C.T. Thomas v. PPB ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Christopher T. Thomas, :
Petitioner :
:
v. :
:
Pennsylvania Parole Board, : No. 1173 C.D. 2022
Respondent : Submitted: October 10, 2023
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION BY
JUDGE COVEY FILED: November 1, 2023
Christopher T. Thomas (Thomas) petitions this Court for review of the
Pennsylvania Parole Board’s (Board) September 28, 2022 decision affirming the
Board’s decision recorded May 2, 2022 (mailed May 4, 2022) that rescinded
Thomas’s automatic reparole. Thomas presents two issues for this Court’s review:
(1) whether substantial evidence supported the Board’s finding that Thomas was in
possession of a controlled substance; and (2) whether the Board erred as a matter of
law by rescinding Thomas’s automatic reparole. After review, this Court affirms.
Thomas (Inmate No. KS6532) is currently incarcerated at the State
Correctional Institution (SCI) at Fayette.1 On September 13, 2012, the Allegheny
County Common Pleas Court sentenced Thomas to serve 8 to 16 years of
incarceration for burglary (Original Sentence). See Certified Record (C.R.) at 1-4,
11, 40. Thomas’s Original Sentence maximum release date was December 21, 2026.
See C.R. at 3, 11, 40.
1
See http://inmatelocator.cor.pa.gov (last visited Oct. 31, 2023).
On June 4, 2021, the Board granted Thomas parole from his Original
Sentence on or after September 22, 2021, to Renewal, Inc., a community corrections
center. See C.R. at 4-10. As a condition of his parole, on June 21, 2021, Thomas
agreed to certain parole conditions (Conditions), including Condition 5.c, which
required him to “refrain from assaultive behavior[,]” C.R. at 13, and Condition 7,
which specified, in pertinent part: “If you violate a condition of your parole/reparole
and, after an appropriate hearing(s), the Board decides that you are in violation of a
condition of your parole/reparole[,] you may be recommitted to prison for such time
as may be specified by the Board.” C.R. at 14. On September 24, 2021, Thomas
agreed to an additional special parole condition that declared: “You will comply with
all of Renewal[,] Inc[.’s] rules and regulations. You are required to successfully
complete all prescribed programs and treatment. Any violation of Renewal[,]
Inc[.’s] rules and or regulations will be considered a violation of your parole.” C.R.
at 29.
On November 5, 2021, Renewal, Inc. discharged Thomas for verbally
threatening a staff member on November 4, 2021. See C.R. at 21, 31. That same
day, the Board issued a warrant to commit and detain Thomas, and parole staff
transported him to the Butler County Jail. See C.R. at 18, 31. On November 6, 2021,
the Board cancelled its warrant to commit and detain Thomas. See C.R. at 19. On
November 8, 2021, parole staff issued a technical parole violation arrest report. See
C.R. at 24-25. Thereafter, the Board issued a Notice of Charges and Hearing to
Thomas, scheduling a parole violation hearing for January 19, 2022, which was
rescheduled at Thomas’s request. See C.R. at 26.
On January 26, 2022, the Board issued Thomas a Notice of Charges and
Hearing, scheduling a parole violation hearing for February 25, 2022. See C.R. at
21. Thomas waived his right to a panel hearing, see C.R. at 23, and a single hearing
examiner conducted the hearing on February 25, 2022. See C.R. at 33-76.
2
By decision recorded on March 4, 2022 (mailed March 10, 2022), the
Board recommitted Thomas to an SCI as a technical parole violator (TPV) to serve
six months of backtime on his Original Sentence for violating Conditions 5.c (failure
to refrain from assaultive behavior) and 7 (failure to successfully complete the
Renewal, Inc. program). See C.R. at 95-97; see also C.R. at 77-94. The Board’s
decision included, inter alia: “YOU ARE REPAROLED AUTOMATICALLY WITHOUT
FURTHER ACTION OF THE BOARD ON [MAY 5,] 2022 (1ST ACT 122 TPV
RECOMMITMENT)[,] PROVIDED YOU DO NOT[:] [(]1) COMMIT A DISCIPLINARY
INFRACTION INVOLVING ASSAULTIVE BEHAVIOR, SEXUAL ASSAULT, A WEAPON[,] OR
CONTROLLED SUBSTANCE . . . .” See C.R. at 96.
By letter postmarked March 15, 2022, Thomas notified the Board of his
intention to appeal from the Board’s decision recorded on March 4, 2022 (mailed
March 10, 2022). See C.R. at 110-111. On March 21, 2022, the Board received
Thomas’s pro se administrative remedies form postmarked March 17, 2022,
challenging the Board’s decision recorded on March 4, 2022 (mailed March 10,
2022), on the basis that he was the victim of constitutional and ethics violations. See
C.R. at 112-115.
While Thomas was serving his recommitment at SCI-Fayette, the
Department of Corrections (DOC) issued a misconduct (No. D686341) for Thomas’s
possession or use of a dangerous or controlled substance (Possession Misconduct)
and for possession of contraband (Contraband Misconduct) on April 22, 2022.2 See
2
The April 27, 2022 Automatic Reparole Rescission Report reflected:
The [M]isconduct [No. D686341] was for violation of [DOC R]ules:
#22 - [p]ossession or use of a dangerous or controlled substance and
#36 - [p]ossession of [c]ontraband. The [underlying action]
occurred in the SCI on [April 22,] 2022[,] during a cell search where
a [corrections officer] discovered a piece of paper on [Thomas’s]
desk that tested positive for [s]ynthetic [c]annabinoids. [Thomas]
3
C.R. at 100-104. By April 27, 2022 notice, DOC informed the Board that Thomas’s
Contraband Misconduct involved “[p]ossession of [c]ontraband (a piece of paper
testing positive for synthetic cannabinoids)[,]”3 for which he was placed in
disciplinary custody for 45 days. C.R. at 99. By decision recorded May 2, 2022
(mailed May 4, 2022), the Board rescinded Thomas’s May 5, 2022 automatic
reparole “DUE TO MISCONDUCT[;] COMMIT[T]ED A DISCIPLINARY INFRACTION
INVOLVING POSSESSION OR USE OF A CONTROLLED SUBSTANCE.”4 C.R. at 109; see
also C.R. at 105-108.
On June 23, 2022, the Board received Thomas’s pro se letter
postmarked May 31, 2022, challenging the Board’s automatic reparole rescission
recorded on May 2, 2022 (mailed May 4, 2022). See C.R. at 116-117. Therein,
Thomas asked the following questions:
Why [Thomas] is identified as petitioner, Inmate No. KS-
6532, and Parolee No. 197-DB?
Explain what violation [Thomas] committed to warrant the
automatic reparole recission.
Why [Thomas] is being held at SCI-Fayette, which is a
maximum security facility, when his Original Sentence
was for a non-violent offense?
Why [Thomas] has not been released to a community
corrections facility based on his factual position?
took ownership of all property in the cell at the time. [Thomas]
plead [sic] not guilty to [both the Possession and Contraband
M]isconducts at the [April 25,] 2022 disciplinary hearing and was
found guilty by the DOC. The DOC imposed 45 days in disciplinary
custody . . . .
C.R. at 106.
3
Section 6101 of the Prisons and Parole Code defines contraband as “[a]ny item that the
offender is not permitted to possess under the conditions of supervision, including any item whose
possession is forbidden by any [f]ederal, [s]tate or local law.” 61 Pa.C.S. § 6101.
4
The Board’s decision reflected that the Board would review Thomas for reparole again
on or after January 1, 2023. See C.R. at 108-109.
4
Why has the Board not responded to [Thomas’s] March
21, 2022 appeal?
See C.R. at 116.
On September 28, 2022, the Board affirmed its decisions recorded on
March 4, 2022 (mailed March 10, 2022) and May 2, 2022 (mailed May 4, 2022),5
stating:
First, the record reveals that [o]n February 25, 2022, the
Board conducted a non-panel violation hearing to afford
to you the opportunity to answer the technical parole
violations charged against you. The Board relied upon the
evidence presented (three videos) and the credible
testimony of Renewal[,] Inc. staff during the hearing to
determine that you were in violation of [C]ondition[s]
[]5[.]c (assaultive behavior) and []7 (unsuccessful
discharge from Renewal[,] Inc.). The panel [found] that
the evidence presented and testimony provided at that
hearing [were] sufficient to support the recommitment.
Next, the [Board] decision recorded on March 4, 2022
[(mailed March 10, 2022),] recommitted you for the
aforementioned technical violations and established an
automatic reparole date of no later than May 5, 2022. The
record reveals that on April 22, 2022, you incurred a
[Possession Misconduct] and [Contraband Misconduct].
You were afforded a misconduct hearing at [SCI-Fayette],
you were found guilty, and you were sanctioned to 45-
days[’] disciplinary custody.
[Section 6138(d)(5) of t]he Prisons and Parole Code
[(Parole Code)] provides that automatic reparole does not
apply to [TPVs] who commit disciplinary infractions
involving controlled substances. [See] 61 Pa.C.S. §
6138(d)(5).[6] Because you incurred a qualifying
5
The Board’s September 28, 2022 decision reflects that it was in response to Thomas’s
letter received March 18, 2022 (postmarked March 15, 2022), Thomas’s administrative remedies
form received March 21, 2022 (postmarked March 17, 2022), and Thomas’s letter received June
23, 2022 (postmarked May 31, 2022). See C.R. at 118.
6
Section 6138(d) of the Parole Code states:
5
misconduct under the statute, the Board acted within its
authority by rescinding automatic reparole in this case.
Moreover, the Board acted within its discretion by taking
this action without conducting an additional evidentiary
hearing because you were already afforded due process to
challenge the misconduct at issue in the hearing held at the
institution. There is no reason for the Board to re-litigate
those facts.
. . . . The record in this matter reveals the Board decisions
recorded on March 4, 2022 (mailed [March 10,] 2022)[,]
and May 2, 2022 (mailed [May 4,] 2022)[,] are supported
by substantial evidence, do not constitute an error of law,
and do not violate your constitutional rights.
C.R. at 118-119. Thomas appealed pro se to this Court.7
In his Petition for Review, Thomas asserted:
[Thomas] continued to pursue an appeal of [Thomas’s]
misconduct, and on the 28th day of April, 2022, [DOC’s]
Program Review Committee issued its final disposition in
A [TPV] recommitted to a[n] [SCI] . . . shall be recommitted as
follows:
....
(5) The time limit under paragraph (3) [(i.e., six months for the first
recommitment)] shall not be applicable to an offender who:
(i) committed a disciplinary infraction involving assaultive
behavior, sexual assault, a weapon or controlled
substances;
(ii) spent more than 90 days in segregated housing due to
one or more disciplinary infractions; or
(iii) refused programming or a work assignment.
61 Pa.C.S. § 6138(d).
7
“This Court’s review of an automatic reparole rescission action ‘is limited to determining
whether the findings were supported by substantial evidence, whether constitutional rights were
violated, or whether the Board committed an error of law.’” Anderson v. Pa. Parole Bd., 266 A.3d
106, 108 n.3 (Pa. Cmwlth. 2021) (quoting Lockett v. Pa. Bd. of Prob. & Parole, 141 A.3d 613,
615 n.1 (Pa. Cmwlth. 2016)).
Thomas filed an application to proceed in forma pauperis, which this Court granted on
November 3, 2022. On November 21, 2022, Fayette County Assistant Public Defender Tyler C.
Shultz entered his appearance on Thomas’s behalf.
6
[Thomas’s] misconduct appeal, whereas, [Thomas] was
found “Not Guilty” of [the Possession Misconduct (X)],
but “Guilty” of the charge of [Contraband Misconduct
(Y)].
As [Thomas] has previously stated that both “X” and “Y”
are [s]ynonymous to each other[,] meaning that the two
things are closely associated with each other or one cannot
exist without the other. Therefore, [i]f [Possession
Misconduct] “X” [] was [d]ismissed, [t]hen [Contraband
Misconduct] “Y” [] should have been [d]ismissed as well.
Pet. for Rev. at 3 (quotation marks omitted); see also C.R. at 101-102.
In his brief to this Court, Thomas argues that since he was ultimately
found not guilty of the Possession Misconduct, and was only found guilty of the
Contraband Misconduct, which is not grounds for rescission, the Board erred as a
matter of law by rescinding Thomas’s automatic reparole. The Board responds that
Thomas waived that issue by not raising it to the Board in his administrative appeals.
Preliminarily, this Court must address the Board’s allegation that
Thomas waived those arguments.
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. [See] Jacobs v. P[a.] B[d.] of
Prob[.] [&] Parole, 958 A.2d 1110 (Pa. Cmwlth. 2008);
Newsome v. P[a.] B[d.] of Prob[.] [&] Parole, . . . 553
A.2d 1050 ([Pa. Cmwlth.] 1989).
Chesson v. Pa. Bd. of Prob. & Parole, 47 A.3d 875, 878 (Pa. Cmwlth. 2012).
Here, because the actions upon which Thomas’s April 22, 2022
Possession and Contraband Misconducts were based had not yet occurred, he could
not have raised them at his violation hearing or in his March 17, 2022 administrative
remedies form. See C.R. at 112-115. However, Thomas’s May 31, 2022 letter
(received by the Board on June 23, 2022), which was sent after he was found guilty
of the Contraband Misconduct, did not expressly challenge the Board’s decision
7
recorded on May 2, 2022 (mailed May 4, 2022), on the basis that the Contraband
Misconduct was not a statutory basis for rescission, or that the Board erred by
rescinding his automatic reparole. Rather, Thomas merely asked the Board to clarify
“what violation he committed to warrant the automatic reparole re[s]cission.” C.R.
at 116. Under the circumstances, Thomas waived his argument by raising it for the
first time on appeal to this Court.
Even if this Court was to construe Thomas’s May 31, 2022 request for
the Board to explain what violation he committed to warrant the automatic reparole
rescission as a challenge to the Board’s decision recorded on May 2, 2022 (mailed
May 4, 2022), on the basis that his Contraband Misconduct was not a statutory basis
for rescission, Thomas’s appeal still fails.
Section 6138(d)(5)(i) of the Parole Code statutorily prohibits the Board
from automatically reparoling an inmate who “committed a disciplinary infraction
involving . . . controlled substances[.]” 61 Pa.C.S. § 6138(d)(5)(i) (italic and bold
emphasis added). Section 1.B.4.d of DOC’s DC-ADM 801 (Inmate Discipline
Procedures Manual), declares that “[d]rug-related misconducts include dealing,
using (including positive drug test results or refusal to submit to drug testing), or
possessing illegal or non-prescribed drugs and/or drug paraphernalia.” DC-
ADM 801 at 1-2 - 1-3 (emphasis added);8 see also Section VIII.D.3.w, aa of the
Inmate Handbook at 34-35.9 DOC’s DC-ADM 801 defines contraband possession
misconduct to “includ[e] . . . non-prescribed drugs (or drugs which are prescribed,
but which the inmate is not authorized to possess), drug paraphernalia, . . . [and]
8
www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/801%20Inmate%20Discipline.pdf
(last visited Oct. 31, 2023).
9
www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/2023%20Inmate%20Handbook%2
0ENGLISH.pdf (last visited Oct. 31, 2023).
8
intoxicants . . . .”10 DC-ADM 801 Attachment 1-A (emphasis added); see also
Section VIII.D of the Inmate Handbook at 44.11 Neither Section 6138(d)(5)(i) of the
Parole Code nor DC-ADM 801 require that an inmate be found guilty of possessing
or using a controlled substance in order for DOC to declare an inmate guilty of
misconduct involving drug-related possession of contraband.
Here, regarding Thomas’s Contraband Misconduct, the record reflects:
[The hearing examiner] believed [Corrections] Officer
[(CO)] Morrison’s [(CO Morrison)12] report over
[Thomas’s] denial that [Thomas] possessed contraband
when [CO Morrison] discovered suspected contraband on
the cell desk. [Thomas] had taken ownership of items on
the desk. [CO Morrison] tested the contraband which
was a 1½ x 1½ piece of paper [with] mark AP on it and
it was tested with the Narc II test kit which yielded
positive results for synthetic cannabinoids.[13] A
preponderance of the evidence exists to support the
[Contraband Misconduct].[14]
10
www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/801%20Inmate%20Discipline.pdf
(last visited Oct. 31, 2023).
11
www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/2023%20Inmate%20Handbook%2
0ENGLISH.pdf (last visited Oct. 31, 2023).
12
CO Morrison’s full name is not legible. See C.R. at 100.
13
Synthetic cannabinoids are Schedule I controlled substances under Section 4(1)(vii) of
The Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, as
amended, 35 P.S. § 780-104(1)(vii).
14
The hearing examiner dismissed the possession or use of a controlled substance
misconduct charge. See C.R. at 102. Although not included as part of the Board’s Certified
Record, in the Petition for Review, Thomas explained that he appealed from the hearing
examiner’s misconduct determination to DOC’s Program Review Committee which, on April 28,
2022, upheld the hearing examiner’s ruling. See Pet. for Rev. at 3. “It is well settled that ‘[i]nmate
misconducts are a matter of internal prison management and, thus, do not constitute adjudications
subject to appellate review.’” Feliciano v. Pa. Dep’t of Corr., 250 A.3d 1269 (Pa. Cmwlth. 2021)
(quoting Hill v. Dep’t of Corr., 64 A.3d 1159, 1167 (Pa. Cmwlth. 2013)). Accordingly, this Court
lacks jurisdiction to review DOC’s misconduct decision.
9
C.R. at 102 (emphasis added); see also C.R. at 106. Because DOC expressly found
that Thomas’s contraband possession misconduct “involv[ed] . . . [a] controlled
substance[,]” Section 6138(d)(5)(i) of the Parole Code authorized the Board to
rescind his automatic reparole. 61 Pa.C.S. § 6138(d)(5)(i) (italic and bold emphasis
added); see also Anderson v. Pa. Parole Bd., 266 A.3d 106 (Pa. Cmwlth. 2021)
(documentary evidence of prison misconduct is substantial evidence upon which the
Board may rely to rescind automatic reparole). Accordingly, the Board did not err
as a matter of law by rescinding Thomas’s automatic reparole.
Based on the foregoing, the Board’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Christopher T. Thomas, :
Petitioner :
:
v. :
:
Pennsylvania Parole Board, : No. 1173 C.D. 2022
Respondent :
ORDER
AND NOW, this 1st day of November, 2023, the Pennsylvania Parole
Board’s September 28, 2022 decision is affirmed.
_________________________________
ANNE E. COVEY, Judge