A. Wylee v. PPB ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Arthur Wylee, :
Petitioner :
:
v. : No. 725 C.D. 2020
: Submitted: January 15, 2021
Pennsylvania Parole Board, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE LEAVITT FILED: March 25, 2021
Arthur Wylee petitions for review of an adjudication of the
Pennsylvania Parole Board (Board) denying his administrative appeal. On appeal,
Wylee argues that the Board erred by failing to award him credit towards his original
sentence for the time he spent in a residential treatment program, which he claims
was the functional equivalent of incarceration. For the reasons that follow, we affirm
the Board’s adjudication.
On February 22, 1994, Wylee was convicted of third-degree murder
and sentenced by the Court of Common Pleas of Allegheny County to a term of
incarceration of 10 to 20 years. His minimum sentence date was August 1, 2002,
and his maximum sentence date was August 1, 2012.
On March 29, 2004, Wylee was paroled from the State Correctional
Institution (SCI) at Retreat. Beginning in 2009 and continuing until 2016, Wylee
was repeatedly sentenced for new crimes, recommitted as either a technical parole
violator (TPV) or convicted parole violator (CPV), and released again on parole.1
By virtue of these various recommitments and releases on parole, the Board
ultimately recalculated the maximum sentence date for Wylee’s original homicide
conviction to be November 26, 2018.
On November 28, 2016, Wylee was constructively released on parole
from his original sentence to begin serving a state detainer sentence at SCI-
Houtzdale for the offense of theft of moveable property. Constructive parole occurs
when a prisoner is paroled from his original sentence to begin serving a new
sentence. See Merritt v. Pennsylvania Board of Probation and Parole, 574 A.2d
597, 598 n.1 (Pa. 1990). On May 30, 2017, Wylee was released on parole from his
sentence for theft to reside at Gateway Braddock community corrections center
(Braddock CCC). While paroled from his sentence for theft, Wylee also remained
on parole with respect to his original homicide sentence, which, as noted above, had
a maximum sentence date of November 26, 2018.
On June 18, 2018, in connection with a vehicle accident in which Wylee
was involved, the Ambridge Police Department arrested Wylee and charged him
with driving under the influence (DUI), accidental damage to unattended vehicles or
property, and driving with a suspended license. On June 27, 2018, the Board issued
a warrant to commit and detain Wylee for violating the conditions of his parole. That
same day, Wylee was detained in Board custody at SCI-Fayette. On November 26,
2018, the then-applicable maximum date of Wylee’s original homicide sentence, the
Board’s warrant lapsed and Wylee was released from confinement.
1
We have summarized these events because the relevant Board actions are not documented in the
record. This information is summarized in Wylee’s supervision history.
2
On August 22, 2019, Wylee pled guilty to the new DUI charge and was
sentenced by the Court of Common Pleas of Beaver County to a term of confinement
of 6 months to 23 months and 15 days, followed by 2 years of probation under the
county’s intermediate punishment program. The Board relodged its detainer against
Wylee on September 9, 2019, and scheduled a parole revocation hearing that same
day in response to Wylee’s new criminal conviction. Wylee waived his right to
counsel and a revocation hearing and admitted that the new conviction occurred
while he was on parole. On November 12, 2019, the Board recommitted Wylee as
a CPV to serve six months of backtime. The Board awarded Wylee credit for the
time he spent in confinement on the Board’s detainer from June 27, 2018, to
November 26, 2018. C.R. 84. He received no other credit for his time at liberty
following his release on constructive parole on November 28, 2016. His maximum
sentence date was recalculated as April 7, 2021.
Wylee filed an administrative remedies form with the Board, asserting
that he was entitled to credit on his original sentence for the time he was on
constructive parole at SCI-Houtzdale from November 28, 2016, to May 29, 2017.2
On June 30, 2020, the Board denied his request for administrative relief. Wylee
petitioned this Court for review.
On appeal,3 Wylee fails to raise the only argument he made before the
Board, i.e., that he is entitled to credit for the time he was on constructive parole
2
Subsequent to filing his initial administrative remedies form, Wylee sent a second form and letter
to the Board concerning its November 12, 2019, order. Pursuant to its regulations, the Board
treated these later communications as second or subsequent requests for relief and did not consider
them. See 37 Pa. Code §73.1(a)(4) (“Second or subsequent appeals and appeals which are out of
time under these rules will not be received.”).
3
This Court’s review determines whether the Board’s adjudication is supported by substantial
evidence, whether an error of law has been committed, or whether constitutional rights have been
3
from his homicide sentence while serving his theft sentence, from November 28,
2016, to May 29, 2017. It is not clear why Wylee, who is represented by counsel
before this Court, raised this issue in his petition for review, but then failed to discuss
it in his brief on appeal. Regardless of the reason for the omission, however, its
consequences are clear. Rule 2119(a) of the Pennsylvania Rules of Appellate
Procedure, PA. R.A.P. 2119(a), requires that the argument portion of a brief be
developed with pertinent discussion of the issues, including citations to relevant
authority. When parties fail to satisfy this requirement, a court cannot develop the
argument for them. See Skytop Meadow Community Association, Inc. v. Paige, 177
A.3d 377, 384 (Pa. Cmwlth. 2017). Accordingly, Wylee waived the issue of credit
for constructive parole time by failing to discuss it in this brief.4
In his brief before this Court, Wylee discusses a different issue than that
raised in his petition for review.5 He argues that the Board erred in failing to award
violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Moroz v. Pennsylvania
Board of Probation and Parole, 660 A.2d 131, 132 (Pa. Cmwlth. 1995).
4
Nevertheless, even if Wylee had preserved this issue, we would conclude that it lacks merit. “A
person on liberty from parole from a first sentence, while incarcerated on a second sentence, is not
entitled to credit against his original sentence from the constructive parole time served when that
parole has been revoked for criminal parole violations.” Rosenberger v. Pennsylvania Board of
Probation and Parole, 510 A.2d 866, 867 (Pa. Cmwlth. 1986). Moreover, when the Board
recommitted Wylee as a CPV, it denied him credit for his time on constructive parole, which it
was authorized to do. See Plummer v. Pennsylvania Board of Probation and Parole, 216 A.3d
1207, 1211 (Pa. Cmwlth. 2019) (discussing Board’s “discretion to deny credit for time spent at
liberty on parole”), appeal denied, 222 A.3d 1130 (Pa. 2020). Pursuant to Rosenberger, Wylee’s
confinement on his theft sentence does not entitle him to credit for the time on constructive parole
from his homicide sentence, and the Board’s decision to deny credit for that time was within its
discretion.
5
In his brief on appeal, Wylee briefly discusses a March 11, 2020, order of the Board, which, he
alleges, contains a typographical error that misidentifies the sentence addressed in the order.
Wylee submitted an administrative remedies form to the Board challenging its March 11, 2020,
decision. The Board considered this a request for relief subsequent to Wylee’s initial
administrative remedies form and took no action. Wylee did not reference the March 11, 2020,
order in his petition for review, so we do not consider it. See PA. R.A.P 1513(d)(4) (requiring
4
credit against his backtime for the time he resided at Braddock CCC. He alleges that
the conditions of his residence there were equivalent to incarceration, thus entitling
him to credit for that time. The Board responds that Wylee waived this issue by
failing to raise it at any time before the Board, including in his administrative
remedies form.
We first address the threshold issue of whether Wylee has waived the
issue of credit for time spent at Braddock CCC. Under Section 703(a) of the
Administrative Agency Law, a party “may not raise upon appeal any other question
not raised before the agency[.]” 2 Pa. C.S. §703(a).6 Further, Pennsylvania Rule of
Appellate Procedure 1551(a) provides that no question shall be heard or considered
by the court which was not raised before the government unit. PA. R.A.P. 1551(a).7
petition for review to contain a “reference to the order or other determination sought to be
reviewed, including the date the order or other determination was entered”).
6
Section 703(a) states:
A party who proceeded before a Commonwealth agency under the terms of a
particular statute shall not be precluded from questioning the validity of the statute
in the appeal, but such party may not raise upon appeal any other question not raised
before the agency (notwithstanding the fact that the agency may not be competent
to resolve such question) unless allowed by the court upon due cause shown.
2 Pa. C.S. §703(a).
7
At the time Wylee filed his petition for review in this matter, Rule 1551(a) stated:
Review of quasijudicial orders shall be conducted by the court on the record made
before the government unit. No question shall be heard or considered by the court
which was not raised before the government unit except:
(1) Questions involving the validity of a statute.
(2) Questions involving the jurisdiction of the government unit over
the subject matter of the adjudication.
(3) Questions which the court is satisfied that the petitioner could
not by the exercise of due diligence have raised before the
government unit. If, upon hearing before the court, the court is
satisfied that any such additional question within the scope of this
paragraph should be so raised, it shall remand the record to the
government unit for further consideration of the additional question.
5
Thus, issues not raised to the Board in an administrative appeal “are waived for
purposes of appellate review by this [C]ourt.” McCaskill v. Pennsylvania Board of
Probation and Parole, 631 A.2d 1092, 1094-95 (Pa. Cmwlth. 1993).
Wylee’s administrative remedies form did not indicate the basis of his
appeal to the Board. On the attachment to his administrative remedies form, Wylee
explained that he was challenging “the amount of time that the Board [credited] ...
as time spent at liberty on parole.” Certified Record at 89. Wylee discussed only
his time on constructive parole at SCI-Houtzdale, and he identified the date range in
question as November 28, 2016, to May 29, 2017, a period of time that does not
coincide with his time at Braddock CCC. He did not mention Braddock CCC,
identify his time there as being in dispute, or discuss the concept of equivalence to
incarceration with regard to residential treatment programs.8 Id. Moreover, the
relief he requested from the Board concerned only the 183 days of his constructive
parole and did not include his time at Braddock CCC. We conclude that Wylee
failed to preserve for our review the issue of credit for his time at Braddock CCC by
failing to raise it before the Board.9
The court may in any case remand the record to the government unit for further
proceedings if the court deems them necessary.
PA. R.A.P. 1551(a) (former version) (emphasis added). After Wylee filed his petition for review,
Rule 1551(a) was amended, and the relevant portion emphasized above now states: “Only
questions raised before the government unit shall be heard or considered[.]” PA. R.A.P. 1551(a).
8
Although the Board did not consider them, we note that Wylee’s subsequent requests for relief
did not address this issue either.
9
Wylee’s failure to raise this issue before the Board is also apparent from the lack of any hearing
in the record. Without a hearing concerning the conditions at Braddock CCC, neither the Board
nor this Court can effectively determine whether Wylee is entitled to credit for his time there. See
Cox v. Board of Probation and Parole, 493 A.2d 680, 683 (Pa. 1985). Wylee waived his right to
a parole revocation hearing, at which he could have offered the relevant evidence, and his failure
to raise this issue before the Board effectively prevented the Board from scheduling a separate Cox
hearing.
6
Because Wylee did not preserve for review the sole issue he discusses
in his appellate brief, it is waived. Accordingly, we affirm the order of the Board.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Arthur Wylee, :
Petitioner :
:
v. : No. 725 C.D. 2020
:
Pennsylvania Parole Board, :
Respondent :
ORDER
AND NOW, this 25th day of March, 2021, the adjudication of the
Pennsylvania Parole Board, dated June 30, 2020, is hereby AFFIRMED.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita