M. A. Corbett v. PA Board of Probation and Parole (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Michael A. Corbett, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent BEFORE: : : : : : : : : No. 2113 C.D. 2007 Submitted: February 29, 2008 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SMITH-RIBNER FILED: June 5, 2008 Michael A. Corbett (Petitioner) petitions for review of the order of the Pennsylvania Board of Probation and Parole (Board) denying Petitioner's request for administrative relief from the Board's decision to recommit Petitioner as a convicted parole violator to serve eighteen months of backtime in a state correctional institution. Petitioner states in his petition for review that the Board's denial of relief from the order revoking parole constituted error of law, violation of Petitioner's constitutional rights and was not supported by substantial evidence and that the Board failed to credit Petitioner for all of the time he served solely under the Board's warrant. Petitioner was sentenced in May 2003 by the Erie County Common Pleas Court to a term of two to six years of imprisonment for violation of probation and burglary. His parole violation maximum date was calculated at May 13, 2008, and he was released on parole March 22, 2004. On August 7, 2006, Petitioner was arrested in Erie County on new criminal charges of criminal attempt to lure a child into a motor vehicle, stalking and harassment. The Board issued a warrant to commit and detain Petitioner the same day. On February 6, 2007, he plead guilty to the criminal attempt and harassment charges, and he was sentenced by the trial court to 18 to 36 months to be served consecutively to the two-to-six year sentence imposed in 2003. The trial court merged the convictions for sentencing purposes. By decision mailed August 2, 2007, the Board recommitted Petitioner as a convicted parole violator to serve eighteen months of backtime, with a new maximum date of September 10, 2011. Petitioner timely requested administrative review, contending that he did not receive credit for all of the time he served under the Board's warrant and that his recommitment period was excessive. Petitioner acknowledged that the Board's regulation at 37 Pa. Code §75.2, relating to presumptive ranges for convicted parole violators, does not list the offense of criminal attempt to lure a child into a motor vehicle and that the closest offense listed would be false imprisonment. He argued that the Board should have considered only the offense of criminal attempt to lure a child into a motor vehicle when it determined his recommitment period as the lesser offense of harassment merged into the criminal attempt offense. Petitioner asserted that the Board should recommit him for no more than twelve months for criminal attempt. The Board denied Petitioner's request for administrative relief in its decision mailed November 2, 2007. Because the offense of luring a child into a motor vehicle is not listed in 37 Pa. Code §75.2, the Board applied the presumptive range of the "most closely related crime category in terms of severity," 37 Pa. Code §75.1(e), which was the offense of false imprisonment carrying a presumptive range of six to twelve months. The regulation listed the harassment offense with a 2 presumptive range of one to six months. It computed Petitioner's recommitment period by aggregating the presumptive ranges for both offenses to calculate a presumptive range of six to eighteen months. It concluded that the eighteen-month recommitment period fell within the presumptive range and that any challenge to the length of time was not a valid basis for administrative relief, citing Smith v. Pennsylvania Board of Probation and Parole, 524 Pa. 500, 574 A.2d 558 (1990). The Board also determined that it correctly calculated Petitioner's maximum date. Petitioner was paroled March 22, 2004 with a maximum date of May 13, 2008 and 1513 days remaining on his original sentence. Petitioner received no credit on his original sentence for the period of his incarceration from August 7, 2006 to July 20, 2007 because he was not confined solely on the Board's warrant during that period. As a result, the Board applied credit for that period to Petitioner's new sentence. See Gaito v. Pennsylvania Board of Probation and Parole, 488 Pa. 397, 412 A.2d 568 (1980). The Board concluded that Petitioner was available to serve his original sentence on July 20, 2007, when it obtained all necessary signatures to recommit Petitioner as a convicted parole violator, citing Campbell v. Pennsylvania Board of Probation and Parole, 409 A.2d 980 (Pa. Cmwlth. 1980). The Board added the 1513 days remaining on Petitioner's original sentence to July 20, 2007, which yielded the new maximum date of September 10, 2011.1 1 The Court's review is limited to determining whether constitutional rights were violated, whether an error of law was committed and whether the findings of fact are supported by substantial evidence. Jackson v. Pennsylvania Board of Probation and Parole, 885 A.2d 598 (Pa. Cmwlth. 2005). 3 Petitioner repeats his argument that the Board cannot recommit him for both offenses because the lesser offense of harassment merged into the offense of criminal attempt to lure a child into a motor vehicle. Petitioner points out that the Board's regulation is designed to set a presumptive range for the recommitment of convicted parole violators, but he contends that the section was not promulgated to duplicate punishments for charges that merge with each other. Petitioner argues that the presumptive range should be based only upon his conviction of criminal attempt to lure a child into a motor vehicle, which would be six to twelve months. The Board counters that Petitioner waived any issue concerning his recommitment period because he failed to include this issue in his statement of the questions involved section of his brief in violation of Pa. R.A.P. 2116(a), he did not cite to any authority to support his argument and he did not mention the argument as required at the head of the argument section of his brief in violation of Pa. R.A.P. 2119(a). The Court agrees with the Board that Petitioner has waived the issue of whether the Board erred in recommitting Petitioner to eighteen months of backtime based on an aggregation of the presumptive ranges for both offenses as opposed to the presumptive range for the offense of criminal attempt to lure a child into a motor vehicle. Petitioner did not include this issue in the statement of questions involved section of his brief. See Pa. R.AP. 2116(a) (stating that the rule is to be considered in highest degree mandatory); Meleski v. Pennsylvania Board of Probation and Parole, 931 A.2d 68 (Pa. Cmwlth. 2007), appeal denied, ____ Pa. ____, 945 A.2d 173 (2008) (ruling that an issue was waived because it was not raised in statement of questions involved). Nor did he specifically raise the issue in his petition for review, although one might arguably conclude that the issue was 4 fairly comprised in the first objection stated therein. See Pa. R.A.P. 1513(d); Joyce v. Pennsylvania Board of Probation and Parole, 811 A.2d 73 (Pa. Cmwlth. 2002) (noting that issue is waived when not included in stated objections in petition for review nor fairly comprised therein).2 Additionally, Petitioner questions whether the Board erred when it failed to give him credit for all of the time he served under the Board's warrant. The Board responds that Petitioner abandoned this issue because he failed to argue it in his brief, citing Larry Pitt & Assocs. v. Long, 716 A.2d 695 (Pa. Cmwlth. 1998). It is evident that Petitioner also waived this issue because his argument has not been developed. Petitioner raises the issue in the heading of the argument section and in the statement of questions involved section of his brief, but he makes no further reference to it and cites no authority to bolster his argument. See American Rock Mechanics, Inc. v. Workers' Compensation Appeal Board (Bik), 2 Petitioner would not prevail on the merits in any event. Based on this Court's holding in McClinton v. Pennsylvania Board of Probation and Parole, 546 A.2d 759 (Pa. Cmwlth. 1988), the Board was not required to consider merger of the two offenses when it assessed Petitioner's backtime. In McClinton a jury found the petitioner guilty of the charges of robbery, burglary, terroristic threats and simple assault, which were committed in one incident. To comply with its own regulations, the Board recommitted Petitioner before the trial court entered its sentence, which was solely for burglary. The Board aggregated backtime for all four of the offenses and recommitted Petitioner for a period of time that was less than the total aggregate maximum presumptive range but more than the presumptive range for the offense of burglary. The petitioner argued that the Board was only allowed to recommit him for his conviction of burglary because pursuant to Section 3502(d) of the Crimes Code, 18 Pa. C.S. §3502(d), he could "not be convicted of both burglary and the additional charges, and that, therefore, he [could] only be recommitted for burglary." McClinton, 546 A.2d at 761. The Court noted that the Board's assertion that the doctrine of merger did not apply to the parole revocation process was not responsive to the issue presented, but in any event the Court rejected the petitioner's argument and concluded that it was "unnecessary to determine what constitutes a conviction and how merger affects the assessment of backtime." Id. at 762. 5 881 A.2d 54, 56 (Pa. Cmwlth. 2005) (recognizing that an issue is waived "even if raised in statement of questions presented and summary of argument portions of brief, if not developed in argument portion of brief"). The Court therefore will not address this issue because it too has been waived. For the reasons discussed, the Court affirms the order of the Board.3 DORIS A. SMITH-RIBNER, Judge 3 The Board seeks the imposition of costs and counsel fees upon Petitioner and his courtappointed counsel as a sanction for filing a frivolous appeal, relying upon Smith and Lotz v. Pennsylvania Board of Probation and Parole, 525 Pa. 567, 583 A.2d 427 (1990). The Court declines to impose costs and counsel fees upon Petitioner and his counsel because of procedural defects in his brief and failure to adequately state the issue argued in the brief. As indicated above, one might arguably conclude that the question of whether the Board imposed excessive backtime was fairly comprised in the objection stated in the petition for review to this Court. 6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Michael A. Corbett, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent : : : : : : : : No. 2113 C.D. 2007 ORDER AND NOW, this 5th day of June, 2008, the Court affirms the order of the Pennsylvania Board of Probation and Parole. DORIS A. SMITH-RIBNER, Judge
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