G.K. Mitchell v. PBPP ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
George Kevin Mitchell, :
Petitioner :
:
v. : No. 780 C.D. 2018
: Submitted: January 11, 2019
Pennsylvania Board of Probation :
and Parole, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: February 21, 2019
George Kevin Mitchell (Mitchell), an inmate at a state correctional
institution, petitions for review from an order of the Pennsylvania Board of
Probation and Parole (Board) that denied administrative relief from the Board’s
recalculation of Mitchell’s maximum sentence date. For the reasons that follow, we
affirm the Board’s order.
I. Background
Mitchell was released on parole on December 31, 2015. At that time
his maximum release date was May 31, 2018. He had 882 days remaining on his
original sentence.
On April 12, 2016, Mitchell was arrested for possession of marijuana.
The Board imposed a sanction of increased supervision while Mitchell remained on
parole. The Board later declared Mitchell delinquent as of June 28, 2016.
On February 14, 2017, Mitchell was arrested on various charges
including driving under the influence of alcohol (DUI) and fleeing from a police
officer. The Board issued its warrant to detain Mitchell the same day.
Mitchell was unable to post bail. On March 21, 2017, however, the bail
requirement was eliminated. Thereafter, Mitchell remained in custody solely on the
Board’s detainer until September 19, 2017, when he pleaded guilty and was
convicted on two DUI counts and one count of fleeing a police officer. The
remaining charges arising from Mitchell’s February 2017 arrest were dismissed.
Mitchell subsequently signed a waiver of a revocation hearing and
admitted his September 2017 convictions on the DUI and fleeing charges. In a
decision effective December 12, 2017, the Board recommitted Mitchell to serve 12
months of backtime1 as a convicted parole violator (CPV). Certified Record (C.R.)
at 28. In addition, the Board recalculated Mitchell’s maximum sentence date on his
original conviction as August 1, 2019. C.R. at 49.
After receiving the Board’s recommitment order, Mitchell filed a
request with the Board for administrative relief. Mitchell asserted the Board
erroneously extended the length of his remaining sentence. Further, Mitchell argued
his signature on parole documents did not constitute a contract denoting concurrence
in the Board’s actions.
1
“Back[time] is that part of an existing judicially-imposed sentence which the Board
directs a parolee to complete following a finding ... that the parolee violated the terms and
conditions of parole ….” Yates v. Pa. Bd. of Prob. & Parole, 48 A.3d 496, 499 (Pa. Cmwlth.
2012).
2
The Board affirmed the recalculation of Mitchell’s maximum sentence
date as August 1, 2019. Mitchell filed a petition for review in this Court. Counsel
was appointed to represent him in the appeal.
II. Issues
On appeal,2 Mitchell reasserts his argument that the Board exceeded its
authority and extended the length of his sentence. He also asserts a second argument,
not raised before the Board, that he was not given sufficient time at his revocation
hearing and was not warned that the Board might forfeit credit for some or all of his
time spent at liberty on parole.3
III. Discussion
A. Recalculation of Maximum Sentence Date
The Department of Corrections (DOC), not the Board, is responsible for
calculating sentences in accordance with a sentencing court’s orders. Forbes v. Pa.
Bd. of Prob. & Parole, 931 A.2d 88 (Pa. Cmwlth. 2007), aff’d, 946 A.2d 103 (Pa.
2008). The Board lacks authority to impose additional prison time beyond the time
ordered by the sentencing courts and calculated by the DOC. Yates v. Pa. Bd. of
Prob. & Parole, 48 A.3d 496 (Pa. Cmwlth. 2012).
2
Our review is limited to determining whether constitutional rights were violated, whether
the adjudication was in accordance with law, and whether necessary findings were supported by
substantial evidence. Miskovitch v. Pa. Bd. of Prob. & Parole, 77 A.3d 66 (Pa. Cmwlth. 2013).
3
Although Mitchell also reasserted his contract argument in his petition for review, he did
not brief that issue. Therefore, it is waived. Scrip v. Seneca, 191 A.3d 917 (Pa. Cmwlth. 2018)
(en banc). Moreover, the Board did not rely on any purported contract in its recalculation decision.
No contract issue is raised by the facts of this matter.
3
The Prisons and Parole Code, 61 Pa. C.S. §§101-7123, provides that any
parolee who commits a crime punishable by imprisonment while on parole, and is
convicted of that crime, may be recommitted as a CPV. 61 Pa. C.S. §6138(a)(1). A
recommitment is an administrative determination by the Board requiring a parolee
to serve all or part of the unexpired term of his original sentence; it does not alter
that sentence. Rivenbark v. Pa. Bd. of Prob. & Parole, 501 A.2d 1110 (Pa. 1985);
Yates. If a parolee is recommitted as a CPV, he must serve the remainder of the term
on his original sentence that he would have been compelled to serve had parole not
been granted, with no credit for time spent at liberty on parole, unless the Board elects
to award credit. 61 Pa. C.S. §6138(a)(2), (2.1). Any backtime owed is calculated
from the date when the Board obtains authority to recommit a parole violator. Wilson
v. Pa. Bd. of Prob. & Parole, 124 A.3d 767 (Pa. Cmwlth. 2015).
Here, Mitchell argues the Board failed to credit him with time he spent
in custody. This argument is without merit.
Our review of the record reveals Mitchell was arrested on the DUI and
fleeing charges on February 14, 2017. C.R. at 18. He was unable to post bail.
Therefore, from the date of that arrest until bail was eliminated on March 21, 2017,
Mitchell was in custody on the DUI and fleeing charges, as well as on the Board’s
detainer. In its decision on Mitchell’s appeal, the Board correctly explained that
Mitchell will receive credit for that period against the sentence imposed by the court
on the DUI and fleeing charge convictions, rather than against his original sentence.
C.R. at 74; see Smith v. Pa. Bd. of Prob. & Parole, 171 A.3d 759 (Pa. 2017); Gaito
v. Pa. Bd. of Prob. & Parole, 412 A.2d 568 (Pa. 1980).
4
The only period Mitchell spent in custody solely on the Board’s
detainer was the period of 182 days between when bail was eliminated on March 21,
2017 and when Mitchell was convicted and sentenced on the DUI and fleeing
charges on September 19, 2017. C.R. at 18. The Board correctly credited that time
to Mitchell’s original sentence. See Smith; Gaito.
The Board also exercised its discretion to credit Mitchell with the 103
days he spent at liberty on parole from his parole date to his April 12, 2016 arrest.
C.R. at 51. In its discretion, the Board declined to credit Mitchell’s remaining time
spent at liberty on parole. See id. at 49, 51. Notably, Mitchell does not challenge
the Board’s authority to deny sentence credit for time spent at liberty on parole.
Mitchell had 882 days remaining on his original sentence at the time of
his parole on December 31, 2015. The Board correctly credited a total of 285 days
(182 + 103) toward Mitchell’s original sentence. Subtracting those days from the
882 days previously remaining on Mitchell’s original sentence, he had 597 days left
on his original sentence. Counting forward from his recommitment date of
December 12, 2017 yields a maximum sentence date of August 1, 2019. Thus, the
Board correctly recalculated Mitchell’s maximum sentence date.
B. Due Process
With regard to Mitchell’s due process issue, Mitchell waived this
argument when he failed to raise it before the Board. Pa. R.A.P. 1551(a). He also
failed to raise this issue in his petition for review. Although he included it in his
brief, the argument on the issue contains neither development nor any citation of
authority. This Court is consequently unable to provide meaningful review of this
5
issue. Accordingly, it is waived. See 37 Pa. Code §73.1(a)(3); Pa. R.A.P. 1513
Official Note (2014).
IV. Conclusion
Based on the foregoing, we conclude the Board correctly recalculated
Mitchell’s maximum sentence date. We therefore affirm the Board’s order.
ROBERT SIMPSON, Judge
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
George Kevin Mitchell, :
Petitioner :
:
v. : No. 780 C.D. 2018
:
Pennsylvania Board of Probation :
and Parole, :
Respondent :
ORDER
AND NOW, this 21st day of February, 2019, the order of the
Pennsylvania Board of Probation and Parole is AFFIRMED.
ROBERT SIMPSON, Judge