C. Riddick v. PA BPP ( 2015 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Cornelius Riddick, :
Petitioner :
:
v. : No. 1250 C.D. 2014
: SUBMITTED: May 22, 2015
Pennsylvania Board of Probation and :
Parole, :
Respondent :
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE LEADBETTER FILED: August 6, 2015
Cornelius Riddick petitions pro se for review of an order of the
Pennsylvania Board of Probation and Parole (Board) denying his administrative
appeal from an order recommitting him as a technical and convicted parole
violator. We affirm.
In 2004, Riddick pled guilty in Philadelphia County to possession
with intent to deliver a controlled substance, homicide by vehicle and aggravated
assault. Pursuant to an aggregate sentence of five to ten years, he was incarcerated
with an original parole minimum date of November 28, 2009 and a maximum date
of November 28, 2014. Certified Record (C.R.), Item No. 1 at 1. In December
2009, Riddick was released on parole, subject to certain conditions. Id., Item No. 4
at 13-19. On December 9, 2011, the Abington Township Police arrested Riddick
and charged him with robbery and other offenses related to a December 2 armed
home invasion. Unable to post bail, he remained confined in the Montgomery
County Correctional Facility. On December 9, 2011, the Board lodged a warrant
and detainer against Riddick. Id., Item No. 5 at 20.
On March 1, 2012, the Board issued a decision: 1) confirming its
February 2012 decision detaining Riddick pending disposition of his new criminal
charges; 2) finding that diverting him from confinement would pose an undue risk
to public safety; 3) finding a technical parole violation of Condition #1, leaving the
district without permission, established via Riddick’s admission; and 4)
recommitting him to serve six months back time as a technical parole violator,
when available, pending resolution of his new criminal charges; Id., Item No. 6 at
21.
In June 2013, Riddick entered an open guilty plea in Montgomery
County to a single count of robbery involving serious bodily injury in return for the
remaining charges being nolle prossed at sentencing. Id., Item No. 7 at 43 and
Item No. 9 at 69. In August 2013, Riddick signed the Board’s notice of charges
and hearing, thereby acknowledging his new criminal conviction for robbery. Id.,
Item No. 7 at 57. He also signed a waiver of his right to representation of counsel
and waivers to both his right to a panel hearing and to a revocation hearing. Id.,
Item No. 8 at 57-60. In February 2014, Riddick was sentenced to a minimum of
time served, 795 days, to a maximum of twenty-six months confinement, and four
years of probation. Id., Item No. 7 at 44. On February 24, 2014, Riddick was
returned to the Department of Corrections’ custody at SCI-Graterford. Id., Item
No. 11 at 72.
2
In its recommitment order dated March 20, 2014, the Board indicated
that Riddick was both a technical and convicted parole violator, reaffirmed its prior
decision recommitting him to serve six months back time for a technical parole
violation and recommitted him as a convicted parole violator to serve thirty-eight
months back time, concurrently, for the new robbery conviction. In addition, the
Board established a new parole maximum date of October 21, 2018. Id. at 73-74.
By notice mailed March 27, 2014, the Board sent its decision to Riddick. Id. at 75.
He filed an administrative petition, which the Board denied affirming its prior
decision. Id. at 84. Riddick’s pro se petition for review followed.
Riddick raises two issues: 1) whether the Board erred in imposing
thirty-eight months back time when he was only required to serve a remaining
balance of thirty-one months in order to complete his controlling original
maximum sentence date of November 28, 2014; and 2) whether the Board violated
his due process rights by failing to include in its recommitment decision support
for its recomputed parole maximum date of October 21, 2018, specifically, the
number of the parole condition violated and a definition of that condition. We turn
to the first issue.
In support of his argument that the back time imposed was excessive,
Riddick cites Savage v. Pennsylvania Board of Probation and Parole, 761 A.2d
643 (Pa. Cmwlth. 2000). In Savage, we noted the well-settled law that the Board
cannot impose back time exceeding the entire remaining balance of the parolee’s
unexpired term, but can only require that he or she serve the remaining balance of
his unexpired term. Id. at 645. Savage does not support Riddick’s position. At the
time of his February 2014 sentencing in Montgomery County, Riddick owed four
years, eight months and ten days of his original, aggregated ten-year maximum
3
sentence. In March 2014, the Board recommitted him to serve thirty-eight months
back time, which is three years and two months. Accordingly, the Board did not
act contrary to Savage.
Moreover, it is well established that, “[a]s long as the period of
recommitment is within the presumptive range for the violation, the
Commonwealth Court will not entertain challenges to the propriety of the term of
recommitment.” Fisher v. Pa. Bd. of Prob. & Parole, 62 A.3d 1073, 1077 (Pa.
Cmwlth. 2013) [quoting Smith v. Pa. Bd. of Prob. & Parole, 574 A.2d 558, 560
(Pa. 1990)]. In the present case, the crime at issue, robbery - inflicting serious
bodily injury, is a felony of the first degree. Section 3701(a)(1)(i), (b)(1) of the
Crimes Code, as amended, 18 Pa. C.S. § 3701(a)(1)(i), (b)(1). Pursuant to the
Board’s applicable regulation found in 37 Pa. Code § 75.2, the recommitment
range is thirty to forty-eight months. Accordingly, the thirty-eight months imposed
was well within the presumptive range. We turn now to Riddick’s second issue.
In support of his argument that the Board was required to include in
its recommitment decision the number of the parole condition violated and its
definition, Riddick cites Lewis v. Pennsylvania Board of Probation and Parole,
459 A.2d 1339 (Pa. Cmwlth. 1983).1 In Lewis, 459 A.2d at 1340 n.2, we expressed
our suggestion that the Board follow a logical format in its recommitment
decisions, including reference to the specific parole condition number violated and
a definition of that condition. The present case, however, is not one where the
1
The documents in the certified record belie the Board’s suggestion at pages 8 and 9 of its
brief that Riddick was recommitted as a convicted parole violator only and not as a technical
parole violator. The point of confusion may be the fact that Riddick was ordered to serve six-
months back time for his technical parole violation concurrently with thirty-eight months back
time for his robbery conviction.
4
Board failed to set forth the number of the technical parole condition violated and a
description thereof. On March 1, 2012, the Board recommitted Riddick to serve
six months back time for his admitted violation of Condition #1, leaving the
district without permission, pending resolution of the new criminal charges. C.R.,
Item No. 6 at 21. On March 20, 2014, the Board indicated his status as both a
convicted and technical parole violator. Id., Item No. 11 at 73. On March 27,
2014, the Board referenced its February 29, 2012 action recommitting him as a
technical parole violator, which it specified in the above-referenced March 1, 2012
action. Accordingly, there is no indication that Riddick was denied due process for
an admitted technical parole violation due to the Board’s failure to reiterate the
technical violation at issue in subsequent documents.
In any event, while it is true that the Board is required to provide a
parolee with due process in the recomputation process, Robinson v. Department of
Justice, 377 A.2d 1277, 1279 (Pa. Cmwlth. 1977), there is no support for Riddick’s
argument that it must include a written explanation for its recomputation. Where a
parolee is afforded a post-recommitment opportunity to contest the Board’s
recomputation of the maximum term expiration date, procedural due process is
satisfied. Here, Riddick elected not to pursue the administrative appeal process in
that he waived his parole revocation hearing and, consequently, that portion of the
hearing dealing with the amount of back time owed in the event that he was
recommitted as a convicted parole violator.2 Fisher, 62 A.3d at 1075-76 (waiver
2
In any event, the Board did not err in its calculation. When it initially paroled Riddick on
December 17, 2009, his original parole maximum date was November 28, 2014, which left four
years, eleven months and eleven days remaining on his original sentence. Pursuant to Section
6138(a)(2) of the Prisons and Parole Code, as amended, 61 Pa. C.S. § 6138(a)(2), the convicted
parole violator “shall be given no credit for the time at liberty on parole.” Thus, Riddick could
be given no credit for the period that he was on the street: December 17, 2009, his parole date,
(Footnote continued on next page…)
5
necessarily encompasses the right to advance a claim of error that the offender
could have raised at the hearing).
Accordingly, we affirm.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Judge
_____________________________
(continued…)
to December 9, 2011, the date of his arrest for robbery. In addition, the twenty-three months of
credit for time served that he received for the Montgomery County sentence could not also count
toward service of his original Philadelphia County ten-year maximum sentence.
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Cornelius Riddick, :
Petitioner :
:
v. : No. 1250 C.D. 2014
:
Pennsylvania Board of Probation and :
Parole, :
Respondent :
ORDER
AND NOW, this 6th day of August, 2015, the order of the
Pennsylvania Board of Probation and Parole is hereby AFFIRMED.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Judge