J.M. Britton v. PA BPP

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jerome M. Britton, :
Petitioner :
:
v. :
:
Pennsylvania Board of Probation :
and Parole, : No. 2101 C.D. 2014
Respondent : Submitted: October 2, 2015
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MARY HANNAH LEAVITT, Judge1
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: March 14, 2016
Jerome M. Britton (Britton), an inmate at State Correctional Institution –
Mahanoy, petitions this Court for review of the Pennsylvania Board of Probation and
Parole’s (Board) November 3, 2014 order denying his request for administrative
relief. Britton’s counsel, Kent D. Watkins, Esquire (Counsel), has filed a petition to
withdraw representation (Withdrawal Petition) and submitted a no-merit letter in
support thereof. After review, we grant Counsel’s application and affirm the Board’s
order.
On June 30, 2011, Britton was paroled from a 7½ to 15-year sentence for
the manufacture, sale, delivery or possession with the intent to deliver a controlled
substance and contraband/controlled substance to a community corrections center.
As a condition of parole, Britton agreed: “I expressly consent to the search of my
person, property and residence, without a warrant by agents of the [Board]. Any
1
This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt
became President Judge.
items, in the possession of which constitutes a violation of parole/reparole shall be
subject to seizure, and may be used as evidence in the parole revocation process.”
Certified Record (C.R.) at 24. Britton also agreed to the special condition that he
“SHALL NOT POSSESS AMMUNITION UNDER ANY CONDITION OR FOR ANY REASON.” C.R.
at 19, 26. At that time, his maximum sentence release date was January 17, 2017.
Britton was released from the community corrections center on September 7, 2011
under an approved home plan, subject to the same parole conditions.
On December 17, 2012, Board agents visited Britton’s home and
Harrisburg City Police (Police) conducted a warranted search of the premises.
According to the Board’s Supervision History Report:
Eventually the search warrant arrived, and the Police asked
us to help them search due to limited manpower. Upon
conducting the search, [Britton’s Supervising Board Agent
Aaron Geedey (Agent Geedey)] found an
American/Russian 7.62 [r]ifle and a loaded magazine in the
basement in an empty box. . . . [Board] Agent Ross then
found a MAC-11 handgun in the basement under the empty
boxes. [Board] Agent Welsh and [Police] Detective
Heffner found a Smith and Wesson 9 mm handgun in the
glove box of the car [Britton was known to use, and which
Britton’s mother permitted them to search], a loaded
magazine, and one 9 mm round on the passenger side of the
door. During [the] search [Board] Agent Hendrickson
searched a gray hoodie found in the dining room. In the
pocket she found a baggy with what was believed to be a
large crack cocaine rock. With that was a smaller baggy
also containing what was believed to be a crack rock. In a
separate pocket of that same gray hoodie she located a bag
of marijuana. On the dining room table in a bowl two razor
blades were found covered with white powder residue.
Agent Hendrickson located a third razor blade on the TV
stand in the living room also containing white powder
residue. Next to the TV stand in the living room was a
cardboard box containing a stun gun. [Board] Supervisor
[Peter] Hans [(Supervisor Hans)] found a bag on top of the
kitchen cabinets that contained very small ziplock baggies
typically used for selling drugs and rubber gloves.
2
Supervisor Hans also informed Detective Lau that he
recovered the assault rifle [American/Russian 7.62x39]
round that was laying on the television stand.
C.R. at 45 (emphasis added). The Police arrested Britton and charged him with
receiving stolen property; two counts of possession of firearms by a convicted felon;
manufacturing, delivering or possessing controlled substances with the intent to
deliver; and, possession with intent to use drug paraphernalia. See C.R. at 33-43, 46,
54. He was placed in Dauphin County Prison and did not post bail. The Board
issued a warrant to commit and detain Britton due to the new criminal charges. In
addition, because the 7.62x39 round was found at Britton’s premises, he was also
charged by the Board with violating the parole condition prohibiting him from
possessing ammunition. See C.R. at 46.
The Board scheduled a detention hearing for December 26, 2012 that
was continued at Britton’s request. See C.R. at 47. On January 30, 2013, federal
authorities indicted Britton in the United States (U.S.) District Court for the Middle
District of Pennsylvania (U.S. District Court) on the charges arising from the
December 17, 2012 search. See C.R. at 71. As a result, on March 27, 2013, Britton’s
state criminal charges were withdrawn. See C.R. at 42.
On September 4, 2013, Britton was found guilty of possessing the
American/Russian 7.62 rifle, and was sentenced on January 28, 2014 to “100 MONTHS
[FEDERAL INCARCERATION] TO RUN CONSECUTIVELY [WITH] ANTICIPATED SENTENCE
2
IMPOSED ON STATE PAROLE REVOCATION.” C.R. at 50; see also C.R. at 55, 74-76.
Agent Geedey received the official conviction verification on February 26, 2014. See
C.R. at 64, 95-96, 99.
2
Britton was acquitted of the other charges. See C.R. at 70.
3
A revocation hearing was held before a hearing examiner on April 10,
2014,3 at which Britton was represented by Counsel. See C.R. at 50-51, 56. At the
revocation hearing, the Board entered Britton’s January 28, 2014 conviction on the
record, and Agent Geedey explained that although Britton was found guilty on
September 4, 2013, conviction in federal court occurs at sentencing.4 Supervisor
Hans testified that within seconds of entering Britton’s premise on December 17,
2012, he observed the round matching the American/Russian 7.62x39 gun that
Britton was convicted of illegally possessing “sitting on a TV stand in plain view.”
C.R. at 104.
By April 25, 2014 decision, the Board recommitted Britton as a
convicted parole violator to serve 24 months backtime, and as a technical parole
violator to serve 6 months backtime.5 See C.R. at 58-59, 128-129. Britton was not
given credit for time spent at liberty on parole. See C.R. at 58. His maximum
sentence release date was changed to July 5, 2019. See C.R. at 129.
By May 20, 2014 letter to the Board, Britton requested administrative
relief because: (1) the Board held his parole revocation hearing more than 7 months
after his conviction; (2) the Board relied solely on a Board agent’s testimony as proof
that he possessed ammunition; (3) the Board erred by holding that the ammunition
violation was separate from his firearms possession charge; (4) the Board erred by
imposing a sanction that exceeds his maximum sentence; and, (5) his revocation
3
On March 5, 2014, Britton requested a revocation hearing before a panel. Because the
originally-scheduled March 27, 2014 hearing date was not a panel hearing day, the hearing was held
on April 10, 2014.
4
At the hearing, Britton and his attorney Michael Rentschler (Attorney Rentschler) argued
that the Department of Corrections miscalculated his maximum sentence date. See C.R. at 86-89.
The hearing examiner informed Britton that sentence calculation was not an issue over which he
had jurisdiction.
5
The 6 months was to be served concurrently with the 24 months. See C.R. at 59.
4
hearing counsel was ineffective. See C.R. at 130-148. By November 3, 2014
decision, the Board denied Britton administrative relief. See C.R. at 149-151.
Britton, pro se, appealed from the Board’s decision to this Court.6 In his
petition for review, Britton averred that the Board “erred in failing to consider [his]
request for Administrative Relief[,]” and stated:
Given the Board[’]s unexplained departure from it[]s
conventual [sic] practice, and it[]s failure to respond to
proposed findings of FACT, This Court, as a matter of
Equity, must reverse the Board’s Decision, finding that the
Revocation Hearing was untimely and [Britton’s] right to a
speedy Revocation Hearing has been violated and the only
remedy is Vacation of the Revocation Order and the
dismissal with prejudice of the violations.
Pet. for Review at 4-5.7 By December 5, 2014 order, this Court, inter alia, appointed
Counsel for Britton’s appeal.
In his March 2, 2015 no-merit letter, Counsel detailed the history of
Britton’s claim, and concluded that Britton’s appeal has no merit. Counsel No-Merit
Letter at 8. The no-merit letter further notified the Court and Britton that Counsel
would file the Withdrawal Petition, and advised Britton of his right to retain
substitute counsel or to proceed pro se. On March 4, 2015, this Court ordered
Counsel’s Withdrawal Petition to be considered along with the merits of Britton’s
appeal.
We will first consider Counsel’s Withdrawal Petition. Pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998) and Commonwealth v. Finley,
6
“Our review in a parole revocation 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.” Flowers v. Pa. Bd. of Prob. & Parole, 987 A.2d 1269, 1271 n.3
(Pa. Cmwlth. 2010).
7
The Board filed a motion to suppress/strike Britton’s petition for review for failure to
conform to the Pennsylvania Rules of Appellate Procedure. By August 5, 2015 order, this Court
denied the Board’s motion.
5
550 A.2d 213 (Pa. Super. 1988) (Turner/Finley), an attorney seeking to withdraw
representation must review the case zealously, and
then submit a ‘no-merit’ letter to the trial court, or brief on
appeal to this Court, detailing the nature and extent of
counsel’s diligent review of the case, listing the issues
which the petitioner wants to have reviewed, explaining
why and how those issues lack merit, and requesting
permission to withdraw.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007). “[C]ounsel must
fully comply with the procedures outlined in Turner to ensure that each of the
petitioner’s claims has been considered and that counsel has a substantive reason for
concluding that those claims are meritless.” Hont v. Pa. Bd. of Prob. & Parole, 680
A.2d 47, 48 (Pa. Cmwlth. 1996). “Counsel must also send to the petitioner: (1) a
copy of the ‘no-merit’ letter/brief; (2) a copy of counsel’s petition to withdraw; and
(3) a statement advising petitioner of the right to proceed [pro se] or by new counsel.”
Wrecks, 931 A.2d at 721. “[T]he [C]ourt does not reach an examination of the merits
of the appeal until it is satisfied that counsel has discharged its responsibility in
complying with the technical requirements of . . . a no-merit letter.” Wesley v. Pa.
Bd. of Prob. & Parole, 614 A.2d 355, 356 (Pa. Cmwlth. 1992). Accordingly, we
review Counsel’s no-merit letter to determine whether it properly lists Britton’s
issues and explains why the appeal lacks merit.
In Britton’s amended brief, he lists the following issues for this Court’s
review: (1) whether the Board timely held Britton’s revocation hearing; (2) whether
the Board’s agents had reasonable suspicion to search Britton’s residence on
December 17, 2012; (3) whether the Board erred by finding that Britton’s possession
of ammunition was separate from his firearms conviction; (4) whether the Board
erred by relying solely on an agent’s testimony about his possession of ammunition;
(5) whether the Board erred by imposing a sanction that exceeded his maximum
6
sentence release date; and, (6) whether Britton’s revocation hearing counsel was
ineffective. Because Britton’s reasonable suspicion to search issue was not raised in
his petition for review, it is waived and will not now be considered by this Court.8
Counsel’s letter reflects a “diligent review of the case,” addressing the
issues raised and explaining why those issues do not have merit.9 Wrecks, 931 A.2d
at 721. The letter sets forth the proper standard of review, and explains the basis for
Counsel’s statement that the Board properly denied Britton’s appeal. Further, the
record demonstrates that Counsel sent Britton the required documents and Britton
was notified of his right to obtain counsel or proceed pro se. Finding that Counsel’s
letter satisfies the requirements of Turner and Finley, we review the merits of
Britton’s appeal.
8
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. The law
is equally well settled that issues not raised in a petition for review
are waived and will not be addressed by this Court.
Chesson v. Pa. Bd. of Prob. & Parole, 47 A.3d 875, 878 (Pa. Cmwlth. 2012) (citations omitted;
emphasis added).
9
Britton was represented by counsel at the parole revocation hearing. His hearing counsel
raised the issue of whether the parole officers had reasonable suspicion to conduct the search. The
Board nevertheless revoked Britton’s parole. Britton did not raise the reasonable suspicion to
search issue in either his request to the Board for administrative relief or his petition for review to
this Court. In Tillery v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth. No. 518 C.D.
2013, filed March 12, 2014 and amended April 24, 2014), appointed counsel reviewed the history of
Tillery’s case and relevant legal authority, including an issue not properly preserved before the
Board. This Court held that “in addressing the petition to withdraw and the petition for review, we
limit our consideration to only those issues that Tillery raised before the Board in his
administrative appeal.” Id. at 2 n.5 (emphasis added). Thus, although appointed counsel may
review issues not raised before the Board, those issues cannot be resurrected by appointed counsel,
and this Court will not consider them. Accordingly, Counsel did not err by not addressing Britton’s
reasonable suspicion to search issue in his no-merit letter.
We acknowledge that Tillery is an unreported opinion, and that this Court’s unreported
memorandum opinions may not be cited as binding precedent; however, they may be cited “for
[their] persuasive value[.]” Section 414 of the Commonwealth Court’s Internal Operating
Procedures. Tillery is cited herein for its persuasive value.
7
Britton first argues that the Board held his parole revocation hearing
beyond the prescribed time. Specifically, he contends that since his September 4,
2013 guilty verdict “establishe[d] the single fact of a parole violation,” and he was
returned to state custody on September 5, 2013, his hearing which did not take place
until April 10, 2014, was more than 7 months late. Britton Amended Br. at 7.
“When a parolee alleges that the Board failed to hold a timely revocation
hearing, the Board bears the burden of proving that the hearing was timely.” Lawson
v. Pa. Bd. of Prob. & Parole, 977 A.2d 85, 87 (Pa. Cmwlth. 2009). “Determining
whether a revocation hearing was timely is a straightforward inquiry that is governed
by Board regulation.” Id. Section 71.4(1) of the Board’s Regulations, states:
A revocation hearing shall be held within 120 days from the
date the Board received official verification of . . . the guilty
verdict at the highest trial court level except as follows:
(i) If a parolee is confined outside the jurisdiction of the
Department of Corrections, such as confinement out-of-
[s]tate, confinement in a [f]ederal correctional institution or
confinement in a county correctional institution where the
parolee has not waived the right to a revocation hearing by
a panel in accordance with Commonwealth ex rel. Rambeau
v. Rundle, . . . 314[]A.2d 842 ([Pa.] 1973), the revocation
hearing shall be held within 120 days of the official
verification of the return of the parolee to a [s]tate
correctional facility.
(ii) A parolee who is confined in a county correctional
institution and who has waived the right to a revocation
hearing by a panel in accordance with the Rambeau
decision shall be deemed to be within the jurisdiction of the
Department of Corrections as of the date of the waiver.
37 Pa. Code § 71.4(1). Thus,
[t]he test for determining the timeliness of a revocation
hearing held before the Board is whether, after subtracting
the periods of time not chargeable to the Board,[10] the
10
Section 71.5(c) of the Board’s Regulations provides, in pertinent part:
8
remaining time exceeds 120 days from either . . . the official
verification of the new conviction or of the offender’s
return to a state correctional institution.
Koehler v. Pa. Bd. of Prob. & Parole, 935 A.2d 44, 50 (Pa. Cmwlth. 2007).
According to the record, Britton was held in Dauphin County prison on
the Board’s detainer from December 17, 2012 until January 30, 2013, and then on his
state charges until they were withdrawn. See C.R. at 42, 94-95, 125. Thereafter,
Britton was taken by federal authorities under a federal judicial writ (judicial writ) on
April 23, 2013 for a suppression hearing and returned to SCI-Camp Hill the same
day. See C.R. at 95, 125, 145. Britton was also taken under a judicial writ into
federal custody from September 3 to September 5, 2013 for trial, and then again from
January 17 to February 6, 2014 for sentencing. See C.R. at 125, 143.
[I]n this case, [Britton], while serving his sentence in a state
correctional facility, was transferred to . . . enter his plea to
the federal charges pursuant to a writ issued by the federal
court. A judicial writ has been defined as ‘requiring a
person to appear at a specified time and place . . . . ’ In re
Simon, 297 F. 942, 944 (2nd Cir.[]1924) (citations omitted).
When a prisoner is detained pursuant to a writ for the
In determining the period for conducting hearings . . . , there shall be
excluded from the period, a delay in any stage of the proceedings
which is directly or indirectly attributable to one of the following:
(1) The unavailability of a parolee or counsel.
(2) Continuances granted at the request of a parolee or counsel, in
which case the Board is not required to reschedule the hearing until it
receives a written request to reschedule the hearing from the parolee
or counsel.
....
(5) An event which could not be reasonably anticipated or controlled
by the Board, including, but not limited to, illness, injury, acts of
nature and prison or civil disorder.
37 Pa. Code § 71.5(c).
9
purposes of presenting him to the court on new criminal
charges, the prisoner is
considered to remain in the primary custody of the
first jurisdiction unless and until the first sovereign
relinquishes jurisdiction over the person. The
receiving sovereign[-in this case, the federal
government-] is, therefore, considered simply to be
‘borrowing’ the prisoner from the sending sovereign
for the purposes of indicting, arraigning, trying, and
sentencing him.
Ruggiano v. Reish, 307 F.3d 121, 125 n.[]1 (3rd
Cir.[]2002). Although the writ in the case sub judice is not
included in the record, it is clear from the record that the
purpose of [Britton’s] transfer was to enable him to appear
before the federal court to enter his plea to the federal
charges. Consequently, although [Britton] was physically
in the care of other authorities, he technically never left the
Board’s jurisdiction. Montgomery [v. Pa. Bd. of Prob. &
Parole, 808 A.2d 999 (Pa. Cmwlth. 2002)]. The judicial
writ did not release [Britton] to the federal authorities for
the purpose of serving a federal sentence. Rather, it merely
allowed [Britton] to enter his guilty plea to the federal
crimes with which he was charged. This does not constitute
‘confinement outside the jurisdiction of the Department of
Corrections.’
Morgan v. Pa. Bd. of Prob. & Parole, 814 A.2d 300, 303 (Pa. Cmwlth. 2003); see
also Burno v. Pa. Bd. of Prob. & Parole, 67 A.3d 1280 (Pa. Cmwlth. 2013).
Because Britton never left the state’s jurisdiction, the test for
determining whether Britton’s parole revocation hearing was timely is whether it was
“held within 120 days from the date the Board received official verification of . . . the
guilty verdict.” 37 Pa. Code § 71.4(1). “Official verification” is defined in Section
61.1 of the Board’s Regulations as the “[a]ctual receipt by a parolee’s supervising
parole agent of a direct written communication from a court in which a parolee was
convicted of a new criminal charge attesting that the parolee was so convicted.” 37
Pa. Code § 61.1 (italics omitted; bold emphasis added). Thus, Britton’s argument
10
that his parole revocation hearing was triggered by the September 4, 2013 verdict or
his September 5, 2013 return to SCI-Camp Hill is meritless. Based upon the record
evidence, the official verification of Britton’s federal conviction was received by
Agent Geedey on February 26, 2014. Because the revocation hearing was held 44
days later, on April 10, 2014, the revocation hearing was timely.
Britton next contends that the Board erred by finding that his possession
of ammunition was separate from his firearms conviction. He specifically avers,
based upon Rivenbark v. Pennsylvania Board of Probation and Parole, 501 A.2d
1110 (Pa. 1985), that because “the record of this matter does not demonstrate an
independent violation of parole, separate in time, from the commission of the crime,”
he was improperly “recommitted as a technical parole violator based upon an act
constituting a new crime of which he was convicted.”11 Britton Amended Br. at 10.
Essentially, he claims that the Board imposed two separate recommitment periods –
one for the technical parole violation and one for the convicted parole violation – for
the same act.
Section 6138(c)(1) of the Prisons and Parole Code (Parole Code)
describes a technical parole violator as “[a] parolee under the jurisdiction of the
[B]oard who violates the terms and conditions of his parole, other than by the
commission of a new crime of which the parolee is . . . found guilty by a judge or
jury . . . .” 61 Pa.C.S. § 6138(c)(1) (emphasis added). Accordingly, “[i]n Threats [v.
Pennsylvania Board of Probation and Parole, 553 A.2d 906 (Pa. 1989),] the
[Pennsylvania Supreme] Court clarified Rivenbark to require a determination of
whether the technical parole violation is also a criminal offense for which the
11
Britton expounded: “Moreover, the Board was unable to enter the rifle round into
evidence. One can only infer that this is the result of the Board[’]s inability to take custody of the
rifle round due to the round being part of the conviction.” Britton Amended Br. at 9-10
(emphasis added).
11
parolee was convicted.” Amaker v. Pa. Bd. of Prob. & Parole, 576 A.2d 50, 52 (Pa.
1990) (emphasis added).12
As a condition of his parole, Britton expressly agreed that he “SHALL
NOT POSSESS AMMUNITION UNDER ANY CONDITION OR FOR ANY REASON.” C.R. at 19,
26. Britton’s technical parole violation was his possession on December 17, 2012 of
ammunition in violation of his parole conditions. The record evidence clearly
establishes that Britton’s federal conviction was for a felon in possession of a firearm
on December 17, 2012, in violation of Section 922(g) of the U.S. Code.13 See C.R. at
64, 70, 139. We acknowledge that Section 922(g) of the U.S. Code makes it unlawful
for a felon “to . . . possess . . . any firearm or ammunition[.]” 18 U.S.C. § 922(g).
However, use of the term “or” rather than “and” in that context means that the
presence of ammunition is not also a required element of a firearm possession.
Moreover, Section 921(a) of the U.S. Code separately defines “firearms” and
“ammunition.” A “[f]irearm” includes “(A) any weapon . . . which will or is
designed to or may readily be converted to expel a projectile by the action of an
explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or
firearm silencer; or (D) any destructive device.” 18 U.S.C. § 921(a)(3). Section
12
In [Amaker,] the technical violation, consumption of alcohol, is not an
independent basis for the criminal conviction. The convicted
violation was based upon appellant’s conviction for [driving under the
influence of alcohol (DUI)], which involves the additional element of
operating a motor vehicle. See, Threats . . . , 553 A.2d at 909
(technical violation for possession of a weapon, a knife, was not co-
extensive with a conviction for robbery). Thus, the same act was not
used as a basis for a technical violation and a convicted violation, and
the Board’s recommitment of appellant for both types of violations
was correct.
Amaker, 576 A.2d at 52.
13
Section 922(g) of the U.S. Code states, in pertinent part: “It shall be unlawful for any
person-- . . . who has been convicted in any court of, a crime punishable by imprisonment for a term
exceeding one year . . . . to . . . possess . . . any firearm or ammunition[.]” 18 U.S.C. § 922(g).
12
921(a)(17)(A) of the U.S. Code defines “ammunition” as “ammunition or cartridge
cases, primers, bullets, or propellant powder designed for use in any firearm.” 18
U.S.C. § 921(a)(17)(A) (emphasis added).
A similar distinction is made under state law. Britton was initially
charged as a felon in possession of a firearm under Section 6105(a)(1) of the
Pennsylvania Uniform Firearms Act of 1995 (PUFA),14 which states: “A person . . .
whose conduct meets the criteria in subsection (c) shall not possess . . . a firearm in
this Commonwealth.”15 18 Pa.C.S. § 6105(a)(1). The PUFA defines “[f]irearm” as
“[a]ny pistol or revolver with a barrel length less than 15 inches, any shotgun with a
barrel length less than 18 inches or any rifle with a barrel length less than 16 inches,
or any pistol, revolver, rifle or shotgun with an overall length of less than 26 inches.”
18 Pa.C.S. § 6102 (emphasis omitted). The definition does not expressly include
ammunition. Although neither the Board’s Regulations nor PUFA define the term
“ammunition,” this Court has held that “[w]here a court needs to define an undefined
term, it may consult definitions in statutes, regulations or the dictionary for
guidance, although such definitions are not controlling.” Adams Outdoor Adver., LP
v. Zoning Hearing Bd. of Smithfield Twp., 909 A.2d 469, 483 (Pa. Cmwlth. 2006)
(emphasis added). According to Merriam-Webster’s Collegiate Dictionary (11th ed
2004), “ammunition” is defined as “1a: the projectiles with their fuses, propelling
14
18 Pa.C.S. §§ 6101-6162.
15
Section 6105(c) of the PUFA provides:
[T]he following persons shall be subject to the prohibition of
subsection (a): . . . A person who has been convicted of an offense
under the act . . . known as The Controlled Substance, Drug, Device
and Cosmetic Act, [Act of April 14, 1972, P.L. 233, as amended, 35
P.S. §§ 780-101 – 780-144,] or any equivalent [f]ederal statute . . .
that may be punishable by a term of imprisonment exceeding two
years.
18 Pa.C.S. § 6105(c).
13
charges, or primers fired from guns[;] b: CARTRIDGES[.]” Id. at 41 (emphasis
added). This definition is consistent with the federal statute.
Thus, it is evident that a firearm and ammunition are separate items
under federal and state law, and the federal authorities did not charge and/or try
Britton for possession of the latter. See C.R. at 64, 70, 139. Accordingly, the Board
did not err by finding that Britton’s possession of ammunition on December 17, 2012
in violation of his parole conditions was independent of and separate in time from his
federal firearm conviction.
Britton also asserts that the Board erred by relying solely on an agent’s
testimony relating to his possession of ammunition. Britton further contends that
“[t]he rifle round which was recovered from [Britton’s] residence only establishes
that it was recovered . . . [rather than it] was possessed by [Britton].” Britton
Amended Br. at 9.
“[T]he Board must prove by a preponderance of the evidence that [the
parolee] violated the terms and conditions of his parole, and that standard requires
such proof that would lead the fact finder to determine that the existence of the
contested fact is more probable than its nonexistence.” Jackson v. Pa. Bd. of Prob. &
Parole, 885 A.2d 598, 602 (Pa. Cmwlth. 2005). Further, “[a] parolee ‘must have an
opportunity to be heard and to show, if he can, that he did not violate the conditions,
or if he did, that circumstances in mitigation suggests that the violation does not
warrant revocation.’” McKenzie v. Pa. Bd. of Prob. & Parole, 963 A.2d 616, 620
(Pa. Cmwlth. 2009) (quoting Morrissey v. Brewer, 408 U.S. 471, 488 (1972)). “In
parole violation proceedings coming under its exclusive jurisdiction, the Board is the
fact-finding agency. Therefore, matters of witness credibility and evidentiary weight
are solely for the Board’s discretion.” Falasco v. Pa. Bd. of Prob. & Parole, 521
A.2d 991, 995 (Pa. Cmwlth. 1987).
14
In this case, the Board’s April 25, 2015 decision reflects that the
evidence the Board relied upon to establish Britton’s technical parole violation
consisted of “TESTIMONY OF PAROLE AGENT.” C.R. at 128. Supervisor Hans testified
that he observed the subject ammunition in plain view on the TV stand in Britton’s
living room on December 17, 2012. Britton did not offer evidence to dispute that
testimony. Rather, he claims that the evidence did not prove that he “possessed” the
ammunition.
Actual physical possession by a parolee of a prohibited item is not
necessary for a parole condition violation to occur; rather, constructive possession is
sufficient. Smalls. v. Pa. Bd. of Prob. & Parole, 823 A.2d 274 (Pa. Cmwlth. 2003);
Nickens v. Pa. Bd. of Prob. & Parole, 502 A.2d 277 (Pa. Cmwlth. 1985).
Constructive possession is ‘a legal fiction, a pragmatic
construct to deal with the realities of criminal law
enforcement. Constructive possession is an inference
arising from a set of facts that possession of the contraband
was more likely than not.’ Commonwealth v. Mudrick, . . .
507 A.2d 1212, 1213 ([Pa.] 1986). Constructive possession
entails the power to control the contraband and the intent to
exercise that control. Commonwealth v. Macolino, . . . 469
A.2d 132, 134 ([Pa.] 1983). It may be inferred from the
totality of the circumstances using circumstantial evidence.
Macolino, . . . 469 A.2d at 134. Constructive possession
may be found ‘in one or more actors where the item in issue
is in an area of joint control and equal access.’
Commonwealth v. Valette, 613 A.2d 548, 550 ([Pa.] 1992)
(emphasis added).
Manley v. Fitzgerald, 997 A.2d 1235, 1239 (Pa. Cmwlth. 2010). The Manley Court
found that
[i]n every case examined since Macolino in 1983, a
defendant who lived in the dwelling where the [prohibited
items] were found and who had access to the specific places
in the dwelling where [they] were located was found to
have constructively possessed them, irrespective of how
15
many other people also had equal access to [them] or if
[they] were hidden.
Id. at 1240 (footnote omitted).
Here, the Board did not err by relying solely on Supervisor Hans’
undisputed eyewitness testimony to determine that it was more probable than not that
Britton possessed ammunition on December 17, 2012 in violation of his parole
conditions.
Britton next argues that the Board erred by imposing a sanction that
exceeded his maximum sentence release date. Section 6138 of the Parole Code
states, in pertinent part:
(a) Convicted violators.--
(1) A parolee under the jurisdiction of the [B]oard released
from a correctional facility who, during the period of parole
or while delinquent on parole, commits a crime punishable
by imprisonment, for which the parolee is . . . found guilty
by a judge or jury . . . , may at the discretion of the [B]oard
be recommitted as a parole violator.
(2) If the parolee’s recommitment is so ordered, the parolee
shall be reentered to serve the remainder of the term
which the parolee would have been compelled to serve
had the parole not been granted and, except as provided
under paragraph (2.1), shall be given no credit for the time
at liberty on parole.
(2.1) The [B]oard may, in its discretion, award credit to a
parolee recommitted under paragraph (2) for the time spent
at liberty on parole, unless any of the following apply:
(i) The crime committed during the period of parole or
while delinquent on parole is a crime of violence as defined
in 42 Pa.C.S. § 9714(g) (relating to sentences for second
and subsequent offenses) or a crime requiring registration
under 42 Pa.C.S. Ch. 97 Subch. H (relating to registration
of sexual offenders).
16
(ii) The parolee was recommitted under [S]ection 6143
(relating to early parole of inmates subject to [f]ederal
removal order).
....
(4) The period of time for which the parole violator is
required to serve shall be computed from and begin on the
date that the parole violator is taken into custody to be
returned to the institution as a parole violator.
....
(5.1) If the parolee is sentenced to serve a new term of total
confinement by a [f]ederal court . . . because of a verdict . . .
, the parolee shall serve the balance of the original term
before serving the new term.
....
(c) Technical violators.--
(1) A parolee under the jurisdiction of the [B]oard who
violates the terms and conditions of his parole, other than
by the commission of a new crime of which the parolee . . .
found guilty by a judge or jury . . . , may be detained
pending a hearing before the [B]oard or waiver of the
hearing or recommitted after a hearing before the [B]oard or
a waiver of the hearing. Detention and recommitment
under this paragraph shall be in a community corrections
center or community corrections facility, unless the [B]oard
determines that one of the following conditions is present:
....
(v) There exists an identifiable threat to public safety, and
the parolee cannot be safely diverted to a community
corrections center or community corrections facility.[16]
(1.1) If the [B]oard determines that a condition under
paragraph (1) applies, the parolee shall be detained in or
recommitted to a [s]tate correctional institution or
contracted county jail.
16
The Board expressly held that Britton was a threat to the public’s safety. See C.R. at 59,
128.
17
(2) If the parolee is recommitted under this subsection, the
parolee shall be given credit for the time served on parole in
good standing but with no credit for delinquent time and
may be reentered to serve the remainder of the original
sentence or sentences.
(3) The remainder shall be computed by the [B]oard from
the time the parolee’s delinquent conduct occurred for the
unexpired period of the maximum sentence imposed by the
court without credit for the period the parolee was
delinquent on parole. The parolee shall serve the remainder
so computed from the date the parolee is taken into custody
on the warrant of the [B]oard.
61 Pa.C.S. § 6138 (text emphasis added). We recognize “that the Board is not
permitted to impose backtime which exceeds the entire remaining balance of [a]
parolee’s unexpired term. The Board can only require that a parolee serve the
remaining balance of his unexpired term since the Board does not have the power to
alter a judicially-imposed sentence.” Yates v. Pa. Bd. of Prob. & Parole, 48 A.3d
496, 502 (Pa. Cmwlth. 2012) (quoting Savage v. Pa. Bd. of Prob. & Parole, 761 A.2d
643, 645 (Pa. Cmwlth. 2000) (citation omitted)).
However, “when a parolee is recommitted due to criminal conviction,
his maximum sentence date may be extended to account for all street-time,[17]
regardless of good or delinquent standing.” Richards v. Pa. Bd. of Prob. & Parole,
20 A.3d 596, 599 (Pa. Cmwlth. 2011). Moreover, the Pennsylvania Supreme Court
has specifically held that the Board’s authority to extend maximum term expiration
dates under such circumstances does not usurp the courts’ sentencing functions, or
violate a parolee’s due process rights. Gaito v. Pa. Bd. of Prob. & Parole, 412 A.2d
568 (Pa. 1980).18 Finally, “[a]s long as the period of recommitment is within the
17
“‘Street time’ is a term for the period of time a parolee spends at liberty on parole.”
Dorsey v. Pa. Bd. of Prob. & Parole, 854 A.2d 994, 996 n.3 (Pa. Cmwlth. 2004).
18
Gaito was based upon Section 21.1 of what was commonly known as the Parole Act, Act
of August 6, 1941, P.L. 861, as amended, added by Section 5 of the Act of August 24, 1951, P.L.
18
presumptive range for the violation, the Commonwealth Court will not entertain
challenges to the propriety of the term of recommitment.” Smith v. Pennsylvania Bd.
of Prob. & Parole, 574 A.2d 558, 560 (Pa. 1990).
The presumptive recommitment ranges for technical parole violations
are set forth in Section 75.4 of the Board’s Regulations, 37 Pa. Code § 75.4, which
makes the presumptive range for a violation of a special parole condition, like
Britton’s ammunition prohibition condition, 3 to 18 months. Therefore, Britton’s
recommitment to serve 6 months backtime for violating his special parole condition
was well within the presumptive range.
The presumptive ranges of parole backtime for convicted parole
violations are specified in Section 75.2 of the Board’s Regulations, 37 Pa. Code §
75.2. With respect to convicted parole violation recommitment ranges,
[t]he severity ranking of crimes listed in [Section] 75.2 [of
the Board’s Regulations] (relating to presumptive ranges for
convicted parole violations) is not intended to be
exhaustive, and the most closely related crime category in
terms of severity and the presumptive range will be
followed if the specific crime which resulted in conviction
is not contained within the listing.
1401, formerly 61 P.S. § 331.21a(a), repealed by the Act of August 11, 2009, P.L. 147. Section
21.1(a) of the Parole Act similarly stated:
Any parolee under the jurisdiction of the [Board] released from any
penal institution of the Commonwealth who, during the period of
parole or while delinquent on parole, commits any crime punishable
by imprisonment, for which . . . he pleads guilty . . . in a court of
record, may, at the discretion of the [B]oard, be recommitted as a
parole violator. If his recommitment is so ordered, he shall be
reentered to serve the remainder of the term which said parolee
would have been compelled to serve had he not been paroled, and
he shall be given no credit for the time at liberty on parole . . . .
(Emphasis added).
19
37 Pa. Code § 75.1(e). Here, Britton was recommitted by the Board to serve 24
months based upon his federal conviction for being a felon in possession of a firearm.
Pursuant to Section 75.1(e) of the Board’s Regulations, the Board deemed a violation
of the PUFA the most closely related crime category to the felon in possession of a
firearm charge. Section 75.2 of the Board’s Regulations provides that any violation
of the PUFA has an 18 to 24-month presumptive range. See Mione v. Pa. Bd. of
Prob. & Parole, 709 A.2d 440, 442 (Pa. Cmwlth. 1998). Therefore, Britton’s
recommitment to serve 24 months backtime for his convicted parole violation was
within the presumptive range.
Further, the Board’s imposition of Britton’s recommitment terms do not
exceed his maximum sentence release date. When Britton was paroled on June 30,
2011, his maximum sentence release date was January 17, 2017. Thus, he had 2,228
days remaining to be served on his original sentence. Because Britton was
incarcerated solely on the Board’s detainer between his arrest on December 17, 2012
and January 30, 2013 federal indictment, he was entitled to backtime credit for those
44 days. See C.R. at 126; see also Hines v. Pa. Bd. of Prob. & Parole, 420 A.2d 381
(Pa. 1980); see also Gaito. Subtracting 44 days from 2,228 days leaves 1,984 days
remaining for Britton to serve on his original sentence when he violated parole and
was not given credit for his street time. Adding 1,984 days to January 29, 2014 when
Britton was sentenced on his federal charges and was eligible for recommitment, the
Board properly recalculated Britton’s maximum sentence release date as July 5, 2019.
Further, during Britton’s 24-month recommitment, he will have served approximately
730 days (365 days x 2), which will leave him with approximately 1,254 days
remaining to be served on his original sentence when his recommitment period ends.
Thus, it is clear based on this record that the Board did not impose an illegal
recommitment term, nor did its recommitment exceed Britton’s original sentence.
20
Finally, Britton maintains that his revocation hearing counsel was
ineffective. He specifically contends that Attorney Rentschler not only failed to
obtain Britton’s conviction verification to establish Britton’s revocation hearing
trigger date, but he failed to make a hearsay objection to Supervisor Hans’ testimony
regarding the ammunition round, and such “errors were so serious that there is
reasonable probability that but for [Attorney Rentschler’s] errors, the result of the
proceed[ing] would have been different.” Britton Amended Br. at 10.
There is no question that “[i]n parole revocation proceedings, a parolee
has a right to effective assistance of counsel.” Dorsey v. Pa. Bd. of Prob. & Parole,
573 A.2d 628, 629 (Pa. Cmwlth. 1990). However,
the proper procedure for raising the issue of ineffective
assistance of counsel is to file a petition before the Board,
even if the case is on appeal. The necessity of having the
Board first consider the matter is that this [C]ourt is not the
proper forum to first raise the issue.
Scott v. Pa. Bd. of Prob. & Parole, 739 A.2d 1142, 1145 (Pa. Cmwlth. 1999)
(emphasis added). The purpose for that procedure is a practical one in that the
parolee has the burden of proving his ineffective assistance case, Larkin v. Pa. Bd. of
Prob. & Parole, 555 A.2d 954 (Pa. Cmwlth. 1989), and the Board “already holds
evidentiary hearings inside of state correctional institutions . . . and the mechanisms
for holding the hearings required to adjudicate [such claims are] already in place.”
Timothy P. Wile, Pa. Law of Prob. & Parole 483 (2nd ed. 2010). Here, because
Britton did not petition the Board to hear his ineffective assistance of revocation
hearing counsel claim, we have no record upon which to review that claim on appeal.
Notwithstanding, based upon the record in this case, we would hold that
the errors Britton claims Attorney Rentschler committed would not support an
ineffectiveness claim. A valid ineffective assistance of counsel claim requires a
parolee to “show that counsel made errors so serious that he was not functioning as
21
guaranteed by law, and that the deficient representation prejudiced the [parolee’s]
defense.” Larkin, 555 A.2d at 957 (emphasis added). “To show prejudice sufficient
to satisfy the second requirement, a parolee must show that there is a reasonable
probability that, but for counsel’s deficient performance, the result of the proceeding
would have been different.” LaCourt v. Pa. Bd. of Prob. & Parole, 488 A.2d 70, 75
(Pa. Cmwlth. 1985).
As stated previously, it is the Board’s receipt of the official verification
of Britton’s conviction that triggered his revocation hearing. In this case, the official
verification Agent Geedey received from the U.S. District Court was presented to the
Board. Documentation from any source other than the court in which the conviction
took place, including the parolee, is not official verification upon which the Board
may rely. See 37 Pa. Code § 61.1; see also Choi v. Pa. Bd. of Prob. & Parole, 584
A.2d 1092 (Pa. Cmwlth. 1990); Pa. Law of Prob. & Parole at 449-50. Thus,
Attorney Rentschler obtaining a copy of the verification and/or presenting it at the
revocation hearing would not have led to a different result.
Further, Attorney Rentschler did not err by failing to make a hearsay
objection to Supervisor Hans’ testimony regarding the American/Russian 7.62x39
gun ammunition because it was not hearsay. “Hearsay is defined as a ‘statement,
other than one made by the declarant while testifying at the trial or hearing offered in
evidence to prove the truth of the matter asserted.’ Pa.R.E. 801(c).” Yost v.
Unemployment Comp. Bd. of Review, 42 A.3d 1158, 1163 (Pa. Cmwlth. 2012). We
acknowledge that “[w]hile hearsay may be admitted in . . . parole revocation
hearings, a decision to recommit a parolee as a [technical parole violator] may not be
based solely on hearsay evidence.” Grello v. Pa. Bd. of Prob. & Parole, 477 A.2d
45, 46 (Pa. Cmwlth. 1984). However, since Supervisor Hans attended the hearing
and testified subject to cross-examination regarding his direct, personal observation
of the ammunition in plain view on the TV stand in Britton’s home, his testimony
22
was not hearsay, and a hearsay objection by Attorney Rentschler would not have
rendered Supervisor Hans’ testimony inadmissible. Thus, the errors Britton claims
Attorney Rentschler committed would not support an ineffective assistance of
counsel claim.
For all of the above reasons, Counsel’s application for leave to withdraw
as counsel is granted, and the Board’s denial of Britton’s appeal is affirmed.
___________________________
ANNE E. COVEY, Judge
23
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jerome M. Britton, :
Petitioner :
:
v. :
:
Pennsylvania Board of Probation :
and Parole, : No. 2101 C.D. 2014
Respondent :
ORDER
AND NOW, this 14th day of March, 2016, Kent D. Watkins, Esquire’s
application for leave to withdraw as counsel is granted, and the Pennsylvania Board
of Probation and Parole’s November 3, 2014 denial of Jerome M. Britton’s
administrative appeal is affirmed.
___________________________
ANNE E. COVEY, Judge