Com. v. Tilghman

438 Pa. Superior Ct. 313 (1995)

652 A.2d 390

COMMONWEALTH of Pennsylvania, Appellant, v. Phillip TILGHMAN.

Superior Court of Pennsylvania.

Argued November 1, 1994.

Filed January 12, 1995.

*314 Ronald Eisenberg, Deputy Dist. Atty. and Norman Gross, Asst. Dist. Atty., Philadelphia, for appellant.

John Gross, Asst. Public Defender, Philadelphia, for appellee.

Before OLSZEWSKI, DEL SOLE, and BECK, JJ.

*315 OLSZEWSKI, Judge:

This case presents the question of whether a common pleas court retains jurisdiction in matters regarding parole when although the maximum aggregate sentence is two or more years, each component sentence imposed has a maximum of less than two years. Our answer today, as it has been each time this issue has come before us, is no.

Phillip Tilghman was granted early parole from two consecutive sentences for robbery and conspiracy. On February 8, 1993, Mr. Tilghman entered a negotiated guilty plea in exchange for a sentence of eleven and one-half to twenty-three months' incarceration for robbery, a consecutive sentence of six to twelve months for conspiracy, and a sentence of two years' reported probation for an additional charge of possession of an instrument of crime. The sentences were aggregated to a minimum of seventeen and one-half months to a maximum of thirty-five months' incarceration. After serving twenty-six months of his sentence, Mr. Tilghman petitioned the court for early parole. The Honorable Mary D. Collins granted parole and denied the Commonwealth's motion for a stay of the parole order pending appeal. The Commonwealth now appeals the order granting Mr. Tilghman parole.[1]

The Commonwealth argues that the trial court improperly usurped the exclusive statutory authority of the Parole Board by granting early parole. We first note that when a sentence is ordered to be served consecutively with another being imposed or previously imposed, the two sentences are automatically aggregated. Commonwealth v. Harris, *316 423 Pa.Super. 190, 197, 620 A.2d 1175, 1179, allocatur denied, 535 Pa. 668, 634 A.2d 1115 (1993). We also note that

[u]nder Pennsylvania law, the authority to parole convicted offenders is split between the common pleas courts and the Pennsylvania Board of Probation and Parole (Parole Board). When an offender is sentenced to a maximum term of imprisonment of less than two years, the common pleas court retains authority to grant and revoke parole; when the maximum term is two years or more, authority to grant or revoke parole is vested in the Parole Board. See 61 P.S. §§ 331.17, 331.21, 331.26; see also Wile, Probation and Parole, 58 Pa.B.A.Q. 119, 121 (1987); Wile, An Overview of the Parole Revocation Process in Pennsylvania, 92 Dickinson L.Rev. 1, 2-3 & n. 1 (1987).

Commonwealth v. McDermott, 377 Pa.Super. 623, 631, 547 A.2d 1236, 1239-40 (1988).

We stated in Commonwealth v. Evola, 421 Pa.Super. 595, 618 A.2d 969 (1992), allocatur denied, 535 Pa. 666, 634 A.2d 1114 (1993), and more recently in Commonwealth v. Harris, supra, that when such sentences are aggregated, the Parole Board maintains exclusive authority over parole matters as long as the aggregate maximum sentence equals or exceeds two years. Harris, 423 Pa.Super. at 197, 620 A.2d at 1179; see also Evola, 421 Pa.Super. at 598 n. 3, 618 A.2d at 971 n. 3 (holding that the court of common pleas has no authority to grant early parole when defendant's aggregate sentence for imposed consecutive sentences is two or more years); McDermott, 377 Pa.Super. at 631, 547 A.2d at 1240 ("The common pleas court loses its authority to parole an offender sentenced to a maximum term of less than two years when a subsequent sentence is imposed consecutively to the previous sentence and the new aggregate maximum sentence exceeds two years.") (citation omitted).

We based our holding in Harris on an application of Gillespie v. Commonwealth Department of Corrections, 106 Pa. Commw. 500, 527 A.2d 1061 (1987), allocatur denied, 518 Pa. 614, 540 A.2d 535 (1988), and Commonwealth v. Ford-Bey, 404 Pa.Super. 281, 590 A.2d 782 (1991); and on an interpretation *317 of the clear statutory provisions of 61 P.S. Section 331.17. Both we and the Commonwealth Court in Ford-Bey and Gillespie, respectively, interpreted 42 Pa.C.S.A. Section 9757 to mandate the automatic aggregation of sentences once a consecutive sentence has been imposed.[2] Even when a sentence of two or more years is the result of such aggregation, however, 61 P.S. Section 331.17 gives exclusive jurisdiction to the Parole Board.

The [Parole Board] shall have exclusive power to parole and reparole, commit and recommit for violations of parole, and to discharge all persons from parole heretofore or hereafter sentenced by any court of this Commonwealth to imprisonment in any prison or penal institution thereof. . . . Provided, however, That . . . the powers and duties herein conferred shall not extend to persons sentenced to a maximum period of less than two years, and nothing herein contained shall prevent any court of this Commonwealth from paroling any person sentenced by it for a maximum period of less than two years: And provided further, That the period of two years herein referred to shall mean the entire continuous term of sentence to which a person is subject, whether the same be by one or more sentences, either to simple imprisonment or to an indeterminate imprisonment at hard labor, as now or hereafter authorized by law to be imposed for criminal offenses.

61 P.S. § 331.17 (footnote omitted). The decision, therefore, whether to parole prisoners whose aggregate maximum consecutive sentence imposed equals or exceeds two years is within the domain of the Parole Board, even if each and every individual component maximum sentence would have been less *318 than two years. Harris, 423 Pa.Super. at 197-201, 620 A.2d at 1179-81. "Upon aggregation the trial court loses its authority over the aggregated sentence." Id. at 201, 620 A.2d at 1181.

The trial court relied upon the Commonwealth Court's opinion in Abraham v. Department of Corrections of the Commonwealth of Pennsylvania, 150 Pa.Commw. 81, 615 A.2d 814 (1992), aff'd, 535 Pa. 122, 634 A.2d 214 (1993), in supporting a contrary proposition to our holding in Harris. In Abraham the Commonwealth Court stated that "for the purpose of determining place of confinement and parole, a county sentence shall not be aggregated with any later-imposed sentence." Id. at 95, 615 A.2d at 820. The only issue in Abraham, however, was determining the proper place of confinement for prisoners whose aggregate maximum sentence is five or more years.[3] Because the court in Abraham was dealing with the situs of a prisoner's confinement, any reference to a determination of who has the authority over the decision to grant parole was obiter dictum.

We reaffirm our recent analysis of Abraham: "Decisions of the Commonwealth Court are not binding on this Court and should be followed only when the reasoning contained therein is persuasive. Based on our own analysis of the pertinent statutes . . . we find that the Commonwealth Court's discussion in Abraham was not only unnecessary but unpersuasive." Harris, 423 Pa.Super. at 207, 620 A.2d at 1184 (citation *319 omitted). In Harris we held that the Commonwealth Court ignored "the plain meaning of the language of section 331.17." Id.

The only reason we revisit this issue is because our Supreme Court affirmed, per curiam, the order in Abraham. Abraham v. Dept. of Corrections of Pennsylvania, 535 Pa. 122, 634 A.2d 214 (1994). Appellees argue that this decision by the Supreme Court overruled, sub silentio, our decision in Harris. We disagree. "[A] sub silentio overruling will rarely be found to [be] . . . intended." Commonwealth v. Cragle, 281 Pa.Super. 434, 422 A.2d 547, 549 (1980). The Supreme Court's ruling only affirmed, without opinion, the Commonwealth Court's order issued in Abraham, an order dealing strictly with assigning the appropriate (state or county) place of confinement. We do not believe that the Court intended to overrule Harris. See Commonwealth v. Johnson, 399 Pa.Super. 266, 272, 582 A.2d 336, 339 (1990) (refusing to find a holding overruled sub silentio when different issues were presented); cf. Harris, 423 Pa.Super. at 201, 620 A.2d at 1181 (finding that a sentencing court was not given power to parole a criminal defendant serving a five- to ten-year sentence by our Supreme Court's per curiam order issued in Georgevich v. Court of Common Pleas of Allegheny County, 510 Pa. 285, 507 A.2d 812 (1986), when that order did not mention this type of aggregate sentence). We hold that Harris is still fully applicable to cases such as the one sub judice. The decision of whether or not to parole a person whose aggregate maximum consecutive sentence is equal to or exceeds two years is the Parole Board's, notwithstanding the fact that each of the individual component sentences had a maximum of less than two years.

Appellee was improperly granted an early parole. Order reversed. Remanded for proceedings consistent with this decision. Jurisdiction relinquished.

NOTES

[1] The Commonwealth intends to raise this same issue in its appeal from the orders granting early parole in the following cases: Commonwealth v. Hall, 438 Pa.Super. 372, 652 A.2d 858 (1995); Commonwealth v. Jamison, 438 Pa.Super. 378, 652 A.2d 862 (1995); Commonwealth v. Palmer Daley, No. 1351 Philadelphia 1994; Commonwealth v. Jack Glover, Nos. 1449 and 1509 Philadelphia 1994; Commonwealth v. Clifford Ferron, Nos. 1660 and 1663 Philadelphia 1994; Commonwealth v. Donald Brown, No. 1943 Philadelphia 1994; Commonwealth v. Richard Sanders, No. 2258 Philadelphia 1994; Commonwealth v. Marcellus Hopkins, No. 2441 Philadelphia 1994.

[2] "Whenever the court determines that a sentence should be served consecutively to one being imposed by the court, or to one previously imposed, the court shall indicate the minimum sentence to be served for the total of all offenses with respect to which sentence is imposed. Such minimum sentence shall not exceed one-half of the maximum sentence imposed." 42 Pa.C.S.A. § 9757. See also Abraham v. Department of Corrections of the Commonwealth of Pennsylvania, 150 Pa. Commw. 81, 615 A.2d 814 (1992), aff'd, 535 Pa. 122, 634 A.2d 214 (1993) (aggregating consecutive sentences is mandatory; since this is not discretionary with the trial court, this interpretation of 42 Pa.C.S.A. Section 9757 does not violate the separation of powers doctrine).

[3] The court in Abraham was applying 42 Pa.C.S.A. Section 9762 to cases where a prisoner's aggregate maximum consecutive sentence, as opposed to the individual component sentences imposed, equals or exceeds five years. This section reads:

§ 9762. Sentence Proceeding: place of confinement

All persons sentenced for a total or partial confinement for:

(1) maximum terms of five or more years shall be committed to the Bureau of Correction for confinement:

(2) maximum terms of two years or more but less than five years may be committed to the Bureau of Corrections for confinement or may be committed to a county prison within the jurisdiction of the court:

(3) maximum terms of less than two years shall be committed to a county prison within the jurisdiction of the court except that as facilities become available on dates and in areas designated by the Governor in proclamations declaring the availability of State correctional facilities, such persons may be committed to the Bureau of Correction for confinement.