D. Roberts v. PPB

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dwayne Roberts, :
Petitioner :
:
v. :
:
Pennsylvania Parole Board, : No. 676 C.D. 2020
Respondent : Submitted: April 16, 2021
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: August 20, 2021
Dwayne Roberts (Roberts) petitions pro se for review of an order of the
Pennsylvania Parole Board (Board) dated June 3, 2020, that denied his request for
administrative relief. Roberts argues that the Board erred by recalculating his
maximum sentence date and denying him credit for time spent at liberty on parole.
Upon review, we affirm the Board’s order.
I. Background
On May 10, 2012, Roberts received a sentence of one year and six
months to five years’ incarceration for false identification to law enforcement and
conspiracy to commit possession of a controlled substance with intent to deliver.
See Certified Record (C.R.) at 1. Roberts was granted parole on January 18, 2013,
and released on parole on April 9, 2013. See C.R. at 4-11. At the time of his release
on parole, Roberts’ minimum sentence date was March 3, 2013, and his maximum
sentence date was September 3, 2016. See C.R. at 1-2 & 6. Upon release, with the
Board’s permission, Roberts’ supervision was transferred to New York State so he
could reside with his brother.1 See C.R. at 4.
On August 23, 2013, police in Elmira, New York, arrested Roberts for
false identification to authorities. See C.R. at 42. As a result of this arrest, and for
other persistent violations of the terms of his New York State parole, which he was
serving concurrently with his Pennsylvania parole, Roberts was incarcerated until
July 8, 2014, the maximum date of his underlying New York State sentence. See
C.R. at 42. After his release, Roberts was allowed to continue living with his brother
and serving his Pennsylvania parole under supervision in New York State. See C.R.
at 42.
In September 2015, Roberts absconded from supervision. See C.R. at
20-26 & 36. On April 27, 2016, the Board declared Roberts delinquent effective
September 1, 2015. See C.R. at 27. Thereafter, on June 27, 2017, Roberts was
arrested in Elmira, New York, for criminal impersonation and as a fugitive from
justice based on the Board’s warrant. See C.R. at 28. Following this arrest, also on
June 27, 2017, the Board issued a Warrant for Arrest of Paroled Prisoner that stated:
Although [Roberts’] original maximum sentence was
9/3/2016, the maximum sentence is being extended due to
a period of delinquency and a new conviction. The new
maximum sentence will be computed upon recording of
the Board’s final action. [Roberts] owes approximately 3
years, 4 months, 24 days.
1
The Board transferred Roberts’ supervision to New York State pursuant to the Interstate
Compact for the Supervision of Adult Offenders Act, 61 Pa.C.S. §§ 7111-7115 (Interstate
Compact). The Interstate Compact is an agreement governing the movement, supervision, and
rehabilitation of parolees and probationers between compacting states. See 61 Pa.C.S. § 7112.
2
C.R. at 29. On July 3, 2017, Roberts waived a probable cause hearing and admitted
his New York State parole violations, including that he absconded as of September
1, 2015. See C.R. at 31-32. On July 7, 2017, Roberts pleaded guilty to the New
York State charges2 and was sentenced to 30 days’ imprisonment. See C.R. at 33-
35.
After the completion of this latest New York State sentence, Roberts
returned to the custody of the Pennsylvania Department of Corrections (DOC) to
face his outstanding parole violation. See C.R. at 52. On November 27, 2017, the
Board recorded a decision that ordered Roberts recommitted as a technical parole
violator (TPV) with a recalculated maximum sentence date of December 21, 2020,3
and further ordered Roberts to serve six months concurrently as a convicted parole
violator (CPV), for a total of six months’ backtime.4 See C.R. at 53-56. The Board
2
Roberts pleaded guilty to criminal impersonation and a seatbelt violation. See C.R. at 33-
35.
3
We acknowledge that the December 21, 2020 recalculated maximum sentence date has
passed. As a result, on June 24, 2021, this Court filed an order requiring the parties to submit
memoranda of law addressing whether Roberts’s claim is moot by virtue of the apparent
completion of his recalculated maximum sentence date. See Order dated June 24, 2021 (June 2021
Order). In response to the June 2021 Order, the Board filed a Memorandum of Law which
explained that, subsequent to the filing of the instant Petition for Review by Roberts and Certified
Record by the Board, the Board again recommitted Roberts and recalculated his maximum
sentence date based on new criminal conduct committed while on parole. See Memorandum of
Law filed by the Board on July 8, 2021 (Board’s Memorandum of Law), at 1-2 (pagination
supplied). Accordingly, the matter is not moot. Roberts’ request for an extension of time to file a
brief on this subject is dismissed as we have decided the issue of mootness in his favor. See
Roberts’ Letter to Commonwealth Court dated, July 3, 2021.
4
“Back[time] is that part of an existing judicially imposed sentence which the Board directs
a parolee to complete following a finding . . . that the parolee violated the terms and conditions of
parole . . . .” Yates v. Pa. Bd. of Prob. & Parole, 48 A.3d 496, 499 (Pa. Cmwlth. 2012); see also
37 Pa. Code § 61.1 (Backtime is “[t]he unserved part of a prison sentence which a convict would
have been compelled to serve if the convict had not been paroled.”).
3
did not award Roberts credit for time spent at liberty on parole due to the similarity
between his original Pennsylvania conviction and his latest New York State
conviction and because Roberts had absconded from supervision. See C.R. at 56.
Roberts filed an administrative appeal5 that sought to have the Board
reconsider his recalculated maximum sentence and its decision not to award him
credit for time spent at liberty on parole. See C.R. at 57-67. By letter dated June 3,
2020, the Board denied Robert’s administrative appeal. See C.R. at 70-71. In
affirming the November 27, 2017 Board action, the Board explained:
The decision on whether to grant or deny a convicted
parole violator credit for time at liberty on parole is purely
a matter of discretion. The Prisons and Parole Code
authorizes the Board to grant or deny credit for time at
liberty on parole for certain criminal offenses. 61 Pa.C.S.
§ 6138(a)(2.1). Pursuant to the Supreme Court’s ruling in
Pittman v. [Pennsylvania Board of Probation & Parole,
159 A.3d 466, 474 (Pa. 2017),] the Board must articulate
the basis for its decision to grant or deny a convicted
parole violator credit for time spent at liberty on parole. In
this case on your [B]oard decision recorded November 27,
2017[,] the Board articulated that you were denied credit
because your new conviction was similar to your original
conviction, and you absconded while under supervision.
The record reflects that you were on parole for False
Identification and your new conviction was for Criminal
Impersonation. The record also reflects that you were
5
Roberts forwarded two Administrative Remedies Forms regarding this administrative
appeal. See C.R. at 57-67. On January 2, 2018, the Board received from Roberts an unsigned,
undated Administrative Remedies Form that included a letter from Roberts to the Board as an
attachment. See C.R. at 57-59. Thereafter, on January 5, 2018, the Board received a second
unsigned and undated Administrative Remedies Form from Roberts including as attachments the
letter to the Board included with the packet received by the Board on January 2, 2018, as well as
a document dated December 22, 2017 and styled “Petition for Administrative Relief In Support of
Pro Se Administrative Remedies Form.” See C.R. at 60-67. For ease of disposition, we treat both
filings collectively as a single administrative appeal.
4
declared delinquent on September 1, 2015. Therefore, the
reasons provided for not awarding you credit for the time
you were at liberty on parole are sufficient.
C.R. at 70. Roberts appealed to this Court.
II. Issues
On appeal,6 Roberts contends the Board impermissibly altered a
judicial sentence by recalculating his maximum sentence date. See Roberts’ Br. at
5-8. He asserts the Board imposed backtime that exceeded the entire remaining
balance of his original sentence. See id. at 6. He further argues the Board improperly
failed to credit against his sentence the time he spent incarcerated in New York State
and/or at liberty on parole. See id. at 7-8. Roberts is not entitled to relief on these
claims.
III. Discussion
A. Recalculation of Maximum Sentence Date
Pennsylvania’s General Assembly has expressly authorized the Board
to recalculate the maximum date of a sentence beyond the original date, where such
recalculation does not add to the total length of the sentence. See Hughes v. Pa. Bd.
of Prob. & Parole, 179 A.3d 117, 120 (Pa. Cmwlth. 2018) (maximum length of
sentence, not maximum date, is controlling); Ruffin v. Pa. Bd. of Prob. & Parole
6
Our review is limited to determining whether constitutional rights were violated, whether
the adjudication was in accordance with law, and whether necessary findings were supported by
substantial evidence. See Miskovitch v. Pa. Bd. of Prob. & Parole, 77 A.3d 66 (Pa. Cmwlth. 2013).
5
(Pa. Cmwlth., No. 2038 C.D. 2016, filed July 13, 2017),7 slip op. at 4. Such a
recalculation accounts for periods during which a prisoner is not actually serving his
sentence. See Vann v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 1067 C.D. 2017,
filed Apr. 10, 2018), slip op. at 6. In recalculating a maximum sentence date, the
Board does not unconstitutionally usurp judicial sentencing power, and such
recalculation does not violate a prisoner’s due process rights. See Ruffin, slip op. at
4. Thus, to the extent Roberts suggests the Board lacked authority to recalculate his
maximum sentence date, he is incorrect.
Additionally, our review of the record indicates that the period from
August 23, 2013, through July 8, 2014, that Roberts spent incarcerated in New York
State after his release on parole in April 2013 in the instant matter resulted from
persistent violation of the terms of his separate but concurrent New York State parole
and an arrest for a separate crime while under that supervision. See C.R. at 42
(Supervision History documenting Roberts’ incarceration in New York State from
his August 23, 2013 arrest for criminal impersonation through his release from
custody upon the expiration of his maximum sentence for that crime on July 8,
2014). The Board extended Roberts’ maximum sentence date based on these
violations, to which Roberts admitted, without awarding Roberts credit on his
Pennsylvania sentence for this period of incarceration. See C.R. at 29.
As this Court has observed:
[A] parolee’s sentence for a crime committed on parole
must be served before he can serve the time remaining on
the parolee’s original sentence. A Pennsylvania court
cannot order otherwise. Likewise, the Board cannot order
7
Pursuant to Commonwealth Court Internal Operating Procedure Section 414(a), 210 Pa.
Code § 69.414(a), unreported panel decisions of this Court, issued after January 15, 2008, may be
cited for their persuasive value.
6
a recommitment sentence to run concurrently with a
parolee’s new sentence for an offense committed while on
parole.
Miller v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 821 C.D. 2018, filed May 6,
2019), slip op. at 4. Further, while another state is free to impose a sentence for a
new crime that runs concurrent to an existing Pennsylvania sentence, the Board is
not required to grant credit for time served in another state’s prison system for that
subsequent crime. See id., slip op. at 5-6.
Roberts was not serving his Pennsylvania sentence during the period of
incarceration for which Roberts seeks credit and was instead incarcerated on a new
York State sentence for crimes and violations committed while on parole. See C.R.
at 42. The Board lacked the power to allow Roberts to serve his Pennsylvania
sentence concurrently with this new period of incarceration. See Miller, slip op. at
4-6. Therefore, we find no error in the Board’s recalculation of Roberts’ maximum
sentence date without granting credit for Roberts’ time spent incarcerated in New
York State from August 2013 through July 2014.
B. Street Time Credit
Parolees convicted of new criminal offenses committed while on parole
are subject to recommitment as CPVs and may, in the Board’s discretion, lose credit
for all “time at liberty on parole,” also known as “street time,” upon recommitment.
See Pittman v. Pa. Bd. of Prob. & Parole, 159 A.3d 466, 474 (Pa. 2017); see also 61
Pa.C.S. § 6138(a)(1)-(2.1) (explaining that if the parolee is recommitted as a CPV,
the parolee shall be given no credit for the time spent at liberty on parole unless the
Board, in its discretion, decides to award the time as provided therein). When
exercising its discretion to deny convicted parole violators street time credit, “the
Board must provide a contemporaneous statement explaining its reason for denying
7
a [convicted parole violator] credit for time spent at liberty on parole.” Pittman, 159
A.3d at 475. However, “the reason the Board gives does not have to be extensive
and a single sentence explanation is likely sufficient in most instances.” Id. at 475
n.12.
Here, the Board exercised its discretion and denied Roberts credit for
his street time for two reasons: (1) the similarity between his original Pennsylvania
conviction and his latest New York State conviction; and (2) because Roberts
absconded from supervision. See C.R. at 56. These reasons are adequate for the
Board to exercise its discretion to not award Roberts street time. See Barnes v. Pa.
Bd. of Prob. & Parole, 203 A.3d 382, 391 (Pa. Cmwlth. 2019) (Board’s denial of
credit for time spent at liberty on parole because new conviction was the
“same/similar to the original offense” and parole resulted in an “early failure” after
only eight months provided sufficient reason pursuant to Pittman); Williams v. Pa.
Bd. of Prob. & Parole (Pa. Cmwlth., No. 1243 C.D. 2018, filed Aug. 21, 2019), slip.
op. at 6 (“new conviction same/similar to original offense” was a sufficient reason
for denying street time pursuant to Pittman where the facts of record supported the
reason, showing that the Board performed an individual assessment rather than
simply restating facts); Laffey v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 16
C.D. 2020, filed Oct. 14, 2020), slip op. at 3 (“absconded while on supervision” was
adequate reason to deny parolee credit for time spent at liberty on parole); King v.
Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 875 C.D. 2019, filed Nov. 10, 2020),
slip op. at 4 (“absconded while on supervision” and “prior history of supervision
failures” sufficient contemporaneous reasons to support Board decision to deny
street time credit). Thus, the Board did not err in denying Roberts a credit for time
spent at liberty on parole.
8
IV. Conclusion
For the above stated reasons, we affirm the Board’s order denying
Roberts’ request for administrative relief.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dwayne Roberts, :
Petitioner :
:
v. :
:
Pennsylvania Parole Board, : No. 676 C.D. 2020
Respondent :
ORDER
AND NOW, this 20th day of August, 2021, the June 3, 2020 order of
the Pennsylvania Parole Board is AFFIRMED.
Dwayne Roberts’ request for an extension of time in which to file a
memorandum of law regarding whether his claim is moot filed in this Court on July
14, 2021, is DISMISSED as moot.
__________________________________
CHRISTINE FIZZANO CANNON, Judge