R.S. Riede v. PA BPP

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert S. Riede, :
Petitioner :
:
v. : No. 337 C.D. 2015
: Submitted: October 28, 2016
Pennsylvania Board of Probation :
and Parole, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE COLINS FILED: March 30, 2017
Before this Court is the petition of Robert S. Riede for review of the
January 21, 2015 determination of the Pennsylvania Board of Probation and Parole
(Board), which affirmed its recommitment of Riede as a convicted parole violator
to serve 18 months of backtime1 and the recalculation of his parole violation
maximum date to November 4, 2020. Also before this Court is the second petition
of Christopher E. Farrell, Esq., a public defender in Wayne County (Counsel), for
leave to withdraw as counsel for Riede. For the following reasons, we grant
Counsel’s application for leave to withdraw and affirm the Board.
1
“‘Backtime’ is the portion of a judicially imposed sentence that a parole violator must serve as
a consequence of violating parole before he is eligible for re-parole.” Palmer v. Pennsylvania
Board of Probation and Parole, 134 A.3d 160, 162 n.1 (Pa. Cmwlth. 2016).
On May 7, 2007, Riede was released on parole from the State
Correctional Institution (SCI) at Chester; at the time of his release, Riede had a
parole violation maximum date of September 18, 2013 based on an 8 to 16 year
sentence imposed by the Court of Common Pleas of Monroe County in 1997.
(Certified Record (C.R.) at 12.) On June 9, 2011, federal authorities arrested Riede
in North Carolina based upon a warrant issued in the Middle District of
Pennsylvania. (C.R. at 35, 37.) The Board lodged a warrant to detain Riede on
June 10, 2011, and on that date, Riede was extradited from North Carolina to
Pennsylvania where he was held in Lackawanna County Prison on a federal
detainer without posting bail. (C.R. at 20, 64.) The Board cancelled its detainer on
September 18, 2013, Riede’s original maximum date. (C.R. at 20, 64.)
On March 4, 2014, Riede pleaded guilty to one count of conspiracy to
distribute 5 kilograms or more of a substance containing a detectable amount of
cocaine, a Schedule II controlled substance. (C.R. at 38-46, 64.) The Board
relodged its detainer against Riede on June 20, 2014 based on the new conviction.
(C.R. at 22, 64.) On June 23, 2014, Riede was sentenced in the United States
District Court for the Middle District of Pennsylvania to time served with a three-
year period of supervised release. (C.R. at 57-64.)
On June 24, 2014, the Board served Riede with notice of charges and
its intent to hold a parole revocation hearing while Riede was still in Lackawanna
County Prison, and on that date, Riede signed a waiver and admission form in
which he waived his revocation hearing and admitted his guilty plea to the federal
charge. (C.R. at 23, 33-34.) On June 25, 2014, Riede was returned to the Board’s
custody at SCI Waymart. (C.R. at 64, 66.)
2
On September 19, 2014, the Board issued a decision recommitting
Riede as a convicted parole violator to serve 18 months backtime based upon a
conviction of conspiracy to distribute controlled substances, setting a parole
eligibility date of December 23, 2015, and recalculating Riede’s parole violation
maximum date as November 4, 2020. (C.R. at 69.) In making this recalculation of
the maximum date, the Board determined that Riede owed 2,326 days when he was
paroled on May 7, 2007 with an original maximum date of September 18, 2013,
and that Riede became available to serve his original sentence on June 23, 2014.
(C.R. at 67.)
Riede filed a timely petition for administrative review, and the Board
affirmed its earlier decision on January 21, 2015.2 (C.R. at 72-73, 80-81.) Riede,
acting pro se, filed a petition for review of the Board’s denial of his petition for
administrative review with this Court. Riede also filed an application to proceed in
forma pauperis; by a March 30, 2015 per curiam order, this Court granted Riede
permission to proceed in forma pauperis and appointed the Wayne County Public
Defender to represent Riede in this matter. On July 15, 2015, Counsel filed his
first petition for leave to withdraw as counsel for Riede and an Anders brief3 in
support of the petition. Riede thereafter filed a pro se brief in support of his
petition for review, and the Board filed a brief in response.
When evaluating a petition for leave to withdraw as appointed counsel
for a parolee challenging a revocation decision, this Court must first determine
2
Following his initial petition for administrative review, Riede submitted three other items of
correspondence to the Board after his initial appeal that contained additional legal argument; the
Board did not address this correspondence pursuant to its regulations providing that second or
subsequent requests for administrative relief will not be considered. (C.R. at 71, 74-80, 82-91);
see also 37 Pa. Code § 73.1(b)(4).
3
See Anders v. California, 386 U.S. 738 (1967).
3
whether counsel has satisfied the technical requirements of: (i) notifying the
inmate of his request to withdraw; (ii) furnishing the inmate with a copy of the
Anders brief or a no-merit letter satisfying the requirements of Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988);4 and (iii) advising the inmate of his right to
retain new counsel or raise any new points he might deem worthy of consideration
by submitting a brief on his own behalf. Craig v. Pennsylvania Board of
Probation and Parole, 502 A.2d 758, 760 (Pa. Cmwlth. 1985); see also Hughes v.
Pennsylvania Board of Probation and Parole, 977 A.2d 19, 22-25 (Pa. Cmwlth.
2009) (en banc); Wesley v. Pennsylvania Board of Probation and Parole, 614 A.2d
355, 356 (Pa. Cmwlth. 1992). Only once appointed counsel has fully complied
with the technical requirements for withdrawal will the court independently
evaluate the proceedings before the Board to determine whether the appeal is
frivolous or without merit. Jefferson v. Pennsylvania Board of Probation and
Parole, 705 A.2d 513, 514 (Pa. Cmwlth. 1998); Hont v. Pennsylvania Board of
4
Where there is a constitutional right to counsel, court-appointed counsel seeking to withdraw
must submit an Anders brief that (i) provides a summary of the procedural history and facts, with
citations to the record; (ii) refers to anything in the record that counsel believes arguably
supports the appeal; (iii) sets forth counsel’s conclusion that the appeal is frivolous; and (iv)
states counsel’s reasons for concluding that the appeal is frivolous. Commonwealth v. Santiago,
978 A.2d 349, 361 (Pa. 2009). Alternatively, where the parolee has only a statutory, rather than
a constitutional, right to counsel, appointed counsel may submit a Turner no-merit letter instead
of an Anders brief; a no-merit letter must set forth: (i) the nature and extent of counsel’s review
of the case; (ii) each issue that the inmate wishes to raise on appeal; and (iii) counsel’s
explanation of why each of those issues is meritless. Turner, 544 A.2d at 928; Seilhamer v.
Pennsylvania Board of Probation and Parole, 996 A.2d 40, 43 & n.4 (Pa. Cmwlth. 2010);
Hughes v. Pennsylvania Board of Probation and Parole, 977 A.2d 19, 26 (Pa. Cmwlth. 2009)
(en banc). Only a statutory right to counsel exists here and therefore only a no-merit letter is
required. Seilhamer, 996 A.2d at 42 n.4; Hughes, 977 A.2d at 25-26. This Court, however, will
not deny a petition for leave to withdraw where an Anders brief is filed but only a no-merit letter
will suffice but instead will simply apply the lack of merit standard where there is no
constitutional right to counsel and a no-merit letter would suffice. Hughes, 977 A.2d at 26 n.4.
4
Probation and Parole, 680 A.2d 47, 48 (Pa. Cmwlth. 1996) (en banc); Wesley, 614
A.2d at 356.
Upon review of Counsel’s initial petition for leave to withdraw, we
concluded that Counsel did not satisfy the procedural requirements for withdrawal
because Counsel did not serve either his petition for leave to withdraw as counsel
or his Anders brief on Riede. Furthermore, we determined that Counsel did not
meet the requirements for withdrawal because his Anders brief did not sufficiently
analyze the issues Riede sought to raise on appeal in his petition for review and did
not address other issues Riede sought to raise on appeal that were discussed in his
appellate brief or in a memorandum of law attached to his application for leave to
proceed in forma pauperis. Therefore, we denied Counsel’s petition for leave to
withdraw without prejudice and granted Counsel 30 days to either file an amended
petition, along with a no-merit letter or Anders brief adequately addressing each of
the issues raised by Riede, or to submit a brief on the merits if Counsel determined
upon reconsideration that Riede’s appeal was not without merit. See Riede v.
Pennsylvania Board of Probation and Parole, (Pa. Cmwlth., No. 337 C.D. 2015,
filed August 8, 2016). On October 7, 2016, Counsel filed a second petition for
leave to withdraw and a new supporting Anders brief.
We conclude that Counsel’s submission of a second petition for leave
to withdraw and Anders brief satisfy the procedural requirements for withdrawal.
In the certificate of service attached to his petition, Counsel states that he
attempted to serve a copy of his petition on Riede but that Riede was paroled in
February 2016 and released from a half-way house in June 2016. Counsel further
represented that he contacted Riede’s parole officer who provided Riede’s
telephone number; Counsel stated that he left numerous telephone messages and
5
sent text messages to Riede requesting his address but that Riede did not respond.
It is clear to this Court that, though he was ultimately unsuccessful, Counsel
attempted to serve Riede with the petition and Anders brief and advise Riede of his
right to retain his own attorney or to submit a brief on his own behalf. Moreover,
as Counsel notes, Riede filed a pro se appellate brief prior to this Court’s
consideration of the first petition for leave to withdraw, which serves as evidence
that Riede was aware of his right to represent himself in his appeal. Furthermore,
we conclude that Counsel’s Anders brief adequately summarizes the procedural
history and relevant facts, discusses the issues raised by Riede in his petition for
review, administrative appeal and briefs to this Court, and explains Counsel’s
determination that any appeal of the Board’s decision is without merit, with
citations to the relevant case law.
Because Counsel has satisfied the procedural requirements for
withdrawal, we next independently evaluate the proceedings before the Board to
determine whether the appeal is meritless.5 Dear v. Pennsylvania Board of
Probation and Parole, 686 A.2d 423, 426 (Pa. Cmwlth. 1996); Frankhouser v.
Pennsylvania Board of Probation and Parole, 598 A.2d 607, 608-09 (Pa. Cmwlth.
1991). We first address the argument advanced by Riede in his administrative
appeal that the 18-month period of backtime that the Board ordered him to serve as
a convicted parole violator was excessive. Initially, we observe that Riede was
ordered to begin service of his backtime on June 23, 2014, and he completed
service of this term prior to the date of this opinion. Because Riede is only
5
Our scope of review is limited to determining whether constitutional rights were violated,
whether the adjudication was in accordance with the law, and whether necessary findings were
supported by substantial evidence. 2 Pa. C.S. § 704; Smith v. Pennsylvania Board of Probation
and Parole, 81 A.3d 1091, 1093 n.1 (Pa. Cmwlth. 2013).
6
challenging the term of backtime imposed by the Board’s recommitment order and
not the underlying recommitment order, this issue is moot: even if we were to
agree with Riede that the 18-month backtime term was too long it would be
impossible for this Court to now grant relief that would undo this alleged harm.
See Taylor v. Pennsylvania Board of Probation and Parole, 746 A.2d 671, 674-75
(Pa. Cmwlth. 2000) (en banc) (an appeal will be dismissed as moot when the
occurrence of an event renders it impossible for the court to grant the requested
relief); cf. Johnson v. Pennsylvania Board of Probation and Parole, 482 A.2d 235(Pa. 1984) (per curiam) (holding that a parolee could challenge the fact that he had
been ordered to serve a period of backtime even after that period has expired
because the fact that he had been recommitted as a parole violator could have
future consequences).
Even assuming this issue were not moot, however, we would still
conclude that the Board did not err by recommitting Riede for 18 months.
Presumptive ranges for convicted parole violators are set forth in Section 75.2 of
the Board’s regulations; for drug offenses, the range is based upon the maximum
term of imprisonment for the offense. 37 Pa. Code § 75.2. Riede pleaded guilty to
one count of conspiracy to distribute 5 kilograms or more of a substance containing
a detectable amount of cocaine, a Schedule II controlled substance, in violation of
21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846. (C.R. at 38-46.) The closest crime6 in
6
In Harrington v. Pennsylvania Board of Probation and Parole, 507 A.2d 1313, 1315 (Pa.
Cmwlth. 1986), we noted that pursuant to Board regulation 75.1(e), 37 Pa. Code § 75.1(e), “in
selecting the proper presumptive range for recommitment of a convicted parole violator
[convicted of an out-of-state crime], the Board must look to the conduct for which the parolee
was convicted, determine what crime that conduct would constitute if it occurred in
Pennsylvania, and apply the presumptive range for the Pennsylvania crime.” Harrington, 507
A.2d at 1315; see also Abrams v. Pennsylvania Board of Probation and Parole, 935 A.2d 604,
606-07 (Pa. Cmwlth. 2007).
7
Pennsylvania is Section 13(a)(30) of The Controlled Substance, Drug, Device and
Cosmetic Act,7 prohibiting, inter alia, the possession with intent to deliver a
controlled substance as a felony punishable by a maximum term of imprisonment
of ten years.8 The presumptive range under Section 75.2 of the Board’s regulations
for a felony drug conviction with a statutory maximum term of ten years is 18 to
24 months. 37 Pa. Code § 75.2. The Board’s recommitment of Riede here to serve
18 months of backtime based upon his conviction therefore is at the lower end of
this range. Where, as in this case, the amount of backtime does not exceed the
presumptive recommitment range, both this Court and our Supreme Court have
ruled that courts will not review the Board’s imposition of backtime, Smith v.
Pennsylvania Board of Probation and Parole, 574 A.2d 558, 560 (Pa. 1990); Lotz
v. Pennsylvania Board of Probation and Parole, 548 A.2d 1295, 1296 (Pa.
Cmwlth. 1988), and we will not do so here.
Next, we address the argument made by Riede before the Board and
before this Court that the Board erred in calculating his parole violation maximum
date and that he was improperly denied credit for the period from the date of his
federal arrest, June 9, 2011, until the date of his federal sentencing, June 23, 2014.
Unlike Riede’s challenge to the Board’s order for him to serve 18 months of
backtime that has already been completed as of the date of this opinion, Riede’s
appeal of the Board’s recalculation of his parole violation maximum date is not
moot because the calculation could affect the amount of time he would have to
serve on his 1997 sentence if he is recommitted in the future.
7
Act of April 14, 1972, P.L. 233, as amended, 35 P.S. § 780-113(a)(30).
8
Section 13(f)(1.1) of The Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-
113(f)(1.1).
8
The general rule governing the allocation of credit for periods of pre-
sentence confinement on criminal charges was established by our Supreme Court
in Gaito v. Pennsylvania Board of Probation and Parole, 412 A.2d 568 (Pa. 1980).
In Gaito, the Court held that “if a defendant is being held in custody solely because
of a detainer lodged by the Board and has otherwise met the requirements for bail
on the new criminal charges, the time which he spent in custody shall be credited
against his original sentence.” 412 A.2d at 571; see also Armbruster v.
Pennsylvania Board of Probation and Parole, 919 A.2d 348, 355 (Pa. Cmwlth.
2007). “If a defendant, however, remains incarcerated prior to trial because he has
failed to satisfy bail requirements on the new criminal charges, then the time spent
in custody shall be credited to his new sentence.” Gaito, 412 A.2d at 571; see also
Armbruster, 919 A.2d at 355. An exception to the general rule of Gaito has been
recognized in Martin v. Pennsylvania Board of Probation and Parole, 840 A.2d
299 (Pa. 2003), where the high Court recognized that a parolee should receive
credit to the original sentence for periods of custody on a Board warrant and new
criminal charges when the parolee is not convicted or does not receive a sentence
of incarceration on the new conviction. Id. at 308-09. Similarly, this Court has
held that a parolee is entitled to credit against his original sentence even though he
does not post bail on the new charges where the sentence on the new criminal
charges is less than the time spent in custody on those charges. Armbruster, 919
A.2d at 354-56; Jones v. Pennsylvania Board of Probation and Parole, 872 A.2d
1283, 1285 (Pa. Cmwlth. 2005).
This analytical framework of Gaito was further altered in 2010,
however, when the General Assembly amended Section 6138(a) of the Prisons and
Parole Code to add Paragraph 5.1. This provision now provides, in relevant part:
9
(a) Convicted violators.--
(1) A parolee under the jurisdiction of the board 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
convicted or found guilty by a judge or jury or to which
the parolee pleads guilty or nolo contendere at any time
thereafter in a court of record, may at the discretion of
the board be recommitted as a parole violator.
...
(5.1) If the parolee is sentenced to serve a new term of
total confinement by a Federal court or by a court of
another jurisdiction because of a verdict or plea under
paragraph (1), the parolee shall serve the balance of the
original term before serving the new term.
61 Pa. C.S. § 6138(a)(1), (5.1) (emphasis added).
In a series of cases, this Court has analyzed issues related to credit
where a parolee is detained on, and ultimately convicted of, new federal criminal
charges in light of the newly added Paragraph 5.1 of Section 6138 of the Prisons
and Parole Code. In Baasit v. Pennsylvania Board of Probation and Parole, 90
A.3d 74 (Pa. Cmwlth. 2014), the parolee was arrested by the Williamsport Police
Department on new state criminal charges and was also being held on a Board
detainer, when federal authorities filed charges and a federal magistrate issued a
detention order. Id. at 75. The state charges were ultimately dropped, but the
parolee pleaded guilty to the federal charges and was sentenced to 48 months of
confinement to be served consecutive to any other sentence. Id. at 75-76. During
this period between the issuance of the federal detention order and the guilty plea
in the federal case, the parolee remained in an SCI except for brief transfers on writ
to attend federal court appearances. Id. at 77. The Board recommitted the parolee
as a convicted parole violator to begin serving as of the date of the federal
10
sentence, only giving credit for the 277 days from the parolee’s arrest to the date
the federal detention order was lodged. Id. at 76. The parolee argued that he was
entitled to backtime credit for the period from the date of the federal detainer up
until the date of his federal sentence, but the Board, relying on Gaito, rejected this
argument because the parolee was not in custody solely as a result of the Board
warrant. Baasit, 90 A.3d at 76.
On appeal, we vacated the Board’s determination that the parolee was
not entitled to credit for the period prior to the federal sentence when he was held
on the Board and federal detainers and remanded for reconsideration in line with
the requirement of Section 6138(a)(5.1) that the balance of the parolee’s state
sentence should be served before service of the new federal sentence. Id. at 82-83.
In support of this result, we noted that the General Assembly’s addition of
Paragraph 5.1 to the Prisons and Parole Code “constituted a significant change in
legislative policy regarding the order of service of sentences where the convicted
parole violator received a new sentence in a federal court or a court of another
jurisdiction.” Id. at 82. Such a legislative change was consistent with criticism of
the cost-effectiveness of the previous statutory requirement which allowed
Pennsylvania to pay to house parolees for time that was credited to out-of-state
sentences that were ordered to run concurrently with service of Pennsylvania time.
Id. at 78 (citing Santiago v. Pennsylvania Board of Probation and Parole, 937
A.2d 610, 615 (Pa. Cmwlth. 2007) (en banc)). Furthermore, this Court observed
that requiring the service of the state sentence first per Section 6138(a)(5.1), which
in some instances would allow for the application of credit to the state sentence
even though the parolee is not being detained solely on a Board detainer, is
consistent with the “more flexible approach to credit” set forth in the Supreme
11
Court’s decision in Martin. Baasit, 90 A.3d at 82. This Court further found
support for its holding on the doctrine of primary jurisdiction, which provides that
the sovereign which first arrests a defendant has primary jurisdiction over him until
relinquished through release, dismissal or expiration of a sentence. Id. at 77-78,
83. Finally, the Court in Baasit observed that federal statute would not allow the
U.S. Bureau of Prisons to give credit toward the new federal sentence for any time
credited to the state sentence by the Board, thus ensuring that the parolee would
not be given double credit for pre-sentence confinement. Id. at 81, 83 (citing 18
U.S.C. § 3585(b)).
This Court followed the holding of Baasit in Smith v. Pennsylvania
Board of Probation and Parole, 133 A.3d 820 (Pa. Cmwlth.), appeal granted, 143
A.3d 891 (Pa. 2016), and Banks v. Pennsylvania Board of Probation and Parole,
136 A.3d 1102 (Pa. Cmwlth. 2016). In Smith, the parolee was arrested by North
Carolina police, and the Board lodged a detainer the following day; federal
authorities indicted the parolee three months later and he was transferred to federal
custody and returned to Pennsylvania to be housed in a county prison on a federal
detainer. 133 A.3d at 821. Following a guilty plea and sentencing to a term of
imprisonment in federal court, the Board recommitted the parolee and gave him
backtime credit only for the period between the issuance of the Board detainer and
the federal detainer while he was confined in North Carolina. Id. at 821-22.
Following a discussion of Baasit, we stated that the General Assembly’s addition
of Paragraph 5.1 to Section 6138 requires that “any presentence confinement
earned by [a convicted parole violator who receives a new out-of-jurisdiction
sentence] must be applied to his original sentence.” Smith, 133 A.3d at 825.
Finding “virtually no difference between Baasit and this case,” we vacated the
12
Board’s denial of the parolee’s administrative appeal and remanded for the Board
to give the parolee credit on his original state sentence for the period from the date
the federal detainer was issued until the date of his federal sentence when he was
returned to state custody. Smith, 133 A.3d at 825.
In Banks, the parolee was arrested by local police and was returned to
an SCI on a board detainer, during which time he was recommitted as a technical
parole violator and indicted on federal charges. 136 A.3d at 1104. The parolee
was then transferred by federal writ for his arraignment hearing on his new charges
at which time he was ordered to be detained in federal custody by the federal
Magistrate Judge. Id. The parolee remained in federal custody and ultimately
pleaded guilty and was sentenced to a 41-month term of imprisonment. Id. at
1104, 1108. The Board granted the parolee credit towards his original sentence for
the period from the date of his arrest until the date he was arraigned and ordered
detained by the Magistrate Judge, but denied credit for the period following the
arraignment. Id. at 1105. On appeal, this Court vacated and remanded so that the
Board could give him credit for the period from the date of the federal detainer
until the date the federal sentence was imposed in accordance with the
interpretation of Section 6138(a)(5.1) advanced in Baasit and Smith. Banks, 136
A.3d at 1108-10. In making this holding, we rejected the Board’s argument that
the parolee should not be entitled to credit for the period from January 27, 2014 to
March 19, 2015 because he was not confined in an SCI at all during this period,
noting precedent holding that the amount of time that a parolee is physically
confined within a particular facility is not relevant to determining which authority
has jurisdiction over the individual. Id. at 1108-09. We further found support for
our holding because, like in Baasit, there was no concern that the parolee would
13
receive double credit because the federal Bureau of Prisons was prohibited by
statute from allocating periods of pre-sentence confinement to his federal sentence
for time allocated to the original state sentence. Banks, 136 A.3d at 1110.
As in Baasit, Smith and Banks, Riede was arrested on June 9, 2011 on
new federal charges, pleaded guilty on March 4, 2014 and he was sentenced on
June 23, 2014. During this period, Riede was also held on a Board detainer from
June 10, 2011 until September 18, 2013, his original maximum date, and again
from June 20, 2014 to June 23, 2014. Pursuant to Section 6138(a)(5.1) and Baasit,
Smith and Banks, the Board would ordinarily be required to give Riede credit
towards his old sentence for the periods from June 10, 2011 to September 18, 2013
and June 20, 2014 to June 23, 2014 when he was held on a Board warrant.
However, there are two important distinctions between this case and
Baasit, Smith and Banks that lead us to the conclusion that the application of
Section 6138(a)(5.1) as set forth in these cases is not applicable here. First, Riede
was sentenced in federal court to a period of incarceration for time served rather
than a term of imprisonment that could begin after the date of the state sentence.
Thus, unlike in Baasit and Banks where this Court observed that a federal statute
forbids the Bureau of Prisons from giving credit on the new federal sentence for
time allocated to the original state sentence, any credit by the Board for pre-
sentence confinement here would certainly result in double credit on his state and
federal sentences because the federal sentence was already calculated as time
served in federal custody from arrest to sentencing. Second, Riede was arrested
first by federal authorities on federal charges while he was at liberty on parole
unlike Baasit, Smith and Banks where the parolees were each held on a Board
detainer prior to federal charges or a federal detainer being filed. Riede thus first
14
came under the jurisdiction of the United States government and the federal
sovereign did not relinquish that authority until the date of his federal sentencing,
which is also the date that the Board determined Riede was available to begin
serving his state backtime. Therefore, the doctrine of primary jurisdiction does not
support Riede’s argument that he should be entitled to credit for pre-sentence
confinement. Accordingly, in this case, Section 6138(a)(5.1) does not require that
the Board award Riede credit for the time spent in custody prior to his federal
sentencing, when Riede was held on both Board and federal detainers.
Riede additionally argues that the Board exceeded its authority,
contending that the Board’s recommitment of Riede beyond his original judicially
imposed sentence maximum date unconstitutionally usurps the power of the
judiciary and violates his due process rights. However, as Counsel notes in his
Anders brief, our Supreme Court has previously addressed, and rejected, the
arguments made by Riede here. In Young v. Pennsylvania Board of Probation and
Parole, 409 A.2d 843 (Pa. 1979), the Court concluded that in exercising its power
to recommit beyond the maximum date set by a sentencing court without allowing
for credit for time spent at liberty on parole, the Board is not engaging in an
unconstitutional usurpation of judicial power but rather is operating under the
express authority granted to it by the General Assembly. Id. at 845-48; see also
Gaito, 412 A.2d at 570; Ohodnicki v. Pennsylvania Board of Parole, 211 A.2d
433, 435 (Pa. 1965); Davidson v. Pennsylvania Board of Probation and Parole, 33
A.3d 682, 685-86 (Pa. Cmwlth. 2011). As the Court explained in Young, the
argument that the denial of credit for time at liberty on parole amounts to an
extension of the maximum date imposed by the sentencing judge is predicated on
the “fallacy of...equat[ing] time served on parole with time served in an institution.
15
‘Mere lapse of time without imprisonment...does not constitute service of
sentence....’” Young, 409 A.2d at 846 (quoting Anderson v. Corall, 263 U.S. 193,
196 (1923)). Moreover, the Court has held that the Board’s authority to extend the
maximum term expiration date does not violate a parolee’s due process rights.
Gaito, 412 A.2d at 570; see also Diaz v. Pennsylvania Board of Probation and
Parole, 525 A.2d 467, 468 n.2 (Pa. Cmwlth. 1987). Accordingly, Riede’s
argument that the Board exceeded its authority by calculating a new parole
maximum violation date and violated his due process rights is without merit.
Finally, we address the issue raised by Counsel in his Anders brief
regarding whether the Board was authorized to order Riede to serve the remainder
of his sentence without giving him any credit for time spent at liberty on parole or
“street time.”9 Prior to amendments to Section 6138(a) of the Prisons and Parole
Code that took effect in 2012, recommitment without credit for time spent at
liberty on parole was mandatory. However, pursuant to the Act of July 5, 2012,
P.L. 1050, language was added to Paragraph 2 and a new Paragraph 2.1 was added
to Section 6138. These provisions now read as follows:
(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 board 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:
9
See Dorsey v. Pennsylvania Board of Probation and Parole, 854 A.2d 994, 996 n.3 (Pa.
Cmwlth. 2004).
16
(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).
(ii) The parolee was recommitted under
section 6143 (relating to early parole of
inmates subject to Federal removal order).
61 Pa. C.S. § 6138(a)(2)-(2.1) (emphasis added). The disqualifying categories in
Paragraph 2.1 did not apply to Riede and therefore the Board could, in its
discretion, award him credit on his recommitment for time spent at liberty on
parole. However, the Board denied Riede such credit by checking a box labeled
“No” on the portion of the Board hearing report form related to credit for time
spent at liberty on parole. (C.R. at 27.) The Board did not indicate any reason for
this decision to deny credit on the hearing report form.
In Pittman v. Pennsylvania Board of Probation and Parole, 131 A.3d
604 (Pa. Cmwlth. 2016) (en banc), an en banc panel of this Court addressed the
argument posed by the parolee whether simply checking a “No” box on the hearing
report form to indicate that it was denying credit for street time constituted an
abuse of the Board’s discretion under Section 6138(a)(2.1). Answering this
question in the negative, this Court held that though the Board in that case checked
the “No” box without any further articulation of the reasons for its decision to deny
credit for time spent at liberty on parole “the Board fully exercised the discretion
that the legislature afforded to it under section 6138 of the [Probation and] Parole
Code.” 131 A.3d at 611. On May 23, 2016, the Pennsylvania Supreme Court
17
granted allowance of appeal in Pittman to address the following question: “Did the
Parole Board abuse its discretion by summarily denying petitioner credit against
his maximum sentence for time that he spent at liberty on parole following his
recommitment as a convicted parole violator?” Pittman v. Pennsylvania Board of
Probation and Parole, 137 A.3d 572 (Pa. 2016).
It could be argued that Riede’s argument tracks that of the parolee in
Pittman and his appeal therefore would appropriately be directed to the Supreme
Court, leading us to the conclusion that Counsel’s petition for leave to withdraw
must be denied so that he might file a petition for leave to appeal. However, our
thorough review of the record reveals that, among the many arguments that Riede
presented at the administrative and appellate levels, he has not preserved for
appellate review an argument that the Board abused its discretion by failing to give
him credit for street time. Failure to raise an issue before the Board or in a petition
for review results in a waiver for purposes of appellate review. Chesson v.
Pennsylvania Board of Probation and Parole, 47 A.3d 875, 878 (Pa. Cmwlth.
2012); McDaniel v. Pennsylvania Board of Probation and Parole, 587 A.2d 42, 45
(Pa. Cmwlth. 1991). Riede did not address Section 6138(a)(2.1) or assert that the
Board abused its discretion by not giving him credit for street time in either his
administrative appeal from the Board’s recommitment order or his petition for
review or ancillary petition for review filed with this Court. Furthermore, while
Riede argued in correspondence to the Board following his initial administrative
appeal that the Board abused its discretion and did not provide sufficient written
justification for its decisions (C.R. at 74, 82, 84) and repeated this argument in his
appellate brief in support of his application for in forma pauperis status and in an
appendix to his appellate brief on the merits, it is clear from a full reading of his
18
submissions to the Board and this Court that these comments related to his
arguments concerning whether the Board has authority to recalculate his parole
violation maximum date and the order that he serve 18 months backtime.
Accordingly, we grant Counsel’s petition for leave to withdraw as
counsel for Riede and affirm the determination of the Board.
______________________________________
JAMES GARDNER COLINS, Senior Judge
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert S. Riede, :
Petitioner :
:
v. : No. 337 C.D. 2015
:
Pennsylvania Board of Probation :
and Parole, :
Respondent :
ORDER
AND NOW, this 30th day of March, 2017, the second petition for
leave to withdraw as counsel filed by Christopher E. Farrell, Esq., in the above-
captioned matter is hereby GRANTED and the January 21, 2015 determination of
the Pennsylvania Board of Probation and Parole is AFFIRMED.
______________________________________
JAMES GARDNER COLINS, Senior Judge