M.D. Paschal v. PA BPP ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Milton Deshawn Paschal, :
Petitioner :
: No. 421 C.D. 2016
v. :
: Submitted: November 10, 2016
Pennsylvania Board of :
Probation and Parole, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: January 13, 2017
Milton Deshawn Paschal (Petitioner) petitions for review of the February
17, 2016 decision of the Pennsylvania Board of Probation and Parole (Board)
affirming its prior determination to recommit Petitioner as a convicted parole violator
(CPV) and recalculate his maximum sentence date.
The following facts are garnered from the certified record in this case.
Petitioner was originally sentenced to a term of incarceration of 2 years, 3 months, to
6 years following his conviction on a drug charge. His original maximum sentence
date was July 1, 2016. Following service of his minimum sentence, Petitioner was
released on parole on October 3, 2012, to the Alle-Kiski Pavilion, a community
corrections facility. At that time, Petitioner signed his conditions governing parole
form warning that should he be convicted of a crime while on parole, the Board had
the authority to recommit him to serve the balance of his sentence with no credit for
time spent at liberty on parole. Petitioner was successfully discharged from the Alle-
Kiski Pavilion on December 21, 2012.
While on parole on January 15, 2013, Petitioner was arrested by the
Frazer Township Police Department and charged with multiple traffic violations,
including driving while operating privilege suspended, driving without motor vehicle
financial responsibility, possessing altered, forged, or counterfeit documents, and
suspension of vehicle registration. Petitioner promptly notified parole supervision
staff and he continued serving parole while under supervision.
However, following this incident, Petitioner violated several of his
parole conditions, including a curfew violation, failure to maintain regular contact
with parole supervision staff, and failure to notify parole supervision staff of his
receipt of three citations on October 26, 2013, for disorderly conduct, public
drunkenness, and driving under suspension. The Board issued a warrant to commit
and detain Petitioner and he was subsequently arrested by Board agents on November
1, 2013. That same day, the Board provided Petitioner with a notice of charges and
hearing detailing his technical parole violations and Petitioner executed a waiver of
violation hearing and counsel/admission form admitting to his technical violations.
By decision dated November 25, 2013, the Board recommitted Petitioner
to the Renewal Parole Violator Center (RPVC) pending the completion of
recommended programming. Petitioner’s maximum sentence date remained as July
1, 2016. Petitioner was successfully discharged from the RPVC on January 15, 2014.
While on parole on August 15, 2014, Petitioner was arrested by the New Kensington
Police Department in Westmoreland County on charges of simple assault and theft by
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unlawful taking. Petitioner continued serving parole while under supervision pending
disposition of these new criminal charges.
However, Petitioner was declared delinquent effective October 2, 2014,
after failing to report to parole supervision staff. Petitioner was subsequently arrested
on November 1, 2014, by the Pennsylvania State Police following a routine traffic
stop. The Board issued a warrant to commit and detain that same day and Petitioner
was transported to the Westmoreland County Prison. On November 12, the Court of
Common Pleas of Westmoreland County set bail at $5,000.00 cash on Petitioner’s
new criminal charges. Petitioner was unable to post bail. On November 7, 2014, the
Board provided Petitioner with a notice of charges and hearing detailing his technical
parole violations and Petitioner executed a waiver of violation hearing and
counsel/admission form admitting to his technical violations. By decision dated
March 23, 2015, the Board recommitted Petitioner as a technical parole violator to
serve 6 months backtime.
Prior to the Board’s decision, on February 10, 2015, Petitioner pled
guilty to the simple assault and theft by unlawful taking charges in Westmoreland
County and he was sentenced that same day to a term of incarceration of 11 and a
half months to 23 months. On February 26, 2015, the Board provided Petitioner with
another notice of charges and hearing relating to his new criminal convictions and
Petitioner executed a waiver of violation hearing and counsel/admission form
admitting to these convictions. By decision dated June 15, 2015, the Board
recommitted Petitioner as a CPV to serve 36 months backtime. The Board also
recalculated Petitioner’s maximum sentence date as April 9, 2019.
The Board calculated this date by noting that when Petitioner was
originally released on parole on October 3, 2012, his original maximum sentence date
3
was July 1, 2016, leaving 1,367 days of backtime owed towards his original sentence.
The Board then credited Petitioner with the 75 days of confinement for the period he
was recommitted to the RPVC from November 1, 2013, to January 15, 2014. The
Board also credited Petitioner for the 11 days that he was confined in Westmoreland
County Prison solely on the Board’s warrant from November 1, 2014, to November
12, 2014. Applying these 86 days of credit, the Board concluded that Petitioner owed
1,281 days of backtime towards his original sentence. The Board then added these
1,281 days to October 6, 2015, the date that Petitioner was paroled from the
Westmoreland County sentence, to arrive at the new maximum sentence date.
Petitioner submitted an administrative remedies form dated November
22, 2015, challenging his recalculated maximum sentence date. Specifically,
Petitioner alleged that the Board incorrectly calculated the amount of backtime he
owed towards his original sentence. By letter to Petitioner mailed February 17, 2016,
the Board affirmed its earlier decision recalculating his maximum sentence date and
denied his administrative appeal. The Board explained that Petitioner forfeited the
time he spent at liberty on parole after he was recommitted as a CPV and discussed
the manner in which it recalculated his new maximum sentence date.
Petitioner subsequently filed a pro se petition for review with this Court
alleging that the Board’s recalculation of his maximum sentence date violated the
constitutional doctrine of separation powers by usurping the exclusive power of the
judiciary to sentence criminal defendants.1 Petitioner also alleges that the Board’s
1
Our scope of review is limited to determining whether constitutional rights were violated,
whether the adjudication was in accordance with the law, and whether necessary findings were
supported by substantial evidence. 2 Pa.C.S. §704; Adams v. Pennsylvania Board of Probation and
Parole, 885 A.2d 1121, 1122 n.1 (Pa. Cmwlth. 2005).
4
June 15, 2015 decision was void because it did not mention that his time spent at
liberty on parole was being forfeited.
However, in his brief to this Court, Petitioner reiterates his issue relating
to the doctrine of separation of powers and advances an entirely new issue relating to
credit for his time spent at the community corrections facility, Alle-Kiski Pavilion.
The Board contends that Petitioner waived this latter issue by not raising it in his
administrative appeal. We agree. The law is well settled that any issue not raised in
an administrative appeal is waived. See Chesson v. Pennsylvania Board of Probation
and Parole, 47 A.3d 875, 878 (Pa. Cmwlth. 2012); McCaskill v. Pennsylvania Board
of Probation and Parole, 631 A.2d 1092, 1094-95 (Pa. Cmwlth. 1993); Newsome v.
Pennsylvania Board of Probation and Parole, 553 A.2d 1050, 1052 (Pa. Cmwlth.
1989).
We now return to Petitioner’s constitutional argument that the Board’s
recalculation of his maximum sentence date violated the constitutional doctrine of
separation of powers by usurping the exclusive power of the judiciary to sentence
criminal defendants. This identical argument has been previously rejected by the
Supreme Court and this Court. See Young v. Pennsylvania Board of Probation and
Parole, 409 A.2d 843, 848 (Pa. 1979) (the Board’s authority to recalculate the
sentence of a convicted parole violator and thereby extend his maximum sentence
date “is not an encroachment upon the judicial sentencing power”); Davidson v.
Pennsylvania Board of Probation and Parole, 33 A.3d 682, 686 (Pa. Cmwlth. 2011)
(denial of credit to a recommitted direct violator for time spent at liberty on parole
does not violate the separation of powers doctrine). Indeed, the Board has statutory
authority to recalculate a convicted parole violator’s sentence to reflect that he
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receive no credit for time spent at liberty on parole. Section 6138(a)(2) of the Prisons
and Parole Code, 61 Pa.C.S. §6138(a)(2).
Moreover, Petitioner was specifically advised of the Board’s authority in
this regard in the conditions governing his parole, which he acknowledged receiving
upon his original release on October 3, 2012. These conditions cautioned Petitioner
that should he be convicted of a crime while on parole, the Board had the authority to
recommit him to serve the balance of his sentence with no credit for time spent at
liberty on parole. The fact that said forfeiture was not referenced in the Board’s June
15, 2015 decision does not invalidate such authority or render such decision void.
Because Petitioner was recommitted as a CPV, he forfeited the time he
spent at liberty at parole and the Board did not err in recalculating his maximum
sentence date.
Accordingly, the order of the Board is affirmed.2
________________________________
PATRICIA A. McCULLOUGH, Judge
2
In his petition for review, Petitioner further alleges that the Board is violating his right to
serve his sentence continuously, rather than on installments. However, Petitioner did not raise this
issue before the Board, nor did he address the same in his brief to this Court. Hence, this issue is
also waived. Chesson; Aveline v. Pennsylvania Board of Probation and Parole, 729 A.2d 1254,
1256 (Pa. Cmwlth. 1999) (issues raised in petition for review but not addressed or developed in
brief are waived).
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Milton Deshawn Paschal, :
Petitioner :
: No. 421 C.D. 2016
v. :
:
Pennsylvania Board of :
Probation and Parole, :
Respondent :
ORDER
AND NOW, this 13th day of January, 2017, the order of the
Pennsylvania Board of Probation and Parole, dated February 17, 2016, is hereby
affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge