E. Elmore v. PBPP ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Edward Elmore, :
Petitioner :
:
v. : No. 512 C.D. 2018
: Submitted: August 24, 2018
Pennsylvania Board of Probation :
and Parole, :
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI FILED: September 12, 2018
Edward Elmore (Elmore) petitions for review of a Pennsylvania
Board of Probation and Parole (Board) order denying his administrative appeal and
recommitting him as a convicted parole violator (CPV) to serve 24 months’
backtime with a recalculated maximum release date of February 6, 2020. In his
petition, Elmore contends that his maximum release date was miscalculated
because the Board improperly failed to give him credit from December 23, 2016,
the date on which he was actually returned to a state correctional institution (SCI).
For the following reasons, we affirm.
Elmore has been repeatedly incarcerated and repeatedly paroled as a
result of sentences for various crimes he committed since 1995. Pertinent to this
appeal, on June 30, 2015, the Board reparoled Elmore with his actual date of
release as August 23, 2015. Approximately one year later, on August 2, 2016, the
Allentown, Pennsylvania Police Department filed charges against Elmore for
forgery, theft by unlawful means and fraud. On August 5, 2016, Elmore was
arrested in Connecticut on a fugitive warrant and was returned to Pennsylvania on
his new charges on August 24, 2016. Elmore did not post bail. On December 7,
2016, Elmore was sentenced on his new charges and received a sentence of 14
months to 5 years, with credit beginning from August 5, 2016. He was
recommitted to SCI-Graterford on December 23, 2016.
Elmore’s parole had been revoked as a CPV and he waived his
revocation hearing. The Board issued a revocation hearing report (report) signed
by one panel member on March 15, 2017, and a second panel member on April 1,
2017. Based on that report, on June 13, 2017, the Board recommitted Elmore to an
SCI as a CPV to serve 24 months’ backtime for burglary. His new maximum date
was February 6, 2020, which was calculated from April 1, 2017, the date the
second panel member signed the report.
Elmore filed an administrative appeal, arguing that the Board erred in
finding that his recommitment date was April 1, 2017, because it should have been
calculated from December 23, 2016, the date of his return to SCI-Graterford. The
Board denied his appeal, noting that:
2
[T]he Board awarded backtime credit from August 12,
2016 to August 31, 2016 (19 days). Subtracting this 19
days means you still had a total of 1041 days remaining
on your original sentence. Any additional time you are
questioning will go, or has gone, towards your new
conviction at 3992-2016, when you were serving that
sentence.
The Prisons and Parole Code1 provides that convicted
parole violators who are paroled from a state correctional
institution and then receive another sentence to be served
in a state correctional institution must serve the original
sentence first. 61 Pa.C.S. § 6138(a)(5). However, that
provision does not take effect until the parolee is
recommitted as a convicted parole violator. Thus, you
did not become available to commence service of your
original sentence until April 1, 2017, when the board
made their decision. Adding 1041 days to that date
yields a new maximum sentence date of February 6,
2020.
(Record (R.) at Section No. 9, Response to Administrative Remedies
Form/Correspondence Mailed 3/1/2018, pp. 131 – 132.) Elmore then petitioned
this Court for review.2
On appeal, Elmore contends that his new maximum sentence date of
February 6, 2020, is incorrect because Section 6138(a)(4) of the Prisons and Parole
Code (Code) provides that his date should be computed from December 23, 2016,
1
The Prisons and Parole Code, 61 Pa.C.S. §§ 101 – 7123.
2
Our review is limited to determining whether constitutional rights were violated,
whether the adjudication was in accordance with law, and whether necessary findings of fact
were supported by substantial evidence. Flowers v. Pennsylvania Board of Probation and
Parole, 987 A.2d 1269 (Pa. Cmwlth. 2010).
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the date he was returned to SCI-Graterford, rather than April 1, 2017, the date the
Board revoked his parole.
Section 6138(a)(4) provides:
The period of time for which the parole violator is
required to serve shall be computed from and begin on
the date that the parole violator is taken into custody to
be returned to the institution as a parole violator.
61 Pa.C.S. § 6138(a)(4) (emphasis added). When a parole violator is “taken into
custody” as used in this provision, it is not determined from the date he is returned
to SCI, but when his parole is revoked. Section 6138(a)(5) of the Code provides
that a CPV must serve backtime on the original state sentence before he can begin
to serve time on his newly-imposed state sentence. Wilson v. Pennsylvania Board
of Probation and Parole, 124 A.3d 767, 769 (Pa. Cmwlth. 2015). A parole
violator is not available to begin serving his backtime on his original sentence until
the Board revokes his parole. Id. at 770, n.6. Parole revocation occurs when the
Board obtains the second signature from a panel member. Id.
Accordingly, because the Board did not err in calculating Elmore’s
new maximum date from April 1, 2017, the date on which the Board obtained the
second signature from a panel member, which was necessary to recommit him as a
CPV, we affirm the Board’s order.
_________________________________
DAN PELLEGRINI, Senior Judge
4
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Edward Elmore, :
Petitioner :
:
v. : No. 512 C.D. 2018
:
Pennsylvania Board of Probation :
and Parole, :
Respondent :
ORDER
AND NOW, this 12th day of September, 2018, the order of the
Pennsylvania Board of Probation and Parole dated March 15, 2018, at Parole No.
1351O, is affirmed.
_________________________________
DAN PELLEGRINI, Senior Judge