S. Parker v. PPB

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Samuel Parker, :
Petitioner :
: No. 726 C.D. 2021
v. :
: Submitted: January 21, 2022
Pennsylvania Parole Board, :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: June 14, 2022
Samuel Parker (Parker) petitions for review of the Pennsylvania Parole
Board’s (Board) May 12, 2021 order, which affirmed its January 24, 2020 decision that
denied Parker credit on his original sentence for the time he spent at liberty on parole
at Renewal, Inc. (Renewal), and in the Allegheny County Jail (county prison) prior to
trial and sentencing on new criminal charges. Parker’s appointed counsel, Meghann E.
Mikluscak, Esquire (Counsel), First Assistant Public Defender for Fayette County, has
filed an application for leave to withdraw her appearance as Parker’s counsel and a
letter asserting that Parker’s appeal lacks merit. For the following reasons, we grant
Counsel’s application and affirm the Board’s order.
In 1996, Parker was convicted of aggravated assault, and the Court of
Common Pleas of Allegheny County (trial court) sentenced him to serve 10 to 20 years
in a state correctional institution (SCI).1 (Certified Record (C.R.) at 1.)2 Beginning in
2006, Parker was released on parole several times without success. (C.R. at 4-50.)
This case concerns Parker’s reparole on July 5, 2016, and the time he spent thereafter
at Renewal and in the county prison.3 (C.R. at 51-52.) Parker was reparoled to
Renewal and remained there until June 2, 2017, when he was released to an approved
home plan. (C.R. at 52, 61, 156.) Parker remained on parole until April 12, 2018,
when he was arrested by the Allegheny County Police and incarcerated in the county
prison on charges of indecent assault of a child, endangering the welfare of children,
and corruption of minors.4 (C.R. at 66-67.) Bail was set at $300,000 and not posted.
(C.R. at 66, 69.)
On September 24, 2018, Parker pleaded guilty to the charge of corruption
of minors, and the remaining charges were withdrawn. (C.R. at 70-71, 160.) He was
sentenced to 9 to 18 months in the county prison, followed by 5 years of probation.
(C.R. at 160.) Additionally, he was required to register as a sex offender for 15 years.
(Id.) Parker received 164 days’ credit for time served for the period of April 14, 2018,
through September 24, 2018. (Id.) As a result of the new criminal conviction, the
Board scheduled a revocation hearing. Parker waived his right to panel and revocation
hearings and his right to counsel, and he admitted to the new criminal conviction. (C.R.
at 92-93.) By decision mailed on December 12, 2018, the Board recommitted Parker
as a convicted parole violator (CPV) to serve 24 months’ backtime in an SCI, when
available, pending his parole from or completion of his Allegheny County sentence and
his return to an SCI. (C.R. at 118-19, 166-67.) Parker sent the Board correspondence
1
His original maximum sentence date was May 17, 2015. (Certified Record (C.R.) at 2.)
2
Additionally, in 1997, Parker pleaded guilty to the federal charge of corrupt organizations
and received a sentence of 14 years and 3 months. (C.R. at 1.)
3
At this time, his maximum sentence date was November 6, 2020. (C.R. at 51.)
4
The Board lodged its detainer warrant the same day. (C.R. at 57.)
2
on January 9, 2019, requesting that the Board credit him with the time he was detained
on the Board’s warrant while awaiting trial beginning on April 14, 2018, and that the
Board give him “a lighter term.” (C.R. at 126-27.) By decision mailed on February 6,
2019, the Board recalculated Parker’s maximum sentence date as November 2, 2024,
based on his return to state custody on January 14, 2019. (C.R. at 122, 124-25.)5
Parker, pro se, appealed the Board’s recalculation of his maximum
sentence date, claiming that he should have received credit for the 3 years, 11 months,
and 27 days he was on parole. (C.R. at 128-29.) He further claimed that his new
conviction was not for a disqualifying crime under section 6138(a)(2.1) of the Prisons
and Parole Code (Parole Code), 61 Pa. C.S. § 6138(a)(2.1), and that the Board failed
to provide a reason for denying him credit. By order mailed on July 1, 2019, the Board
characterized Parker’s appeal as involving both its December 12, 2018 and February
6, 2019 decisions. (C.R. at 132-33.) As to the December 12, 2018 decision, the Board
explained that Parker was sentenced to 24 months’ backtime, when available, because
he was not yet available to commence service of his original sentence at the time the
Board issued its decision.6 As a result, when the Board learned of Parker’s availability
date, it mailed its February 6, 2019 decision, which reflected his new maximum
sentence date and the Board’s credit allocation. The Board further explained that it
recommitted Parker for 24 months due to his new Allegheny County conviction, and
5
Neither decision addresses the Board’s reason for denying street time credit. However, the
November 4, 2018 revocation hearing report states that credit was denied because the new criminal
“[c]onviction was sexual in nature.” (C.R. at 96.)
6
In its decision, the Board stated that Parker was unavailable to begin serving his backtime
because he had not yet been sentenced on new Philadelphia County charges. However, it appears the
Board was mistaken, as no Philadelphia County charges appear in the record in this matter. Moreover,
Parker was unavailable because he was required to serve his new Allegheny County sentence prior to
serving the balance of his original sentence. See section 6138(a)(5)(iii) of the Parole Code, 61 Pa.
C.S. § 6138(a)(5)(iii).
3
that the presumptive backtime range for such offense is 18 to 24 months under the
Board’s regulations; thus, because the recommitment term fell within that range, it is
not subject to challenge.
The Board next advised Parker that while the decision to grant or deny
credit for time spent at liberty on parole is purely a matter of discretion, the Board had
no discretion to award Parker credit for the time he spent at liberty on parole in this
case because he was convicted of a crime requiring sex offender registration. (C.R. at
133 (citing section 6138(a)(2.1)(i) of the Parole Code, 61 Pa. C.S. § 6138(a)(2.1)(i)).)
Finally, the Board explained that it delivered a decision to Parker on June 4, 2019, in
which it modified the recalculation of his maximum sentence date from November 2,
2024, to May 17, 2023, and advised that Parker could appeal that decision if he did not
agree with the recalculated maximum sentence date.7 (C.R. at 133, 137.) As such, the
Board affirmed its December 12, 2018 decision and reversed its February 6, 2019
decision as to the maximum sentence date.
On July 1, 2019, Parker challenged the Board’s decision recalculating his
maximum sentence date to May 17, 2023. (C.R. at 138-40.) He again sought credit
from the time he spent at Renewal and in the county prison. In response, on October
7, 2019, the Board advised that an evidentiary hearing would be scheduled to determine
whether Parker was entitled to credit for the time he spent at Renewal from July 5,
2016, to June 2, 2017, and for the time he spent in the county prison from April 13,
2018, to January 14, 2019. (C.R. at 156.)
7
The Board advised that Parker’s maximum sentence date was recalculated based on this
Court’s decision in Penjuke v. Pennsylvania Board of Probation and Parole, 203 A.3d 401, 420 (Pa.
Cmwlth. 2019) (holding that “the Board lacks the statutory authority to revoke street time credit
previously granted to a parolee as a [technical parole violator] when it subsequently recommits the
parolee as a CPV”).
4
The hearing took place as scheduled on November 14, 2019. (C.R. at
214.) Parker waived his right to representation by counsel at the hearing. (C.R. at 158,
173.) Parker testified first as to the time he spent in the county jail, stating that he did
not post bond on the new criminal charges “[a]nd the reason why [he] didn’t make bond
was [be]cause [he] had to be detained anyways, so what good would it have been to
make bond if [he] still had the detainer put on [him]. So [he] just figured [his] time
should run together . . . .” (Notes of Testimony (N.T.) at 7; C.R. at 220.) Parker
admitted that he received credit on his county sentence for all the time he spent in
county prison. (N.T. at 9; C.R. at 222.)
Parole Agent (Agent) Phillip Peters introduced the trial court’s September
24, 2018 sentencing order into evidence, showing that Parker received 164 days of
presentence credit toward his county sentence, i.e., the time he spent in the county
prison from April 14, 2018, through September 24, 2018. (N.T. at 9-10; C.R. at 222-
23; see also C.R. at 160.) Agent Peters also provided documentation showing that
Parker was paroled from his county sentence on January 14, 2019. (N.T. at 10-11; C.R.
at 223-24.) Agent Peters then explained that the two documents established that Parker
was not available to the Board until January 14, 2019, and that any time before that
date could not be credited to his original sentence. (N.T. at 11; C.R. at 224.)
As to his time spent at Renewal, Parker testified that Renewal is an
extension of the Department of Corrections and that conditions there are similar to
incarceration. Parker explained that he was permitted to leave the grounds to go to
work, but when at Renewal, he had to abide by the same rules as in prison. For
example, he had to attend drug and alcohol treatment programs, there were “mandatory
counts and random urine samples, random searches, random shakedowns, [and the]
5
doors [are] locked at night.” (N.T. at 12; C.R. at 225.) Further, he was required to
leave the recreational area at 11:00 p.m., and report to his room. (Id.)
Parker claimed that a misconduct can result in a return to prison. If you
escape, you can be picked up by the police or parole agents, and the sentence will be
to return to prison. He claimed that at Renewal, you can only leave for work; otherwise,
it “is a locked down facility[.]” (N.T. at 12; C.R. at 225.) As such, he claimed that his
time there was the equivalent of incarceration.
Agent Peters called Darren Hood, a case management supervisor at
Renewal, as a witness. (N.T. at 17; C.R. at 230.) Hood testified that if a parolee leaves
the building, he is not escorted by staff, and that if a parolee leaves the work release
program, he is not charged with escape; he is charged with absconding, which is a
technical parole violation. Hood agreed that the building is locked, but that is to keep
intruders out. There are doors and windows that open from the inside in case of
emergency. Also, parolees can walk out the front door at any time. The staff has “no
restraining authority whatsoever[,]” and does not carry guns, handcuffs, tasers, or
pepper spray. (N.T. at 19; C.R. at 232.) Additionally, the building is not surrounded
by a fence.
By decision mailed on January 24, 2020, the Board determined that Parker
was not entitled to credit on his original sentence for the time he spent in the county
prison, as the evidence established that Parker did not post bail on his new criminal
charges and remained unavailable to the Board until he was paroled from his county
sentence on January 14, 2019.8 (C.R. at 242-44.) The Board also determined that
8
The law regarding presentence credit is settled:
[I]f 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,
(Footnote continued on next page…)
6
Parker was not entitled to a credit for the time he spent at Renewal. In so doing, the
Board accepted the testimony of Hood over that of Parker and concluded that the
restrictions imposed at Renewal did not constitute restrictions on Parker’s liberty
sufficient to warrant credit toward his original sentence. As such, Parker’s maximum
sentence date remained May 17, 2023.
Parker, pro se, filed an administrative appeal and a motion for
reconsideration with the Board. (C.R. at 245-47.) Therein, Parker no longer claimed
that Renewal was the equivalent of incarceration. He agreed that the doors in the
building opened from the inside in case of emergency, that parolees can leave without
authorization, that staff is not authorized to restrain parolees, that there is no fence
around the building, and that Renewal is not affiliated with the Department of
Corrections. (C.R. at 246.) Instead, Parker argued that since he complied with the
rules at Renewal, completed all classes and programs, and was not an absconder, the
Board should reconsider its decision and grant him credit for the time he spent at liberty
on parole at Renewal.9
By decision mailed on May 12, 2021, the Board responded to Parker’s
administrative appeal and correspondence seeking reconsideration. (C.R. at 261-62.)
The Board determined that sufficient evidence was presented at the evidentiary hearing
to deny Parker credit for the time he spent in the county prison, because he was not
the time which he spent in custody shall be credited against his new sentence. 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 v. Pennsylvania Board of Probation and Parole, 412 A.2d 568, 571 (Pa. 1980) (emphasis
added; footnote omitted). Parker concedes that he did not post bail on the new charges. Thus, all the
time he spent in the county prison was properly credited to his new county sentence.
9
Parker did not challenge the Board’s denial of credit for the time he spent in the county
prison.
7
held solely on the Board’s warrant during that period, and at Renewal, because he failed
to establish that Renewal was akin to incarceration. (C.R. at 261.) The Board therefore
determined that it acted within its authority in denying Parker credit for the challenged
periods and affirmed its January 24, 2020 decision.
On June 4, 2021, Parker filed a pro se letter in this Court. He thereafter
filed a pro se petition for review seeking credit only for the period he spent at Renewal
from July 5, 2016, to June 2, 2017, and again claiming that Renewal had a restrictive
environment similar to prison. Petition for Review filed 6/23/2021, at 1-2.
Additionally, he claims that the Board erred by revoking the time he spent at liberty on
parole at Renewal because the offense he committed while on parole was not one of
the disqualifying offenses listed under section 6138(a)(2.1)(i)-(ii) of the Parole Code,
61 Pa. C.S. § 6138(a)(2.1)(i)-(ii). Petition for Review filed 6/23/2021, at 2. Parker
also claims that the Board abused its discretion by acting outside of its authority in
denying him credit for the challenged period. Petition for Review filed 6/23/2021, at
2-3. On July 9, 2021, this Court ordered the Public Defender of Fayette County to
represent Parker, and, on August 11, 2021, Counsel entered her appearance.
Counsel has filed an application for leave to withdraw appearance and a
no-merit letter, asserting that Parker’s appeal lacks merit. In Commonwealth v. Turner,
544 A.2d 927 (Pa. 1988), our Supreme Court set forth the technical requirements
appointed counsel must meet in order to withdraw from representation of a parolee.
This Court has summarized the requirements as follows:
[C]ounsel seeking to withdraw from representation of a petitioner
seeking review of a determination of the Board must provide a “no-
merit” letter[,] which details “the nature and extent of [the
attorney’s] review and list[s] each issue the petitioner wished to
have raised, with counsel’s explanation of why those issues are
meritless.”
8
Zerby v. Shanon, 964 A.2d 956, 961 (Pa. Cmwlth. 2009). Counsel must also send the
parolee a copy of the “no-merit” letter that satisfies the Turner requirements, furnish
him with a copy of counsel’s motion to withdraw, and inform the parolee of his right
to retain new counsel or submit a brief on his own behalf. Reavis v. Pennsylvania
Board of Probation and Parole, 909 A.2d 28, 33 (Pa. Cmwlth. 2006). If counsel fails
to satisfy the foregoing requirements, we will not reach the merits of the underlying
claims but will merely deny counsel’s request to withdraw. Zerby, 964 A.2d at 960.
The record reflects that Counsel informed Parker of her request to
withdraw; provided Parker with a copy of the no-merit letter that details Counsel’s
review of the issues raised by Parker and the reasons why Counsel concluded those
issues are meritless; and advised Parker of his right to retain new counsel or raise any
new points he might deem worthy of consideration. In response, Parker filed a brief
on his own behalf. Because Counsel has satisfied the procedural requirements for
withdrawal, the Court will independently review the merits of Parker’s claims on
appeal.
We begin with Parker’s claim that he is entitled to credit on his original
sentence for the time he spent at Renewal because it was sufficiently restrictive to equal
incarceration. The law is well settled that a parolee may be entitled to credit for time
spent in a residential facility if he demonstrates that the residential facility’s
characteristics are equivalent to incarceration. Cox v. Board of Probation and Parole,
493 A.2d 680 (Pa. 1985). Parolees bear the “burden of proving the restrictions on their
liberty were the equivalent of incarceration.” Id. at 683. The most important factors
in determining whether a program is sufficiently restrictive to be equivalent to
incarceration are: (1) whether the resident is locked in; and (2) whether the resident
may leave without being physically restrained. Medina v. Pennsylvania Board of
9
Probation and Parole, 120 A.3d 1116, 1120-21 (Pa. Cmwlth.), appeal denied, 130
A.3d 1293 (Pa. 2015) (quotation & citations omitted). We have consistently held that
where the Board determines that parolees failed to meet their burden of proving that
the restrictions on their liberty were the equivalent of incarceration, they are not entitled
to credit for periods in which they resided in community corrections centers/facilities
or inpatient treatment programs. Id. at 1119. “[W]e will not interfere with the Board’s
determination . . . unless it acts arbitrarily or plainly abuses its discretion.” Cox, 493
A.2d at 683.
Counsel contends in her no-merit letter that this issue is meritless because
Parker did not establish that Renewal was sufficiently restrictive to be considered the
equivalent of incarceration. Moreover, she points out that Parker agreed, in his motion
for reconsideration to the Board, that the facts established at the evidentiary hearing
showed that the time he spent at Renewal was not the equivalent of incarceration. In
point, Renewal’s staff was unarmed and had no authority to prevent parolees from
leaving, the parolees were not locked up, and the building was not fenced. Thus,
according to Counsel, Parker is not entitled to credit for the period he resided at
Renewal. We agree.
In this case, the Board determined that Parker failed to meet his burden of
proving that the restrictions on his liberty were the equivalent of incarceration. In so
determining, the Board credited Hood’s testimony that when a parolee leaves the
building for work release, he is not escorted by staff, and if a parolee walks away from
the work release program, he is not charged with escape, but rather, he is charged with
the technical parole violation of absconding. Further, the Board found that there are
doors and windows in the building that open from the inside in case of emergency,
Parker could walk out the front door at any time because the staff has no authority to
10
restrain parolees or otherwise prevent them from leaving the facility, and there is no
fence around the facility. Parker also admitted in his motion for reconsideration that
Renewal’s doors are locked to keep intruders out, that he could exit the building at any
time, that Renewal’s staff was unarmed and had no authority to prevent parolees from
leaving the facility, and that there was no fence around the facility. (C.R. at 246.)
These findings support the Board’s determination that Parker is not entitled to credit
under Cox for the period he resided at Renewal because the conditions there were not
sufficiently restrictive to be considered the equivalent of incarceration. Accordingly,
we conclude that the Board did not act arbitrarily or plainly abuse its discretion when
it denied Parker credit on his original sentence for the period he resided at Renewal.
This issue is therefore without merit.
Second, we address Parker’s claim that he is entitled to credit for the time
he spent at liberty on parole at Renewal because his new criminal conviction was not a
disqualifying offense under section 6138(a)(2.1) of the Parole Code. Section
6138(a)(2.1) of the Parole Code grants the Board discretion to award credit to a CPV
for time spent at liberty on parole, with the following exceptions:
(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)(2.1) (emphasis added).10
10
We note that various sections of the Parole Code, including section 6138, have recently
been amended by the Act of June 30, 2021, P.L. 260, effective immediately. While the substance of
(Footnote continued on next page…)
11
In her application to withdraw and no-merit letter, Counsel expresses
confusion regarding Parker’s new criminal conviction. She claims that Parker did not
disclose his new criminal conviction in his petition for review. Counsel states that she
conducted an online search of the Pennsylvania Unified Judicial System, but it failed
to identify a new criminal conviction during the relevant time at issue. She also claims
that the new criminal conviction is not included in the certified record and that
documents in the record appear to be redacted to omit it. Thus, she could not find any
support for Parker’s claim that his new criminal conviction was not a disqualifying
offense.
We note that, despite Counsel’s claim, the certified record clearly
establishes that Parker pleaded guilty to one felony count of corruption of minors
pursuant to section 6301(a)(1)(ii) of the Crimes Code, 18 Pa. C.S. § 6301(a)(1)(ii), a
crime that requires sex offender registration. (C.R. at 70.) Pursuant to 42 Pa. C.S. §
9799.14(b)(8), an offense under 18 Pa. C.S. § 6301(a)(1)(ii) is a “Tier I sexual offense.”
A Tier I sex offender must register with the Pennsylvania State Police for 15 years. 42
Pa. C.S. § 9799.15(a)(1). Moreover, the trial court instructed that the crime was a
“TIER 1” sexual offense, requiring “15[-]year registration.” (C.R. at 70, 160.) Thus,
the Board had no discretion under section 6138(a)(2.1) of the Parole Code to award
Parker credit for the time he spent at liberty on parole at Renewal, and his claim to the
contrary is meritless.11
the pertinent statutory section both prior to and after the amendments is essentially the same, we
nevertheless reference the version of the Parole Code that was in effect at the time the Board rendered
its decision in this matter.
11
Because we have already determined that the Board’s findings support its determination
that Parker is not entitled to credit under Cox for the period he resided at Renewal, and therefore, that
it did not act arbitrarily or plainly abuse its discretion in denying Parker credit for that period, and for
the additional reason that the Board had no discretion under section 6138(a)(2.1) of the Parole Code
(Footnote continued on next page…)
12
We turn now to Parker’s brief to this Court. Therein, Parker does not
claim that the time he spent at Renewal was equivalent to incarceration. Instead, he
requests credit for the time he spent at liberty on parole at Renewal based on his 2013
recommitment as a technical parole violator (TPV) for driving under the influence
(DUI). Parker’s Brief at 6. He advises that DUI is not a disqualifying offense under
section 6138(a)(2.1) of the Parole Code. Further, he points out that he was reparoled
in 2011. Therefore, he claims, the Board was only authorized to revoke the time he
spent at liberty on parole from 2011 to 2013.
At the outset, we note that Parker has raised this issue for the first time on
appeal to this Court, and, as such, it is waived.12 However, even if we were to reach
the issue, it is meritless. First, as addressed above, the disqualifying crime under
section 6138(a)(2.1) of the Parole Code is Parker’s 2018 conviction for corruption of
minors, not his 2013 DUI conviction. Second, Parker provides no explanation of why
his 2013 DUI conviction13 is relevant to the time he spent at Renewal following his
reparole on July 5, 2016. Third, when the Board recalculated Parker’s maximum
sentence date to November 2, 2024, it did not revoke the time Parker spent at liberty
on parole from 2011 to 2013. (C.R. at 122.) The Board did revoke two prior periods
of parole occurring between 2014 and 2016. (Id.) However, the Board returned that
time to Parker when it recalculated his maximum sentence date to May 17, 2023. (C.R.
at 135, 137.) Thus, the Board’s current recalculation of Parker’s maximum sentence
to award Parker credit for the time he spent at Renewal based on his disqualifying conviction, we
need not address Parker’s third issue.
12
It is well settled that “issues not raised by a CPV before the [B]oard in an administrative
appeal are waived for purposes of appellate review by this [C]ourt.” McCaskill v. Pennsylvania Board
of Probation and Parole, 631 A.2d 1092, 1094-95 (Pa. Cmwlth. 1993).
13
By decisions mailed on March 5 and August 29, 2013, the Board recommitted Parker to
serve six months’ backtime as a TPV, along with a concurrent term of six months’ backtime as a CPV
for a DUI conviction. (C.R. at 21, 26-27.)
13
date only involves the period of time from July 5, 2016, through his return to the
Board’s custody on January 14, 2019, i.e., no other periods of parole were part of the
recalculation.14 Parker’s claim in this regard is also, therefore, meritless.
Accordingly, for the foregoing reasons, Counsel’s application for leave to
withdraw appearance is granted, and the Board’s order is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
14
Adding the 1,584 days that remained on Parker’s sentence when he was paroled in 2016 to
the date he returned to the Board’s custody in 2019 equals his current recalculated maximum sentence
date of May 17, 2023. (C.R. at 135.)
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Samuel Parker, :
Petitioner :
: No. 726 C.D. 2021
v. :
:
Pennsylvania Parole Board, :
Respondent :
ORDER
AND NOW, this 14th day of June, 2022, the application for leave to
withdraw appearance, filed by Meghann E. Mikluscak, Esquire is GRANTED, and
the order of the Pennsylvania Parole Board, dated May 12, 2021, is AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge