L. Johnson v. PPB

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Leverett Johnson, :
Petitioner :
:
v. : No. 1236 C.D. 2020
: Submitted: May 7, 2021
Pennsylvania Parole Board, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CROMPTON FILED: November 18, 2021
Leverett Johnson (Johnson), who is represented by court-appointed
counsel, petitions for review from a decision of the Pennsylvania Parole Board
(Board) that denied him credit for time spent incarcerated, post-sentencing, from
January 20, 2016, to February 11, 2016. In his petition for review (Petition),
Johnson alleges the Board improperly calculated his sentences so that he is serving
consecutive time, and his maximum sentence date exceeds the time owed on his
original sentence, also known as backtime. Although there is no dispute that
Johnson received no credit for this period of time served, he was not being held on
the Board’s detainer and so was not in the Board’s legal custody to serve backtime.
Upon review, we affirm the Board as the maximum sentence date reflects the
backtime owed.
I. Background
Initially, Johnson was sentenced to a 5- to 10-year sentence for multiple
counts of robbery, with a maximum sentence date of November 12, 2014 (Original
Sentence). On October 18, 2010, the Board granted Johnson conditional parole.
Based on parole violations, the Board lodged a warrant to commit and detain
Johnson on February 14, 2013. Johnson pled guilty to disorderly conduct six days
later. He was recommitted as a technical parole violator (TPV) to serve six months
backtime.
In August 2013, Johnson was released on automatic parole to an
approved home plan. At that time, he had 455 days remaining on his Original
Sentence. On September 20, 2014, he was declared delinquent for failing to report.
On October 4, 2014, Johnson was arrested in Allegheny County for:
(1) Robbery-Inflict Serious Bodily Injury [felony of the first degree (F1)]; (2)
Aggravated Assault (F1); and (3) Criminal Mischief [misdemeanor of the second
degree (M2)] (Allegheny County Offenses, No. 13867-2014). Certified Record (C.R.)
at 70-72. Johnson was charged with the offenses three days later; he did not post bail.
Also on October 4, 2014, Johnson was arrested on the Board’s
warrant to commit and detain him for parole violations. He waived his rights to a
detention hearing and preliminary hearing. The Board detained Johnson pending
disposition on his new charges on November 4, 2014, and revoked his parole. It
recommitted Johnson as a TPV, to serve his unexpired term of 1 month, 23 days.
As a result, his maximum sentence date was recalculated to November 26, 2014,
adding the 14 days of parole delinquency. C.R. at 82. The Board lifted its detainer
when the maximum sentence date on Johnson’s TPV period passed on November
26, 2014.
2
In October 2015, Johnson pled guilty to the Allegheny County
Offenses.1 On January 20, 2016, Johnson was sentenced on the new charges to a
term of 10 to 20 years in a state correctional institution (New Sentence). On
February 11, 2016, the Board relodged its warrant to commit and detain Johnson
for revocation proceedings. See C.R. at 86, 347.
On March 15, 2016, the Board voted to recommit Johnson as a
convicted parole violator (CPV) based on his new convictions (Allegheny No.
13867). C.R. at 338-45. The order referred to the prior Board action of November
4, 2014 (that recommitted him as a TPV), recommitting Johnson to serve 3 years, 3
months, and 21 days as a CPV. The Board’s order was issued on March 21, 2016,
with a mailing date of April 18, 2016.
On May 18, 2016, Johnson timely submitted an administrative
remedies form regarding the decision, challenging the credit calculation on various
grounds. When he did not receive a response, in November 2016, Johnson inquired
about the status. The Board did not respond until August 29, 2017, when it issued
an interim decision explaining that an evidentiary hearing would be necessary to
determine Johnson’s credit eligibility for time spent in a halfway house. See Pet.,
Ex. C. The Board further advised that it needed the dates and location of the
halfway house to proceed. Id. As such, the decision stated: “Because the
evidentiary hearing is pending, the Board cannot render a final decision on the
remaining claims raised regarding your max date.” Id. In addition, the Board
indicated that if it received no additional information, it would presume Johnson
waived this claim and then respond based on the information of record.
1
Johnson also pled guilty to a series of other offenses in Allegheny County (Additional
Convictions). The Board opted not to hold a parole revocation hearing regarding the Additional
Convictions.
3
Although Johnson wrote to the Board multiple times, and submitted
the requested information, the Board did not respond. As a result, Johnson,
through appointed counsel, asked the Board to render a decision on the matter
based on his communications to the Board as of that date.
In April 2020, appointed counsel filed a petition in mandamus in this
Court’s original jurisdiction to ensure that Johnson’s petition for administrative
relief was addressed. See Johnson v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No.
563 M.D. 2020, filed Dec. 7, 2020). Thereafter, on October 23, 2020, the Board
denied Johnson’s request for relief in part and granted it in part to the extent that it
sought a new maximum sentence date. The Board thus issued a modified order to
recommit, stating that the unexpired term was 1 year, 2 months, and 26 days,
which yielded a new maximum date of May 8, 2017 (Recommitment Order).2 Pet.,
Ex. D. The Recommitment Order identified the “custody return date” as February
11, 2016, the date the Board stated that it relodged its detainer for revocation
proceedings to account for Johnson’s status as a CPV. Id. In light of the Board’s
Recommitment Order, this Court dismissed the mandamus petition as moot.
Johnson petitions for review from the Recommitment Order.
II. Discussion
On appeal,3 Johnson asserts the Board erred in calculating his
maximum sentence date because he did not receive credit for time served, post-
2
The Recommitment Order also removed 757 days of prior liberty forfeited, corresponding
to the period from January 19, 2011, to February 14, 2013, based on Penjuke v. Pennsylvania Board
of Probation & Parole, 203 A.3d 401 (Pa. Cmwlth. 2019), appeal denied, 228 A.3d 254 (Pa. 2020).
3
Our review is limited to determining whether constitutional rights were violated,
whether the decision was in accordance with the law, or whether the necessary findings of fact
were supported by substantial evidence. Barnes v. Pa. Bd. of Prob. & Parole, 203 A.3d 382, 386
n.1 (Pa. Cmwlth. 2019).
4
sentencing, on either sentence. Johnson seeks credit for the period of incarceration
when the Board revoked his parole from January 20, 2016, the date of sentencing on
the New Sentence, through February 11, 2016, when the Board revoked his parole.
The Prisons and Parole Code (Parole Code), 61 Pa. C.S. §§101-7301,
provides that any parolee who, during the period of parole, commits a crime
punishable by imprisonment and is convicted or found guilty of that crime, may be
recommitted as a CPV. See 61 Pa. C.S. §6138(a)(1). If a new sentence is
imposed, a parolee must serve the balance of the original sentence prior to
commencement of the new term. 61 Pa. C.S. §6138(a)(5)(i). Section
6138(a)(5)(i)-(iii) of the Parole Code provides, in pertinent part:
(5) If a new sentence is imposed on the offender, the service of the
balance of the term originally imposed by a Pennsylvania court shall
precede the commencement of the new term imposed in the following
cases:
(i) If 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.
***
(iii) In all other cases, the service of the new term for the latter
crime shall precede commencement of the balance of the term
originally imposed.
61 Pa. C.S. §6138(a)(5)(i), (iii).
An offender on state parole is in the legal custody of the Board until
that offender completes the service of his maximum sentence or until the Board
recommits the offender as a parole violator. 37 Pa. Code §63.2. If the offender is
recommitted, he is returned to the jurisdiction of the Department of Corrections,
5
regardless of whether the recommitment is for a new sentence or to serve a period
of backtime.
The entirety of the Board’s reasoning as set forth in its brief for
affirming its Recommitment Order is as follows:
In this case, the Board paroled Johnson from an SCI, and Allegheny
County sentenced him to a new term of incarceration in an SCI. The
Board, in determining Johnson’s custody for return date, notes that
“[t]he period of time for which a 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.” 61 Pa. C.S. §6138(a)(4). In this case, Johnson’s case could
not be finalized until he was returned to the custody of the Board. This
occurred when the Board relodged its warrant to commit and detain
Johnson on February 11, 2016. (C.R. [at] 86). Adding 452 days to
Feburayr [sic] 11, 2016, results in Johnson’s new Original Sentence
maximum date of May 8, 2017. (C.R. [at] 375-376). Therefore, the
Board’s decision should be affirmed.
Board’s Br. at 13. It remains unclear why the Board did not relodge the detainer as
of the date when Johnson was sentenced on the new charges. The Board’s delay in
relodging the detainer is unexplained.
Pursuant to our Supreme Court’s decision in Martin v. Pennsylvania
Board of Probation & Parole, 840 A.2d 299, 304 (Pa. 2003), and this Court’s
decision in Jones v. Pennsylvania Board of Probation and Parole, 872 A.2d 1283(Pa. Cmwlth.), appeal denied, 890 A.2d 1061 (Pa. 2005), where an offender is
incarcerated on both a Board detainer and new criminal charges, all time spent in
confinement must be credited to either the new sentence or the original sentence.
See Melhorn v. Pa. Bd. of Prob. & Parole, 908 A.2d 266 (Pa. 2006); Banks v. Pa.
Bd. of Prob. & Parole, 928 A.2d 384, 387-88 (Pa. Cmwlth. 2007).
6
Here, there is no dispute that Johnson did not receive credit for the
time served from January 20, 2016, to February 11, 2016. However, we are
unpersuaded that the Board erred in not awarding credit for the period prior to
relodging its detainer, bringing Johnson within the Board’s legal custody.
With regard to presentence confinement, the Board credits the time
served toward the original sentence if the parolee satisfies the bail requirements
and remains confined only on the Board’s detainer. Gaito v. Pa. Bd. of Prob. &
Parole, 412 A.2d 568, 571 (Pa. 1980). When bail is not posted and the parolee is
confined on both the new charges and the Board’s warrant, the presentence time is
applied to the new sentence, unless it is not possible to apply all of that time to the
new sentence. Martin, 840 A.2d at 305, 309. Thus, if the new charges are
withdrawn, the parolee is sentenced only to a period of time served, or the new
sentence’s maximum is less than the time spent in presentence confinement, credit
for any excess time should be applied toward the original sentence. Martin, 840
A.2d at 308-09; Armbruster, 919 A.2d at 353-54 (Pa. Cmwlth. 2007); see also
Hammonds v. Pa. Bd. of Prob. & Parole, 143 A.3d 994, 996 (Pa. Cmwlth. 2016)
(date of sentencing on new charges and return to Board custody is when parolee
became available to serve his original sentence).
Under Gaito, time incarcerated prior to sentencing shall be credited to
a CPV’s original term only when he has satisfied bail requirements for the new
offense and, thus, remains incarcerated solely by reason of the Board’s detainer.
Martin created an exception to this rule to ensure the equitable crediting of time
served so that it is accounted for in the new or the original sentence. Because
presentence confinement time is not at issue, Johnson’s reliance on Martin is
misplaced.
7
In Martin, a parolee was incarcerated on both new criminal charges
and the Board’s warrant for 19 days. The parolee was sentenced to a term of two
days followed by a period of probation. In recalculating his sentence, the Board
did not award any credit for his presentence confinement because he was not
confined solely on the Board’s detainer. On appeal, the parolee asserted the excess
custody time (17 days) must be credited toward his original sentence. Id.; see also
Barnes v. Pa. Bd. of Prob. & Parole, 203 A.3d 382 (Pa. Cmwlth. 2019).
Ultimately, our Supreme Court agreed, reasoning that presentence
credit should be applied equitably. Martin, 840 A.2d at 309. It held “where an
offender is incarcerated on both a Board detainer and new criminal charges, all
time spent in confinement must be credited to either the new sentence or the
original sentence.” Id.
However, unlike the situation in Martin or similar cases applying
equitable credit, Johnson does not seek pre-sentencing credit. Rather, he seeks
credit for the period between the imposition of the new sentence and the date of
parole revocation. Barnes, 203 A.3d at 394. Cf. Hammonds (parolee did not assert
that time for which he sought credit was not credited towards his new sentence).
This Court has held that the requirement that a CPV serve the balance
of his original sentence is only operative once “parole has been revoked and the
remainder of the original sentence becomes due and owing.” Campbell v. Pa. Bd.
of Prob. & Parole, 409 A.2d 980, 982 (Pa. Cmwlth. 1980); see also Hill v. Pa. Bd.
of Prob. & Parole, 683 A.2d 699, 702 (Pa. Cmwlth. 1996) (holding that where the
Board recommits a CPV to serve the balance of the original sentence before
beginning service of a new term, the prisoner’s backtime on the original sentence
must be computed from the date the Board revokes the prisoner’s parole).
8
Therefore, “credit for time a CPV spends in custody between imposition of a new
sentence and revocation of parole[4] must be applied to the new sentence.”
Williams v. Pa. Bd. of Prob. & Parole, 654 A.2d 235, 237 (Pa. Cmwlth. 1995).
In Martin, our Supreme Court explained that “the considerations
relevant to the award of credit are just and equitable in nature” and that “[u]nique
combinations of circumstances will be presented in different cases that tip the
balance for or against the particular allocation of credit.” Id. at 308. According to
the Court, decision-making regarding the allocation of credit is “particularly suited
to a discretionary framework with guidelines to ensure equitable treatment.” Id.Therefore, the Court held that “where an offender is incarcerated on both a Board
detainer and new criminal charges, all time spent in confinement must be credited
to either the new sentence or the original sentence.” Id. at 309 (emphasis added).
In requesting credit for the 22-day period on his Original Sentence,
Johnson disregards that he was not held on the Board’s detainer because the Board
did not lodge the detainer until February 11, 2016. Because he did not become
available to serve the Original Sentence until that date, the Board did not err in
calculating his maximum sentence date by adding the balance of his term (452
days) to that availability date, yielding the May 8, 2017 maximum sentence date.
The Board here noted that under Section 6138(a)(5) of the Parole Code,
CPVs “who are paroled from a state correctional institution and then receive another
sentence to be served in a state correctional institution must serve the original
4
Parole revocation occurs once a hearing examiner and Board member or two Board
members sign a hearing report recommitting a prisoner as a CPV. Wilson v. Pa. Bd. of Prob. &
Parole, 124 A.3d 767, 770 (Pa. Cmwlth. 2015); see also Palmer v. Pa. Bd. of Prob. & Parole,
134 A.3d 160, 166 (Pa. Cmwlth. 2016) (same).
9
sentence first,” but that “this provision does not take effect until the parolee is
recommitted” as a CPV. Id.; see also Campbell.
Parolees generally do not become eligible to serve backtime on their
original sentences until parole is revoked by the Board, see Campbell, 409 A.2d at
982, or a detainer is lodged by the Board. Here, the detainer was not lodged by the
Board until February 11, 2016, so Johnson’s incarceration prior to the detainer was
solely based on the new convictions. Barnes. Any credit for time spent in custody
post-sentencing will be calculated by the Department of Corrections and credited
to the new sentence.
III. Conclusion
For the foregoing reasons, we affirm the Board.
______________________________
J. ANDREW CROMPTON, Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Leverett Johnson, :
Petitioner :
:
v. : No. 1236 C.D. 2020
:
Pennsylvania Parole Board, :
Respondent :
ORDER
AND NOW, this 18th day of November 2021, the decision of the
Pennsylvania Parole Board is AFFIRMED.
______________________________
J. ANDREW CROMPTON, Judge