D. Lawson v. PPB ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Derrick Lawson, :
:
Petitioner :
:
v. : No. 1298 C.D. 2020
: Submitted: July 9, 2021
Pennsylvania Parole Board, :
:
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: December 30, 2021
Derrick Lawson (Parolee), an inmate confined at the State Correctional
Institution (SCI) at Houtzdale,1 petitions for review of a November 13, 2020 order
of the Pennsylvania Parole Board (Board) that affirmed the Board’s actions mailed
on September 3, 2019, and November 7, 2019, recommitting Parolee as a convicted
parole violator (CPV) to serve 12 months’ backtime, and denying him credit for the
time that he spent at liberty on parole, also known as “street time.” On appeal,
1
We note that Parolee was initially represented by the Assistant Public Defender of
Clearfield County in this matter. Parolee subsequently requested permission to proceed pro se.
On August 12, 2021, we granted Parolee’s request, directed the Prothonotary to strike the Public
Defender of Clearfield County as counsel from the docket and designate Parolee as representing
himself, and dismissed Parolee’s counsel’s application to withdraw as counsel as moot. See Order
dated August 12, 2021.
Parolee argues that the Board violated Penjuke v. Pennsylvania Board of Probation
and Parole, 203 A.3d 401 (Pa. Cmwlth. 2019), appeal denied, 228 A.3d 254 (Pa.
2020), by revoking street time credit that was previously granted to him, and thus
erred in recalculating his maximum sentence date. For the following reasons, we
affirm the Board’s order.
In 2014, Parolee pleaded guilty to the charge of persons not to possess,
use, manufacture, control, sell, or transfer firearms in the Philadelphia County Court
of Common Pleas, and was sentenced to serve three to eight years in an SCI, but was
recommended for motivational boot camp. Certified Record (C.R.) at 1-4.2 At that
time, his maximum sentence date was November 21, 2021. Id. at 1-2.
Parolee was paroled from motivational boot camp on July 13, 2015.
C.R. at 4. On April 30, 2017, Parolee was arrested by the Philadelphia Police
Department for possessing an instrument of crime, criminal mischief, and simple
assault. Id. at 13-14, 16-18. He was confined at SCI-Graterford pending disposition
of the new criminal charges, and he did not post bail. Id. at 13, 15. The Board issued
a detainer warrant against Parolee on the same day of his arrest. Id. at 9. On May
22, 2017, the Board issued a notice of charges and hearing based on the new criminal
charges, and Parolee waived his rights to counsel and a detention hearing. Id. at 10-
12. A Hearing Examiner recommended that Parolee remain detained pending
disposition of his new criminal charges. Id. at 19-20. However, the new charges
were later withdrawn on July 6, 2017, and the Board cancelled its detainer warrant
that same day. Id. at 21, 29. Parolee was released from SCI-Graterford on July 9,
2017. Id. at 29, 112.
2
It appears that Parolee also received a consecutive two-year probationary term. C.R. at
3.
2
On January 17, 2019, Parolee was arrested in Philadelphia for driving
under the influence of alcohol or drugs (DUI). C.R. at 23-24, 32-35. Parolee posted
bail on January 18, 2019. Id. at 114. The Board issued another detainer warrant
against Parolee on March 5, 2019. Id. at 22. The Board issued a notice of charges
and hearing on March 8, 2019, notifying Parolee of his upcoming hearing related to
his new DUI charges, and charging him with technical parole violations based on
one count of assaultive behavior and two counts of drug use. Id. at 23-25. On March
15, 2019, Parolee waived his right to a panel hearing, and counsel entered an
appearance on his behalf. Id. at 38-39.
A preliminary/detention hearing was held on March 15, 2019, during
which Parolee’s counsel indicated that Parolee admitted to violating a condition of
his parole, two counts for drug use, but denied engaging in any assaultive behavior
in violation of his parole. C.R. at 40, 43. By decision recorded on April 16, 2019,
the Board noted that a violation hearing would be scheduled. Id. at 47. In a separate
decision recorded on May 14, 2019, the Board modified its April 16, 2019 decision
by adding that Parolee be detained pending disposition of his new criminal charges.
Id. at 47-48.
The Board issued another notice of charges and hearing on April 22,
2019, notifying Parolee of his upcoming violation hearing regarding the technical
parole violation for assaultive behavior. C.R. at 49. Parolee again waived his right
to a panel hearing, and counsel entered an appearance on his behalf. Id. at 50-52. A
violation hearing was held on May 9, 2019, during which Parolee again denied
engaging in any assaultive behavior. Id. at 59, 62. After a hearing on the technical
parole violations on May 9, 2019, a Hearing Examiner recommended that Parolee
be recommitted as a technical parole violator (TPV) to serve six months’ backtime,
3
and a Board Member signed the report on May 14, 2019. Id. at 57-71. By decision
recorded on May 15, 2019, the Board recommitted Parolee to an SCI to serve six
months’ backtime as a TPV based on his assaultive technical parole violation. Id. at
72-74. The Board’s decision stated that Parolee would be automatically paroled
without further action of the Board on September 5, 2019, pending resolution of his
outstanding charges so long as he had no disciplinary infractions. Id. at 73. The
Board’s decision did not recalculate Parolee’s parole violation maximum date, but
indicated that it was subject to change if he was ultimately convicted of the pending
criminal charges against him. Id. at 74.
On May 31, 2019, Parolee was found guilty of two counts of DUI in
the Philadelphia County Municipal Court. C.R. at 114-15. Parolee was sentenced
on July 16, 2019, to 30 days to 6 months in county prison on both counts, which
merged for sentencing purposes, as well as additional conditions, and he received
credit for time that he had already served. Id. at 83, 115. The court issued another
order on July 16, 2019, directing that Parolee be released on parole from his DUI
sentence. Id. at 99.
On August 5, 2019, the Board issued another notice of charges and
hearing, noting Parolee’s new convictions, and scheduled a revocation hearing. C.R.
at 75. Parolee waived his rights to counsel and a revocation hearing, and admitted
to his new convictions. Id. at 84. By decision recorded on September 3, 2019, the
Board modified its prior action recorded on May 15, 2019, recommitting Parolee as
a TPV, by deleting the reparole clause, and recommitted Parolee to an SCI as a CPV
to serve 12 months of backtime, concurrently to his TPV backtime, when available
pending parole from or completion of his Philadelphia County sentence. Id. at 93-
4
94. The Board recalculated Parolee’s maximum sentence date as June 24, 2025, and
indicated that date was subject to change. Id. at 93.
Parolee filed a pro se administrative remedies form, which the Board
received on September 24, 2019, challenging the Board’s September 3, 2019
decision. C.R. at 126-30. Specifically, Parolee alleged that the Board erred by
rescinding credit for his time spent at liberty on parole in good standing and in its
recalculation of his maximum sentence date, that the Board exceeded the
presumptive ranges for his new convictions, and that the Board erred by denying
him credit for time spent at liberty on parole because his convictions do not meet the
criteria of Section 6138(a)(2.1) of the Prisons and Parole Code (Parole Code), 61
Pa. C.S. §6138(a)(2.1). He further asserted that the Board failed to articulate a
contemporaneous reason in its September 3, 2019 decision denying him credit.
By decision recorded on November 7, 2019, the Board referred to its
prior action recommitting Parolee as a CPV, indicating that in its discretion it did
not award Parolee credit for the time that he spent at liberty on parole due to
“unresolved drug and alcohol issues,” and recalculated Parolee’s maximum sentence
date as May 8, 2025. Id. at 120-21.
Parolee filed another pro se administrative remedies form and
additional correspondence, which the Board received on December 9, 2019,
challenging both the Board’s September 3, 2019 and November 7, 2019 decisions.
C.R. at 131-34. Therein, he raised the same arguments as in his previous
administrative remedies form. Id. at 131-32.
In a decision mailed on November 13, 2020, the Board responded to
Parolee’s requests for administrative relief and correspondence received on
September 24, 2019, and December 9, 2019, and affirmed its September 3, 2019,
5
and November 7, 2019 decisions, but reversed the November 7, 2019 decision with
respect to Parolee’s maximum sentence date. C.R. at 139-41. In doing so, the Board
first explained that the decision to grant or deny a CPV credit for time spent at liberty
on parole is purely a matter of discretion and that, here, its reason, “unresolved drug
and alcohol issues,” was supported by the record and, thus, was legally sufficient.
Id. at 139.
The Board next explained that the 12-month recommitment term was
based on the presumptive ranges for the offenses of which Parolee was convicted,
as outlined in Sections 75.1 and 75.2 of the Board’s regulations, 37 Pa. Code §§75.1-
75.2. C.R. at 139-40. The Board noted that Parolee was convicted of DUI – general
impairment, and DUI – high rate of alcohol, each of which carries with it a
presumptive range of three to six months under Section 75.2 of the Board’s
regulations, 37 Pa. Code §75.2. Id. at 139-40. Adding these terms together gave the
Board a maximum aggregate range of 12 months; therefore, the 12-month
recommitment term fell within the presumptive range permitted under its regulations
and is not subject to challenge. Id. at 140.
Finally, the Board noted that its September 3, 2019 decision to
recommit Parolee as a CPV authorized its later November 7, 2019 decision to deny
credit and recalculate his maximum sentence date. C.R. at 140. It then outlined how
it recalculated Parolee’s maximum sentence date, noting that at the time that Parolee
was paroled on July 13, 2015, he had a maximum sentence date of November 21,
2021, which left 2,323 days remaining on his original sentence. Id. Because the
Board denied Parolee credit for the time he spent at liberty on parole based on his
recommitment as a CPV, he owed the 2,323 days on his original sentence. Id. The
Board determined that Parolee was entitled to 70 days of confinement credit from
6
April 30, 2017, to July 9, 2017, and subtracting those 70 days from the 2,323 days
remaining on Parolee’s original sentence resulted in 2,253 days remaining on his
original sentence. Id. The Board then noted that Parolee was arrested for new
criminal charges on January 17, 2019, and that he posted bail the same day. Id. On
March 5, 2019, the Board lodged a detainer against him for technical parole
violations, and, on May 15, 2019, the Board recommitted him as a TPV. Id. On
July 16, 2019, Parolee was sentenced to a new term of incarceration to be served in
county prison, with credit for time served, and he was paroled and returned to an
SCI the same day. Id. The Board determined that, based on these facts, Parolee was
entitled to presentence credit for 133 days, from March 5, 2019, to July 16, 2019,
because he was detained solely on the Board’s warrant during that period. Id.
Subtracting 133 days from 2,253 days left Parolee with 2,1203 days remaining on his
original sentence, and adding 2,120 days to Parolee’s July 16, 2019 availability date
yielded a recalculated maximum sentence date of May 5, 2025. Id. The Board
therefore affirmed its September 3, 2019 and November 7, 2019 decisions as to
Parolee’s challenge to the Board’s reason for denying credit and the 12-month
recommitment term, but reversed its November 7, 2019 decision to the extent it
improperly recalculated Parolee’s maximum sentence date. Id. at 141.
By separate decision mailed on November 18, 2020, the Board noted
that “due to technician error,” it was modifying Parolee’s maximum sentence date
to May 5, 2025, rather than May 8, 2025, to reflect credit for three additional days
of confinement that occurred after Parolee was released from the Board’s detainer
3
The Board’s decision says 1,120 days. C.R. at 140. However, subtracting 133 days from
2,253 days equals 2,120 days, not 1,120 days. Despite this error, the Board correctly recalculated
the maximum date using 2,120 days.
7
between July 6, 2017, and July 9, 2017. C.R. at 134-38. Parolee timely petitioned
this Court for review of the Board’s November 13, 2020 decision.4
On appeal, Parolee argues that the Board erred in its credit allocation
regarding his recalculated maximum sentence date and by denying him credit for
time spent at liberty on parole. Petitioner’s Brief at 4. In the argument section of
his brief, however, Parolee argues only that the Board erred by revoking his street
time credit that was previously granted to him in a prior parole that resulted in his
recommitment as a TPV, citing Penjuke, 203 A.3d 401, in support. Petitioner’s Brief
at 10, 11-13. Parolee also cites Young v. Pennsylvania Board of Probation and
Parole, 189 A.3d 16 (Pa. Cmwlth. 2018), affirmed, 225 A.3d 810 (Pa. 2020), as
further support for his argument that his street time was improperly revoked.
Petitioner’s Brief at 12. Parolee specifically claims that he is entitled to 1,332 days
of credit for the periods of July 13, 2015, to July 9, 2017 (728 days), and July 9,
2017, to March 5, 2019 (604 days). Id. at 14.
The Board responds that Penjuke does not apply because the criminal
conduct that led to Parolee’s recommitment as a CPV occurred during the same
period of parole as the violation that led to his recommitment as a TPV.
Respondent’s Brief at 17. Instead, the Board submits that this case is similar to this
Court’s decision in Kazickas v. Pennsylvania Board of Probation and Parole, 226
A.3d 109 (Pa. Cmwlth.), appeal denied, 238 A.3d 1170 (Pa. 2020), wherein we held
that Penjuke does not apply when the criminal conduct that led to a parolee’s
recommitment as a CPV occurred during the same period of parole as the violation
4
This Court’s review of the Board’s decision is limited to determining whether the
necessary findings of fact are supported by substantial evidence and whether there was an error of
law or a constitutional violation. Walker v. Pennsylvania Board of Probation and Parole, 729
A.2d 634, 637 n.4 (Pa. Cmwlth. 1999).
8
that led to his recommitment as a TPV. Respondent’s Brief at 18. The Board further
argues that it properly recalculated Parolee’s maximum sentence date, as it provided
him with 133 days of backtime credit from March 5, 2019 (date of Board’s warrant),
to July 16, 2019 (date he was sentenced in Philadelphia). Id. at 15. The Board also
credited Parolee with 70 days of confinement credit for the period he was detained
from April 30, 2017, to July 9, 2017, for the charges that were ultimately dismissed.
Id. Accordingly, the Board argues that it had the authority to deny Parolee credit for
the remaining time he spent at liberty on parole, due to his recommitment as a CPV,
and that this Court should therefore affirm the Board’s November 13, 2020 decision.
We first consider Parolee’s arguments that the Board erred in its credit
allocation regarding his recalculated maximum sentence date and by denying him
credit for time spent at liberty on parole. Parolee identifies these issues in his
statement of questions involved section of his brief. Petitioner’s Brief at 4.
However, Parolee’s summary of argument and argument sections of his brief pertain
only to the issue of whether the Board erred by revoking the street time credit that
was previously granted to him in a prior parole that resulted in his recommitment as
a TPV. As a result, that is the only issue that has been preserved for appellate review.
See Pa.R.A.P. 2119(a) (“The argument shall be divided into as many parts as there
are questions to be argued; and shall have at the head of each part . . . the particular
point treated therein, followed by such discussion and citation of authorities as are
deemed pertinent.”); Commonwealth v. Spotz, 716 A.2d 580, 585 n.5 (Pa. 1998),
cert. denied, 526 U.S. 1070 (1999) (holding that the failure to develop issue in
appellate brief results in waiver); Browne v. Department of Transportation, 843 A.2d
429, 435 (Pa. Cmwlth. 2004) (“At the appellate level, a party’s failure to include
analysis and relevant authority results in waiver.”).
9
With respect to this issue, we reject Parolee’s argument that the Board
erred by revoking his street time. Specifically, we agree with the Board that Penjuke
does not apply in this case. As the Board points out, unlike the petitioner in Penjuke,
Parolee committed the criminal conduct that led to his recommitment as a CPV
during the same parole period as the technical violations which led to him first being
recommitted as a TPV. The facts of this case are more in line with those of Kazickas,
in which we affirmed a Board decision that revoked the petitioner’s street time
credit, reasoning that “[b]ecause the criminal conduct that led to [the petitioner’s]
CPV recommitment occurred during the same parole period as the violation that led
to his TPV recommitment, Penjuke does not control in this case.” Kazickas, 226
A.3d at 116. Our decision in Kazickas controls here, and, thus, the Board did not
violate the holding of Penjuke by revoking the credit that Parolee had previously
received as a TPV for his time spent at liberty on parole in good standing. See
Hammett v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No. 13 C.D.
2019, filed May 8, 2020), appeal denied, 242 A.3d 633 (Pa. 2020).
Accordingly, we affirm the Board’s order.5
MICHAEL H. WOJCIK, Judge
5
Based on the foregoing disposition of Parolee’s petition for review, his December 9, 2021
Motion for the Extension of Time to Reply to Respondent’s Brief is dismissed as moot.
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Derrick Lawson, :
:
Petitioner :
:
v. : No. 1298 C.D. 2020
:
Pennsylvania Parole Board, :
:
Respondent :
ORDER
AND NOW, this 30th day of December, 2021, the November 13, 2020
order of the Pennsylvania Parole Board is AFFIRMED. Petitioner’s Motion for the
Extension of Time to Reply to Respondent’s Brief is DISMISSED as moot.
__________________________________
MICHAEL H. WOJCIK, Judge