Com. v. Rose, G. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
GARY LEE ROSE, : No. 1785 MDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, July 21, 2014,
in the Court of Common Pleas of Clinton County
Criminal Division at No. CP-18-CR-0000062-2011
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MUSMANNO, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 25, 2015
Gary Lee Rose appeals from the judgment of sentence of July 21,
2014, following revocation of his County Intermediate Punishment sentence.
We affirm.
On December 30, 2010, appellant was arrested for driving under the
influence (“DUI”), a misdemeanor of the first degree (“2011 case”).
Appellant had a prior record score of four which included two prior DUI
offenses during the preceding ten years. On September 9, 2011, appellant
pleaded guilty1 to DUI and on the same day was placed in the County
Intermediate Punishment (“County IP”) program under the supervision of
1
Appellant filed a motion to withdraw his plea which was denied. Appellant
appealed to this court. In an unpublished memorandum opinion filed
June 25, 2012, at No. 2259 MDA 2011, we affirmed.
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the Clinton County Adult Probation Office2 for a period of five years, with
nine months’ incarceration to be served at the Clinton County Correctional
Facility.
On January 12, 2012, prior to the start of the 2011 County IP sentence
and while he was out on bail, appellant was again arrested for DUI (“2012
case”). He had a prior record score of five, and the gravity score for that
offense was five.
Appellant began the nine-month incarceration portion of his 2011
County IP sentence at the Clinton County Correctional Facility on
January 30, 2012.
On May 7, 2012, appellant entered a guilty plea in the 2012 case, and
on that same date he was sentenced to serve a sentence of twelve months
to sixty months in a State Correctional Institution (“2012 State sentence”).
Appellant was deemed eligible for the Recidivism Risk Reduction Incentive
(“RRRI”) Program. The trial court imposed a minimum sentence under the
RRRI Program of three quarters of the original minimum sentence (nine
months). The 2012 State sentence (nine months RRRI) was to run
consecutively to the nine-month incarceration portion of the 2011 County IP
sentence. At the May 7, 2012, sentencing hearing in the 2012 case, the trial
court explained:
2
Appellant was sentenced to participation in the Clinton County IP program
in accordance with 42 Pa.C.S.A. § 9763.
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You have to do the 62-2011 [2011 case]
incarceration first. Then you start this nine months
under the RRRI sentence second. And then you’ll be
eligible for parole when you do the minimum
sentence. And the State Board of Probation and
Parole will handle your parole. I’ll have nothing to
do with it.
Hearing transcript, 5/7/12 at 18.
On June 5, 2012, appellant was transferred from the Clinton County
Correctional Facility to SCI-Huntington to serve, consecutively, the balance
of the incarceration portion of his 2011 County IP sentence and nine-month
2012 State RRRI minimum sentence. The nine-month incarceration portion
of his 2011 County IP sentence expired in October 2012.3 Nine months
later, on July 30, 2013, when appellant completed his minimum nine-month
RRRI sentence, the State Board of Probation and Parole (“Parole Board”)
paroled appellant. At that point, appellant was under the supervision of both
the County Probation Office (on his 2011 County IP case) and Parole Board
(on his 2012 case).4
3
The probationary portion of the 2011 County IP sentence in the 2011 case
was still to be served.
4
In the 2011 case, the trial court had requested “Special Probation/Parole
Supervision” (Form BPP-325) pursuant to 61 Pa.C.S.A. § 6132. However,
the Parole Board specifically declined acceptance of appellant for supervision
in the 2011 case. Pursuant to the Board’s regulations, 37 Pa.Code § 65.1,
the Parole Board has discretion to accept a case for supervision.
Acceptance of a case for supervision or presentence
investigation from a county which, on December 31,
1985, maintained adult probation offices and parole
systems, will be at the Board’s discretion. The Board
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On March 4, 2014, during his parole supervision and while he was
awaiting the start of the probationary portion of his 2011 County IP
sentence, a Clinton County Probation agent and a State Parole Board agent
visited appellant for the purpose of drug testing. Appellant tested positive
for controlled substances, specifically, opiates, oxycodone, amphetamine,
and cocaine. (R-24.) Both the State and the County immediately issued
detainers for their sentences. The Parole Board recommitted appellant as a
technical parole violator to serve six months’ backtime. Appellant was to be
automatically re-paroled without further action of the Board on September 4,
2012, with a parole maximum date of October 30, 2014. (Notice of Parole
Board decision, 4/3/14, at 1; R-25.)
will ordinarily accept a case that meets the following
criteria:
(1) For supervision:
(i) A felony conviction and a sentence
to serve a probationary term of at
least 2 years.
(ii) A felony conviction and parole from
a sentence with a balance of at
least 6 months.
(iii) A case otherwise under the Board’s
jurisdiction.
By letter dated November 8, 2013, the Parole Board notified the trial
court that “[t]he Board is not empowered to supervise [County] intermediate
punishment.” (Letter from Parole Board to the trial court, 11/8/13 at 1;
R-23.)
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Meanwhile, on March 7, 2014, the Clinton County Adult Probation Unit
filed a Motion to Revoke appellant’s County IP sentence. On July 21, 2014,
after a hearing, the trial court granted the motion and revoked the 2011
County IP sentence. The trial court re-sentenced appellant in the 2011 case
as follows:
2. [Appellant] shall undergo imprisonment in a
State Correctional Institution for a definite
time, the minimum of which shall be
twenty-one (21) months and the maximum of
which shall be sixty (60) months and stand
committed to the State Correctional
Institutional (sic) at Camp Hill, Pennsylvania,
for compliance of this sentence. The sentence
of imprisonment shall be deemed to run
consecutively to the sentence issued to
number 86-2012. [Appellant] is entitled to two
hundred seventy-three (273) day (sic) credit
that [appellant] had previously served in this
matter.
3. The Court finds that [appellant] is an eligible
offender for the Recidivism Risk Reduction
Incentive Program (RRRI); and pursuant to
42 Pa.C.S.A. 5305, the Court imposes a
recidivism risk reduction incentive minimum
sentence of fifteen (15) months and
twenty-two (22) days, which is three quarters
of [appellant’s] minimum sentence.
Trial court order, 7/21/14 at 4-5.
On July 31, 2014, appellant filed a motion to modify sentence in the
2011 case. The trial court vacated its July 21, 2014, sentencing order
pending a hearing on the motion to modify sentence. A hearing was held on
September 22, 2014. On September 23, 2014, the trial court denied
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appellant’s motion to modify sentence and reinstated its July 21, 2014,
sentencing order in its entirety.
On appeal, appellant raises one issue:
[1.] Did the [trial] court have jurisdiction to
re-sentence [appellant] while he was on State
Parole supervision, and prior to when the
probationary portion of the intermediate
punishment sentence was to start?
Appellant’s brief at 7.
In an appeal from a sentence imposed after the court has revoked IP
sentence, we can review the validity of the revocation proceedings, the
legality of the sentence imposed following revocation, and any challenge to
the discretionary aspects of the sentence imposed. Commonwealth v.
Cartrette, 83 A.3d 1030, 1033 (Pa.Super. 2013) (en banc). In this case,
appellant challenges the trial court’s authority or jurisdiction to re-sentence
him which goes to the legality of the sentence. See Commonwealth v.
Cappellini, 690 A.2d 1220 (Pa.Super. 1997).
Appellant argues that the Parole Board had exclusive authority to
parole him because he was sentenced to a maximum term of two years or
longer, Commonwealth v. Tilghman, 652 A.2d 390 (Pa.Super. 1995);
Commonwealth v. Call, 378 A.2d 412 (Pa.Super. 1977), and that the
Parole Board acquired exclusive parole authority when the Department of
Corrections aggregated his sentences. Gillespie v. Commonwealth
Department of Corrections, 527 A.2d 1061 (Pa.Cmwlth. 1987). He
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asserts that the Parole Board granted him automatic re-parole on
September 4, 2014, in both cases, and that the trial court usurped the
exclusive jurisdiction of the Parole Board when it revoked his County IP
sentence and re-sentenced him. Appellant further contends that the trial
court divested itself of the authority to revoke his County IP sentence and
re-sentence him because it was “the Court’s intent that the [Parole Board]
would handle [appellant’s] supervision for both cases.” (Appellant’s brief at
12.)
At the outset, we do not agree that appellant was under the exclusive
jurisdiction of the Parole Board in the 2011 case at the time he committed
the technical violation. The essence of “parole” is the release from prison
before the completion of sentence. Lee v. Pennsylvania Board of
Probation and Parole, 885 A.2d 634 (Pa.Cmwlth. 2005). While a person is
on “parole” he is in fact still serving his sentence. Commonwealth v.
Frankenhauser, 375 A.2d 120 (Pa.Super. 1977).
When appellant was released on parole on July 30, 2013, he had
served the nine-month incarceration portion of his 2011 County IP sentence,
and was waiting to serve the probationary portion. Appellant could not be
“paroled” from the incarceration portion of his County IP sentence because it
had expired by operation of law in October of 2012. There was nothing for
the Parole Board to assess in terms of whether and if appellant should be
released early. Once on parole in the 2012 State case, nothing in
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Section 6132 of the Prisons and Parole Code (“Parole Code”), 61 Pa.C.S.A.
§ 6132, gave the Parole Board power or jurisdiction to assess whether
appellant violated the terms of the remainder of his County IP sentence or to
revoke it.
Instead, that power lies exclusively with the trial court which derives
its authority to revoke appellant’s County IP sentence upon proof of violation
from 42 Pa.C.S.A. § 9773. Section 9773 provides:
§ 9773. Modification or revocation of county
intermediate punishment sentence
(a) General rule.--The court may at any
time terminate a sentence of county
intermediate punishment or increase or
decrease the conditions of a sentence
pursuant to section 9763 (relating to
sentence of county intermediate
punishment).
(b) Revocation.--The court may revoke a
sentence of county intermediate
punishment upon proof of a violation of
specific conditions of the sentence. Upon
revocation and subject to section
9763(d), the sentencing alternatives
available to the court shall be the same
as the alternatives available at the time
of initial sentencing. Upon a revocation
of county intermediate punishment for
any reason specified by law, the attorney
for the Commonwealth may file notice, at
any time prior to resentencing, of the
Commonwealth’s intention to proceed
under an applicable provision of law
requiring a mandatory minimum
sentence. Consideration shall be given
to the time served in the county
intermediate punishment program.
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(c) Hearing required.--A court shall not
revoke or increase the conditions of a
sentence of county intermediate
punishment without a hearing at which
the court shall consider the record of the
initial sentencing proceeding as well as
the conduct of the defendant while
serving a sentence of county
intermediate punishment. A hearing is
not required to decrease the conditions
of the sentence.
42 Pa.C.S.A. § 9773.
It is essential that the trial court maintain the ability to incarcerate
persons for whom intermediate punishment is no longer a viable means of
rehabilitation. Commonwealth v. Serrano, 727 A.2d 1168 (Pa.Super.
1999). A trial court has both jurisdiction and authority to terminate county
intermediate punishment throughout the period of the conditional sentence.
Commonwealth v. Concordia, 97 A.3d 366 (Pa.Super. 2014). Upon
revocation of intermediate punishment, the sentencing alternatives available
to the court shall be the same as the alternatives available at the time of
initial sentencing. Commonwealth v. Melius, 100 A.3d 682 (Pa.Super.
2014); 42 Pa.C.S.A. § 9773.
Pursuant to 42 Pa.C.S.A. § 9773, appellant remained in the legal
custody of the trial court until the expiration of the five-year probationary
portion of his County IP sentence. Appellant failed to complete his County IP
program successfully because he violated its terms prior to when the
probationary portion of that sentence was to start. At that point, the trial
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court had exclusive authority to revoke appellant’s County IP sentence and
to re-sentence him following revocation. We have held that:
“If, at any time before the defendant has completed
the maximum period of probation, or before he has
begun service of his probation, he should commit
offenses of such nature as to demonstrate to the
court that he is unworthy of probation and that the
granting of the same would not be in subservience to
the ends of justice and the best interests of the
public, or the defendant, the court could revoke or
change the order of probation. A defendant on
probation has no contract with the court. He is still a
person convicted of crime, and the expressed intent
of the Court to have him under probation beginning
at a future time does not ‘change his position from
the possession of a privilege to the enjoyment of a
right.’”
Commonwealth v. Wendowski, 420 A.2d 628, 630 (Pa.Super. 1980),
quoting James v. U.S., 140 F.2d 392, 394 (5th Cir. 1944). See also
Commonwealth v. Allshouse, 33 A.3d 31, 39 (Pa.Super. 2011).5
Further, the record reveals that the trial court did not, as appellant
suggests, “turn over all of [appellant’s] supervision to the PA Board of
Probation and Parole.” (Appellant’s brief at 13.) The Parole Board
specifically refused to accept appellant for supervision in the 2011 County IP
case because that sentence involved the probationary portion of a County IP
program and the Parole Board was not empowered to accept supervision
5
Although Wendowski and Allshouse involved the revocation of probation
imposed pursuant to 42 Pa.C.S.A. § 9754 (governing orders of probation),
we see no reason not to apply this same rationale where a defendant
violates the conditions of County IP before the probationary portion of his
sentence commences.
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over those types of cases. Nevertheless, even if he had been “supervised”
by the Parole Board, as argued by appellant, this would not have impeded
the trial court’s exclusive jurisdiction to revoke County IP sentence and
re-sentence appellant under 42 Pa.C.S.A. § 9773. See Commonwealth v.
Mitchell, 955 A.2d 433 (Pa.Super. 2008) (the trial court retains the power,
authority, and jurisdiction to revoke special probation and sentence the
defendant, regardless of the Parole Board’s supervisory powers).
The judgment of sentence of the trial court is affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/2015
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