J.S. Sunday v. PBPP ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joshua Scott Sunday, :
Petitioner :
: No. 37 C.D. 2018
v. :
: Submitted: October 12, 2018
Pennsylvania Board of Probation :
and Parole, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: December 20, 2018
Joshua Scott Sunday (Petitioner) petitions for review of the December 4,
2017 decision of the Pennsylvania Board of Probation and Parole (Board) affirming an
earlier decision that recommitted Petitioner as a convicted parole violator and
recalculated his parole violation maximum sentence date to be November 13, 2018.
Petitioner was originally sentenced to a term of incarceration of two years,
nine months, and three days to eight years and six days following his convictions in
Butler and Lawrence Counties on charges of robbery, burglary, and driving under the
influence of a controlled substance. Petitioner’s original parole violation maximum
sentence date was April 28, 2014. Petitioner was twice released on parole and twice
recommitted as a convicted parole violator, which resulted in the adjustment of his
parole violation maximum sentence date to March 14, 2017. He was released on parole
for a third time on July 20, 2014.
In June of 2015, Petitioner was arrested and charged with retail theft,
possession of drug paraphernalia, and public drunkenness. He subsequently pleaded
guilty to a summary charge of public drunkenness and the remaining charges were
dismissed. He was released on parole for a fourth time on January 14, 2016, but his
parole violation maximum sentence date remained March 14, 2017. Less than two
months later, on March 11, 2016, Petitioner was arrested and charged with possession
of drug paraphernalia in Butler County. The Board issued a warrant to commit and
detain Petitioner on April 19, 2016, and he was returned to the State Correctional
Institution at Mercer (SCI-Mercer). He remained detained pending disposition of this
new charge as a result of both his failure to post bail and the Board’s warrant.
On December 7, 2016, Petitioner pleaded guilty to the charge of
possession of drug paraphernalia and was sentenced to a term of incarceration of three
to six months. Petitioner was immediately remanded to the custody of the Butler
County Prison. He returned to the Board’s custody on March 9, 2017, which appears
to coincide with the expiration of the minimum term of incarceration on Petitioner’s
Butler County sentence. The Board subsequently provided Petitioner with a notice of
charges and hearing. Petitioner signed a waiver of his right to a revocation hearing and
counsel, and he admitted to having been convicted of a new criminal charge. By
decision mailed March 29, 2017, the Board recommitted Petitioner as a convicted
parole violator to serve an unexpired term of two years and six days and recalculated
his parole violation maximum sentence date to March 16, 2019. Following an
administrative appeal, the Board issued a new decision, mailed May 9, 2017, that
modified its previous decision to reflect that Petitioner’s unexpired term was one year,
2
eight months, and seven days and his parole violation maximum sentence date was
November 13, 2018.
Petitioner filed an administrative appeal alleging that the Board erred in
failing to grant him credit for his period of incarceration from September 9, 2016, to
December 7, 2016, a total of 89 days, when he was allegedly incarcerated solely on the
Board’s warrant. Petitioner noted that he served his minimum sentence of three months
at the Butler County Prison from December 7, 2016, to March 6, 2017. By decision
mailed December 4, 2017, the Board affirmed its May 9, 2017 decision and denied
Petitioner’s request for administrative relief.
The Board explained that when Petitioner was last released on parole on
July 20, 2014, his parole violation maximum sentence date was March 14, 2017, which
left 968 days remaining on his original sentence. The Board credited Petitioner for 211
days he was detained by the Board (periods from May 17, 2015, to June 2, 2015 and
July 13, 2015, to January 14, 2016), thereby reducing the days remaining on his original
sentence to 757 days. Additionally, the Board credited Petitioner another 143 days (the
period from April 19, 2016 to September 9, 2016) that he was detained in excess of the
three to six month sentence imposed in Butler County, thereby further reducing the
days remaining on his original sentence to 614 days. The Board attributed the period
from September 9, 2016, to March 9, 2017, to Petitioner’s new Butler County sentence
and refused to award him credit for that period. When these 614 days were added to
March 9, 2017, the date Petitioner was returned to the Board’s custody, the Board
arrived at Petitioner’s new parole violation maximum sentence date of November 13,
2018. Petitioner thereafter filed a pro se petition for review with this Court.1
1
By order dated January 16, 2018, this Court appointed the Public Defender of Mercer County
to represent Petitioner.
3
On appeal, Petitioner argues that the Board erred in failing to award him
credit for the 89 days he was incarcerated on the Board’s warrant from September 9,
2016, to December 7, 2016. However, we cannot reach this argument as the present
matter is moot in light of the expiration of Petitioner’s parole violation maximum
sentence date. Moreover, even if not moot, we note that Petitioner’s argument would
fail. This Court has previously held that an inmate sentenced on new criminal charges
is not entitled to credit during the period of time between arrest and sentencing on the
new criminal charges, when bail is not posted, even when the new sentence is less than
the period of time spent in pre-sentence custody. Armbruster v. Pennsylvania Board
of Probation and Parole, 919 A.2d 248 (Pa. Cmwlth. 2007).
Accordingly, we must dismiss Petitioner’s petition for review as moot.
________________________________
PATRICIA A. McCULLOUGH, Judge
4
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joshua Scott Sunday, :
Petitioner :
: No. 37 C.D. 2018
v. :
:
Pennsylvania Board of Probation :
Board of Review, :
Respondent :
ORDER
AND NOW, this 20th day of December, 2018, the petition for review
filed by Joshua Scott Sunday is hereby dismissed as moot.
________________________________
PATRICIA A. McCULLOUGH, Judge