C.M. Rivera v. PBPP ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Carlos Manuel Rivera, :
Petitioner :
:
v. : No. 1371 C.D. 2017
: Submitted: August 24, 2018
Pennsylvania Board of :
Probation and Parole, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: November 7, 2018
Carlos M. Rivera, an inmate at the State Correctional Institution (SCI)
at Albion, petitions for review of an adjudication of the Pennsylvania Board of
Probation and Parole (Board) denying his administrative appeal. Rivera asserts that
the Board erred in calculating his maximum sentence after it recommitted him as a
convicted parole violator. Rivera’s appointed counsel, Harry J. Cancelmi, Jr.,
Esquire (Counsel), has petitioned for leave to withdraw his representation. For the
following reasons, we grant Counsel’s petition and affirm the Board’s order.
On January 31, 2013, Rivera was sentenced to serve six to twenty-four
months in a state correctional institution for simple assault. On November 13, 2014,
Rivera was released on parole from SCI-Huntingdon. Certified Record at 77-80
(C.R.__). According to the Conditions Governing Special Probation/Parole that he
signed, Rivera agreed to “refrain from assaultive behavior.” C.R. 82. Rivera
acknowledged that if he was arrested while on parole, the Board was authorized “to
lodge a detainer against [him], which will [] prevent [his] release from custody
pending disposition [of those charges], even though [he has] posted bail.” C.R. 83.
Rivera further acknowledged that if he was convicted of a crime committed while
on parole, the Board was authorized, after an appropriate hearing, to recommit him
to serve the balance of his sentence with no credit for time at liberty on parole.
On August 14, 2015, Rivera was arrested for first degree robbery in
Berks County. The Board issued a warrant to commit and detain Rivera for violating
his parole. On January 21, 2016, Rivera pled guilty to first degree robbery and was
sentenced to five years and six months to twelve years of imprisonment in a state
correctional facility.
On February 24, 2016, the Board recommitted Rivera as a convicted
parole violator to serve 36 months of backtime. The Board recalculated Rivera’s
maximum sentence date to be February 23, 2021. Rivera waived his right to a parole
revocation hearing and the assistance of counsel.
On June 7, 2016, Rivera filed an “Administrative Remedies Form” with
the Board that presented (1) an administrative appeal challenging his recommitment
as unconstitutional, and (2) a petition for administrative review asserting that the
Board failed to award him credit for the time he spent in custody from his arrest on
August 14, 2015, until his return to SCI-Graterford on February 9, 2016.
The Board affirmed its prior decision recommitting Rivera. In its
adjudication mailed to Rivera on September 5, 2017, the Board explained:
You were released on parole on November 13, 2014, with a
maximum sentence date of November 13, 2019. At that point,
1826 days remained on your sentence. Because you were
recommitted as a convicted parole violator, you are required to
serve the remainder of your original term and are not entitled to
credit for any periods of time you were at liberty on parole.
Further, based on your new conviction, the Board is not
authorized to award you credit for time at liberty on parole. On
2
January 21, 2016, you were sentenced to incarceration in state
prison. You are not entitled to credit on your original sentence
for the time you were detained prior to sentencing because you
were not detained solely by the Board during that period.
Because you were sentenced to state incarceration, you are
required to serve your original sentence prior to your new
sentence. However, that provision does not take effect until a
parolee is recommitted as a convicted parole violator. Thus, you
did not become available to commence service of your original
sentence until the Board voted to recommit you as a parole
violator on February 24, 2016. Adding 1826 days to February
24, 2016 results in your February 23, 2021 parole violation
maximum date. Accordingly the Board decision mailed May 18,
2016 is AFFIRMED.
C.R. 169 (citations omitted). Rivera now petitions this Court for review.
On appeal,1 Rivera raises seven issues, which we combine into three for
clarity. First, he argues that the Board lacks statutory authority to change the
maximum date of a sentence imposed by a court. Second, Rivera argues that by
forfeiting the period of time he was at liberty on parole, the Board violated his
constitutional rights and the doctrine of separation of powers. Third, Rivera
contends that the Board erred by failing to credit his original sentence for the time
served after his arrest on August 14, 2015.
Counsel has filed a petition for leave to withdraw as counsel and a no-
merit letter, also referred to as a “Turner/Finley letter,”2 explaining his belief that
1
Our review determines whether constitutional rights were violated, whether an error of law was
committed or whether necessary findings of fact are supported by substantial competent evidence.
Seton Company v. Unemployment Compensation Board of Review, 663 A.2d 296, 298 n.2 (Pa.
Cmwlth. 1995).
2
In Commonwealth v. Turner, 544 A.2d 927, 928 (Pa. 1988), the Pennsylvania Supreme Court,
applying Pennsylvania v. Finley, 481 U.S. 551 (1987), held that counsel seeking to withdraw from
a case in which the right to counsel does not derive from the United States Constitution may
provide a “no-merit letter” which details “the nature and extent of [the attorney’s] review and
3
Rivera’s appeal lacks merit. We first review the technical requirements imposed
upon appointed counsel who seeks to withdraw his representation.
Turner/Finley counsel must review the case zealously. Turner/
Finley counsel must then submit a “no-merit” letter to the trial
court, or brief on appeal to this Court, detailing the nature and
extent of counsel’s diligent review of the case, listing the issues
which the petitioner wants to have reviewed, explaining why and
how those issues lack merit, and requesting permission to
withdraw.
Counsel must also send to the petitioner: (1) a copy of the “no-
merit” letter/brief; (2) a copy of counsel’s petition to withdraw;
and (3) a statement advising petitioner of the right to proceed pro
se or by new counsel.
If counsel fails to satisfy the foregoing technical prerequisites of
Turner/Finley, the court will not reach the merits of the
underlying claims but, rather, will merely deny counsel’s request
to withdraw.
Zerby v. Shanon, 964 A.2d 956, 960 (Pa. Cmwlth. 2009) (quoting Commonwealth v.
Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)). If counsel’s no-merit letter
complies with the technical requirements, this Court independently reviews the
merits of the petitioner’s claims. Hughes v. Pennsylvania Board of Probation and
Parole, 977 A.2d 19, 25 (Pa. Cmwlth. 2009).
Upon review, we find that Counsel has satisfied the technical
requirements of Turner/Finley. In his no-merit letter, Counsel thoroughly analyzed
Rivera’s issues on appeal and explained why each is devoid of merit. Counsel
certified that he mailed a copy of his petition for leave to withdraw and no-merit
letter to Rivera at SCI-Albion. Further, Counsel served a copy of this Court’s June
list[s] each issue the petitioner wished to have raised, with counsel’s explanation of why those
issues were meritless.”
4
7, 2018, order on Rivera, which advised him that he could either obtain substitute
counsel or file a brief on his own behalf. Having concluded that Counsel has
complied with the technical requirements of Turner/Finley, we next consider the
merits of Rivera’s claims.
Rivera first argues that the Board lacks the authority “to alter a
judicially-imposed sentence” and change his maximum sentence date. Petition for
Review ¶A1. This argument lacks merit.
Section 6138(a) of the Prisons and Parole Code (Parole Code)3 requires
the Board to recalculate the maximum sentence date of a convicted parole violator
to account for his forfeited street time. 61 Pa. C.S. §6138(a); Richards v.
Pennsylvania Board of Probation and Parole, 20 A.3d 596, 599 (Pa. Cmwlth. 2011).
Our Supreme Court has explained the difference between a judicially imposed
sentence and a backtime sentence as follows:
The distinction between sentences imposed by the judiciary upon
convicted criminal defendants and backtime compelled by the
Board upon parole violators is significant. A sentence can be
defined as the judgment formally pronounced by the court upon
a defendant who has been convicted in a new criminal
prosecution and which imposes the term of punishment to be
served. By way of comparison, backtime is “that part of an
existing judicially-imposed sentence which the Board directs a
parolee to complete following a finding[,] after a civil
administrative hearing[,] that the parolee violated the terms and
conditions of parole,” and before the parolee begins to serve the
new sentence.
Martin v. Pennsylvania Board of Probation and Parole, 840 A.2d 299, 303 (Pa.
2003) (citations omitted) (emphasis added). Stated otherwise, “service of backtime
3
61 Pa. C.S. §§101-6309.
5
relates to the original sentence from which an offender is paroled and is unrelated to
any sentence required for a conviction on other criminal charges.” Id. It is well-
settled that the Board’s authority to order a convicted parole violator to serve the
unexpired balance of his original maximum sentence does not usurp a court’s
sentencing function or constitute a violation of a parolee’s due process rights. Gaito
v. Pennsylvania Board of Probation and Parole, 412 A.2d 568, 570 (Pa. 1980).
Accordingly, we reject Rivera’s contention that the Board usurped the sentencing
court’s authority.
Rivera next argues that the Board unlawfully forfeited the time he was
at liberty on parole from November 13, 2014, until August 14, 2015. Rivera
contends that because the phrase “at liberty on parole” remains undefined by the
legislature, the phrase cannot be used against a parolee. He also contends that
Section 6138(a)(2) of the Parole Code violates the separation of powers doctrine
because it “eviscerates [] judicial discretion.” Petition for Review ¶A2.
Our Supreme Court has observed that the Board “is under no
constitutional obligation to diminish the length of the sentence of a recommitted
parolee by a period equal to the time when the prisoner was on parole.” Gaito, 412
A.2d at 570 (citing Commonwealth ex rel. Thomas v. Myers, 215 A.2d 617, 619 (Pa.
1966)). The Board’s authority to forfeit a parolee’s street time following
recommitment as a convicted parole violator is codified in Section 6138(a) of the
Parole Code, which states, in relevant part:
(a) Convicted violators. –
(1) A parolee … 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
6
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),
shall be given no credit for the time at liberty on
parole.
(2.1) 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) (emphasis added). In short, the Board has discretion to award
credit, so long as the parolee was recommitted for a non-violent offense.
Here, Rivera was recommitted following his conviction for first degree
robbery under 18 Pa. C.S. §3701(a)(1)(ii). First degree robbery is classified as a
7
“crime of violence” under 42 Pa. C.S. §9714(g).4 Thus, under Section 6138(a)(2.1)
of the Parole Code, the Board could not have awarded Rivera credit for his street
time. The Board did not err by denying street time credit for which Rivera was
ineligible.5
Rivera’s argument that the Board’s forfeiture of his street time violated
the separation of powers doctrine of the United States and Pennsylvania
Constitutions also lacks merit. First, it assumes, incorrectly, that he was eligible for
credit. Second, our Supreme Court has specifically held that a statute mandating the
denial of credit to a convicted parole violator for time spent at liberty on parole does
not violate the separation of powers doctrine. Young v. Pennsylvania Board of
Probation and Parole, 409 A.2d 843, 848 (Pa. 1979). We reject Rivera’s contention
that the Board violated the separation of powers doctrine by forfeiting Rivera’s street
time under Section 6138.
Lastly, we address Rivera’s argument that the Board erred by not
awarding him credit for the time he served from his arrest on August 14, 2015, until
4
Section 9714(g) of the Sentencing Code states, in pertinent part: “[a]s used in this section, the
term ‘crime of violence’ means . . . robbery as defined in 18 Pa. C.S. §3701(a)(1)(i),(ii) or (iii)[.]”
42 Pa. C.S. § 9714(g).
5
Rivera also argues that the phrase “at liberty on parole” is unenforceable against him because the
legislature has not defined that term. Rivera has not developed this argument with any citation to
pertinent legal authority. Therefore, this argument is waived. See Rapid Pallet v. Unemployment
Compensation Board of Review, 707 A.2d 636 (Pa. Cmwlth. 1998) (holding that undeveloped
arguments without citation to legal authority will not be considered). Even if Rivera had developed
his argument, our Supreme Court has explained that “at liberty on parole” means “not at liberty
from all confinement but at liberty from confinement on the particular sentence for which the
convict is being reentered as a parole violator.” Cox v. Pennsylvania Board of Probation and
Parole, 493 A.2d 680, 683 (Pa. 1985). From November 13, 2014, until August 14, 2015, Rivera
was at liberty on parole from his original simple assault sentence. Rivera was still at liberty on
parole when he was arrested on August 14, 2015, for theft-related offenses. Therefore, the
forfeiture of street time can be imposed against Rivera.
8
he was recommitted on February 24, 2016. Rivera argues that he was able to post
bail, but was “prevented by the Board’s detainer [from] being able to do so.” Petition
for Review ¶A2.
Section 6138(a)(4) of the Parole Code provides that “[t]he period of
time for which a 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). When a parolee remains
incarcerated on new criminal charges because he is unable to satisfy bail
requirements, the period of time that the parolee is incarcerated on a Board detainer
and is awaiting sentencing on the new charges is applied to the new sentence. Gaito,
412 A.2d at 571; Armbruster v. Pennsylvania Board of Probation and Parole, 919
A.2d 348, 352 (Pa. Cmwlth. 2007). At the time the Board recorded its detainer
warrant on October 8, 2015, Rivera was incarcerated in the Berks County Prison on
the pending robbery charges. Rivera failed to make bail on these new charges.
Contrary to Rivera’s contention, he was not incarcerated solely on the Board’s
warrant. Rivera’s argument that he is entitled to credit for his incarceration from
August 14, 2015, to February 24, 2016, lacks merit.6
In sum, Counsel has fulfilled the technical requirements for
withdrawing his representation, and our independent review of the record before the
Board reveals that Rivera’s issues on appeal are without merit. Accordingly, we
grant Counsel’s application for leave to withdraw and affirm the Board’s decision.
_____________________________________
MARY HANNAH LEAVITT, President Judge
6
The record reveals that the sentencing court awarded Rivera a total of 161 days for time served
from the date of his January 21, 2016, sentencing.
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Carlos Manuel Rivera, :
Petitioner :
:
v. : No. 1371 C.D. 2017
:
Pennsylvania Board of :
Probation and Parole, :
Respondent :
ORDER
AND NOW, this 7th day of November, 2018, the order of the
Pennsylvania Board of Probation and Parole dated September 5, 2017, is
AFFIRMED, and the application for leave to withdraw as counsel filed by Harry J.
Cancelmi, Jr., Esquire, is GRANTED.
_____________________________________
MARY HANNAH LEAVITT, President Judge