C. Bazemore v. PBPP ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Charles Bazemore, :
Petitioner :
:
v. : No. 1011 C.D. 2018
: Submitted: January 25, 2019
Pennsylvania Board of Probation and :
Parole, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: April 22, 2019
Charles Bazemore petitions for review of an adjudication of the
Pennsylvania Board of Probation and Parole (Parole Board) denying his request for
administrative relief from its recalculation of his maximum sentence date. On
appeal, Bazemore argues that the Parole Board lacked authority to revoke 995 days
of sentence credit previously awarded to him in connection with his recommitment
as a technical parole violator. For the reasons that follow, we reverse the Parole
Board’s adjudication and remand the matter for a new adjudication.
The relevant facts are not in dispute. In 2012, Bazemore was sentenced
to a term of one year and six months to six years imprisonment for possession with
intent to deliver a controlled substance. His maximum sentence date was October
16, 2018.
On April 28, 2014, Bazemore was paroled to an approved residence in
Philadelphia, Pennsylvania, from which he absconded. On October 2, 2015, the
Parole Board declared him delinquent as of September 29, 2015. On October 22,
2015, the Norristown Police Department arrested Bazemore on the Parole Board’s
warrant and transferred him to the community education center at the State
Correctional Institution-Chester. Certified Record at 14 (C.R. __). Thereafter, on
December 8, 2015, the Parole Board cancelled its declaration of delinquency and
reinstated Bazemore’s parole.
On July 13, 2016, the Norristown Police Department arrested
Bazemore for possession of drug paraphernalia. On September 14, 2016, the Parole
Board detained Bazemore, pending disposition of the new criminal charges. On
December 19, 2016, Bazemore pled guilty to the summary offense of disorderly
conduct and received 90 days’ probation. On January 3, 2017, the Parole Board
continued Bazemore’s parole but imposed additional special conditions that
Bazemore attend an outpatient drug treatment program and be placed on a curfew.
On January 17, 2017, parole agents arrested Bazemore for violating his
parole conditions by engaging in assaultive behavior and missing curfew. On May
23, 2017, the Parole Board recommitted Bazemore as a technical parole violator. In
doing so, it credited Bazemore for his parole time, which was 995 days. His
maximum sentence date remained October 16, 2018. The Parole Board took no
action on Bazemore’s conviction for disorderly conduct.
On July 20, 2017, the Parole Board paroled Bazemore to a community
corrections center in Philadelphia. On September 24, 2017, Bazemore was arrested
for simple assault and released on unsecured bail. That same day, the Parole Board
issued a warrant to detain Bazemore for parole violations.
2
On January 19, 2018, Bazemore pled guilty to simple assault and was
sentenced to six to 23 months of incarceration in the county prison.1 C.R. 122. On
April 25, 2018, the Parole Board recommitted Bazemore as a convicted parole
violator to serve 15 months’ backtime, upon completion of his new sentence. On
May 31, 2018, Bazemore became available to begin serving his backtime.
On June 8, 2018, the Parole Board decided not to award Bazemore
credit for his time on parole and calculated his maximum sentence date to be July
30, 2021. In doing so, the Parole Board revoked the 995 days of sentence credit it
had previously awarded to Bazemore in the course of his prior recommitment as a
technical parole violator.
On June 18, 2018, Bazemore filed a request for administrative relief
challenging the Parole Board’s calculation of his maximum sentence date.
Bazemore stated that he only had two months of street time,2 specifically writing
that the two months was “all the time” he had “at liberty.” C.R. 182-83. By decision
of June 27, 2018, the Parole Board denied his request for administrative relief.
Bazemore petitioned for this Court’s review.
On appeal,3 Bazemore challenges the Parole Board’s calculation of his
maximum sentence date. Citing to this Court’s decision in Young v. Pennsylvania
Board of Probation and Parole, 189 A.3d 16 (Pa. Cmwlth. 2018), petition for
1
Bazemore was given credit for time served from September 24, 2017, until January 19, 2018.
C.R. 118, 122.
2
“‘Street time’ is a term for the period of time a parolee spends at liberty on parole.” Dorsey v.
Pennsylvania Board of Probation and Parole, 854 A.2d 994, 996 n.3 (Pa. Cmwlth. 2004).
3
This Court’s review is limited to determining whether the Parole Board’s adjudication is
supported by substantial evidence, whether an error of law has been committed, or whether
constitutional rights have been violated. Section 704 of the Administrative Agency Law, 2 Pa.
C.S. §704; Moroz v. Pennsylvania Board of Probation and Parole, 660 A.2d 131, 132 (Pa.
Cmwlth. 1995).
3
allowance of appeal granted, 200 A.3d 5 (Pa. 2019),4 Bazemore argues that, once
credit for street time is awarded, it cannot be revoked. Bazemore contends that the
Parole Board erred in revoking its prior award of 995 days of street time credit.
The Parole Board responds that Bazemore waived this issue because he
did not raise it in his administrative appeal. In the alternative, the Parole Board
responds that Young is distinguishable because it involved the Parole Board’s
previous award of credit to a convicted parole violator; here, by contrast the previous
award of credit was to a technical parole violator.
We first address the Parole Board’s argument that Bazemore waived
the issue of his street time credit. Under Section 703(a) of the Administrative
Agency Law, a party “may not raise upon appeal any other question not raised before
the agency[.]” 2 Pa. C.S. §703(a).5 Further, Pennsylvania Rule of Appellate
Procedure 1551(a) provides that “[n]o question shall be heard or considered by the
court which was not raised before the government unit[.]” PA. R.A.P. 1551(a).6
4
Young involved a convicted parole violator, previously awarded credit for the time spent at liberty
on parole, which the Parole Board took away during his subsequent recommitment as a convicted
parole violator. This Court held that the Prisons and Parole Code (Parole Code), 61 Pa. C.S. §§101-
6309, did not give the Parole Board the authority to revoke its prior award of sentence credit upon
a parolee’s subsequent recommitment as a convicted parole violator.
5
Section 703(a) states:
A party who proceeded before a Commonwealth agency under the terms of a
particular statute shall not be precluded from questioning the validity of the statute
in the appeal, but such party may not raise upon appeal any other question not raised
before the agency (notwithstanding the fact that the agency may not be competent
to resolve such question) unless allowed by the court upon due cause shown.
2 Pa. C.S. §703(a).
6
Rule 1551(a) states:
Review of quasijudicial orders shall be conducted by the court on the record made
before the government unit. No question shall be heard or considered by the court
which was not raised before the government unit except:
(1) Questions involving the validity of a statute.
4
Thus, issues not raised to the Parole Board in an administrative appeal “are waived
for purposes of appellate review by this [C]ourt.” McCaskill v. Pennsylvania Board
of Probation and Parole, 631 A.2d 1092, 1094-95 (Pa. Cmwlth. 1993), appeal
denied, 644 A.2d 739 (Pa. 1994).
Here, on the administrative remedies form, Bazemore checked boxes
identifying the reasons for his appeal to the Parole Board. Bazemore specifically
identified the following reasons:
Administrative Appeal (an appeal of a revocation decision):
Check the Reason(s) for Appeal and Explain:
1.  Insufficient Evidence
2.  Error of Law (Timeliness, jurisdiction, hearsay, etc.)
3.  Violation of Constitutional Law (Due process, double
jeopardy, etc.)
4.  Recommitment Challenge (Time/term given by Board,
automatic reparole, return to custody, etc.)
5.  Other
Explanation: ________________________________________________
Petition for Administrative Review (appeal of a revocation decision
regarding sentence calculations):
(2) Questions involving the jurisdiction of the government unit over the
subject matter of the adjudication.
(3) Questions which the court is satisfied that the petitioner could not by
the exercise of due diligence have raised before the government unit. If,
upon hearing before the court, the court is satisfied that any such additional
question within the scope of this paragraph should be so raised, it shall
remand the record to the government unit for further consideration of the
additional question.
The court may in any case remand the record to the government unit for
further proceedings if the court deems them necessary.
PA. R.A.P. 1551(a).
5
Check the Reason(s) for Relief and Explain:
 Sentence Credit Challenge  Reparole Eligibility Date
 Order of Service of Sentences  Other
Explanation: I was paroled 4-28-14 I came back as a [technical parole
violator] 1-17-17. I was reparole 7-20-17 arrested 9-23-17 Graterford
placed a detainer on me 9-24-17. My max was 10-16-18 it was changed to
7-30-2021 I only owe 2 months street time.__________________________
C.R. 182. On the attachment to this appeal form, Bazemore stated that, “[f]rom 7-
20-17 to 9-23-17 is all the time I had at liberty.” C.R. 183. Notably, in its
adjudication, the Parole Board stated that it understood Bazemore to be objecting to
the recalculation of his maximum date.
Bazemore’s administrative appeal put the Parole Board on notice that
he challenged the calculation of his maximum date of sentence, including the
forfeiture of his street time credit. This is implicit in his statement that “[f]rom 7-
20-17 to 9-23-17 is all the time I had at liberty.” C.R. 183. This statement sets forth
Bazemore’s belief that he had no other street time eligible for forfeiture because the
prior street time had been applied to his original sentence. We conclude that
Bazemore preserved the credit issue for our review.7
Turning to the merits of Bazemore’s appeal, we begin with a brief
review of the applicable law. Section 6138(a)(1) of the Parole Code provides:
(a) Convicted violators.--
(1) A parolee under the jurisdiction of the board
released from a correctional facility who, during the
period of parole or while delinquent on parole,
7
Additionally, the Parole Board states that Bazemore’s counsel admitted that Bazemore did not
raise this issue in the administrative appeal. See Parole Board Brief at 7. We disagree. Although
counsel acknowledged that Bazemore did not specifically describe the Parole Board’s error as
forfeiture of his prior street time credit, this issue was subsumed within the issue of sentence
calculations and sentence credit challenge on the administrative appeal form.
6
commits a crime punishable by imprisonment, for
which the parolee is convicted or found guilty by a
judge or jury or to which the parolee 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.
61 Pa. C.S. §6138(a)(1). Where the Parole Board determines to recommit a parolee
as a convicted parole violator,
the parolee shall be reentered to serve the remainder of the term
which the parolee would have been compelled to serve had the
parole not been granted and, except as provided under paragraph
(2.1), shall be given no credit for the time at liberty on parole.
61 Pa. C.S. §6138(a)(2). Section 6138(a)(2.1) of the Parole Code states that, “[t]he
[Parole B]oard may, in its discretion, award credit to a parolee recommitted … for
the time spent at liberty on parole,” with exceptions for certain violent crimes. 61
Pa. C.S. §6138(a)(2.1).8 In Young, 189 A.3d 16, this Court construed Section
6138(a)(2.1) to mean that, “[i]f the Parole Board chooses to ‘award credit’ for the
parolee’s street time towards his sentence, the street time is gone.” Id. at 19. Thus,
“[t]he only extant ‘time spent at liberty on parole’ will be that time that falls between
8
Section 6138(a)(2.1) of the Parole Code states:
The board may, in its discretion, award credit to a parolee recommitted under
paragraph (2) for the time spent at liberty on parole, unless any of the following
apply:
(i) The crime committed during the period of parole or while
delinquent on parole is a crime of violence as defined in 42 Pa. C.S.
§ 9714(g) (relating to sentences for second and subsequent offenses)
or a crime requiring registration under 42 Pa. C.S. Ch. 97 Subch. H
(relating to registration of sexual offenders).
(ii) The parolee was recommitted under section 6143 (relating to
early parole of inmates subject to Federal removal order).
61 Pa. C.S. §6138(a)(2.1).
7
the parolee’s most recent reparole and his recommitment.” Id. at 20 (quoting 61 Pa.
C.S. §6138(a)(2.1)).
With regard to technical parole violators, Section 6138(c) of the Parole
Code states, in relevant part:
(c) Technical violators.—
(1) A parolee under the jurisdiction of the board
who violates the terms and conditions of his parole,
other than by the commission of a new crime of
which the parolee is convicted or found guilty by a
judge or jury or to which the parolee pleads guilty
or nolo contendere in a court of record, may be
detained pending a hearing before the board or
waiver of the hearing or recommitted after a hearing
before the board or a waiver of the hearing….
***
(2) If the parolee is recommitted under this
subsection, the parolee shall be given credit for the
time served on parole in good standing but with no
credit for delinquent time and may be reentered to
serve the remainder of the original sentence or
sentences.
61 Pa. C.S. §6138(c). This Court recently construed Section 6138(c) in Penjuke v.
Pennsylvania Board of Probation and Parole, __ A.3d __ (Pa. Cmwlth., No. 1304
C.D. 2017, filed February 1, 2019) (en banc), petition for allowance of appeal filed
(Pa., No. 92 EAL 2019, March 1, 2019).9
In Penjuke, the parolee spent 793 days on parole before absconding
from parole supervision. Subsequently, the Parole Board recommitted him as a
9
In its brief, the Parole Board notes that this same issue was pending before the Court in Brady v.
Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No. 262 C.D. 2018, filed February 1,
2019) (unreported). Brady was a companion case to Penjuke.
8
technical parole violator for violating his parole conditions. The parolee received
credit towards his sentence for his 793 days on parole.
Thereafter, the Parole Board again paroled the parolee. On reparole, he
was convicted and recommitted as a convicted parole violator. In recalculating the
parolee’s maximum sentence date, the Parole Board revoked the credit for the 793
days that had been awarded in his prior recommitment as a technical parole violator.
The parolee appealed. On appeal, the parolee argued that once he has been given
credit for street time, that credit cannot be revoked. This Court agreed.
In 2012, the General Assembly amended the Parole Code to add Section
6138(a)(2.1),10 which gave the Parole Board discretion to award a convicted parole
violator credit for the time spent at liberty on parole. We reasoned, accordingly, that
this amendment rendered earlier precedent on Section 6138(a)(2) of little value. In
examining Section 6138(a)(2), we concluded that
the clauses ‘had the parole not been granted’ and ‘at liberty on
parole’ in section 6138(a)(2) [could not] reasonably be
interpreted to permit the [Parole] Board to go beyond the ‘parole
period’ mentioned in that section, which [was] couched solely in
relation and reference to the ‘parolee’s recommitment’ as a
[convicted parole violator].
Penjuke, __ A.3d at __, slip op. at 23 (quoting 61 Pa. C.S. §6138(a)(2)). We
construed the clause “shall be given no credit” to apply only to the period of parole
that preceded the parolee’s recommitment as a convicted parole violator. Id.
Next, this Court reviewed Section 6138(c)(2) and concluded that it
mandated that a technical parole violator “be given credit for the time served on
parole in good standing[.]” 61 Pa. C.S. §6138(c)(2). This signified that the Parole
Board “has no choice over the matter and must grant credit to the parolee who is
10
61 Pa. C.S. §6138(a)(2.1), added by the Act of July 5, 2012, P.L. 1050.
9
recommitted as a [technical parole violator].” Penjuke, __ A.3d at __, slip op. at 26.
Importantly, the Parole Code does not authorize the Parole Board to revoke this
credit. For this reason, we concluded that the only street time a parolee can forfeit
is that period of “time that falls between [his] most recent reparole and his
recommitment.” Id., __ A.3d at __, slip. op. at 26-27 (quoting Young, 189 A.3d at
21). We explained that the Parole Board cannot “reach back, into the past periods
of parole and also take away or revoke credit that was previously granted [to a
parolee] as a [technical parole violator][,]” because that credit should have “already
been applied to [the parolee’s] original sentence.” Penjuke, __ A.3d at __, slip op.
at 27.
This Court reversed the Parole Board’s revocation of the 793 days of
street time credit it had previously awarded the parolee in his recommitment as a
technical parole violator and remanded the matter to the Parole Board to reinstate
the 793 days of credit and issue a new adjudication. Penjuke is binding.
Here, as in Penjuke, the Parole Board, in recommitting Bazemore as a
convicted parole violator, revoked the 995 days of street time credit previously
granted to him in his recommitment as a technical parole violator. This was an error.
Once credit for the 995 days of street time was applied to Bazemore’s sentence, the
street time was gone. Consequently, at the time of his recommitment as a convicted
parole violator, the only street time eligible for forfeiture was that time from his most
recent reparole on July 20, 2017, to his recommitment. Penjuke, __ A.3d at __, slip
op. at 24.
For these reasons, we reverse the Parole Board’s adjudication and
remand this case to the Parole Board to reinstate the 995 days of street time credit to
10
Bazemore’s maximum sentence and to issue a new adjudication recomputing his
maximum sentence date.
_____________________________________
MARY HANNAH LEAVITT, President Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Charles Bazemore, :
Petitioner :
:
v. : No. 1011 C.D. 2018
:
Pennsylvania Board of Probation and :
Parole, :
Respondent :
ORDER
AND NOW, this 22nd day of April, 2019, the adjudication of the
Pennsylvania Board of Probation and Parole (Parole Board) is REVERSED and this
matter is REMANDED for the Parole Board to issue a new adjudication in
accordance with this opinion.
Jurisdiction relinquished.
_____________________________________
MARY HANNAH LEAVITT, President Judge