W. Passarella v. PBPP ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
William Passarella, :
Petitioner :
:
v. :
:
Pennsylvania Board of :
Probation and Parole, : No. 171 C.D. 2020
Respondent : Submitted: July 17, 2020
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: December 8, 2020
William Passarella (Passarella) petitions for review of the January 16,
2020 decision of the Pennsylvania Board of Probation and Parole (Board)1 denying
his petition for administrative review of the Board’s March 15, 2019 decision. Upon
review, we affirm.
I. Background
In 2013 and 2014, Passarella was convicted of aggravated assault and
identity theft, access device fraud, and violation of probation. He was sentenced to
three years, one month to seven years of imprisonment, with a minimum sentence
date of November 10, 2015, and a maximum sentence date of October 10, 2019.
1
The Court notes that as of February 18, 2020, the Board has been renamed the
Pennsylvania Parole Board. See Sections 15, 16, and 16.1 of the Act of December 18, 2019, P.L.
776, No. 115 (effective February 18, 2020); see also Sections 6101 and 6111(a) of the Prisons and
Parole Code, as amended, 61 Pa.C.S. §§ 6101, 6111(a).
Sentence Status Summary, 9/22/16 at 1, Certified Record (C.R.) at 1. On October
3, 2016, the Board released Passarella on parole to reside at the Gaudenzia
Community Corrections Residence (Gaudenzia). Supervision History, 9/8/17 at 1,
C.R. at 23. Passarella absconded on January 13, 2017, after leaving pursuant to a
day pass to attend a verified medical appointment. He was arrested and confined to
State Correctional Institution (SCI) at Graterford on January 28, 2017. Id.; Notice
of Board Decision, 6/28/17 at 1 & 3, C.R. at 5 & 7; Supervision History, 1/29/18 at
2, C.R. at 44. On March 13, 2017, Passarella was charged with access device fraud,
receiving stolen property, and theft of services stemming from conduct during his
15-day period of delinquency in January 2017. Supervision History, 1/29/18 at 2,
C.R. at 44; Criminal Docket, 6/4/18 at 1 & 3, C.R. at 72 & 74.
By decision with a mailing date of June 28, 2017, the Board
recommitted Passarella as a technical parole violator with a parole violation
maximum date of October 25, 2019. Notice of Board Decision, 6/28/17 at 1-2, C.R.
at 5-6. The Board credited Passarella for 102 days of time spent in good standing
on parole, such that 819 days remained on his original sentence. See Passarella v.
Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 146 C.D. 2019, filed August 29, 2019)
(Passarella I), slip op. at 2.
On July 7, 2017, Passarella submitted an administrative remedies form.
The Board subsequently modified its decision by deleting reference to Passarella’s
arrest and detention pending criminal charges and modifying the reparole clause.
Administrative Remedies Form, 7/7/17 at 1, C.R. at 89; Notice of Board Decision,
7/17/17 at 1-2, C.R. at 10-11.
On July 28, 2017, the Board released Passarella on reparole, but he
failed to report to Gaudenzia as instructed. Order to Release on Parole/Reparole,
2
6/15/17 at 1, C.R. at 8; Notice of Charges and Hearing, 9/6/17 at 1, C.R. at 25. On
August 28, 2017, the Board arrested Passarella and placed him in the Coleman Hall
parole violation center until his return to SCI-Graterford two days later. Technical
Violation Arrest Report at 1, C.R. at 21; Supervision History, 1/29/18 at 2, C.R. at
44. On September 6, 2017, the Board charged Passarella with various technical
parole violations. Passarella waived his right to a hearing and admitted to violating
the terms of his parole. Waiver of Violation Hearing and Counsel/Admission Form
9/6/17 at 1, C.R. at 28; Technical Violation Arrest Report at 1, C.R. at 21. By
decision with a mailing date of October 24, 2017, the Board recommitted Passarella
as a technical parole violator to serve nine months of backtime. The Board
calculated a parole violation maximum date of November 25, 2019, by adding 819
days of backtime to Passarella’s “custody for return” date of August 28, 2017. See
Notice of Board Decision, 10/6/17 at 1 & 3, C.R. at 39 & 41; Order to Recommit,
10/6/17 at 1, C.R. at 37.
On January 10, 2018, Passarella was convicted of theft of services,
receiving stolen property, and access device fraud. He was sentenced to a minimum
of 6 months to a maximum of 24 months of imprisonment at an SCI and 3 years of
probation. Sentencing Order, 1/10/18 at 1, C.R. at 42. On March 20, 2018, the
Board executed a hearing report recommitting Passarella as a convicted parole
violator to serve 12 months of backtime. Revocation Hearing Report, 3/20/18 at 1
& 4, C.R. at 54 & 57.
By decision with a mailing date of June 20, 2018, the Board modified
its October 24, 2017 decision by deleting the portion regarding reparole. The Board
recommitted Passarella to an SCI as a convicted parole violator to serve 12 months
of backtime. Notice of Board Decision, 6/20/18 at 1-2, C.R. at 79-80. The Board
3
declined to award credit for time spent at liberty on parole due to Passarella’s
“immediate failure on reparole.” Notice of Board Decision, 6/20/18 at 2, C.R. at 80.
In its order to recommit Passarella, the Board forfeited 102 days previously credited
for time spent at liberty on parole from October 3, 2016, to January 13, 2017, thereby
determining that Passarella owed 921 days of backtime toward his original sentence.
The Board recalculated a parole violation maximum date of July 19, 2020. Order to
Recommit, 6/4/18 at 1, C.R. at 1, C.R. at 77.
On July 9, 2018, Passarella submitted an administrative remedies form
challenging the Board’s decision and asserting that the Board improperly calculated
his parole violation maximum date by utilizing a “custody for return” date of January
10, 2018, rather than August 29, 2017. Administrative Remedies Form, 7/9/18 at 1,
C.R. at 81. Passarella also contended that the Board denied him “credit for time
served exclusively pursuant to [its] warrant” and that he was “not given credit for all
periods of incarceration on this sentence.” Id.
The Board treated the administrative remedies form as a petition for
administrative review. On January 16, 2019, the Board denied Passarella’s petition
and affirmed its June 20, 2018 decision. Response to Administrative Remedies
Form, 1/16/19 at 1-2, C.R. at 82-83. Despite previously crediting Passarella with
102 days for time spent at liberty on parole from October 3, 2016, to January 13,
2017, upon recommitting him as a technical parole violator, the Board explained that
it now denied Passarella this credit due to its decision to recommit him as a convicted
parole violator. Response to Administrative Remedies Form, 1/16/19 at 1, C.R. at
82 (citing Section 6138 of the Prisons and Parole Code (Parole Code), 2 61 Pa.C.S.
§ 6138). The Board therefore determined that 921 days remained on Passarella’s
2
61 Pa.C.S. §§ 101-7123.
4
original sentence and, accordingly, recalculated a parole violation maximum date of
July 19, 2020. Response to Administrative Remedies Form, 1/16/19 at 2, C.R. at
83. On February 9, 2019, Passarella filed a petition for review with this Court
challenging the Board’s recalculation of his parole violation maximum date in its
June 20, 2018 decision. Petition for Review, 2/9/19 at 1-2, ¶¶ 4-6.
Subsequently, by decision with a mailing date of March 15, 2019, the
Board issued an order modifying its June 20, 2018 decision. The Board credited
Passarella with the 102 days it had previously forfeited, thereby recalculating a
parole violation maximum date of April 8, 2020. See Notice of Board Decision,
3/8/19 at 1, C.R. at 88; see also Modified Order to Recommit, 3/8/19 at 1, C.R. at
86.
On March 19, 2019, the Board responded to the administrative
remedies form submitted by Passarella on July 7, 2017, deeming it an administrative
appeal from its decision with mailing date June 28, 2017. Response to
Administrative Remedies Form, 3/19/19 at 1, C.R. at 91. The Board noted that it
had recalculated Passarella’s parole violation maximum date to October 25, 2019,
based on his recommitment as a technical parole violator pursuant to Section
6138(c)(2) of the Parole Code, 61 Pa.C.S. § 6138(c)(2), by denying him credit for
his 15-day period of delinquency from January 13, 2017 to January 28, 2017.
Response to Administrative Remedies Form, 3/19/19 at 1, C.R. at 91.
On the same date, the Board issued a response to Passarella noting that
it deemed the administrative remedies form received from him on July 16, 2018, to
be a petition for administrative review from the Board decision with mailing date
June 20, 2018. Response to Administrative Remedies Form, 3/19/19 at 1, C.R. at
116. The Board reversed that decision with regard to the parole violation maximum
5
date, noting that its decision mailed on March 15, 2019, recalculated Passarella’s
maximum date to April 8, 2020, in light of this Court’s decision in Penjuke v.
Pennsylvania Board of Probation and Parole, 203 A.3d 401 (Pa. Cmwlth. 2019).
Response to Administrative Remedies Form, 3/19/19 at 1-2, C.R. at 116-17.
On April 1, 2019, Passarella submitted via fax an administrative
remedies form, asserting that the “[c]u[s]tody for return [date in the Board’s March
15, 2019 decision was] incorrect,” and that the Board did not give him “credit for all
time served exclusively pursuant to [its] warrant and for time incarcerated on this
sentence.” Administrative Remedies Form, 4/1/19 at 1, C.R. at 120; see also
Response to Administrative Remedies Form mailed 1/16/20 at 1, C.R. at 142. The
Board treated the administrative remedies form as a petition for administrative
review challenging its March 15, 2019 decision.
On August 29, 2019, this Court issued an unpublished opinion
reversing the Board’s January 16, 2019 decision to the extent that it revoked the 102
days previously credited to Passarella for time spent in good standing on parole upon
his prior recommitment as a technical parole violator. This Court remanded the
matter to the Board to reinstate the 102 days of credit in accordance with Penjuke.
See Passarella I, slip op. at 14-16.
By decision with a mailing date of January 16, 2020, the Board denied
Passarella’s April 1, 2019 petition for administrative review and affirmed its March
15, 2019 decision, explaining as follows:3
3
The Board noted that it would take no action on additional items of correspondence
received from Passarella on October 17, 2019, October 18, 2019, November 6, 2019, November
14, 2019, and January 7, 2020, as these letters constituted second or subsequent requests for relief.
Response to Administrative Remedies Form mailed 1/16/20 at 1-2, C.R. at 142-43 (citing 37 Pa.
Code § 73.1(b)(3) (providing that “[s]econd or subsequent petitions for administrative review and
petitions for administrative review which are out of time under this part will not be received”)).
6
The Board paroled Passarella from a[n SCI] on July 28,
2017[,] with a max[imum] date of October 25, 2019[,]
leaving him with 819 days remaining on his sentence the
day he was released. The Board’s decision to recommit
Passarella as a convicted parole violator authorized the
recalculation of his max[imum] date to reflect that he
received no credit for the time spent at liberty on parole.
61 Pa.C.S. § 6138(a)(2). The [B]oard denied Passarella
credit for time spent at liberty on parole in this instance,
thus, he owed 819 days as a convicted parole violator.
The record shows that on June 8, 2017, Passarella was
arrested by local authorities in Delaware County for new
criminal charges and that he did not post bail. On July 28,
2017, Passarella was paroled upon reaching his automatic
reparole date . . . . Passarella was declared delinquent by
the Board effective July 28, 2017[,] and arrested on a
[B]oard detainer on August 28, 2017[,] for technical
parole violations related to delinquency. By decision
recorded October 6, 2017, the Board recommitted
Passarella as a technical parole violator to serve 9 months.
On January 10, 2018, Passarella was sentenced in [the]
Delaware County Court of Common Pleas to a new term
of incarceration to be served in a[n SCI]. Based on the
above facts, Passarella is not entitled to any pre-sentence
credit because he was not solely incarcerated on the
[B]oard detainer prior to sentencing in Delaware County.
Gaito v. Pa. [Bd.] of [Prob. &] Parole, 412 A.2d 568 (Pa.
1980). Thus, Passarella owed 819 days as a convicted
parole violator. Any time spent incarcerated that was not
allocated toward his original sentence will be calculated
by the Department of Corrections and credited toward his
new state sentence upon commencement of that term.
The [] Parole Code provides that convicted parole
violators who were released from a state correctional
institution and received a new sentence to be served in a
state correctional institution must serve the original
sentence first. 61 Pa.C.S. § 6138(a)(5). Because
Passarrella [sic] was already recommitted as a technical
7
parole violator by decision recorded October 6, 2017, he
therefore became available to commence service of his
original sentence on January 10, 2018. Adding 819 days
to that availability date yields a recalculated max[imum]
date of April 8, 2020.
Response to Administrative Remedies Form mailed 1/16/20 at 1-2, C.R. at 142-43.
Passarella sought review in this Court.
II. Issue
Before this Court,4 Passarella argues that because he returned to SCI-
Graterford on August 30, 2017, and did not post bail after it was set on June 8, 2017,
he had already completed his six-month term of incarceration and should have been
immediately paroled by the time of his sentencing on January 10, 2018. Passarella’s
Brief at 12. Passarella notes that his sentencing order states “credit for time served,”
but does not specify the amount of credit. See id. (citing Criminal Docket, 6/4/18 at
4, C.R. at 71). Passarella further asserts that “if [he] is currently serving a state
sentence, he should receive credit on that sentence since his maximum sentence date
of April 8, 2020.” Id. at 15.
III. Discussion
In referencing his six-month term of incarceration, Passarella
presumably asserts that he has completed the 6-to-24-month term of imprisonment
imposed on January 10, 2018. See Sentencing Order, 1/10/18 at 1, C.R. at 42.
Passarella stated in his petition for review that “[t]he [Board] failed to give [him]
credit for all time served exclusively to its warrant.” Thus, he is challenging the
4
Our scope of review of the Board’s decision denying administrative relief is limited to
determining whether necessary findings of fact are supported by substantial evidence, whether an
error of law was committed, or whether constitutional rights have been violated. Fisher v. Pa. Bd.
of Prob. & Parole, 62 A.3d 1073, 1075 n.1 (Pa. Cmwlth. 2013); see also Section 704 of the
Administrative Agency Law, 2 Pa.C.S. § 704.
8
amount of time the Board credited towards his original term of imprisonment
imposed in 2013 and 2014. Petition for Review at 1, ¶ 5; see also Williams v. Pa.
Bd. of Prob. & Parole, 68 A.3d 386, 390 (Pa. Cmwlth. 2013) (stating that “[i]f a
parolee is being held solely on the Board’s detainer, the parolee is entitled to credit
on an original sentence for time served while incarcerated awaiting resolution of new
criminal charges”). Passarella’s claim lacks merit.
The Parole Code requires Passarella to serve his original sentence prior
to any subsequent sentence. See Section 6138(a)(5) of the Parole Code, 61 Pa.C.S.
§ 6138(a)(5) (providing that “[i]f a new sentence is imposed on the parolee, the
service of the balance of the term originally imposed by a Pennsylvania court shall
precede the commencement of the new term imposed . . . [i]f a person is paroled
from a State correctional institution and the new sentence imposed on the person is
to be served in the State correctional institution”). The Board determined that
Passarella became available to begin serving the 819 days of backtime toward his
original sentence on January 10, 2018. As a result, his parole violation maximum
date was April 8, 2020. See Response to Administrative Remedies Form mailed
1/16/20 at 1-2, C.R. at 142-43. As acknowledged by the Board, “[a]ny time spent
incarcerated that was not allocated toward [Passarella’s] original sentence [would]
be calculated by the Department of Corrections and credited toward his new state
sentence upon commencement of that term.” Response to Administrative Remedies
Form mailed 1/16/20 at 1-2, C.R. at 142-43. Thus, Passarella became available on
April 8, 2020, to serve his subsequent prison term of 6 to 24 months, less any credit
for time served allocated by the Board. Id.
Passarella next argues that the Board failed to properly credit time
toward his original sentence in accordance with this Court’s prior remand order. See
9
Passarella’s Brief at 15. He correctly notes that in Passarella I we determined that
the Board erred in revoking the 102 days Passarella spent in good standing at liberty
on parole, also known as “street time,” previously credited to him upon
recommitment as a technical parole violator. Accordingly, he owed 819 days of
backtime, rather than 921 days. Id. at 13. Passarella maintains that, following
remand, the Board “[n]evertheless . . . persisted in forfeiting the 102 days previously
credited.” Id. Further, Passarella contends that “[e]ven using . . . [a] custody for
return date of January 10, 2018 and adding 819 days would result in a maximum
sentence date of July 8, 2020.” Id. at 13-14. Thus, Passarella contends that the
Board “ignored the prior court order and did not give [him] credit for all the time to
which he was entitled,” such that “[t]he case must be remanded.” Id. at 15.
The certified record demonstrates that the Board’s decision is
consistent with this Court’s remand order and Penjuke. In fact, the Board modified
its calculation of Passarella’s backtime to comport with Penjuke nearly six months
before this Court issued its remand order on August 29, 2019, by restoring credit to
Passarella for 102 days spent in good standing on parole, reducing the balance of
backtime to 819 days, and recalculating a parole violation maximum date of April
8, 2020. See Notice of Board Decision, 3/8/19 at 1, C.R. at 88; see also Modified
Order to Recommit, 3/8/19 at 1, C.R. at 86. Thus, Passarella’s second argument is
also meritless.
Accordingly, we affirm the Board’s decision.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
William Passarella, :
Petitioner :
:
v. :
:
Pennsylvania Board of :
Probation and Parole, : No. 171 C.D. 2020
Respondent :
ORDER
AND NOW, this 8th day of December, 2020, the January 16, 2020
decision of the Pennsylvania Board of Probation and Parole is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge