D. Gordon v. PA Board of Probation and Parole (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Darrell Gordon, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent BEFORE: : : : : : : : : No. 1154 C.D. 2007 Submitted: November 16, 2007 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE RENÃ E COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SMITH-RIBNER FILED: January 24, 2008 Darrell Gordon petitions for review of the decision of the Board Secretary of the Pennsylvania Board of Probation and Parole (Board) on Gordon's petition for administrative review of the Board's decision mailed March 29, 2007, which recommitted him to serve nine months backtime as a technical parole violator following his admission to three violations at a revocation hearing, with no credit for time served during a period of incarceration between September 1, 2006 and November 20, 2006. Gordon states the question as whether the Board erred in determining that he is not entitled to 101 days of credit, thereby yielding a new parole maximum sentence date earlier than July 29, 2010. The Honorable Debra A. Pezze sentenced Gordon to three to six years incarceration on January 4, 2005. He was released on parole on December 20, 2005, with a maximum sentence expiration date of April 19, 2010. Following an incident at Gordon's approved residence at his mother's house on August 10, 2006, involving police response, Gordon left the approved residence and made himself unavailable for parole supervision. He was arrested on September 1, 2006 on new criminal charges arising from that incident and was confined in the Westmoreland County Jail. On November 20, 2006, Gordon was convicted of harassment, and he was sentenced to one day to three months incarceration. Certified Record (C.R.) pp. 28, 65 and 75. He received credit on this sentence for the time served since September 1, 2006, and he was paroled immediately. The Board charged Gordon with violations of three technical conditions of his parole: No. 2, changing his approved residence without written permission; No. 4, failing to comply with all municipal, county, state and federal criminal laws as shown by his pleading guilty on November 20, 2006; and No. 7, failing to make himself available to parole staff for mandated urinalysis testing between August 11 and September 1, 2006. Following a parole revocation hearing on January 26, 2007, at which Gordon admitted all the violations charged, the Board issued its recommitment order March 29, 2007 recommitting him to serve nine months as a technical parole violator and establishing his new maximum sentence expiration date as July 29, 2010. Gordon received no credit from the Board for the period from August 11, 2006 through September 1, 2006 or the period from September 1, 2006 through November 20, 2006. On Gordon's request for administrative review of the Board's decision, the Board Secretary affirmed.1 Gordon contends that although he admitted to the allegations regarding the technical violations at the revocation hearing, he is entitled to a credit 1 The Court's review of this decision is limited to determining whether there was a constitutional violation or an error of law and whether the findings of fact are supported by substantial evidence in the record. Jackson v. Pennsylvania Board of Probation and Parole, 885 A.2d 598 (Pa. Cmwlth. 2005). 2 for seventy-nine days, which would make his maximum term expiration date that many days earlier than the date of July 29, 2010 calculated by the Board. He asserts that of the eighty days that he served in the Westmoreland County Jail, only one day went toward an eventual county sentence; therefore, seventy-nine days should be credited toward his technical parole violation. Gordon avers that he was incarcerated solely because of the Board's detainer, and he quotes Gaito v. Pennsylvania Board of Probation and Parole, 563 A.2d 545, 547 (Pa. Cmwlth. 1989): "Time spent in custody pursuant to a detainer warrant shall be credited to a convicted parole violator's original term only when the parolee was eligible for, and had satisfied, bail requirements for the new offense and thus remained incarcerated only by reason of the detainer warrant against him." Without reference to anything in the record, Gordon states that it appears that he was incarcerated solely on the Board's detainer because he was granted nominal bond on the new criminal charges. He contends that the time from after his arrest must be credited to his original sentence, citing Anderson v. Pennsylvania Board of Probation and Parole, 472 A.2d 1168 (Pa. Cmwlth. 1984). As the Board points out, despite Gordon's statement of the question as whether the Board erred in finding that he is not entitled to 101 days credit, the Board did not grant any credit for the twenty-one days from August 11, 2006 until September 1, 2006 when Gordon was delinquent, because Section 21.1(b) of the Act known as the Parole Act, Act of August 6, 1941, P.L. 861, as amended, added by Section 5 of the Act of August 24, 1951, P.L. 1501, 61 P.S. §331.21a(b), provides that a person recommitted as a technical and not a convicted parole violator "shall be given credit for time served on parole in good standing but with no credit for delinquent time ¦." Gordon has not challenged that denial of credit. 3 Regarding the period of incarceration, the Board responds that under this Court's decision in Ranson v. Pennsylvania Board of Probation and Parole, 568 A.2d 1334, 1335 (Pa. Cmwlth. 1989), it is clear that "[a recommitted technical parole violator] is not entitled to credit for time during which he was incarcerated serving a sentence other than the one from which he was paroled." Here Gordon was arrested on September 1, 2006 and was confined in the county jail; on November 20, 2006 he was sentenced to one day to three months. Gordon received credit on that sentence for the time spent in custody until the date of sentencing, and he was paroled immediately. Although a technical parole violator is entitled to credit for time served on parole in good standing, Ranson, 568 A.2d at 1335, states that "[a]ny time which a parolee spends incarcerated on another charge cannot be considered time served on parole in good standing." The Board notes that Anderson, which Gordon cites, did not involve nominal bail. In Anderson the Court held that a convicted parole violator was entitled to credit for time served in custody of county authorities after conviction, where the new sentence minimum was time served and the Court accepted that he was held after that solely on the Board's warrant. The Board posits that Gordon may be relying on Andrews v. Pennsylvania Board of Probation and Parole, 688 A.2d 756 (Pa. Cmwlth. 1997). There the Court determined that a parolee was entitled to credit on his original sentence for time spent in custody on the Board's warrant after his bail was reduced to nominal bail in accordance with Pa. R. Crim. P. 600(E) because he had not had a trial within 180 days. Although Gordon makes a conclusory claim regarding nominal bail, there is nothing in the record to suggest that he was granted nominal bail under Rule 600(E) or that he petitioned the Board for a hearing under Pierce v. 4 Pennsylvania Board of Probation and Parole, 500 A.2d 181 (Pa. Cmwlth. 1985). In Pierce the Court held that where there was no evidence of record regarding a parolee's claim that he posted bail, after the Court granted a motion to strike statements of the Chairman of the Board relating to bail, the Court would remand for a hearing at which the Board would be required to justify its computation of recommitment sentence by proving that bail was not posted. The Board points out that the record in this case plainly indicates that bail was set at $5000 but was not posted. The Court of Common Pleas of Westmoreland County Criminal Docket, C.R. Item No. 14, shows that bail was set at $5000 on September 1, 2006 and does not indicate posting or reduction of bail, C.R. 73. This is why the sentencing court awarded Gordon credit for all incarceration between September 1, 2006 and November 20, 2006. The Court agrees that Gordon's position in this matter is not supported by the record. Despite the bald assertion that Gordon received nominal bail, the Criminal Docket indicates otherwise. Also, the Criminal Arrest and Disposition Report reflects a sentence of one day to three months imposed November 20, 2006, with Gordon paroled "forthwith," C.R. 28 - 29; the Order of Court/Sentence dated November 20, 2006 imposes incarceration of "1 day" to "3 mos" with credit for time served since September 1, 2006, C.R. 65; and the Criminal Docket reflects "81 Days" credit for the sentence for conviction of harassment, C.R. 75. On this record there is no question that Gordon's confinement after September 1, 2006 was not due solely to a Board warrant and that in fact the eighty-one days at issue were credited to service of his new sentence and therefore may not be credited against his original sentence also. Ranson. The order of the Secretary is affirmed. DORIS A. SMITH-RIBNER, Judge 5 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Darrell Gordon, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent : : : : : : : : No. 1154 C.D. 2007 ORDER AND NOW, this 24th day of January, 2008, the decision of the Secretary of the Pennsylvania Board of Probation and Parole is affirmed. DORIS A. SMITH-RIBNER, Judge
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