J. Howell v. PA BPP

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jodie Howell, :
Petitioner :
:
v. :
:
Pennsylvania Board of :
Probation and Parole, : No. 931 C.D. 2015
Respondent : Submitted: October 23, 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 2, 2016
Jodie Howell (Howell), a parolee incarcerated at the State Correctional
Institution (SCI) – Fayette, petitions this Court for review of the Pennsylvania Board
of Probation and Parole’s (Board) May 7, 2015 order upholding Howell’s maximum
sentence release date recalculation. The sole issue before this Court is whether the
Board erred in its recalculation of Howell’s maximum sentence release date.2 After
review, we affirm.
1
This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt
became President Judge.
2
Howell also states in his brief that “his due process rights were violated in the manner in
which the hearings were conducted and the manner in which credit time was applied.” Howell’s
Br. at 10 (emphasis added). However, Howell does not further discuss or specify alleged errors in
“the manner in which the hearings were conducted.” Id. In addition, Howell argues that his
“[c]onstitutional [r]ights were violated to Due Process protection [sic] since he was not informed
that his ‘street time’ was at risk of being taken by the Board.” Id. at 11. Howell did not further
address or develop this argument. Accordingly, these arguments are waived. See Aveline v. Pa. Bd.
of Probation & Parole, 729 A.2d 1254 (Pa. Cmwlth. 1999) (issues raised in petition for review but
not raised or developed in brief are waived).
On November 25, 2002, Howell was sentenced to 4 to 8 years for the
manufacture, delivery or possession with intent to manufacture or deliver a controlled
substance (First Sentence). The maximum release date for this sentence was June 27,
2012.
On March 3, 2008, the Board paroled Howell from his First Sentence.
On February 12, 2009, Howell pled guilty to charges involving the manufacture,
delivery or possession with intent to manufacture or deliver a controlled substance
and resisting arrest. He was sentenced to 1 year, 1 month and 15 days to 3 years.
The maximum release date for this sentence was June 13, 2013 (Second Sentence).
On July 30, 2010, the Board released Howell on parole from his First
Sentence, but held Howell on a detainer relative to his Second Sentence. Thus,
although Howell was paroled from his First Sentence, he was on “constructive
parole”3 in that he remained in prison under the Board’s detainer4 related to his
Second Sentence. On July 18, 2011, Howell was released on parole from the Second
Sentence.
On February 25, 2012, the Board lodged a detainer against Howell for
technical parole violations. On March 6, 2012, the Board issued a Notice of Charges
and Hearing related to the technical parole violations. Howell signed a Waiver of
Violation Hearing and Counsel/Admission admitting that he violated the terms of his
parole.
On March 12, 2012, Howell was arrested in Fayette County on new
criminal charges (Fayette County Matter). On April 23, 2012, the Board recommitted
3
“A prisoner on constructive parole is not released from prison but is paroled from his or
her original sentence to immediately begin serving a new sentence.” Calloway v. Pa. Bd. of Prob.
& Parole, 857 A.2d 218, 220 n.4 (Pa. Cmwlth. 2004).
4
“If a parolee is arrested while on . . . parole, the Board may place a detainer against him
which will prevent the parolee from making bail, pending the disposition of the new charges or
other action of the court.” 37 Pa. Code § 65.5(2).
2
Howell as a technical parole violator to serve his unexpired term of 1 year, 4 months
and 23 days. Howell remained confined on the Board’s detainer until the Board lifted
its detainer on July 18, 2013, Howell’s original maximum date with delinquency time
added. On August 2, 2013, Howell was arrested on new criminal charges in
Westmoreland County (Westmoreland County Matter). On August 5, 2013, Howell
posted bail on the Westmoreland County charges. On April 30, 2014, Howell pled
guilty in the Fayette County Matter to two counts of Manufacture, Delivery, or
Possession with Intent to Manufacture or Deliver a Controlled Substance, and one
count of Intentional Possession of a Controlled Substance by a Person Not
Registered, and on August 19, 2014, was sentenced to serve 2½ to 5 years in a state
correctional institution. On August 20, 2014, the Board re-lodged its detainer against
Howell. On October 31, 2014, Howell pled guilty in Westmoreland County to Flight
to Avoid Apprehension. Howell was sentenced to 11½ to 23 months in prison.
Howell was paroled from the sentence in the Westmoreland County Matter effective
January 15, 2015.
On September 16, 2014 and November 19, 2014, Howell waived his
revocation hearings related to the Fayette County Matter and the Westmoreland
County Matter, respectively, and admitted being convicted of the charges. By Board
decisions mailed on November 17, 2014 and March 6, 2015, the Board recommitted
Howell as a convicted parole violator. The Board’s March 6, 2015 decision
recalculated Howell’s maximum sentence date from June 27, 2012 to July 3, 2015.
Howell was not given credit for the period July 30, 2010 to July 18, 2011 – the time
he was paroled from his First Sentence, but remained confined relative to his Second
Sentence. Howell filed a petition for administrative review of the Board’s
3
recalculation of his maximum sentence. On May 7, 2015, the Board upheld its
calculation. Howell appealed to this Court.5
Howell argues that he is entitled to credit for the period he was on parole
from his First Sentence, but incarcerated on his Second Sentence because he was not
truly at liberty on parole since he was confined under the Board’s detainer -
incarcerated at the same institution, adhering to the same rules and regulations, and
only his inmate number had changed.
Section 6138 of the Prisons and Parole Code provides, in relevant part:
(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 pleads guilty . .
., 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.[6]
5
“Our scope of review of the Board’s decision denying administrative relief is limited to
determining whether necessary findings of fact are supported by substantial evidence, an error of
law was committed, or constitutional rights have been violated.” Fisher v. Pa. Bd. of Prob. &
Parole, 62 A.3d 1073, 1075 n.1 (Pa. Cmwlth. 2013).
6
Section 6138(a)(2.1) of the Prisons and Parole Code provides:
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).
4
....
(c) Technical violators.--
(1) A parolee under the jurisdiction of the board who
violates the terms and conditions of his parole, other than
by the commission of a new crime of which . . . the parolee
pleads guilty . . . , 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. . . .
....
(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).
This Court has held:
It is clear from a plain reading of the statute, that while
technical parole violators are entitled to credit for time
served while on parole in good standing, such that they may
only be recommitted for the remainder of their original
sentences, convicted parole violators, on the other hand, are
not entitled to any credit for street-time.[7] Consequently,
when a parolee is recommitted due to criminal conviction,
(ii) The parolee was recommitted under [S]ection 6143 (relating
to early parole of inmates subject to Federal removal order).
61 Pa.C.S. § 6138(a)(2.1). Howell has not argued (or provided any basis to support such an
argument) that the Board abused its discretion under Section 6138(a)(2.1) of the Prisons and Parole
Code in failing to award him credit for time at liberty on parole. Thus, we do not address the issue.
7
“‘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).
5
his maximum sentence date may be extended to account for
all street[]time, regardless of good or delinquent standing.
Richards v. Pa. Bd. of Prob. & Parole, 20 A.3d 596, 598-99 (Pa. Cmwlth. 2011); see
also Houser v. Pa. Bd. of Prob. & Parole, 682 A.2d 1365 (Pa. Cmwlth. 1996).
Our Supreme Court has held that “one who is on constructive parole is at
liberty on parole on that particular sentence, and is not entitled to credit against his
original sentence for time spent on constructive parole.” Merritt v. Pa. Bd. of Prob.
& Parole, 574 A.2d 597, 580 (Pa. 1990) (emphasis added); see also Hernandez v. Pa.
Bd. of Prob. & Parole, 548 A.2d 380 (Pa. Cmwlth. 1988); Rosenberger v. Pa. Bd. of
Prob. & Parole, 510 A.2d 866 (Pa. Cmwlth. 1986). Because Howell was at liberty
on parole from his First Sentence while confined under a detainer on his Second
Sentence, he was not entitled to credit against his First Sentence. Thus, we discern no
error in the Board’s maximum sentence release date calculation.
Accordingly, we affirm the Board’s order.
___________________________
ANNE E. COVEY, Judge
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jodie Howell, :
Petitioner :
:
v. :
:
Pennsylvania Board of :
Probation and Parole, : No. 931 C.D. 2015
Respondent :
ORDER
AND NOW, this 2nd day of March, 2016, the Pennsylvania Board of
Probation and Parole’s May 7, 2015 order is affirmed.
___________________________
ANNE E. COVEY, Judge