M. Martinez v. PPB ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael Martinez, :
:
Petitioner :
:
v. : No. 607 C.D. 2020
: Submitted: December 17, 2021
Pennsylvania Parole Board, :
:
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: June 22, 2022
Michael Martinez (Parolee) petitions for review of the May 19, 2020
order of the Pennsylvania Parole Board (Board), which affirmed in part and reversed
in part the Board’s December 20, 2019 and January 17, 2020 decisions that
recommitted him as a convicted parole violator (CPV) to serve 18 months of
backtime, denied him credit for the time he spent at liberty on parole, and
recalculated his maximum sentence date. For the following reasons, we affirm the
Board.
In 2008, Parolee was sentenced on drug charges in the Philadelphia
County Court of Common Pleas (Philadelphia County Court) to 3 years, 6 months
to 10 years under institution number GV-2344, at which time his maximum sentence
date was October 9, 2017. Certified Record (C.R.) at 6, 13.1 While on parole from
the GV-2344 sentence, Parolee was arrested on April 8, 2012, for driving under the
influence (DUI). C.R. at 1. On September 6, 2012, Parolee pleaded guilty in the
Delaware County Court of Common Pleas (Delaware County Court) to DUI and was
sentenced to one to five years under institution number LC-9314 with a maximum
sentence date of March 7, 2018. C.R. at 1-3. Parolee was again paroled from his
GV-2344 sentence on August 5, 2013, and re-entered to serve his state detainer
sentence on institution number LC-9314. Id. at 1-3, 99, 115.
On June 8, 2015, Parolee was paroled from his LC-9314 sentence to a
specialized community corrections center (CCC), from which he was unsuccessfully
discharged on July 13, 2015. C.R. at 7, 15, 99. On the same day as his discharge,
the Board issued a warrant for Parolee, placed him in a parole violator center, and
charged him with technical parole violations for assaultive behavior and violation of
program rules, i.e., his unsuccessful discharge from the CCC program. Id. at 15. By
decision dated August 14, 2015, the Board found probable cause existed as to the
technical parole violations, ordered that Parolee be detained in the parole violator
center, and held the violation hearing/decision in abeyance pending Parolee’s
completion of required programming. Id. at 20. Parolee remained in the center until
September 2015, when he was released to an approved residence. Id. at 29.
While on parole from both his GV-2344 and LC-9314 sentences,
Parolee was arrested in Delaware County on September 8, 2017, and charged with
manufacture, delivery, or possession with intent to manufacture or deliver a
controlled substance (PWID), intentional possession of a controlled substance by a
1
It appears that Parolee was paroled numerous times from the GV-2344 sentence in 2009,
as well as a county sentence in Philadelphia County, and that he was thereafter reparoled on the
GV-2344 number to an approved home plan in December 2010. C.R. at 3, 13, 82.
2
person not registered (cocaine and marijuana), and use of or possession with intent
to use drug paraphernalia, stemming from an incident that occurred on August 8,
2017. C.R. at 21-24, 85.2 The Board issued a warrant to commit and detain him the
same day. Id. at 25. Monetary bail was also set at $100,000 on the day of Parolee’s
arrest, which he did not post. Id. at 85. On September 20, 2017, Parolee waived his
rights to a detention hearing and to counsel, and, on October 18, 2017, the Board
detained him pending disposition of his new criminal charges. Id. at 33, 36.
The Board then cancelled its warrant to commit and detain Parolee,
effective March 7, 2018, upon the expiration of his maximum sentence date on his
LC-9314 sentence. C.R. at 37. Parolee, however, remained in county custody due
to not posting bail on his new Delaware County charges. Id. at 85, 115. Parolee
posted bail on May 2, 2018, after which his bail was modified to unsecured on
December 18, 2018, and then was changed back to monetary ($25,000) on May 31,
2019, which Parolee posted on June 3, 2019. Id. On July 8, 2019, bail was again
modified, this time to $75,000, which Parolee did not post. Id. He remained
confined in the Delaware County Prison until his sentencing on the new Delaware
County charges. Id. at 52, 115.
On August 27, 2019, Parolee pleaded guilty to the Delaware County
PWID charge, pursuant to a plea agreement, and was sentenced to 11½ to 23 months
of confinement and 3 years of probation consecutive to confinement. C.R. at 44, 46,
86.3 On October 2, 2019, the Board issued a detainer warrant, indicating that
2
These charges were docketed in the Delaware County Court of Common Pleas at docket
number CP-XX-XXXXXXX-2017. C.R. at 85.
3
The other charges were dismissed. See C.R. at 86. Parolee also received credit for time
served for the periods of September 8, 2017, to May 2, 2018, and July 8, 2019, to August 27, 2019.
C.R. at 52.
3
although Parolee’s March 7, 2018 maximum sentence date at institution number LC-
9314 had passed, his maximum sentence was being extended due to his new
conviction. Id. at 45. Parolee surrendered to parole authorities on the same day and
was transferred to a State Correctional Institution (SCI) pending the outcome of a
revocation hearing. Id. at 52. Parolee requested a revocation hearing before a panel,
counsel entered an appearance on Parolee’s behalf, and the hearing was held on
November 19, 2019. Id. at 46-48, 54, 60.
At the hearing, a parole agent testified to Parolee’s new conviction, and
offered into evidence the certified sentencing sheet. C.R. at 61. Parolee then
acknowledged his new conviction and briefly testified about his employment
history, among other things. Id. at 62-65. Regarding the two different institution
numbers, LC-9314 and GV-2344, the hearing examiner stated that Parolee’s new
conviction may have jeopardized both sentences because he was arrested on the
Delaware County charges prior to both maximum sentence dates expiring. Id. at 66.
Parolee then stated that his old parole officer was supposed to close out the case at
GV-2344. Id. at 66-67. The hearing examiner assured Parolee that a technician
would figure out what was going on with the inmate numbers and accepted into
evidence a letter in support of Parolee from a property manager. Id. at 66-68. The
hearing then concluded.
Following the revocation hearing, the panel recommended that Parolee
be recommitted as a CPV without any credit for time spent at liberty on parole. C.R.
at 74-81. By decision mailed on December 20, 2019, the Board recommitted Parolee
to an SCI as a CPV to serve 18 months’ backtime, when available, pending parole
from or completion of his new Delaware County sentence for PWID.4 Id. at 96-97.
4
This decision listed institution number LC-9314.
4
The Board’s decision did not address credit for time spent at liberty on parole, but
noted that Parolee’s maximum sentence date of August 24, 2022, was subject to
change. Id. at 97.
On January 6, 2020, the Delaware County Court issued an order
granting Parolee parole from his new Delaware County sentence for PWID subject
to a detainer from the Board. C.R. at 98. The Board then issued another decision,
mailed on January 17, 2020,5 regarding institution number GV-2344, referring to its
prior decision recommitting Parolee as a CPV for 18 months and indicating that
Parolee was also recommitted/currently serving on LC-9314. Id. at 102-03. In its
accompanying order to recommit, the Board stated: “Recommit on all institution
numbers, but only recalculate on GV-2344 until further directions.” Id. at 101. The
Board declined to award Parolee credit for his time spent at liberty on parole, citing
his “poor supervision history” and that his “[n]ew conviction is the same/similar to
the original offense.” Id. at 102. The Board recalculated Parolee’s maximum
sentence date, with respect to GV-2344, as March 11, 2024. Id. at 103.
Parolee submitted two administrative remedies forms, dated January 9,
2020, and February 4, 2020, challenging the Board’s decision to recommit him as a
CPV, the 18-month recommitment term, the Board’s denial of credit for time spent
5
We note that over two years have elapsed since the Board’s decision that revoked
Parolee’s parole and ordered him to serve backtime, as well as the fact that Parolee is no longer
incarcerated within our Commonwealth’s prison system. See Inmate/Parolee Locator,
Pennsylvania Department of Corrections, http://inmatelocator.cor.pa.gov (last visited June 21,
2022). It thus appears that Parolee was paroled from his 18-month backtime sentence. Despite
his apparent parole, this matter is not moot because Parolee’s maximum sentence date on his
original sentence is December 6, 2023, see infra at 7, and “as a parolee, [Parolee] remains under
the custody and control of the Commonwealth and subject to future recommitment for the duration
of his original sentence.” Johnson v. Pennsylvania Board of Probation & Parole, 482 A.2d 235,
236 (Pa. 1984) (stating that case is not moot where the petitioner was released on parole, but, as a
parolee, he remained under the custody and supervision of the state for the duration of his original
sentence).
5
at liberty on parole, and its recalculation of his maximum sentence date. C.R. at
104-07, 109.
In a decision mailed on May 19, 2020, the Board affirmed in part and
reversed in part its December 20, 2019 and January 17, 2020 decisions. C.R. at 114-
16. In so doing, the Board first explained that sufficient evidence, i.e., the certified
court record, was presented at the November 19, 2019 panel revocation hearing to
revoke Parolee’s parole based on his new conviction for PWID in Delaware County.
Further, the Board explained that it has the authority to recommit a parolee for an
offense that occurs while he is on parole regardless of when a detainer is lodged or
when the conviction occurs. Because Parolee committed the offense while on parole
from two active institution numbers, the Board was authorized to revoke his parole.
The Board next observed that the decision to grant or deny a CPV credit
for time spent at liberty on parole is purely a matter of discretion under Section
6138(a)(2.1) of the Prisons and Parole Code (Code), 61 Pa. C.S. §6138(a)(2.1),
where the Board is authorized to grant or deny credit for time spent at liberty on
parole for certain criminal offenses. The Board explained that it must articulate the
basis for its decision to grant or deny credit pursuant to the Supreme Court’s ruling
in Pittman v. Pennsylvania Board of Probation and Parole, 159 A.3d 466 (Pa. 2017).
Here, the Board provided two reasons for denying Parolee credit: his “poor
supervision history” and “[n]ew conviction is the same/similar to the original
offense[,]” both of which reasons are supported by the record and thus sufficient.
C.R. at 114.
As to his maximum sentence date, the Board granted Parolee’s request
for relief. It explained that at the time he was paroled from his GV-2344 sentence
to a state detainer sentence on August 5, 2013, with a maximum date of October 9,
6
2017, Parolee had 1,526 days remaining on his sentence. Further, when he was
paroled from his LC-9314 sentence on June 8, 2015, with a maximum date of March
7, 2018, he had 1,003 days remaining on that sentence. The Board explained that
Parolee was not entitled to credit on his original GV-2344 sentence for time that he
spent in custody on a state detainer sentence from August 5, 2013, to June 8, 2015.
Further, he was not entitled to any presentence credit because he was never detained
solely on the Board’s warrant prior to sentencing. Additionally, the Board stated
that Section 6138(a)(5) of the Code provides that because Parolee was sentenced to
county incarceration, he had to serve that sentence first. 61 Pa. C.S. § 6138(a)(5).
Thus, Parolee was only available to begin serving the backtime on his GV-2344
sentence upon completion of his new Delaware County sentence. The Board further
explained that Parolee was not available on January 6, 2020, the day he was paroled
from his county sentence, but rather, he became available to begin serving his
backtime on his original GV-2344 sentence on October 2, 2019, the day that he
turned himself in to the parole office and the Board relodged its detainer. Adding
1,526 days to that date yielded a recalculated maximum sentence date of December
6, 2023. The Board stated it would issue a new decision reflecting the corrected
maximum sentence date.
Finally, the Board noted that the 18 months of backtime for which
Parolee was recommitted is within the presumptive range of 18 to 24 months for
PWID (felony) found in Sections 75.1 and 75.2 of the Board’s regulations.
37 Pa. Code §§75.1-75.2. Because the 18 months falls within the presumptive range,
it is not subject to challenge. The Board issued a modified order to recommit and
decision, reflecting Parolee’s correct custody for return date of October 2, 2019, and
his new maximum sentence date of December 6, 2023. C.R. at 118-20.
7
Parolee filed a pro se petition for review6 of the Board’s decision7 in
this Court, alleging essentially the same errors as in his administrative appeals.
Parolee has also filed a brief, with the assistance of counsel, arguing first that the
Board abused its discretion by recommitting him under institution number GV-2344
after his maximum sentence date expired. Further, Parolee claims that the Board
altered his judicially imposed sentence by requiring him to serve nearly 19 years on
his original 10-year sentence under institution number GV-2344. Second, he claims
that the Board improperly denied him credit for the time he spent at liberty on parole,
claiming it was punitive and that the Board failed to explain how the increased
sentence would be rehabilitative. Moreover, he claims that the Board ignored his
mitigation evidence.8
6
On July 17, 2020, we appointed the Public Defender of Northumberland County to
represent Parolee. However, because Parolee no longer resided in Northumberland County, the
Prothonotary struck the appearance of the Public Defender of Northumberland County on July 19,
2021, and designated Parolee as representing himself. Independent defense counsel thereafter
entered an appearance on Parolee’s behalf on August 8, 2021.
7
Our scope of review of a Board’s recommittal order is limited to determining whether
necessary findings were supported by substantial evidence, whether an error of law was
committed, or whether constitutional rights were violated. Johnson v. Pennsylvania Board of
Probation & Parole, 706 A.2d 903, 904 (Pa. Cmwlth. 1998).
8
Parolee appears to have abandoned, in his counseled brief, his challenge to the 18-month
recommitment term. However, even if not abandoned, Parolee would not prevail on his claim.
The Board’s regulations provide a set of presumptive ranges of recommitment terms for CPVs.
37 Pa. Code §§75.1, 75.2. Here, Parolee was convicted of PWID, a felony, which carries with it
an 18- to 24-month presumptive range. 37 Pa. Code §75.2. The Board recommitted Parolee for
18 months, which is well within the presumptive range for the particular offense. Thus, even if
Parolee did not abandon the issue, we would nevertheless decline to disturb the Board’s exercise
of discretion with respect to the length of backtime imposed. See Smith v. Pennsylvania Board of
Probation & Parole, 574 A.2d 558, 560 (Pa. 1990) (“As 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.”).
8
The Board responds that it was well within its authority to recommit
Parolee for a crime he committed while on parole on two separate institution
numbers, GV-2344 and LC-9314, and recalculate his maximum sentence date to
exclude credit for time spent at liberty on parole. Moreover, its decision clarified
that while it was recommitting Parolee as to both institution numbers, its
recalculation of his maximum sentence date was only with respect to his GV-2344
number. According to the Board, it is also well established that, in so recalculating,
the Board did not alter a judicially imposed sentence. The Board further asserts that
it properly exercised its discretion to deny Parolee credit in this case and provided
sufficient reasons under Pittman in doing so.
We first address Parolee’s arguments that the Board improperly
recommitted him under institution number GV-2344 after his maximum sentence
date had expired, and, by so doing, improperly modified his judicially imposed
sentence. Section 6138(a)(1) of the Code provides that any parolee who, during the
period of parole, commits a crime punishable by imprisonment and is convicted or
found guilty of that crime at any time thereafter may be recommitted as a CPV.
61 Pa. C.S. §6138(a)(1).9 If a parolee is recommitted as a CPV, he “shall be
reentered to serve the remainder of the term which the parolee would have been
compelled to serve had the parole not been granted[.]” 61 Pa. C.S. § 6138(a)(2). As
we explained in Miskovitch v. Pennsylvania Board of Probation and Parole, 77 A.3d
66, 73 (Pa. Cmwlth. 2013), “[i]t is well-settled law that the Board retains jurisdiction
to recommit an individual as a parole violator[, and thus recalculate his maximum
9
While Section 6138 of the Code was recently amended by the Act of June 30, 2021, P.L.
260, effective immediately, we nevertheless reference the version of the Code that was in effect at
the time the Board rendered its decision in this matter. We note that the substance of the pertinent
statutory sections both prior to and after the amendments is the same.
9
sentence date,] after the expiration of the maximum term, so long as the crimes that
le[d] to the conviction occurred while the individual [was] on parole.”10 See also
Adams v. Pennsylvania Board of Probation & Parole, 885 A.2d 1121, 1124 (Pa.
Cmwlth. 2005).
In this case, there is no dispute that the crime to which Parolee
ultimately pleaded guilty occurred on August 8, 2017, when he was at liberty on
parole from both his original state sentence at institution number GV-2344, with a
maximum sentence date of October 9, 2017, and another state sentence at institution
number LC-9314, with a maximum sentence date of March 7, 2018. The fact that
Parolee was not convicted of PWID in Delaware County until August 27, 2019, and
officially recommitted as a CPV until January 2020, after the expiration of both his
original GV-2344 sentence and LC-9314 sentence maximum terms, is irrelevant.
Also irrelevant is the fact that the Board declared Parolee delinquent for control
purposes nearly two years after the date of the incident that led to his recommitment.
See C.R. at 43; see also Choice v. Pennsylvania Board of Probation & Parole, 357
A.2d 242, 243 (Pa. Cmwlth. 1976) (observing that the Board is authorized to
recommit a CPV “regardless of its prior administrative actions” (quotations
omitted)). Neither the date of conviction, nor the date on which the Board declares
a parolee delinquent, is the operative date upon which the Board statutorily
determines whether a parolee may be recommitted. Rather, the date of the offense
that led to the parolee’s recommitment is controlling. As such, we reject Parolee’s
claim that the Board lacked authority to recommit him under institution number GV-
2344 as a result of a crime he committed while on parole and recalculate his original
maximum sentence date after the expiration of his original sentence.
10
In Miskovitch, 77 A.3d at 74, the parolee received new charges while on parole in 2004,
his original sentence expired in 2008, and he was not convicted on the new charges until 2010.
10
We also reject Parolee’s claim that the Board altered his judicially
imposed sentence, thus resulting in him serving nearly 19 years on his original 10-
year sentence at institution number GV-2344. Under Section 6138(a)(1) and (2) of
the Code, the Board was authorized to recalculate the amount of time that Parolee
had left to serve on his original sentence. Our Supreme Court has held that the
Board’s recalculation of a parolee’s maximum sentence is not a modification of his
judicially imposed sentence, but a requirement to serve his entire original
sentence. Young v. Pennsylvania Board of Probation & Parole, 409 A.2d 843, 845-
58 (Pa. 1979).
Here, the Board did not, as Parolee suggests, unlawfully modify
Parolee’s judicially imposed sentence at institution number GV-2344, but instead
required him to serve the remainder of that original sentence. When Parolee was
paroled from his original sentence at institution number GV-2344 on August 5, 2013,
with a maximum sentence date of October 9, 2017, he had 1,526 days remaining on
his original sentence. Parolee was returned to the Board’s custody on October 2,
2019, and became available to begin serving the remainder of his GV-2344 sentence
on that date. The Board’s modified order to recommit mailed on May 19, 2020,
properly added the 1,526 days remaining on his original sentence to the date of his
return to the Board’s custody, which yielded a new maximum date of December 6,
2023.
Parolee next argues that the Board erred in denying him credit for time
spent at liberty on parole. He claims that the Board’s denial of credit was clearly
punitive and not warranted because it did not explain how the increased sentence
would be rehabilitative. As noted above, a parolee who is recommitted as a CPV
must serve the remainder of the term that he would have been compelled to serve
11
had the parole not been granted, with no credit for time spent at liberty on parole,
unless the Board, in the exercise of its sole discretion, chooses to award credit.
61 Pa. C.S. §6138(a)(2), (2.1). However, the Board is given no discretion and is
required to take away a CPV’s time spent at liberty on parole where the CPV has
committed a crime of violence or a crime requiring sex offender registration. Id.
§6138(a)(2.1)(i), (ii). Our Supreme Court held in Pittman that Section 6138(a)(2)
“clearly and unambiguously grants the Board discretion to award credit to a CPV
recommitted to serve the remainder of his sentence,” other than in the enumerated
exceptions. Pittman, 159 A.3d at 473. The Supreme Court further held that “the
Board must provide a contemporaneous statement explaining its reason for denying
a CPV credit for time spent at liberty on parole.” Id. at 475.
Parolee’s argument in this regard reflects his belief that he is eligible to
receive credit for his time spent at liberty on parole because the crimes for which he
was convicted are not crimes of violence and do not require him to register as a sex
offender, and further because the Board failed to consider mitigating factors related
to his convictions in determining the amount of backtime owed. We note, however,
that Section 6138(a)(2.1) does not give Parolee the right to receive credit for time
spent at liberty on parole. Rather, Section 6138(a)(2.1) gives the Board complete
discretion, as Parolee acknowledges in his brief, see Petitioner’s Brief at 14, to award
a CPV credit for time spent at liberty on parole unless the CPV committed a crime
of violence or a crime requiring sex offender registration, in which case, the Board
is given no discretion and must take away the CPV’s time spent at liberty on parole.
Upon his recommitment as a CPV, Parolee was required to serve the
remainder of the term that he would have been compelled to serve had he not been
granted parole, with no credit for time spent at liberty on parole, unless the Board,
12
in the exercise of its sole discretion, chose to award credit. Section 6138(a)(2), (2.1)
of the Code, 61 Pa. C.S. §6138(a)(2), (2.1). Because Parolee did not commit a crime
of violence or a crime requiring sex offender registration, the Board was therefore
empowered to exercise its discretion under Section 6138(a)(2.1) and determine
whether to grant Parolee credit for the time he spent at liberty on parole. The Board
chose not to do so in this case and explained its reasons for denying Parolee credit
for his street time by noting on the revocation hearing report that it was denying
Parolee credit because of his poor supervision history and his new conviction
(PWID) is the same or similar to his original offense (PWID). C.R. at 77. In his
petition for review, Parolee challenges only the latter reason. However, we have
previously held that “same or similar to the original offense” is a sufficient reason
for denying credit under Pittman. See Barnes v. Pennsylvania Board of Probation
& Parole, 203 A.3d 382, 391 (Pa. Cmwlth. 2019).
We also note that the Board’s stated reasons are amply supported by
the record in this matter, which reflects that Parolee’s parole stemmed from his 2008
convictions on drug charges, at least one of which was PWID, and that his
subsequent conviction for PWID was obviously similar to his original convictions
because all of the convictions involved drugs. The record also reflects Parolee’s
lengthy, and generally poor, supervision history, as outlined above.
To the extent that Parolee claims that the Board failed to consider his
mitigation evidence, we note that the revocation hearing report clearly acknowledges
his mitigation evidence admitted into evidence at the hearing, stating that Parolee
has taken responsibility for his actions, held multiple jobs, and “offered a letter of
support from his employer.” C.R. at 77. It is well settled, however, that the Board
has been given broad discretion in parole matters and is not required to accept
13
justifying or mitigating evidence to excuse the commission of parole violations and,
therefore, does not abuse its discretion when it determines that mitigating evidence
presented by a parolee does not excuse the commission of parole violations. Pitch
v. Pennsylvania Board of Probation & Parole, 514 A.2d 638, 641 (Pa. Cmwlth.
1986). We therefore reject Parolee’s claim that the Board erred or abused its
discretion in denying him credit for the time that he spent at liberty on parole.
Accordingly, the Board’s order is affirmed.
MICHAEL H. WOJCIK, Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael Martinez, :
:
Petitioner :
:
v. : No. 607 C.D. 2020
:
Pennsylvania Parole Board, :
:
Respondent :
ORDER
AND NOW, this 22nd day of June, 2022, the May 19, 2020 order of the
Pennsylvania Parole Board is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge