T.D. Taylor v. PBPP

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Tonya D. Taylor, :
Petitioner :
:
v. :
:
Pennsylvania Board of :
Probation and Parole, : No. 693 C.D. 2019
Respondent : Submitted: January 31, 2020
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: July 17, 2020
Tonya D. Taylor (Taylor) petitions for review from the May 7, 2019
decision of the Pennsylvania Board of Probation and Parole (Board)1 denying her
request for administrative relief challenging the recalculation of her maximum
sentence date.2 Upon review, we affirm.
1
Subsequent to the filing of the petition for review, the Pennsylvania Board of Probation
and Parole was renamed the Pennsylvania Parole Board. See Sections 15, 16, and 16.1 of the Act
of December 18, 2019, P.L. 776, No. 115 (effective February 18, 2020); see also Sections 6101
and 6111(a) of the Prisons and Parole Code, as amended, 61 Pa.C.S. §§ 6101, 6111(a).
2
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, whether an
error of law was committed or whether constitutional rights have been violated. Fisher v. Pa. Bd.
of Prob. & Parole, 62 A.3d 1073, 1075 n.1 (Pa. Cmwlth. 2013).
On May 22, 2002, Taylor was sentenced to a term of 1 year, 6 months
to 10 years at a state correctional institution (SCI) resulting from her conviction for
drug manufacture, sale, delivery or possession with intent. Certified Record (C.R.)
at 1. Taylor had a minimum sentence date of November 17, 2002, and a maximum
sentence date of May 17, 2011. Id. at 2. On April 7, 2003, the Board released Taylor
on parole from SCI-Muncy, institution number OG5836, to a community corrections
center. Id. at 129. While on parole, Taylor was arrested and charged with new drug-
related crimes. Id. at 12.
On September 29, 2004, Taylor received a sentence of 5 years to 10
years in an SCI, institution number OL1972, resulting from her new conviction of
possession with intent to distribute and possession of cocaine and drug
paraphernalia. C.R. at 7-13. This conviction carried a maximum sentence date of
September 10, 2016, which was later modified by the Department of Corrections
(DOC) to September 10, 2018, to account for Taylor’s sentencing on another
conviction. Id. at 38-40. As a result of her 2004 conviction and sentence, the Board,
by decision mailed November 18, 2004, recommitted Taylor to an SCI as a convicted
parole violator to serve 18 months’ backtime and recalculated her maximum
sentence date relative to her original sentence to November 9, 2012.3 C.R. at 14.
On October 20, 2006, the Board paroled Taylor from her first sentence,
i.e., the May 22, 2002 (OG5836) sentence, to serve her second sentence, i.e., the
September 29, 2004 (OL1972) sentence. C.R. at 129. On March 15, 2010, Taylor
3
There was some confusion in March of 2006 relating to DOC’s sentence calculations that
caused the Board to rescind its 2004 decision and reinstate Taylor’s maximum sentence date to
May 17, 2011, but the Board rescinded the same by decision dated April 18, 2006, and reaffirmed
November 9, 2012, as Taylor’s maximum sentence date relative to her original sentence. C.R. at
18-22.
2
was paroled from her OL1972 sentence to a community corrections facility. Id. at
33, 129. While on parole, Taylor was arrested and, on March 25, 2011, pleaded
guilty to two counts of possession with intent to deliver a controlled substance. Id.
at 32-34. By decision mailed August 1, 2011, the Board, referencing her OG5836
sentence, recommitted Taylor to an SCI as a convicted parole violator to serve 24
months’ backtime “when available pending parole from or completion of your [SCI]
sentence under OL1972 and sentencing on your new criminal conviction.” Id. at 36.
On March 13, 2012, Taylor was sentenced to a term of one to two years of
confinement for her conviction on the two counts of possession with intent to deliver.
Id. at 38, 51.
On January 18, 2013, the Board paroled Taylor from her OL1972
sentence to her OG5836 sentence. C.R. at 43. By decision mailed February 14,
2013, the Board noted Taylor’s recommitment as a convicted parole violator and
recalculated Taylor’s maximum sentence date on the OG5836 sentence to February
9, 2019.4 Id. at 50-51. On January 20, 2015, the Board released Taylor on
conditional parole to a community corrections center from her OG5836 sentence.
Id. at 59, 63.
While at liberty on parole from both sentences, on March 17, 2016,
Taylor was arrested on new criminal charges. C.R. at 65-69. That same day, the
Board issued a warrant to commit and detain Taylor. C.R. at 64. On March 18,
2016, Taylor was charged with drug-related offenses in the Montgomery County
4
In its Order to Recommit, the Board explained that Taylor’s maximum sentence date for
her OG5836 sentence was November 9, 2012, and she was paroled on October 19, 2006, therefore,
she had 2213 days remaining (November 9, 2012 - October 19, 2006 = 2213 days). C.R. at 51.
Taylor’s custody for return date was January 18, 2013 (the day she was paroled from her OL1972
sentence). Id. Adding the 2213 days of backtime to January 18, 2013, results in a new maximum
sentence date of February 9, 2019. Id.
3
Court of Common Pleas (trial court). Id. at 99. The trial court set bail at $50,000.
Id. On April 7, 2016, Taylor’s bail was modified to release on her own recognizance
such that she effectively posted bail. Id. On June 25, 2018, Taylor pleaded guilty
to manufacture, delivery, or possession with intent to manufacture or deliver and
was sentenced to 11 months, 15 days to 23 months of county confinement. Id. at
161, 177-78. On August 14, 2018, the Board provided Taylor with a notice of
charges and indicated its intent to hold a revocation hearing. Id. at 85. Taylor
waived her right to a revocation hearing, and to counsel, and admitted to the county
conviction. Id. at 77-79. By decision mailed November 28, 2018, the Board,
referencing the OG5836 sentence, recommitted Taylor to an SCI “as a convicted
parole violator to serve 18 months’ backtime when available pending parole
from/completion of [her county sentence].” Id. at 131-32.
On February 25, 2019, the trial court ordered Taylor’s parole from her
county sentence but did not actually release Taylor until March 2, 2019. C.R. at 165.
The Board, by decision mailed March 26, 2019, referencing the OL1972 sentence
and the OG5836 sentence, recommitted Taylor to an SCI as a convicted parole
violator to serve 18 months’ backtime. Id. at 169-70. The Board refused to award
Taylor credit for time spent at liberty on parole and changed the maximum sentence
date on her OL1972 sentence from September 10, 2018, to July 30, 2022.5 Id.
5
In its Order to Recommit, the Board explained that Taylor’s maximum sentence date for
her OL1972 sentence was September 10, 2018, and she was paroled on January 18, 2013, thus,
she had 2061 days remaining on that sentence (September 10, 2018 - January 18, 2013 = 2061
days). C.R. at 167. The Board gave Taylor credit for one day in which she was held only on the
Board’s detainer (from the date of her arrest on March 17, 2016, to the date she was charged on
March 18, 2016). Id. Additionally, the Board gave Taylor credit for 809 days for the time Taylor
spent incarcerated from the day she posted bail, April 7, 2016, to the day of her conviction and
sentencing, June 25, 2018 (June 25, 2018 - April 7, 2016 = 809 days). Id. Subtracting 810 days
from 2061 days equals 1251 days of backtime owed. Id. The Board indicated that Taylor’s
custody for return date was February 25, 2019, and adding her backtime owed to that date resulted
4
Taylor, through counsel, filed a timely administrative remedies form
challenging the recalculated maximum sentence date. C.R. at 175-76. Taylor argued
that the Board erred when it recalculated her maximum sentence date on the OL1972
sentence because “all” of the “paperwork” referenced the OG5836 sentence. Id. at
176. Taylor contended that she expected to be released when she completed her
county sentence on March 2, 2019, because she had been in custody for over 30
months and she had served her minimum county sentence of 11 months, 15 days
plus the 18 months’ backtime that the Board ordered per its November 28, 2018
decision on her OG5836 sentence. Id. at 175. Taylor further asserted that she filed
an administrative appeal from the Board’s November 28, 2018 decision to recommit
her as a convicted parole violator but never received a response. Id. at 176.
The Board, by decision delivered May 7, 2019, explained that it had no
record of an appeal from Taylor challenging the November 28, 2018 decision and
that it considered Taylor’s request as a “petition for administrative review” from the
March 26, 2019 decision. C.R. at 188. Upon review of Taylor’s request, the Board
changed Taylor’s maximum sentence date on her OL1972 sentence from July 30,
2022, to August 4, 2022.6 Id. at 189. The Board explained:
in a new maximum date of July 30, 2022. Id. Moreover, in the miscellaneous notes, the Board
specifically noted that Taylor is “also recommit [sic] on institution no. OG5836.” Id. at 168.
6
The Board issued a modified order to recommit dated May 3, 2019 wherein it explained
that it used the incorrect custody for return date when it initially recalculated Taylor’s maximum
sentence date on her OL1972 sentence. C.R. at 184. The Board explained that Taylor was paroled
on January 18, 2013, with an original maximum sentence date of September 10, 2018. Id. The
Board credited her with 810 days for time spent incarcerated solely on the Board’s detainer but
noted that her custody for return date is March 2, 2019, the day that she was actually paroled from
her county sentence. Id. When the Board performed the first calculation, it used the date that the
trial court issued its order granting Taylor parole from her county sentence, February 25, 2019. Id.
at 165, 167. As a result, Taylor’s maximum sentence date was August 4, 2022, rather than July
30, 2022. Id. at 184. The Board further noted, “recommit on institution numbers OG5836 and
OL1972, but only recalculate on institution number OL1972.” Id. at 185.
5
Ms. Taylor was on parole on two institution
numbers. At the time she [was] paroled on January 18,
2013 on institution number OL1972 her max date was
September 10, 2018 and she had 2061 days remaining on
that sentence (09/10/[]2018 – 01/18/2013 = 2061 days).
When she [was] paroled on January 20, 2015 on
institution number OG5836 her max date was February 9,
2019 and she had 1481 days remaining on that sentence
(02/09/2019 – 01/20/2015 = 1481 days). The incident
date for her conviction was March 17, 2016, therefore the
parole period was active on both institution numbers. The
Board recommits on all active institution numbers, but
only recalculates the max date on the institution number
with the most time remaining.
Ms. Taylor was released on parole on institution
number OL1972 on January 18, 2013, with a maximum
sentence date of September 10, 2018. At that point, 2061
days remained on her sentence. The Board has the
authority to establish a parole violation maximum date in
cases of convicted parole violators. See Young v.
Commonwealth, 409 A.2d 843 (Pa. 1979); Armbruster v.
Pa. Bd. of Prob. & Parole, 919 A.2d 348 (Pa. Cmwlth.
2007). Because she was recommitted as a convicted
parole violator, she is required to serve the remainder of
her original term and not entitled to credit for any periods
of time she was at liberty on parole. 61 Pa.C.S. §
6138(a)(2). The Board did not award credit for time at
liberty on parole. She was entitled to 810 days credit for
detention prior to arrest from March 17, 2016 to March
18, 2016 (1 day) and after bail was posted up to
sentencing from April 7, 2016 to June 25, 2018 (809
days). Subtracting this time meant she now had a total of
1251 days remaining on the sentence.
The Prisons and Parole Code provides that
convicted parole violators who are paroled from a state
correctional institution and then receive a county sentence
6
of confinement on their new charges will not become
available to commence service of the original sentence
until parole from, or completion of the county sentence.
In this case, March 2, 2019 is the custody for return date
(not February 25, 2019 as initially calculated), because
that is the effective date of parole from the Montgomery
County conviction. Adding 1251 days to that date yields
a new max date of August 4, 2022.
Accordingly, the calculation has been corrected and . . .
Taylor will be receiving a new Board decision. . . .
Id. at 188-89 (emphasis in original). The Board provided Taylor with a new Board
decision delivered the same day, May 7, 2019, modifying its March 26, 2019
decision, to reflect the new maximum sentence date of August 4, 2022, based upon
a “technician error.” Id. at 190-91. Taylor petitioned this Court for review.
Before this Court, Taylor appears to raise four issues for our
consideration.7 First, Taylor argues that the Board erred when it recalculated her
maximum sentence date on her OG5836 sentence because it made several
“arithmetic errors.” Taylor’s Brief at 18. Taylor argues that the Board’s November
18, 2004 decision recalculating her maximum sentence date on her OG5836 sentence
was “unsubstantiated” and the errors in this decision have carried forward into
7
In her Brief, Taylor submits three issues for our consideration: whether the Board erred
in its computation of backtime, whether the Board failed to properly credit time spent on the street,
and whether the Board lacked any basis in statute or case law to issue “consecutive setbacks due
to the assignment of two DOC numbers.” Taylor’s Brief at 1, 6. Although Pennsylvania Rule of
Appellate Procedure 2119(a) provides that “[t]he argument shall be divided into as many parts as
there are questions to be argued,” here, Taylor addresses her first two issues together in the
argument section and concludes that the Board made a “combination of arithmetic errors,
erroneous orders of service, and treating . . . Taylor as two people, because the DOC assigned two
numbers” resulting in mistaken computations of backtime and street time. Taylor’s Brief at 16,
21. For ease of discussion, we ascertained that Taylor appears to make four arguments in total,
which we will address in the order Taylor presents them in the argument section of her brief. Id.
at 16-24.
7
subsequent decisions relating to her OG5836 sentence. Id. at 18-20. However, the
issue before this Court is whether the Board erred in its May 7, 2019 decision to
recalculate the maximum sentence date on Taylor’s OL1972 sentence. Taylor did
not timely petition the Board for review of its decisions recalculating her maximum
sentence date on her OG5836 sentence, that is, the November 18, 2004 decision or
the February 14, 2013 decision. Therefore, Taylor waived her right to challenge
those decisions and cannot do so now. See Wright v. Pa. Bd. of Prob. & Parole, 743
A.2d 1004, 1006 (Pa. Cmwlth. 1999) (holding that parolee waived challenge to
Board’s recalculation of her maximum sentence date where she failed to file a
petition for review from the Board’s order).8
Second, Taylor contends that the Board erred by requiring her to serve
her OL1972 sentence before her OG5836 sentence. Taylor’s Brief at 21. Taylor
argues that the “order of service for convicted [parole] violators is back time, then
front time” pursuant to Section 6138(a)(5) of the Prisons and Parole Code (Parole
Code), 61 Pa.C.S. § 6138(a)(5),9 and here, the Board consistently ordered Taylor to
8
Additionally, Taylor appears to contend that DOC made errors on its DC16E-Sentence
Status Summaries with respect to the OG5836 sentence. Taylor’s Brief at 19. DOC, not the Board,
is responsible for calculating the initial minimum and maximum dates for prisoners committed to
its jurisdiction. Gillespie v. Dep’t of Corr., 527 A.2d 1061, 1065 (Pa. Cmwlth. 1987).
9
Section 6138(a)(5) provides:
If a new sentence is imposed on the parolee, 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.
8
serve “first time first, thus prolonging her period of supervision.” Taylor’s Brief at
21. In support, Taylor cites the Board’s August 1, 2011 decision, referencing her
OG5836 sentence, to recommit her as a convicted parole violator “when available”
pending parole from or upon completion of her OL1972 sentence and sentencing on
her new criminal conviction. Id. Taylor further cites the Board’s January 18, 2013
decision to reparole her from her OL1972 sentence to her OG5836 sentence. Id.
However, Taylor did not raise this issue in her appeal to the Board and, therefore, it
is waived. DeMarco v. Pa. Bd. of Prob. & Parole, 758 A.2d 746, 748 (Pa. Cmwlth.
2000) (explaining that “[i]t is well settled that failure to raise an issue before the
Board results in a waiver of that issue and precludes this Court from review”).
Additionally, Taylor did not appeal the Board’s August 1, 2011 recommitment
decision and, therefore, she is barred from contesting it now. See Wright, 743 A.2d
at 1006.
Third, Taylor contends that “no one advised” her that the OL1972
sentence was “active” when the Board recommitted her as a convicted parole
violator following her county conviction. Taylor’s Brief at 21. Taylor argues that
the Board’s paperwork and communication prior to its March 26, 2019 decision
related to the OG5836 sentence. Id. Specifically, Taylor asserts that, upon her arrest
on March 17, 2016, the Board detained her pursuant to the OG5836 sentence. Id.
(ii) If a person is paroled from a county prison and the new
sentence imposed upon him is to be served in the same county
prison.
(iii) In all other cases, the service of the new term for the latter
crime shall precede the commencement of the balance of the
term originally imposed.
61 Pa.C.S. § 6138(a)(5) (emphasis added).
9
Prior to pleading guilty on the county charges, Taylor alleges that she “verified” that
she was being held only on the OG5836 sentence. Id. Taylor argues that the Board’s
hearing report form relating to its revocation decision only referenced her OG5836
sentence. Id. Taylor states that the Board subsequently issued its decision on
November 28, 2018, to recommit her as a convicted parole violator and to recommit
her for 18 months’ backtime on her OG5836 sentence. Id. Because all the
communication involved the OG5836 sentence, Taylor asserts that she did not
“expect” the Board to recalculate her OL1972 sentence. Id. Taylor argues that she
“expected to be paroled when her county sentence was finished” because she had
been in “continuous custody for 32 months.” Id.
However, Taylor could not have reasonably expected to be released
upon parole from her county sentence on March 2, 2019 because the Board, in its
November 28, 2018 decision ordered Taylor to be recommitted as a convicted parole
violator to serve 18 months’ backtime at an SCI “when available pending parole
from/completion of” her county sentence. C.R. at 131. Taylor was on notice that
the Board planned to recommit her and impose 18 months of backtime when she was
“available,” that is, when the trial court actually paroled her from her county
sentence. See 61 Pa.C.S. § 6138(a)(5); see also Maracine v. Pa. Bd. of Prob. &
Parole (Pa. Cmwlth., No. 957 C.D. 2011, filed January 6, 2012), 2012 WL 8681668,
slip op. at 6 (explaining that Section 6138(a)(5) of the Parole Code requires a parolee
to serve her entire county sentence before she can begin serving the remainder of her
backtime).10 Because Taylor could not be recommitted as a convicted parole violator
or serve backtime while she was serving her county sentence, her expectation that
10
Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, an unreported
opinion maybe cited for its persuasive value. 210 Pa. Code § 69.414(a).
10
she would be released in March 2019 after she served her county sentence was
unfounded.
Nevertheless, Taylor asserts that “no one advised” her that the OL1972
sentence was still “active” because the Board’s paperwork relating to her parole
revocation hearing and the Board’s November 28, 2018 recommitment order did not
mention her OL1972 sentence. Taylor’s Brief at 21. Taylor is correct that the
Board’s November 28, 2018 recommitment order referenced her OG5836 sentence
and was definitive as to the fact that she would be recommitted as a convicted parole
violator once she was available to the Board after completing her county sentence.
C.R. at 131-32. Wright, 743 A.2d at 1007 (explaining that a recommitment order
deals with the amount of backtime that will attach “whenever the inmate is returned
to state custody”); Woodard v. Pa. Bd. of Prob. & Parole, 582 A.2d 1144, 1146 (Pa.
Cmwlth. 1990) (explaining that a recommitment order deals with the award of
backtime and a recalculation order cannot be recomputed “until the inmate is
returned to state custody” and is final as to the propriety of the recommitment itself).
However, the Board’s authority to recommit Taylor as a convicted parole violator
was triggered when Taylor engaged in a crime while on parole from both sentences,
that is, when she was on parole from both her OL1972 and OG5836 sentences. C.R.
at 43, 59, 64-72.
Section 6138(a)(1) of the Parole Code provides that:
[a] parolee under the jurisdiction of the board released
from a correctional facility who, during the period of
parole . . . commits a crime punishable by imprisonment,
for which the parolee is convicted or found guilty by a
judge or jury . . . at any time thereafter in a court of record,
may at the discretion of the board be recommitted as a
parole violator.
11
61 Pa.C.S. § 6138(a)(1). Because Taylor was convicted of a crime punishable by
imprisonment while on parole from both sentences, the Board had the “discretion”
to recommit her as a convicted parole violator on both sentences. Id. The Board
issued a new recommitment and recalculation order on March 26, 2019, when Taylor
became available to the Board after the trial court paroled her from her county
sentence.
In this March 26, 2019 order, the Board stated that Taylor was
recommitted as a convicted parole violator pursuant to both sentences, imposed the
18 months’ backtime, and recalculated her maximum sentence date on her OL1972
sentence. C.R. at 169-70. Section 6138(a)(2) of the Parole Code states:
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) [(providing the Board with discretion to
award credit for time spent at liberty on parole except in
enumerated instances)], shall be given no credit for the
time at liberty on parole.
61 Pa.C.S. § 6138(a)(2). Upon recommitment as a convicted parole violator, the
Board required Taylor to serve the remainder of the term that she would have been
compelled to serve had her parole not been granted, that is, the Board required her
to serve the remainder of her OL1972 sentence from which she was initially paroled.
Id. In so doing, the Board explained that it “recommits on all active institution
numbers, but only recalculates the max date on the institution number with the most
time remaining.” C.R. at 188. Based on the Board’s calculations provided in its
May 7, 2019 decision, the record supports the Board’s statement that Taylor had
12
more days remaining on her OL1972 sentence than her OG5836 sentence. Id.
Taylor does not explain how the Board violated the Parole Code or erred as a matter
of law by choosing to recalculate her OL1972 sentence once she was under the
jurisdiction of the Board. Taylor’s third issue, thus, is without merit.
Finally, Taylor argues that the Board “consistently” treated Taylor as
two people instead of one person with two assigned DOC numbers and gave her
“consecutive recommitments for the same violation of the same parole.” Taylor’s
Brief at 22-24. Contrary to Taylor’s assertion, the Board did not treat Taylor as two
people. As reflected in the record, the Board referenced two different institution
numbers to address Taylor’s two different sentences. See supra note 4. The Board
referenced OG5836 when issuing recalculation decisions relating to her May 22,
2002 sentence of 1 year, 6 months to 10 years at an SCI. See C.R. at 14, 22, 50-51.
The Board referenced OL1972 when it issued a recalculation decision relating to her
September 29, 2004 sentence of 5 to 10 years at an SCI. Id. at 169-70.
Additionally, the record does not support Taylor’s assertion that the
Board ordered her to serve consecutive recommitments for the same violation of
parole. The record shows that with each additional crime, the Board recommitted
Taylor as a convicted parole violator and ordered her to serve backtime. C.R. 14,
50, 169-70. On two occasions, August 1, 2011, and November 28, 2018, the Board
issued decisions informing Taylor that it planned to recommit her as a convicted
parole violator and to impose backtime once she completed service on her new
crimes, that is, when the Board had jurisdiction over her. Id. at 36, 131-32. In both
of these instances, once Taylor was returned to state custody, the Board actually
imposed her backtime and recalculated her maximum sentence date as reflected in
its February 14, 2013 and March 26, 2019 orders. Id. at 50, 169-70. See Wright,
13
743 A.2d at 1007 (explaining that the recalculation order may only be computed
when the parolee is returned to state custody). There is no evidence to suggest that
the Board required Taylor to serve backtime on each sentence for a single parole
violation. Taylor’s assertion that she was treated as two people and given
“consecutive recommitments” for the same violation of the same parole is without
merit.
For the foregoing reasons, the Board’s order is affirmed.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Tonya D. Taylor, :
Petitioner :
:
v. :
:
Pennsylvania Board of :
Probation and Parole, : No. 693 C.D. 2019
Respondent :
ORDER
AND NOW, this 17th day of July, 2020, the May 7, 2019 order of the
Pennsylvania Board of Probation and Parole is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge