A. Selvey v. PA Board of Probation and Parole (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Avery Selvey, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent BEFORE: : : : : : : : : : : No. 2367 C.D. 2007 Submitted: May 16, 2008 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE RENÃ E COHN JUBELIRER, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE COHN JUBELIRER FILED: July 24, 2008 Avery Selvey (Selvey) petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board), which denied Selvey s request for administrative relief and affirmed the Board s recalculation of his maximum expiration date. For the reasons discussed below, we affirm. On June 6, 1997, Selvey was sentenced to a prison term of three to ten years for the offense of burglary. March 29, 2007. Selvey was given a maximum expiration date of The Board released Selvey on parole on April 24, 2000. After failing to complete a community corrections center program, which was one of the conditions of his parole, Selvey was returned to prison on June 20, 2000. By decision dated September 8, 2000, the Board recommitted Selvey as a technical parole violator to serve twelve months backtime. The Board reparoled Selvey on September 22, 2003. After violating several of the conditions of his parole, Selvey was returned to prison on October 18, 2003.1 By decision dated April 7, 2004, the Board recommitted Selvey as a technical parole violator to serve twelve months backtime. The Board again reparoled Selvey on April 14, 2005. While on parole, Selvey was arrested by the Chambersburg Police on new criminal charges on June 11, 2006. The Board lodged a warrant to commit and detain Selvey the same day. By decision dated July 18, 2006, the Board directed that Selvey be detained pending the disposition of his new criminal charges and recommitted him as a technical parole violator to serve the lesser of fourteen months or his unexpired term. 1 We note that the Board s order dated December 12, 2007, which denied Selvey s request for administrative relief, indicates that Selvey was on parole for the second time from September 22, 2003 to October 18, 2003. (Board Order at 1, December 12, 2007.) Additionally, with regard to the second time that he was on parole, Selvey only seeks credit for time spent at liberty on parole from September 22, 2003 to October 18, 2003. (Selvey Br. at 12.) However, there is a question about these dates because it appears from the documents of record that Selvey may have been on parole from September 22, 2003 to February 11, 2004. (Order to Release on Parole/Reparole, March 22, 2005, R. at 26; Pennsylvania Department of Corrections Moves Report, December 11, 2007, R. at 78.) 2 On July 5, 2007, Selvey pled guilty to his new criminal charges and was sentenced to serve one year of probation. By decision dated October 9, 2007, the Board recommitted Selvey as a convicted parole violator to serve fifteen months backtime and recalculated his maximum expiration date as December 9, 2008. Thereafter, Selvey filed a request for administrative relief, which was denied by the Board in an order dated December 12, 2007. Selvey now petitions this Court for review.2 On appeal, Selvey argues that the Board failed to credit him with all of the time to which he is entitled. Specifically, Selvey argues that the Board failed to credit him with the time that he spent at liberty on parole prior to his technical parole violations, which includes the period from April 24, 2000 to June 20, 2000 and the period from September 22, 2003 to October 18, 2003. According to Selvey, his recommitment as a convicted parole violator does not affect his entitlement to credit for the time that he spent at liberty on parole prior to his technical parole violations. We disagree. Section 21.1(a) of the Parole Act3 provides, in relevant part: (a) Convicted Violators. Any parolee under the jurisdiction of the Pennsylvania Board of Parole released from any penal institution of the Commonwealth who, during the period of parole or while 2 This Court s scope of review of a decision by the Board is limited to determining whether necessary findings of fact are supported by substantial evidence, whether an error of law was committed, or whether the constitutional rights of the parolee [were] violated. Armbruster v. Pennsylvania Board of Probation and Parole, 919 A.2d 348, 350 n.1 (Pa. Cmwlth. 2007). 3 Act of August 6, 1941, P.L. 861, added by the Act of August 24, 1951, P.L. 1401, as amended, 61 P.S. § 331.21a(a). 3 delinquent on parole, commits any crime punishable by imprisonment, from which he is convicted or found guilty by a judge or jury or to which he pleads guilty or nolo contendere at any time thereafter in a court of record, may, at the discretion of the board, be recommitted as a parole violator. If his recommitment is so ordered, he shall be reentered to serve the remainder of the term which said parolee would have been compelled to serve had he not been paroled, and he shall be given no credit for the time at liberty on parole. 61 P.S. § 331.21a(a) (emphasis added). This Court has repeatedly interpreted Section 21.1(a) of the Parole Act to mean that when a parolee is recommitted as a convicted parole violator, he forfeits credit for all time spent at liberty on parole during his most recent period of parole as well as any time spent at liberty on parole prior to any previous recommitment as a technical parole violator. Melendez v. Pennsylvania Board of Probation and Parole, 944 A.2d 824, 825-26 (Pa. Cmwlth. 2008), petition for allowance of appeal filed, (Pa., No. 239 MAL 2008, April 14, 2008); Dorsey v. Pennsylvania Board of Probation and Parole, 854 A.2d 994, 996-97 (Pa. Cmwlth. 2004); Palmer v. Pennsylvania Board of Probation and Parole, 704 A.2d 195, 197-98 (Pa. Cmwlth. 1997); Houser v. Pennsylvania Board of Probation and Parole, 682 A.2d 1365, 1368 (Pa. Cmwlth. 1996); Anderson v. Pennsylvania Board of Probation and Parole, 472 A.2d 1168, 1171-72 (Pa. Cmwlth. 1984). Despite this controlling precedent, Selvey asks this Court to adopt the language set forth in Gregory v. Pennsylvania Board of Probation and Parole, 533 A.2d 509, 511-12 (Pa. Cmwlth. 1987), stating that the recommitment of a parolee as a convicted parole violator in a separate and later proceeding by the Board does not expunge the parolee s entitlement to credit for street time served in good standing as it affects technical parole violation recommitment time . . . . Selvey also asks this Court to follow the dissenting opinion in Houser, which relied on Gregory. 4 In Gregory, the parolee was sentenced to a term of five to ten years for rape and simple assault. Id., 533 A.2d at 510. The parolee s maximum expiration date was June 6, 1987. The parolee was later paroled on July 20, 1982. On July 7, 1986, the parolee was recommitted as a technical parole violator to serve 36 months backtime. Id. While incarcerated following his technical parole violations, the parolee was convicted of theft and forgery. These convictions were unrelated to his technical parole violation. Id. at 511. On December 8, 1986, the Board recommitted Gregory as a convicted parole violator to serve 24 months backtime. Id. On appeal to this Court, the parolee only challenged the amount of backtime that could be assigned to him for his technical parole violations; he did not assert that the Board lacked the authority under Section 21.1(a) of the Parole Act to deny him credit for the time spent at liberty on parole prior to his technical parole violations on the basis of his recommitment as a convicted parole violator. Id. Thus, we believe that the language from Gregory upon which Selvey relies is dicta. The majority in Houser specifically rejected such language and this Court has consistently followed that precedent in subsequent cases. Houser, 682 A.2d at 1368 n.5; Melendez, 944 A.2d at 826; Dorsey, 854 A.2d at 997 n.5. Therefore, we decline to depart from our precedent. Selvey argues that we should reexamine our prior precedent because this Court, beginning in Anderson, interpreted Section 21.1(a) of the Parole Act in a manner that contravenes the rules of statutory construction. In Anderson, this Court determined that there is an ambiguity in Section 21.1(a) because it does not distinguish between parolees recommitted after only one period of parole and those . . . who have had several intermittent periods of parole. 5 Anderson, 472 A.2d at 1170. The Court then went on to determine the legislative intent behind Section 21.1(a). In doing so, this Court noted that Section 1921 of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1921, provides in relevant part: (a) The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all of its provisions. .... (c) When the words of a statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters: .... (3) The mischief to be remedied. (4) The object to be attained. .... (6) The consequences of a particular interpretation. Anderson, 472 A.2d at 1171-72 (quoting 1 Pa. C.S. § 1921). This Court further noted that Section 1922(1) of the Statutory Construction Act, 1 Pa. C.S. § 1922(1), provides in pertinent part: In ascertaining the intention of the General Assembly in the enactment of a statute the following presumptions among others, may be used: [T]he General Assembly does not intend a result that is absurd, impossible of execution or unreasonable. Anderson, 472 A.2d at 1171 (quoting 1 Pa. C.S. § 1922(1)). principles, this Court stated that: 6 Applying these [T]he General Assembly intended Section 21.1(a) to be a strong deterrent to prevent parolees from returning to criminal behavior while enjoying the conditional liberty of parole. . . . As a parolee approaches his maximum, the statute operates to increase his incentive to refrain from criminal activity. The longer he has been on parole, the longer the period for which he can be recommitted. It is the petitioner s unsupported position that Section 21.1(a) requires [convicted parole violators] to forfeit only that time on parole accumulated since the date of the most recent release on parole. He argues that the Board has no power to have a parolee forfeit parole time earned prior to a recommitment as a [convicted parole violator] where he previously has been recommitted as a [technical parole violator]. Under this interpretation, a parolee with one or more prior recommitments as a [technical parole violator] faces a substantially reduced period of confinement should he subsequently be recommitted as a [convicted parole violator] and the intended deterrent effect would be weakened accordingly. . . . We cannot believe that such a result was intended by the legislature and, therefore, we reject the petitioner s argument. Id. at 1171-72 (citations and footnote omitted). We believe that the statutory analysis applied by this Court in Anderson remains correct, and we decline to depart from our precedent.4 4 While Selvey argues that our interpretation of Section 21.1(a) of the Parole Act is incorrect because it does not account for the time that a parolee is incarcerated and serving his technical parole violation recommitments, we disagree. Contrary to Selvey s assertion, we have never interpreted Section 21.1(a) as requiring a parolee to forfeit time served while incarcerated following a recommitment as a technical parole violator; instead, the parolee only loses credit for time spent at liberty on parole prior to being recommitted as a technical parole violator. See Palmer, 704 A.2d at 198 ( When computing the time yet to be served on the original sentence, the convicted parole violator s street time is added to the original maximum expiration date to create a new maximum expiry. ) Additionally, while Selvey, relying on Commonwealth v. Booth, 564 Pa. 228, 766 A.2d 843 (2001), argues that our interpretation of Section 21.1(a) contravenes the rule of lenity, we disagree. In Booth, the Supreme Court was asked to determine whether the Commonwealth may rely upon the death of an unborn child as the predicate for the crime of homicide by vehicle under Section 3735(a) of the Vehicle Code, 75 Pa. C.S. § 3735(a). Id. at 229, 766 A.2d at 843. When resolving this issue, the Supreme Court noted that where ambiguity exists in the language of a penal statute, (Continued ¦) 7 Because Selvey was recommitted as a convicted parole violator, we conclude that the Board did not err in failing to credit him for the time that he spent at liberty on parole prior to his recommitments as a technical parole violator.5 Accordingly, we affirm the order of the Board. _______________________________ RENÃ E COHN JUBELIRER, Judge such language should be interpreted in the light most favorable to the accused. Id. at 234, 766 A.2d at 846. Here, unlike the statutory provision involved in Booth, Section 21.1(a) of the Parole Act does not define the elements necessary to prove a person s guilt as to the commission of a criminal offense. Instead, Section 21.1(a) of the Parole Act defines the sentencing ramifications for when an individual on parole from a prior conviction is found guilty of committing a new crime. We do not believe that the rule of lenity requires this Court to disregard the ordinary rules of statutory construction when interpreting such a provision. Therefore, we reject Selvey s argument. 5 We acknowledge Selvey s counsel s zealous representation of his client, notwithstanding this Court s repeated adverse decisions. However, our precedent on this issue is now well established, and we will continue to follow this precedent under the principle of stare decisis. 8 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Avery Selvey, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent : : : : : : : : : : No. 2367 C.D. 2007 ORDER NOW, July 24, 2008, the order of the Pennsylvania Board of Probation and Parole in the above-captioned matter is hereby affirmed. _______________________________ RENÃ E COHN JUBELIRER, Judge

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