M. Mitzel, III v. PBPP ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Millard Mitzel, III, :
:
Petitioner :
:
v. : No. 101 C.D. 2018
: Submitted: August 10, 2018
Pennsylvania Board of :
Probation and Parole, :
:
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE COLINS FILED: October 2, 2018
Before this Court is the petition of Millard Mitzel, III (Mitzel) for
review of the December 29, 2017 determination of the Pennsylvania Board of
Probation and Parole (Board) affirming its decision mailed February 7, 2017 that
recalculated Mitzel’s maximum sentence date to September 29, 2032. For the
following reasons, we affirm.
On November 21, 2013, Mitzel was released on parole from sentences
totaling 11 years, 3 months to 28 years’ imprisonment for multiple counts of
manufacture, delivery, or possession with intent to manufacture or deliver a
controlled substance and for illegal possession of a firearm. (Certified Record (C.R.)
at 10-11.) At that time, his maximum sentence date on these convictions was
October 24, 2029. (C.R. at 10; C.R. at 74) Between November 21, 2013 and May
2, 2014, Mitzel was in a halfway house, Harrisburg Community Corrections Center.
(C.R. at 12; C.R. at 60.) On April 1, 2016, a criminal complaint was filed in York
County charging Mitzel with two counts of possession with intent to deliver
controlled substances, heroin and cocaine, possession of drug paraphernalia, and
illegal possession of a firearm. (C.R. at 15-17.) Between April 5, 2016 and June 23,
2016, Mitzel’s whereabouts were unknown and the Board declared Mitzel
delinquent effective April 5, 2016. (C.R. at 19; C.R. at 60.)
On June 23, 2016, Mitzel was arrested on the possession with intent to
deliver, drug paraphernalia, and illegal firearm charges, and the Board lodged a
detainer against him. (C.R. at 20; C.R. at 60.) On July 8, 2016, Mitzel was charged
with two additional counts of possession with intent to deliver a controlled substance
based on heroin and cocaine found in his possession at the time of his June 23, 2016
arrest. (C.R. at 38; C.R. at 60; C.R. at 61-62.) Mitzel was held both on the Board’s
warrant and on the two sets of new charges because he did not post bail. (C.R. at
41; C.R. at 61-62; C.R. at 66-67.) On October 27, 2016, Mitzel pleaded guilty to
two counts of possession with intent to deliver a controlled substance and one count
of illegal possession of a firearm, and was sentenced to concurrent terms of 4 to 10
years’ incarceration for each of these offenses, with credit for 127 days that he had
been detained following his June 23, 2016 arrest. (C.R. at 63; C.R. at 68-69.)
Mitzel waived a parole revocation hearing and admitted that he was
convicted of these offenses while on parole. (C.R. at 53.) Based on that admission,
the Board ordered Mitzel recommitted to a state correctional institution as a
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convicted parole violator to serve 24 months’ backtime.1 (C.R. at 45-52; C.R. at 72.)
The Board denied Mitzel credit for time at liberty on parole, noting in its revocation
hearing report: “Recommend not awarding credit for street time spent at liberty on
parole. New conviction identical to his instant offenses which includes possession
of a firearm.” (C.R. at 47, 52.) Concluding that Mitzel therefore had 5,816 days
remaining on his sentence for his prior convictions, the Board extended his
maximum date to September 29, 2032. (C.R. at 74-75.) The Board, by decision
mailed February 7, 2017 notified Mitzel of this revocation and that his maximum
sentence date was September 29, 2032. (C.R. at 72-73.) Mitzel timely challenged
the Board’s decision by submission of an Administrative Remedies Form in which
he asserted that he was entitled to credit for all of the time he had been on parole
other than the April 5 to June 23, 2016 period that he was delinquent and that the
Board’s calculation of the time that he was on parole was incorrect because he was
“locked back up on 6-23-16.” (C.R. at 80.) By determination mailed December 29,
2017, the Board concluded that Mitzel’s maximum sentence date was properly
calculated and affirmed its decision. (C.R. at 82-83.) This appeal followed.
In this Court, Mitzel argues that the Board erred in its recalculation of
his maximum sentence date because it allegedly did not give a contemporaneous
reason for its denial of credit for time spent at liberty on parole and because it failed
to give him credit for the period of time that he was in the Harrisburg Community
Corrections Center and the period of time that he was incarcerated between his June
1
“‘Backtime’ is the portion of a judicially imposed sentence that a parole violator must serve as a
consequence of violating parole before he is eligible for re-parole.” Palmer v. Pennsylvania Board
of Probation and Parole, 134 A.3d 160, 162 n.1 (Pa. Cmwlth. 2016).
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23, 2016 arrest and October 27, 2016 sentencing on the new convictions. We
conclude that none of these arguments has merit.2
Mitzel’s first argument fails on the facts. Under the Prisons and Parole
Code, a recommitted convicted parole violator must generally serve the remainder
of his sentence that he had not yet served at the time of his parole without credit for
the time he has been at liberty on parole. 61 Pa. C.S. § 6138(a)(1), (2). In cases
such as this, where the crime committed while on parole is a non-violent, non-sexual
offense and no parole to federal authorities for deportation is involved, the Board in
its discretion may award credit against the original sentence for time spent at liberty
on parole. 61 Pa. C.S. § 6138(a)(2.1); Pittman v. Pennsylvania Board of Probation
and Parole, 159 A.3d 466, 473 (Pa. 2017). The Board has broad discretion to grant
or deny such credit, but must consider whether to award credit and provide a
statement articulating its reason for denying credit for time spent at liberty on parole.
Pittman, 159 A.3d at 474-75.
Contrary to Mitzel’s assertions, the Board did contemporaneously set
forth its reason for denying him credit for time spent at liberty on parole. In its
revocation hearing report denying Mitzel credit for time spent at liberty on parole,
the Board stated that credit should be denied because his new convictions were a
recurrence of the same offenses that he had committed before and included illegal
possession of a firearm. (C.R. at 52.) That is a sufficient articulation of the Board’s
reason for denying credit. Pittman, 159 A.3d at 475 n.12 (“the reason the Board
gives does not have to be extensive and a single sentence explanation is likely
sufficient in most instances”); Hughes v. Pennsylvania Board of Probation and
2
This Court may reverse the Board’s determination only where necessary findings are not
supported by substantial evidence, an error of law was committed, or constitutional rights or
administrative procedures were violated. Smith v. Pennsylvania Board of Probation and Parole,
171 A.3d 759, 764 (Pa. 2017).
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Parole, 179 A.3d 117, 121 n.5 (Pa. Cmwlth. 2018) (notation “[r]evoke street time-
continued drug activity” on hearing report is sufficient articulation of reason for
denying credit).
Mitzel’s second argument is barred by waiver. A parolee can be
entitled to credit for periods of his parole spent in a residential facility if he shows
specific characteristics of the residential facility that make it equivalent to
incarceration. Cox v. Pennsylvania Board of Probation and Parole, 493 A.2d 680,
683-84 (Pa. 1985); Harden v. Pennsylvania Board of Probation and Parole, 980
A.2d 691, 697-701 (Pa. Cmwlth. 2009) (en banc). Issues not raised by the inmate
in a timely administrative appeal to the Board, however, are waived and cannot be
grounds for reversing the Board’s determination. Adams v. Pennsylvania Board of
Probation and Parole, 885 A.2d 1121, 1125 n.7 (Pa. Cmwlth. 2005); White v.
Pennsylvania Board of Probation and Parole, 833 A.2d 819, 821 (Pa. Cmwlth.
2003); McCaskill v. Pennsylvania Board of Probation and Parole, 631 A.2d 1092,
1094-95 (Pa. Cmwlth. 1993). Mitzel did not raise any claim in his administrative
remedies form that the Harrisburg Community Corrections Center was equivalent to
incarceration or that he was entitled to credit because he was at that facility. Mitzel’s
administrative remedies form made no reference at all to the Harrisburg Community
Corrections Center, the dates that he was there, November 21, 2013 to May 2, 2014,
or to any stay at a halfway house. (C.R. at 80.) To the contrary, it asserted that the
period that he was out on parole was the entire period from November 21, 2013 to
June 23, 2016. (Id.)
Finally, the Board did not err in denying Mitzel credit for the period
from June 23, 2016 until he was sentenced on his new conviction on October 27,
2016. Although he was in custody on the Board’s warrant in that period, he was also
5
held during that period on the new criminal charges because he did not post bail.
(C.R. at 61-62; C.R. at 66-67.) A convicted parole violator is entitled to credit
against his original sentence for periods during his parole that he has been in custody
solely on the Board’s warrant. Gaito v. Pennsylvania Board of Probation and
Parole, 412 A.2d 568, 571 (Pa. 1980); Armbruster v. Pennsylvania Board of
Probation and Parole, 919 A.2d 348, 352 (Pa. Cmwlth. 2007). He is not, however,
entitled to credit against his original sentence for periods during which he was held
both on the Board’s warrant and on new criminal charges for which he has not
satisfied bail requirements; instead, that period of detention is credited against the
sentence on the new charges and does not constitute service of the original sentence.
Smith v. Pennsylvania Board of Probation and Parole, 171 A.3d 759, 764-71 (Pa.
2017); Gaito, 412 A.2d at 571; Armbruster, 919 A.2d at 352. A convicted parole
violator receives credit against his original sentence for periods that he was held on
both a Board warrant and other criminal charges only where he cannot receive credit
against a sentence on the new charges because he was not convicted or received a
sentence of imprisonment shorter than the time that he was in custody. Smith, 171
A.3d at 764-71; Martin v. Pennsylvania Board of Probation and Parole, 840 A.2d
299, 308-09 (Pa. 2003); Armbruster, 919 A.2d at 354-56. Because Mitzel was
convicted on the new charges and his sentence for those offenses, 4 to 10 years’
imprisonment, exceeds the less than 5-month period when he was held on both the
Board’s warrant and the new charges, the June 23 to October 27, 2016 period is
credited to his new sentence, not his original sentence.
Mitzel does not dispute that he failed to post bail on the new charges,
but argues that he is nonetheless entitled to credit against his original sentence for
the June 23 to October 27, 2016 period because the sentence for his new convictions
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runs concurrently with his original sentence. This latter claim is both factually and
legally without merit. The record shows that the three 4-to-10-year sentences
imposed for the new convictions were to run concurrently with respect to each other,
not that the sentencing court directed that they were to run concurrently with Mitzel’s
original sentence or any other sentence of any court. (C.R. at 63; C.R. at 68-69.)
Indeed, Mitzel concedes that the sentencing court did not direct that the 4-to-10-year
sentences run concurrently with his original sentence. (Petitioner’s Br. at 15.)
Moreover, the Prisons and Parole Code requires that when a parolee is recommitted
as a convicted parole violator, the original sentence and any new sentences imposed
by a Pennsylvania court must be served consecutively rather than concurrently. 61
Pa. C.S. § 6138(a)(5); Kerak v. Pennsylvania Board of Probation and Parole, 153
A.3d 1134, 1138-42 (Pa. Cmwlth. 2016) (en banc).
For the foregoing reasons, we affirm the Board’s December 29, 2017
determination.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Millard Mitzel, III, :
:
Petitioner :
:
v. : No. 101 C.D. 2018
:
Pennsylvania Board of :
Probation and Parole, :
:
Respondent :
ORDER
AND NOW, this 2nd day of October, 2018, the December 29, 2017
determination of the Pennsylvania Board of Probation and Parole is hereby
AFFIRMED.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge