T. Triggs v. PPB ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Taj Triggs, :
Petitioner :
:
v. : No. 218 C.D. 2022
: Submitted: November 23, 2022
Pennsylvania Parole Board, :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE DUMAS FILED: February 17, 2023
Taj Triggs (Triggs) petitions for review of a decision of the
Pennsylvania Parole Board (Board), mailed March 4, 2022, denying his request for
administrative relief. Additionally, Kent D. Watkins, Esq. (Counsel), Triggs’ court-
appointed counsel, has filed an application to withdraw1 asserting the appeal lacks
merit. We grant Counsel’s application to withdraw and affirm the Board’s order.
I. BACKGROUND
On September 15, 2010, the trial court sentenced Triggs to 7 to 14 years
of incarceration for robbery with threat of serious bodily injury.2 At the time, the
controlling minimum date was November 5, 2016, and the maximum date was
November 5, 2023. See Sent. Status Summary, 10/7/10, at 1. On July 3, 2017,
Triggs was paroled. See Order to Release, 4/12/17, at 1.
1
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550
A.2d 213 (Pa. Super. 1988) (en banc).
2
18 Pa. C.S. § 3701(a)(1)(ii).
Following alleged technical violations, Triggs was taken into custody
on August 21, 2017. See Supervision History at 1-2. Triggs successfully completed
a program and was released September 21, 2017. See id. Triggs was again detained
on a Board detainer from August 14, 2018, until October 11, 2018. Over the next
several months, Triggs incurred new criminal charges at several criminal dockets.
The new charges led to his arrest and detention as outlined below.3
On May 3, 2018, Delaware County authorities arrested Triggs for
driving under the influence (DUI) at Docket No. CP-23-CR-4124-2019. Triggs
posted bail and was released on November 16, 2018. On December 12, 2018, Triggs
absconded and was declared delinquent. See Admin. Action, 12/13/18. On February
21, 2019, Triggs was arrested on the Board’s detainer. Triggs was also arrested, at
Docket No. CP-23-CR-3217-2019, on charges relating to drug possession. He did
not post bail. On May 28, 2019, Triggs was arraigned at Docket No. CP-23-CR-
4193-2019 on firearms charges. Again, Triggs did not post bail.
Triggs was sentenced on his new charges as follows. On April 5, 2021,
at Docket No. 4124-2019, Triggs was convicted and sentenced to 72 hours to 6
months of incarceration for 1 charge of DUI, tier three.4 See Sentencing Order,
4/5/21, at 1. He received credit for time served between February 19, 2020, and
February 21, 2020. Id. On May 21, 2021, at Docket No. 3127-2019, Triggs was
convicted of possession of a controlled substance and possession of drug
paraphernalia and received a sentence of one year of probation consecutive to his
3
During this period, the Board found probable cause was established as to multiple
technical violations of Triggs’ parole but did not proceed with a revocation hearing. See Admin.
Action, 8/31/18. Thereafter, the Board recommitted Triggs as a technical parole violator and
ordered him detained pending disposition of his outstanding criminal charges. See Not. of Bd.
Decision, 3/18/19, at 1.
4
75 Pa. C.S. § 3802(c).
2
other charges.5 See Not. of Charges and Hr’g, 8/16/21, at 1. That same day, at
Docket No. 4193-2019, he was convicted of possession of a firearm prohibited6 and
sentenced to two and one-half to five years of incarceration. See id.
The Board issued notice of the convictions and informed Triggs of his
rights to a hearing and counsel. See Not. of Charges and Hr’g, 8/16/21, at 1. Triggs
waived those rights and admitted to the violations of parole. See Waiver of Violation
Hr’g & Counsel/Admission Form, 8/16/21, at 1. Thereafter, the Board recommitted
Triggs as a convicted parole violator (CPV). Based on the above, the Board awarded
Triggs 185 days of credit toward his original sentence and calculated his new
maximum date to be August 3, 2027. See Order to Recommit, 10/20/21, at 1.
Triggs pro se and timely sought administrative relief and the
appointment of counsel. Admin. Remedies Form, 11/10/21. On November 19,
2021, Counsel entered his appearance. Ultimately, the Board affirmed Triggs’
recommitment and recalculation of his maximum date. See Bd.’s Response, 3/4/22.
With the benefit of Counsel, Triggs timely appealed to this Court, and on May 31,
2022, Counsel filed a Turner/Finley letter and application to withdraw as counsel.
II. TURNER/FINLEY REQUIREMENTS
We first determine whether Counsel’s application to withdraw
complies with the Turner/Finley requirements. A Turner/Finley letter must detail
“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.” Zerby v. Shanon, 964 A.2d 956,
960 (Pa. Cmwlth. 2009) (citation omitted). Further, counsel must “also send to the
5
18 Pa. C.S. § 6105; Section 13(a)(16), (32) of The Controlled Substance, Drug, Device
and Cosmetic Act, Act of April 4, 1972, P.L. 223, as amended, 35 P.S. § 780-113(a)(16), (32)
6
18 Pa. C.S. § 6105(a)(1).
3
petitioner: (1) a copy of the ‘no-merit’ letter/brief; (2) a copy of counsel’s petition
to withdraw; and (3) a statement advising petitioner of the right to proceed pro se or
by new counsel.” Id. (citation omitted). If counsel satisfies these technical
requirements, we must then conduct our own review of the merits of the case. Id. If
we agree that the claims are without merit, we will permit counsel to withdraw and
deny relief. Id.
Upon review, we conclude Counsel has satisfied the technical
requirements of Turner/Finley. Counsel discussed the nature of his review,
identified the issues raised on appeal, and explained why those issues lack merit.
Counsel’s Br. at 4-10. Counsel sent a copy of the brief and application to withdraw
to Triggs and advised him of his right to proceed pro se or with new counsel. See
Counsel’s Br. at 10-11; Appl. to Withdraw as Counsel, 5/31/22, at 1-3; Am.
Certificate of Service, 6/1/22. Triggs has not retained new counsel, nor has he filed
a pro se response. Accordingly, we review the merits of Triggs’ appeal.
III. ISSUES
Counsel has identified a number of issues raised in Triggs’ pro se
appeal and which the Board addressed in its opinion. First, Triggs contends that the
Board committed an error of law by altering a judicially imposed sentence, which
he contends it does not have the authority to change. Counsel’s Br. at 7. In this
argument, he also contends that the recalculation amounted to a violation of the
double jeopardy clause. See Admin. Remedies Form at 1-2 (unpaginated) (citing
U.S. Const. amend. V; Pa. Const. art. I, § 10). Second, Triggs contends that the
Board abused its discretion by failing to grant him credit for time spent in good
standing at liberty on parole. See Counsel’s Br. at 8. Finally, Triggs contends that
due to these errors, as well as the failure to award him credit for time spent in county
4
prison, the recalculation of his maximum sentence date was also incorrect. See id.
at 10-11.
IV. DISCUSSION7
A. Maximum Sentence Date
First, Triggs contends that the Board altered a judicially imposed
sentence in contravention of the law, specifically by “extend[ing]” his “maximum
date.”8 See Counsel’s Br. at 7; Admin. Remedies Form at 3-4. This claim lacks
merit.
Section 6138(a)(1) of the Prisons and Parole Code (Parole Code)9
grants the Board the authority to recommit parolees who commit and are convicted
of crimes punishable by imprisonment while on parole. See 61 Pa. C.S. § 6138(a)(1).
If recommitment is ordered, the parolee must serve the remainder of the original
term as if parole had not been granted. See 61 Pa. C.S. § 6138(a)(2).
The Board’s recalculation of a CPV’s maximum sentence is not a
modification of the sentence itself, but rather, a requirement that he serve his entire
original sentence. See Young v. v. Bd. of Prob. & Parole, 409 A.2d 843, 901 (Pa.
1979). Pennsylvania courts have also rejected the argument that the denial of street
7
Our standard of review is limited to determining whether the Board committed an error
of law, whether its findings are supported by substantial evidence, and whether its decision
violated constitutional rights. Fisher v. Pa. Bd. of Prob. & Parole, 62 A.3d 1073, 1075 n.1 (Pa.
Cmwlth. 2013); see also Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704. The
Board did not file a brief.
8
In his Administrative Remedies Form, Triggs also contended that his new calculated
maximum release date of August 3, 2027, was beyond the range allowed by statute. See Admin.
Remedies Form at 3-4 (citing 37 Pa. Code § 75.4). However, the section of the Pennsylvania Code
cited by Triggs discusses presumptive ranges for recommitment following technical parole
violations, which is inapposite. In the instant case, the pertinent issue is the manner in which the
Board granted or did not grant Triggs credit for street time following three sets of new criminal
charges and after his recommitment as a CPV.
9
61 Pa. C.S. §§ 101-7301.
5
time constitutes a sentence enhancement or violation of double jeopardy. See id. at
847 n.8. Rather, in recalculating the maximum sentence date, the Board withdraws
from a CPV credit for the time he was at liberty on parole. See id. at 846 n.5 (citation
omitted). Accordingly, Triggs’ claim that the Board erred by altering a judicially
imposed sentence lacks merit. Zerby, 964 A.2d at 960.
B. Time Credit10
Second, Triggs contends that the Board erred by failing to credit him
for time spent in good standing at liberty on parole. See Counsel’s Br. at 8; see also
Bd.’s Response at 1-2. He contends that this time should have counted towards the
recalculation of his maximum sentence. See id.In its discretion, the Board may award credit to a CPV for time spent at
liberty on parole, unless the crime is a crime of violence or a specifically enumerated
crime relating to registration of sex offenders. See Pittman v. Pa. Bd. of Prob. &
Parole, 159 A.3d 466, 473 (Pa. 2017) (emphasis added); 61 Pa. C.S. §
6138(a)(2.1)(i)-(ii). “The Board must articulate the basis for its decision to grant or
deny a CPV credit for time served at liberty on parole.” Pittman, 159 A.3d at 474.
In Triggs’ case, the Board denied Triggs credit because he had
absconded while under supervision and because his new conviction involved
possession of a weapon and charges that were “serious and assaultive.” See Bd.’s
Response at 1-2; see Revocation Hr’g Report, 8/23/21, at 1-2; see Not. of Bd.
Decision, 10/20/21. Here, the Board had the statutory authority to exercise its
10
Both the Board and Counsel characterize Triggs’ second issue as a challenge to the
Board’s failure to give him credit for time spent in good standing at liberty on parole. See
Counsel’s Br. at 8; see also Bd.’s Response at 1-2. Thus, we address the issue here. However,
Triggs’ administrative remedies form states that “from February 21, 2019 until now I have been
incarcerated so I had no time at liberty to be taken.” See Admin. Remedies Form at 1. Rather than
challenging credit for time spent at liberty on parole, Triggs claimed he should have been given
credit for “26 months” spent in a county prison. See id. We therefore address that issue, infra.
6
discretion and deny Triggs credit for time served at liberty on parole and articulated
its reason for that denial. See Pittman, 159 A.3d at 473-74; 61 Pa. C.S. §
6138(a)(2.1). Accordingly, Triggs’ claim that the Board erred in denying him credit
for time spent at liberty on parole is without merit. Zerby, 964 A.2d at 960.
C. Recalculation of Maximum Date - Generally
Finally, Triggs takes issue, generally, with the calculation of his
maximum release date and the credit for time served. See Counsel’s Br. at 8; Bd.’s
Response at 1-2. He argues that the recalculated date was beyond his maximum
sentence and contends that 26 months of time spent in county prison should have
been applied to his original sentence. See Counsel’s Br. at 7-10; see Admin.
Remedies Form at 3-4. This claim is without merit.
We note four principles relevant to the disposition of this issue. First,
“if a defendant is being held in custody solely because of a detainer lodged by the
Board and has otherwise met the requirements for bail on the new criminal charges,
the time which he spent in custody shall be credited against his original sentence.”
Gaito v. Pa. Bd. of Prob. & Parole, 412 A.2d 568, 571 (Pa. 1980). Second, if a
sentence of probation is imposed on a parolee’s new charges, the pre-trial custody
time must be applied to the parolee’s original sentence. See Martin v. Pa. Bd. of
Prob. & Parole, 840 A.2d 299, 305 (Pa. 2003). Third, where a parolee is held on
new criminal charges and the Board’s detainer, the time credit cannot be applied to
the original sentence, unless the length of the confinement exceeds the sentence
imposed for the new crimes. See Smith v. Pa. Bd. of Prob. & Parole, 171 A.3d 759,
765, 770-71 (Pa. 2017). Finally, “once a parolee is sentenced on a new criminal
offense, the period of time between arrest and sentencing, when bail is not satisfied,
7
must be applied toward the new sentence, and not to the original sentence.”
Armbruster v. Pa. Bd. of Prob. & Parole, 919 A.2d 348, 352 (Pa. Cmwlth. 2007).
Instantly, Triggs was paroled on July 3, 2017, with a maximum date of
November 5, 2023, or 2,316 days remaining on the original sentence. As discussed
supra, the Board appropriately denied Triggs credit for any time spent at liberty on
parole following his recommitment as a CPV. The Board appropriately granted
Triggs credit for the time he was held solely on the Board’s detainer: 31 days of
confinement, from August 21, 2017, to September 21, 2017, and 58 days of
confinement from August 14, 2018, to October 11, 2018. See Bd.’s Response at 4;
see also Gaito, 412 A.2d at 571. Accordingly, following this credit calculation,
Triggs owed 2,227 days of the original sentence.
The Board also awarded Triggs credit of 96 days, from February 21,
2019, until May 28, 2019. During this period, Triggs was held on the Board’s
detainer and the drug charges (without bail). See id. at 1-4. Because these charges
resulted in probation, Triggs was entitled to this credit. Martin, 840 A.2d at 305.
Therefore, subtracting 96 from 2,227 results in 2,131 days owed on his original
sentence.
However, Triggs was not entitled to credit toward his original sentence
from May 29, 2019, until October 2, 2021. During this period, Triggs was held on
the Board’s detainer and the firearms charges (without bail); however, he was also
serving time for his DUI conviction. See Order to Recommit, 10/20/21, at 1-2
(noting sentencing and release dates on DUI as 4/5/21 and 10/2/21, respectively);
Bd.’s Response at 4. Because he was serving time on another sentence, he was not
entitled to credit toward his original sentence. See Smith, 171 A.3d at 770-71;
Armbruster, 919 A.2d at 352.
8
Based on the above, the Board appropriately determined that October
2, 2021, was the date that Triggs became available to commence serving the
backtime on his original sentence. When recalculating Triggs’ maximum date, 2,131
days from October 2, 2021, results in a recalculated maximum of August 3, 2027.
V. CONCLUSION
Counsel has fulfilled the requirements of Turner/Finley. See Zerby,
964 A.2d at 960. Further, we discern no legal error in the Board’s calculations, and
Triggs is not entitled to relief. See Fisher, 62 A.3d at 1075 n.1. For these reasons,
we grant Counsel’s application to withdraw his appearance and affirm the Board’s
decision.
LORI A. DUMAS, Judge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Taj Triggs, :
Petitioner :
:
v. : No. 218 C.D. 2022
:
Pennsylvania Parole Board, :
Respondent :
ORDER
AND NOW, this 17th day of February, 2023, the Application to
Withdraw, filed by appointed counsel, Kent D. Watkins, Esq., on May 31, 2022, is
GRANTED; further, the decision of the Pennsylvania Parole Board to deny
Petitioner’s administrative appeal, entered March 4, 2022, is AFFIRMED.
LORI A. DUMAS, Judge