T. Bailey v. PA BPP ( 2015 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Troy Bailey, :
Petitioner :
: No. 807 C.D. 2014
v. :
: Submitted: June 5, 2015
Pennsylvania Board of Probation :
and Parole, :
Respondent :
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: August 20, 2015
Presently before this Court is the application of Douglas J. Campbell,
Esquire (Counsel) for leave to withdraw as counsel for Troy Bailey (Bailey). Bailey
filed a petition for review challenging the Pennsylvania Board of Probation and
Parole’s (Board) recalculation of his parole violation maximum date. Counsel seeks
to withdraw on the grounds that Bailey’s petition for review is without merit. For the
reasons that follow, we grant Counsel’s petition and affirm the Board’s order.
On August 10, 1991, Bailey was arrested and charged with aggravated
assault and a violation of the Pennsylvania Uniform Firearms Act of 1995.1 On April
25, 1994, Bailey was found guilty of these charges and he was sentenced to a term of
1
18 Pa.C.S. §§6101–6126.
incarceration of eight to twenty years. Bailey’s minimum expiration date was August
10, 1999, and his maximum expiration date was August 10, 2011. On May 8, 2000,
the Board released Bailey on parole to a community corrections center. By decision
dated March 4, 2003, the Board recommitted Bailey as a convicted parole violator to
serve 24 months’ backtime, when available, for committing the offenses of criminal
conspiracy, recklessly endangering another person, simple assault, and unlawful
restraint while on parole. Subsequently, by decision dated August 26, 2003, the
Board recalculated Bailey’s maximum sentence date to April 25, 2013. (Certified
Record (C.R.) at Item Nos. 1, 3-4.)
On May 5, 2005, the Board released Bailey on parole to his new detainer
sentence with a parole violation maximum date of April 25, 2013. On June 19, 2006,
Bailey was released on parole from his detainer sentence to a community corrections
center. The conditions governing his parole, which Bailey acknowledged with his
signature on both May 5, 2005, and June 16, 2006, specifically advised him that if he
was 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. (C.R. at Item Nos. 5-6.)
On May 19, 2011, Philadelphia police arrested Bailey and charged him
with rape and other sexual offenses (Philadelphia charges). On June 4, 2011, the
Board lodged its warrant against Bailey to commit and detain him for violation of his
parole. (C.R. at Item Nos. 8-9.)
Bailey was arrested on June 6, 2011, and charged with theft from a
motor vehicle and receiving stolen property stemming from events that occurred on
March 3, 2011, in Lycoming County. On August 16, 2011, Bailey was returned to
the Department of Corrections’ custody and placed at the State Correctional
2
Institution at Graterford. On August 29, 2011, Bailey pleaded guilty to the crime of
theft from a motor vehicle, a misdemeanor of the first degree, and was sentenced to a
minimum of six months and a maximum of twenty-four months of imprisonment, and
the charge for receiving stolen property was dismissed. (C.R. at Item Nos. 13, 15.)
On September 29, 2011, Bailey was served by the Board with a notice of
his parole violation and the date and time of the revocation hearing. On that same
date, Bailey signed a form waiving his right to a parole revocation hearing and
counsel, as well as admitting to being convicted of the crime of theft from a motor
vehicle in violation of his parole. By decision dated November 16, 2011, the Board
recommitted Bailey as a convicted parole violator to serve six months’ backtime,
when available, for committing the crime of theft from a motor vehicle. By decision
dated March 15, 2013, the Board recalculated Bailey’s parole violation maximum
date to October 27, 2019.2 (C.R. at Item Nos. 13-15, 17.)
On April 8, 2013, the Board received a request for administrative relief
from Bailey challenging the Board’s March 15, 2013 decision as a violation of his
due process rights, asserting that the Board failed to offer him the opportunity to have
a violation hearing. Bailey also sought to vacate the Board’s November 16, 2011
decision for vagueness, because it did not give him notice that his parole violation
maximum date could change if he was convicted of new criminal charges. Bailey
was subsequently found not guilty of his Philadelphia charges on November 15,
2013. (C.R. at Item Nos. 17-18.)
2
We note that the Board gave Bailey two days’ backtime credit for being detained solely on
the Board’s warrant from June 4, 2011, to June 6, 2011, when it recalculated his parole violation
maximum date. (C.R. at Item No. 17.)
3
On April 23, 2014, the Board mailed a response to Bailey, treating his
request for administrative relief as an administrative appeal from the Board’s March
15, 2013 decision. The Board explained that as a convicted parole violator, Bailey
automatically forfeited credit for all time spent at liberty on parole pursuant to section
6138(a)(2) of the Prisons and Parole Code (Code), 61 Pa.C.S. §6138(a)(2). The
Board noted that Bailey was advised of this potential penalty when he signed the
parole conditions on May 5, 2005. Citing Young v. Commonwealth, 409 A.2d 843
(Pa. 1979), the Board stated that Bailey’s ability to challenge the recalculation
decision after it was imposed satisfied his due process rights, and, thus, the Board’s
recalculation of his maximum sentence date did not violate any constitutional
provisions. Accordingly, the Board affirmed the March 15, 2013 recalculation
decision.
On May 12, 2014, Bailey filed a pro se petition for review alleging that
his due process rights have been violated by the Board’s failure to provide notice that
his maximum sentence date was being recalculated, failure to hold a parole
revocation hearing, and failure to provide him with the assistance of counsel for the
hearing. Bailey further argues that the Board’s November 16, 2011, and March 15,
2013 orders are moot because they are vague and provide no notice of a possible
recalculation of his parole violation maximum date. Bailey also asserts that the
Board failed to credit him with time-served when he was incarcerated solely on the
Board’s warrant after he had been found not guilty regarding the Philadelphia
charges.
By order dated May 15, 2014, we appointed counsel to represent Bailey.
Upon review of Bailey’s administrative remedies form, petition, and the certified
record of the Board, Counsel filed a petition for leave to withdraw with this Court and
4
a “Turner” letter, detailing the reasons why he found the appeal lacked merit.
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988). Counsel forwarded copies of
this letter to Bailey and the Board.
In order to withdraw, counsel must satisfy the procedural requirements
set forth by this Court in Craig v. Pennsylvania Board of Probation and Parole, 502
A.2d 758 (Pa. Cmwlth. 1985). Under Craig, counsel must notify the parolee of his
request to withdraw; furnish the parolee with either a copy of a brief complying with
Anders v. State of California, 386 U.S. 738 (1967), or a no-merit letter satisfying the
requirement of Turner; and inform the parolee of his right to retain new counsel or
submit a brief on his own behalf.
If counsel proceeds under Turner, the letter must substantively set forth:
(1) the nature and extent of counsel’s review; (2) the issues the parolee wishes to
raise; and (3) counsel’s analysis in concluding that the parolee’s appeal is without
merit. Hughes v. Pennsylvania Board of Probation and Parole, 977 A.2d 19, 26 (Pa.
Cmwlth. 2009); Zerby v. Shannon, 964 A.2d 956, 961 (Pa. Cmwlth. 2009). We
require counsel to comply with these requirements to ensure that a parolee’s claims
are considered and that counsel has substantial reasons for concluding the claims are
without merit. Id.
In the present case, by letter dated July 30, 2014, Counsel notified Bailey
of his application for leave to withdraw and provided Bailey with a copy of same,
advised Bailey of his right to obtain substitute counsel or file a brief on his own
behalf, and provided Bailey with a copy of his Turner letter setting forth the reasons
why he found the petition for review to lack merit. Hence, Counsel has complied
with the procedural requirements of Craig.
5
Additionally, Counsel’s no-merit letter complies with the requirements
of Turner. The letter states that Counsel has reviewed the record in this matter,
addresses the claims raised by Bailey in his petition for review, and sets forth
Counsel’s analysis of the claims and his reasons for concluding that they lacked
support in either law or fact. Thus, Counsel has complied with Turner.
Having determined that Counsel has satisfied the necessary procedural
and technical requirements to withdraw, we will now conduct our own independent
review to determine whether Bailey’s appeal is, in fact, without merit. An appeal is
without merit when it lacks any basis in law or fact. Commonwealth v. Santiago, 978
A.2d 349, 356 (Pa. 2009).
On appeal,3 Bailey argues that the Board violated his due process rights
by failing to conduct a revocation hearing prior to recalculating his parole violation
maximum date in its March 15, 2013 decision. Bailey also argues that this decision
should be vacated for vagueness, because the Board did not properly notify him that
his parole violation maximum date might be recalculated due to parole violations.4
Section 6138(a) of the Code provides, in pertinent part, as follows:
3
Our scope of review of an action of the Board is limited to determining whether the
Board’s findings are supported by substantial evidence, whether an error of law was committed, or
whether any of the parolee’s constitutional rights were violated. Harden v. Pennsylvania Board of
Probation and Parole, 980 A.2d 691, 695 n.3 (Pa. Cmwlth. 2009). We will not interfere with a
determination unless the Board has acted arbitrarily or plainly abused its discretion. Id.
4
We note that in Bailey’s administrative appeal and his petition for review, he further
argues that the Board’s November 16, 2011 order should be vacated because of vagueness. As
stated in the November 16, 2011 decision, Bailey had thirty days to file an appeal from this
decision. Any challenge at this point is therefore untimely. Moreover, Bailey has waived this
argument, because he fails to develop it further in his brief. Rapid Pallet v. Unemployment
Compensation Board of Review, 707 A.2d 636, 638 (Pa. Cmwlth. 1998) (“Arguments not properly
developed in a brief will be deemed waived by this Court.”).
6
(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, 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.
(2) If the parolee’s recommitment is so ordered, 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),[5] shall be given no credit for the time at
liberty on parole.
61 Pa.C.S. §6138(a)(1)-(2).
An alleged parole violator has a due process right to a preliminary
hearing and a violation hearing before parole is revoked. Morrissey v. Brewer, 408
U.S. 471 (1972). However, a parolee may voluntarily waive his right to a parole
5
Section 6138(a)(2.1) of the Code, added by the Act of July 5, 2012, P.L. 1050, states that:
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). We note that Bailey raises no issues concerning section 6138(a)(2.1).
7
revocation hearing. McKenzie v. Pennsylvania Board of Probation and Parole, 963
A.2d 616, 621 (Pa. Cmwlth. 2009); Prebella v. Pennsylvania Board of Probation and
Parole, 942 A.2d 257, 262 (Pa. Cmwlth. 2008); see also Fisher v. Pennsylvania
Board of Probation and Parole, 62 A.3d 1073, 1075 (Pa. Cmwlth. 2013).
Contrary to Bailey’s assertion, he signed a waiver of his right to a parole
revocation hearing on September 29, 2011. Bailey also admitted to his conviction on
the same form, which specifically stated as follows:
I have been advised of my rights to a parole revocation
hearing and counsel at that hearing. I have also been
advised that there is no penalty for requesting counsel, that
free counsel is available if I cannot afford to retain counsel,
and I have been provided the name and address of the local
public defender. With full knowledge and understanding of
these rights, I hereby waive my right to a parole revocation
hearing and counsel at that hearing. I waive these rights of
my own free will, without any promise, threat or coercion.
* * *
On the 29 day of Sept. 2011, I[,] Troy Bailey[,] do
knowingly, intelligently, and voluntarily admit that: I was
convicted of, plead guilty or plead no contest to the new
criminal offense(s) listed on the attached PBPP 257N dated
9-22-11 that the conduct underlying the charge occurred
while I was on parole/delinquent on parole, I have been
convicted of the offense(s) in a court of record and the
offense(s) was punishable by imprisonment. Specifically, I
knowingly, intelligently, and voluntarily admit that I have
been convicted of [theft from a motor vehicle] . . . in
violation of my parole. I understand and agree that this
admission is binding and may only be withdrawn if I submit
a written withdrawal to my supervising agent, within ten
(10) calendar days of the date written above.
(C.R. at Item No. 14) (emphasis added).
8
On appeal, Bailey is not disputing that he was convicted of a crime in
violation of his parole conditions. Because Bailey waived his right to a hearing and
admitted that he violated the conditions of his parole, the Board did not violate his
due process rights by not holding a hearing prior to recommitting Bailey as a
convicted parole violator and recalculating his maximum sentence date. McKenzie;
Prebella.
Bailey also argues that the Board’s March 15, 2013 decision must be
vacated because it was vague. Bailey asserts that the Board did not properly inform
him that his parole violation maximum date may be recalculated based on his
conviction of theft from a motor vehicle. He also asserts that the Board misled him in
its March 15, 2013 decision to believe that his parole violation maximum date would
only be recalculated if he was convicted of the Philadelphia charges. However, on
May 5, 2005, and June 16, 2006, Bailey acknowledged the conditions of his parole,
specifically that “[i]f you are convicted of a crime committed while on
parole/reparole, the Board has the authority, after an appropriate hearing, to recommit
you to serve the balance of the sentence or sentences which you were serving when
paroled/reparoled, with no credit for time at liberty on parole.” (C.R. at Item Nos.
15-16.) Because the Board properly notified Bailey that upon conviction of any
crime during his parole the Board may recalculate his maximum sentence to reflect
the time that he was at liberty on parole, his argument is without merit.
Bailey also misconstrues the Board’s March 15, 2013 decision, which
states as follows:
As recorded on March 15, 2013 the [Board] rendered the
following decision in your case:
9
Refer to Board action of 11/16/2011 to recommit to a state
correction institution as a convicted parole violator to serve
6 months backtime.
While confined, you must comply with the institution’s
prescriptive program requirements and have no
misconducts.
List for reparole review on next available docket, if open
charges are disposed.
--Parole violation max date is subject to change if convicted
of new criminal charges.
* * *
Parole violation max date: 10/27/2019
(C.R. at Item No. 17.)
The Board’s March 15, 2013 decision clearly states that Bailey’s parole
violation maximum date had been recalculated to October 27, 2019. Contrary to
Bailey’s argument, the Board only referenced the Philadelphia charges to provide
notice to Bailey that his parole violation maximum date could have changed if he was
convicted. However, Bailey was found not guilty of the Philadelphia charges, and,
thus, his recalculated maximum sentence date remained the same. The Board
provided notice to Bailey of possible recalculation of his parole violation maximum
date if he violated his parole conditions when he signed his parole release on May 5,
2005, and June 16, 2006, and the Board’s March 15, 2013 decision clearly stated
Bailey’s recalculated parole violation maximum date. Thus, there is no merit to
Bailey’s argument that the decision should be vacated for vagueness or that the Board
failed to properly notify him of possible penalties for violating his parole conditions.
Bailey also argues that the Board failed to consider the time that he spent
incarcerated for the theft from a motor vehicle conviction when recalculating his
10
parole violation maximum date. However, the Board only gives credit for time
served solely on a Board warrant. Gaito v. Pennsylvania Board of Probation and
Parole, 412 A.2d 568, 571 (Pa. 1980). Bailey’s imprisonment because of these
charges was not solely because of the Board’s warrant, and, thus, Bailey is not
entitled to any credit for this time served in the Board’s recalculation of his parole
violation maximum date. Therefore, there is no merit to Bailey’s argument.
Finally, Bailey argues that the correct day for the arrest is May 25, 2011,
whereas the Board stated that Bailey was arrested on June 6, 2011. Bailey mistakenly
references the May 25, 2011 arrest date for the Philadelphia charges in this context.
The Board has properly referenced the June 6, 2011 arrest date for Bailey’s
conviction of theft from a motor vehicle as the reason for his recommitment as a
parole violator. Therefore, Bailey’s argument also has no merit.
Accordingly, having made an independent evaluation of the issues
presented and having found that Counsel has satisfied the criteria set forth in Turner,
we grant Counsel’s petition for leave to withdraw and affirm the Board’s denial of
administrative relief.
________________________________
PATRICIA A. McCULLOUGH, Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Troy Bailey, :
Petitioner :
: No. 807 C.D. 2014
v. :
:
Pennsylvania Board of Probation :
and Parole, :
Respondent :
ORDER
AND NOW, this 20th day of August, 2015, the petition to withdraw as
counsel filed by Douglas J. Campbell, Esquire, is granted. The April 23, 2014
order of the Pennsylvania Board of Probation and Parole is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge