S. Pettus v. PPB ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Stanley Pettus, :
Petitioner :
:
v. : No. 456 C.D. 2020
: Submitted: October 30, 2020
Pennsylvania Parole Board, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge1
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: February 24, 2021
Petitioner Stanley Pettus (Pettus) petitions for review of a final determination
of the Pennsylvania Parole Board (Board), dated April 15, 2020, which denied
Pettus’s request for administrative relief. For the reasons set forth below, we affirm.
Pettus was incarcerated at a state correctional institution (SCI) when the Board
granted him parole on May 3, 1999. (Certified Record (C.R.) at 3.) Pettus was
officially released from confinement on June 10, 1999, and, at that time, he had a
maximum sentence date of February 14, 2003. (Id. at 6.) Prior to his release, Pettus
signed conditions governing his parole, which included the following language:
If you violate a condition of your parole/reparole and, after the
appropriate hearing(s), the Board decides that you are in violation of a
1
This case was assigned to the opinion writer before January 4, 2021, when Judge Brobson
became President Judge.
condition of your parole/reparole[,] you may be recommitted to prison
for such time as may be specified by the Board.
If you are convicted of a crime committed while on parole/reparole, the
Board has the authority, after an appropriate hearing, to recommit you
to serve the balance of the sentence or sentences which you were
serving when paroled/reparoled, with no credit for time at liberty on
parole.
(Id. at 7.)
On September 3, 2002, Pettus was arrested by the Upper Darby Township
Police Department and charged with the offenses of firearms not to be carried
without a license and reckless driving. (C.R. at 9-11, 16.) The Board issued a
warrant to commit and detain Pettus that same day. (Id. at 12.) In addition, the
Board charged Pettus with a technical parole violation because the incident took
place in Delaware County, and Pettus did not have permission to be outside the
“Philadelphia district.” (Id. at 13-16.)
Pettus waived his rights to a preliminary hearing and a detention hearing
(C.R. at 17), and, by decision recorded on October 16, 2002, the Board detained
Pettus pending disposition of the Upper Darby Township charges. (Id. at 21.)
By subsequent decision recorded on January 9, 2003, the Board recommitted Pettus
as a technical parole violator (TPV) to serve 12 months’ backtime, when available.
(Id. at 30.) Pettus remained incarcerated until reaching his maximum sentence date
of February 14, 2003, at which time “he was released to begin a term of special
probation from Lycoming County.” (Id. at 54.) Pettus was instructed to report
weekly to the Board’s Philadelphia District Office pending the conclusion of his
criminal trial; however, he failed to do so, and the Board declared him delinquent.
(Id.)
On October 8, 2007, while delinquent, Pettus was arrested by the Philadelphia
Police Department and charged with multiple offenses stemming from a 2006 home
2
invasion, including robbery, second-degree murder, and firearms charges.
(C.R. at 36-40, 54.) Pettus pleaded guilty to robbery and conspiracy to commit
robbery, and on January 11, 2010, he was sentenced to consecutive terms
of 9 to 18 years’ and 3 to 6 years’ incarceration, for a total sentence of 12 to 24 years.
(Id. at 41-45.)
Pettus’s 2002 criminal charges from Upper Darby Township remained
pending until June 18, 2019, when he was convicted of possession of a firearm
without a license and was sentenced to 18 to 36 months’ incarceration.
(C.R. at 48, 54-55, 66.) The sentencing order specifically credited Pettus for his
period of incarceration from October 8, 2007, to October 8, 2010. (Id. at 55.) The
Board issued a warrant to commit and detain Pettus on July 22, 2019. (Id. at 47.)
The Board conducted a parole revocation hearing, at which Pettus waived his right
to representation and admitted to the conviction. (Id. at 57, 62-63.)
By decision recorded on October 15, 2019, the Board recommitted Pettus as
a convicted parole violator (CPV) to serve 18 months’ backtime in an SCI.
(C.R. at 89.) The Board exercised its discretion and did not award Pettus credit for
the time he spent at liberty on parole because his “conviction involved possession of
a weapon.” (Id. at 90.) The Board recalculated Pettus’s parole violation maximum
date as March 28, 2023.2 (Id.)
Pettus filed a pro se administrative remedies form with the Board on
November 14, 2019, challenging the Board’s authority to modify his original
sentence because it expired 17 years earlier and claiming that the Board’s
recalculation of his parole violation maximum date under that circumstance violated
2
The Board’s order to recommit indicates that Pettus owed 1,345 days’ backtime. Adding
this amount to his custody for return date of July 22, 2019, the date of the Board’s warrant, yields
the new parole violation maximum date of March 28, 2023. (C.R. at 87.)
3
his constitutional rights.3 (C.R. at 91-93.) Counsel for Pettus entered his appearance
by letter to the Board dated November 27, 2019. (Id. at 95.)
By final determination mailed on April 15, 2020, the Board denied Pettus’s
request for administrative relief and affirmed its decision recorded on
October 15, 2019. (C.R. at 98-99.) As to the merits, the Board explained that,
because the Board recommitted Pettus as a CPV, the Board had the statutory
authority to recalculate his sentence to reflect that he received no credit for the time
he spent at liberty on parole. (Id. at 98.) The Board noted that Pettus was advised
of this potential penalty through the parole conditions he signed upon his release
in 1999 and that his ability to challenge the Board’s recalculation decision satisfied
his due process rights. (Id.) The Board further noted that Pettus committed
the 2002 firearms charge while on parole and that the fact that he was not convicted
until years later was irrelevant in terms of the Board’s authority to recommit a
parolee for an offense that occurs while on parole. (Id.) Pettus then petitioned this
Court for review.
On appeal,4 Pettus appears to abandon the issues raised before the Board
relating to whether the Board lacked the statutory authority to modify his original
sentence when it “expired” 17 years earlier.5 Instead, Pettus advances two issues
3
As part of that argument, Pettus appeared to suggest that such a modification could not
occur in the absence of a letter from the sentencing judge.
4
This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. 2 Pa. C.S. § 704.
5
With regard to Pettus’s argument initially set forth in his administrative remedies form
that the Board lacked the authority to modify Pettus’s sentence based on his 2019 conviction on
the 2002 firearm charge, Pettus’s counsel states that “this argument lacks merit.” (Pet’r’s Br.
at 11.) Pettus’s counsel correctly observes that Section 6138(a)(1) of the Prisons and Parole Code
(Code), 61 Pa. C.S. § 6138(a)(1), provides that the Board may recommit as a CPV a parolee
4
unrelated thereto. Pettus argues that the Board failed to properly credit him for all
the time he served exclusively on its warrant and for which the Board previously
granted him credit. Essentially, he asserts that the Board erred in revoking the credit
it previously granted him for time spent at liberty on parole when he was
recommitted as a CPV in 2019, citing this Court’s decision in Penjuke v.
Pennsylvania Board of Probation and Parole, 203 A.3d 401 (Pa. Cmwlth. 2019)
(en banc), appeal denied, 228 A.3d 254 (Pa. 2020), as support. Pettus also argues
that the Board abused its discretion by failing to give him credit for time spent at
liberty on parole when it recommitted him as a CPV in 2019, because, inter alia, his
Upper Darby Township firearms conviction is not a crime of violence and the Board
failed to follow its own guidelines.
Before we reach the merits of Pettus’s arguments, we must ensure they are
properly before this Court. “The law is well settled that issues not raised before the
Board either at the revocation hearing or in the petitioner’s administrative appeal are
waived and cannot be considered for the first time on appeal.” Chesson v. Pa. Bd.
of Prob. & Parole, 47 A.3d 875, 878 (Pa. Cmwlth. 2012); see also Section 703(a) of
the Administrative Agency Law, 2 Pa. C.S. § 703(a) (“A party who proceeded before
a Commonwealth agency . . . may not raise upon appeal any other question not raised
before the agency . . . unless allowed by the court upon due cause shown.”);
Pa. R.A.P. 1551(a) (providing that, with limited exceptions, “[o]nly questions raised
before the government unit shall be heard or considered”).
“who, during the period of parole or while delinquent on parole, commits a crime punishable by
imprisonment, for which the parolee is convicted or found guilty by a judge or jury . . . at any time
thereafter.” Furthermore, Pettus’s counsel concedes that the Board did not violate Pettus’s
constitutional rights and that the Board’s revocation decision is supported by substantial evidence
of record. As Pettus has abandoned this argument on appeal, we need not address it further.
5
Here, as mentioned above, Pettus raised in his administrative remedies form
submitted to the Board issues challenging the Board’s authority to modify his
original sentence when, as he describes it, the sentence “expired” 17 years earlier.
He is not pursuing this issue on appeal, and, therefore, this issue has been waived.
Similarly, neither of the issues raised in Pettus’s petition for review and brief were
raised before the Board, and he cannot now raise them for the first time on appeal to
this Court. See Chesson. Consequently, Pettus has waived these issues.6
6
Even if Pettus had preserved the issues he now seeks to assert for the first time on appeal,
we would still have affirmed the Board’s determination. As stated above, Pettus first argues that
the Board violated this Court’s holding in Penjuke when it recommitted him as a CPV and revoked
the credit it previously granted him for time spent at liberty on parole. But as the Board points
out, unlike the petitioner in Penjuke, Pettus 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. In fact, Pettus’s technical violation stems from the exact
same 2002 incident as the firearms charge. (See C.R. at 10-16.) The factual situation presented
here is more in line with that of Kazickas v. Pennsylvania Board of Probation and Parole,
226 A.3d 109 (Pa. Cmwlth. 2020). In this recent case, we affirmed the Board’s decision to revoke
the petitioner’s 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 (emphasis
added). Our decision in Kazickas controls here, and, thus, the Board did not violate the holding in
Penjuke by revoking the credit Pettus previously received. See Hammett v. Pa. Bd. of Prob. &
Parole (Pa. Cmwlth., No. 13 C.D. 2019, filed May 8, 2020).
Pettus next attempts to argue on appeal that the Board abused its discretion by failing to
give him credit for time spent at liberty on parole when recommitting him as a CPV.
Section 6138(a)(2.1) of the Code, 61 Pa. C.S. § 6138(a)(2.1), sets forth guidelines for the Board’s
discretionary power in granting and denying credit for parole. In addition, our Supreme Court has
determined that, pursuant to that section “the Board must provide a contemporaneous statement
explaining its reason for denying a CPV credit for time spent at liberty on parole.” Pittman v. Pa.
Bd. of Prob. & Parole, 159 A.3d 466, 475 (Pa. 2017). A “single[-]sentence explanation” by the
Board for its decision, however, “is likely sufficient in most instances” to meet the Pittman
standard. Id. at 475 n.12. Here, the Board’s decision lists the reason for denying Pettus credit for
time spent at liberty on parole as “conviction involved possession of a weapon.” (C.R. at 90.)
Pettus does not deny the conviction or the offense, and this Court has previously deemed the same
reason of the Board to be sufficient to deny credit under Pittman and, thus, not an abuse of
6
Based on the foregoing, we affirm the final determination of the Board.
P. KEVIN BROBSON, Judge
discretion. See Hayward v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 1735 C.D. 2017, filed
July 18, 2018).
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Stanley Pettus, :
Petitioner :
:
v. : No. 456 C.D. 2020
:
Pennsylvania Parole Board, :
Respondent :
ORDER
AND NOW, this 24th day of February, 2021, the final determination of the
Pennsylvania Parole Board, dated April 15, 2020, is AFFIRMED.
P. KEVIN BROBSON, Judge