of the Parole Code and the terms
of [the parolee’s] new federal sentence, all of [the parolee’s]
original state sentence should be served before service of the new
federal sentence commences.
Our conclusion that credit here should be awarded according to
new subsection 5.1 of the Parole Code is also supported by the
primary jurisdiction doctrine…. Our conclusion is also
consistent with the Supreme Court’s more flexible approach to
credit, as set forth in Martin [v. Pennsylvania Board of Probation
and Parole, 840 A.2d 299 (Pa. 2003)].
Baasit, 90 A.3d at 82-83.
In Thomas, the parolee was also arrested on new federal charges. The
Board lodged a detainer. As a result, the parolee was detained on both the federal
charges and the Board’s detainer. He was convicted, but, unlike the parolee in
Baasit, first served his federal sentence before the backtime on his original sentence.
On appeal to this Court, the parolee argued that the Board failed to
comply with Section 6138(a)(5.1) of the Parole Code, which required that he serve
9
his original state sentence before his federal sentence. We rejected this argument,
explaining that Section 6138(a)(5.1) was not yet in effect at the time of the parolee’s
sentencing. The parolee’s release from federal custody was the first date he was
available to Pennsylvania authorities, which was the date used by the Board to
calculate his maximum sentence date.
Steward’s reliance on Baasit and Thomas is misplaced. Those cases
relate to the allocation of pre-sentence credit and do not address the timeliness of the
Board’s revocation hearing.7
Recently, this Court considered an argument similar to Steward’s in
Brown, No. 262 C.D. 2017, and Santosusso v. Pennsylvania Board of Probation and
Parole, (Pa. Cmwlth., No. 574 C.D. 2017, filed January 30, 2018) (unreported). In
Brown, a parolee remained in federal custody from the time of his arrest until the
conclusion of a federal sentence. He argued that under Section 6138(a)(5.1) of the
Parole Code, the Board was required to conduct a revocation hearing within 120
days of the date of official verification of his federal sentence regardless of whether
he remained in federal custody. This Court rejected that argument, explaining:
Brown does not dispute that he was in federal custody before and
after his federal sentencing and when the Board received official
verification of his conviction. His argument presumes that the
Board had the ability to obtain him from federal custody in order
to hold a revocation hearing and recommit him as a [parole
violator] to serve the remainder of his original sentence in
accordance with Section 6138(a)(5.1). However, the Board
asserts that it does not have the ability to acquire a Pennsylvania
parolee from the custody of another jurisdiction in order to
recommit the parolee to serve the remainder of the original
7
Notably, in Smith v. Pennsylvania Supreme Court, 171 A.3d 759, 769 (Pa. 2017), the
Pennsylvania Supreme Court expressed disapproval of Baasit, stating that “the Baasit court
improperly interpreted Section 6138(a)(5.1)….”
10
sentence…. Thus, ... Brown was already unavailable to the
Board when he pled guilty and was sentenced, as well as when it
received official verification of his conviction. The Board could
not have acquired Brown until after his release from federal
custody.... Under these circumstances, we are not persuaded by
Brown’s argument that Section 71.4(1)(i) of the regulations is
inapplicable based on Section 6138(a)(5.1) [of the Parole
Code]....
Brown, slip op. at 11-12 (emphasis in original). Similarly, in Santosusso, this Court
stated:
[W]e are unaware of any authority supporting Santosusso’s
implicit supposition that the Board has the power to pluck a
Pennsylvania parolee from a federal prison for the purpose of
recommitting him as a parole violator. We find the reasoning in
Brown to be persuasive with respect to Santosusso’s argument
that the Board failed to hold a timely revocation hearing in this
case.
Santosusso, slip op. at 6.
Steward has not cited any legal authority to support his proposition that
the Board has the power to take custody of a parolee incarcerated in a Maryland state
prison for the purpose of recommitting him as a convicted parole violator. We are
not persuaded by his argument that Section 6138(a)(5.1) of the Parole Code made
him available to the Board prior to his release from Maryland’s Department of
Corrections and return to SCI-Huntingdon on November 22, 2016.
For these reasons, we conclude that Counsel has fulfilled the
requirements of Turner and our independent review of the record confirms that
Steward’s appeal lacks merit. Accordingly, we grant Counsel’s application for leave
to withdraw and affirm the Board’s decision.
______________________________________
MARY HANNAH LEAVITT, President Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Richard Steward, Jr., :
Petitioner :
:
v. : No. 684 C.D. 2017
:
Pennsylvania Board of :
Probation and Parole, :
Respondent :
ORDER
AND NOW, this 16th day of March, 2018, the order of the Pennsylvania
Board of Probation and Parole, dated April 6, 2017, is AFFIRMED and the
application for leave to withdraw as counsel filed by Nicholas E. Newfield, Esquire,
is GRANTED.
______________________________________
MARY HANNAH LEAVITT, President Judge