A. Lizardi-Olan v. PA BPP ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Alexis Lizardi-Olan, :
Petitioner :
:
v. :
:
Pennsylvania Board :
of Probation and Parole, : No. 224 C.D. 2015
Respondent : Submitted: April 1, 2016
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: July 22, 2016
Alexis Lizardi-Olan (Lizardi-Olan) petitions this Court for review of the
Pennsylvania Board of Probation and Parole’s (Board) February 3, 2015 order
denying his petition for administrative review (Petition). Lizardi-Olan raises the
following issues: (1) whether the Board improperly extended Lizardi-Olan’s
judicially-imposed sentence;1 (2) whether the Board accounted for Lizardi-Olan’s
eligibility for the Recidivism Risk Reduction Incentive (RRRI) Program in
recalculating his backtime; and, (3) whether the Board erred by grading Lizardi-
Olan’s new conviction as a first-degree felony offense and calculating the
presumptive range based thereon. After review, we affirm.
Lizardi-Olan is an inmate currently confined at State Correctional
Institution at Houtzdale. On February 27, 2012, Lizardi-Olan was paroled from his
1
In his Statement of Questions, Lizardi-Olan also asked whether the Board has the statutory
authority to extend a judicially imposed sentence where a parolee did not abscond or become a
fugitive. Our resolution of the first issue also addresses this question.
4½ to 10-year sentence for the manufacture, sale, delivery or possession with intent to
deliver a controlled substance (Original Sentence). At that time, his maximum
sentence release date was August 27, 2017. He signed and acknowledged Conditions
Governing Parole/Reparole that advised: “If 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.”
Certified Record (C.R.) at 11-12.
On May 30, 2013, Lizardi-Olan was arrested in Berks County on new
criminal charges (New Charges) and detained in Berks County Prison in lieu of
monetary bail. On May 31, 2013, the Board lodged its detainer against him. On June
30, 2014, Lizardi-Olan pled guilty to a heroin delivery charge and was sentenced to a
2 to 8-year prison term (New Sentence), but received a 398 day credit on the New
Sentence for the time served. C.R. at 44. Lizardi-Olan was returned to a state
correctional institution on July 22, 2014.
On August 4, 2014, Lizardi-Olan signed a “Waiver of Revocation
Hearing and Counsel/Admission Form[,]” waiving the revocation hearing and
admitting his parole violation. C.R. at 52. On September 5, 2014, the Board revoked
Lizardi-Olan’s parole and, denied him credit for his time spent at liberty on parole.
The Board’s hearing report shows that the box marked “No” is checked in response to
the question: “Credit time spent at liberty on parole[.]” See C.R. at 56. By decision
mailed October 6, 2014, the Board recommitted Lizardi-Olan as a convicted parole
violator to serve 24 months of backtime on his Original Sentence. The Board
recalculated his Original Sentence maximum release date to March 5, 2020.
2
Lizardi-Olan appealed to the Board. On February 3, 2015, the Board
denied his administrative appeal and affirmed its October 6, 2014 decision. Lizardi-
Olan appealed to this Court.2
Lizardi-Olan first argues that the Board improperly extended his
judicially-imposed Original Sentence because it failed to exercise any discretion
when it denied him credit against his maximum sentence for time spent at liberty on
parole. We disagree.
Section 6138(a) of the Prisons and Parole Code (Parole Code) provides,
in pertinent part:
(1) A parolee under the jurisdiction of the [B]oard 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 [B]oard 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 [B]oard 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
2
“Our scope of review of the Board’s decision denying administrative relief is limited to
determining whether necessary findings of fact are supported by substantial evidence, an error of
law was committed, or constitutional rights have been violated.” Fisher v. Pa. Bd. of Prob. &
Parole, 62 A.3d 1073, 1075 n.1 (Pa. Cmwlth. 2013).
3
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 [S]ection 6143
[of the Parole Code] (relating to early parole of inmates
subject to Federal removal order).
....
(4) 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.
(5) If a new sentence is imposed on the parolee, the service
of the balance of the term originally imposed by a
Pennsylvania court shall precede the commencement of the
new term imposed in the following cases:
(i) If a person is paroled from a State correctional
institution and the new sentence imposed on the person
is to be served in the State correctional institution.
(ii) If a person is paroled from a county prison and the
new sentence imposed upon him is to be served in the
same county prison.
(iii) In all other cases, the service of the new term for
the latter crime shall precede commencement of the
balance of the term originally imposed.
61 Pa.C.S. § 6138(a) (emphasis added).
“[W]hen a parolee is recommitted due to criminal conviction, his
maximum sentence date may be extended to account for all street-time,[3] regardless
of good or delinquent standing.” Richards v. Pa. Bd. of Prob. & Parole, 20 A.3d
596, 599 (Pa. Cmwlth. 2011). The Pennsylvania Supreme Court has specifically held
that the Board’s authority to extend maximum term expiration dates under such
circumstances does not usurp the courts’ sentencing functions, or violate a parolee’s
3
“‘Street time’ is a term for the period of time a parolee spends at liberty on parole.”
Dorsey v. Pa. Bd. of Prob. & Parole, 854 A.2d 994, 996 n.3 (Pa. Cmwlth. 2004).
4
due process rights. See Gaito v. Pa. Bd. of Prob. & Parole, 412 A.2d 568 (Pa.
1980).4
Recently, in Pittman v. Pennsylvania Board of Probation and Parole,
131 A.3d 604 (Pa. Cmwlth. 2016), appeal granted, 90 MAL 2016 (Pa. May 23,
2016), this Court addressed and rejected the same argument asserted in this case by
Lizardi-Olan, i.e., that “the Board completely failed to exercise its discretion under
[S]ection 6138(a)(2.1) of the Parole Code by checking a box denying credit and that
this alleged failure to exercise discretion, in and of itself, constitute[d] an abuse of
discretion.” Id. at 609.
The Court explained:
[T]he Board’s exercise of discretion under [S]ection
6138(a) of the Parole Code is two-fold. First, the Board
must determine whether to recommit a parole violator.
Second, when recommitment is so ordered, the parolee shall
be reentered to serve the remainder of the term, but the
Board may, in its discretion, award the parolee credit. . . .
The hearing report provided the Board with the option to
award [the parolee] with credit for time spent on parole in a
‘yes’ or ‘no’ format and listed, by way of reference, the
4
Gaito was based upon Section 21.1 of what was commonly known as the Parole Act, Act
of August 6, 1941, P.L. 861, as amended, added by Section 5 of the Act of August 24, 1951, P.L.
1401, formerly 61 P.S. § 331.21a(a), repealed by the Act of August 11, 2009, P.L. 147. Section
21.1(a) of the Parole Act similarly stated:
Any parolee under the jurisdiction of the [Board] released from any
penal institution of the Commonwealth who, during the period of
parole or while delinquent on parole, commits any crime punishable
by imprisonment, for which . . . he pleads guilty . . . in a court of
record, may, at the discretion of the [B]oard, be recommitted as a
parole violator. If his recommitment is so ordered, he shall be
reentered to serve the remainder of the term which said parolee
would have been compelled to serve had he not been paroled, and
he shall be given no credit for the time at liberty on parole . . . .
(Emphasis added).
5
particular provision of the Judicial Code, [S]ection 9714(g),
42 Pa.C.S. § 9714(g), for which violation while on parole
would preclude the Board from exercising its discretion to
award credit. On its face, the hearing report provided the
Board with the choice to award credit under [S]ection
6138(a)(2.1) of the Parole Code or not. There are no further
instructions regarding credit on the hearing report.
Consequently, the completed hearing report, alone,
establishes that the Board exercised discretion pursuant
to [S]ection 6138(a)(2.1) [of the Parole Code] by
checking ‘no’ and denying [the parolee] credit for time
spent at liberty on parole. . . .
Our conclusion is reinforced by other provisions of the
Parole Code governing decisions made by the Board.
Notably, unlike the Board’s decisions to parole and reparole
under [S]ection 6137 of the Parole Code, our legislature has
not enumerated any criteria to be considered or general
standard to be applied by the Board when determining
whether to award credit.
....
By way of [the] guidelines [in Sections 6137(a)(1)(i)-(ii)
and (h)(1)-(2) of the Parole Code], the legislature
established specific parameters and means by which the
Board may exercise its discretion. See 61 Pa.C.S. §
6137(a)(1)(i)-(ii) (stating that the Board, after considering
guidelines, may parole when, in its opinion, ‘[t]he best
interests of the inmate justify or require that the inmate be
paroled’ and ‘[i]t does not appear that the interests of the
Commonwealth will be injured by the inmate’s parole.’); 61
Pa.C.S. § 6137(h)(1)(i)-(ii) (stating that the Board, after
considering recommitment ranges, may recommit or
reparole when, in its judgment, ‘[t]here is a reasonable
probability that the inmate will be benefited by paroling the
inmate again’ and ‘[i]t does not appear that the interests of
the Commonwealth will be injured by paroling the inmate
again.’).
In contrast to these provisions, [S]ection 6138(a)(2.1) [of
the Parole Code] only states that the Board ‘may, in its
discretion, award credit. . . .’ 61 Pa.C.S. § 6138(a)(2.1).
Based upon its plain language, there are no statutory
standards in [S]ection 6138(a)(2.1) of the Parole Code that
6
define or curtail how, when, or in what manner discretion
should or must be exercised. It is well-settled that this
Court cannot supply such guideposts as a matter of judicial
construction. Commonwealth v. Rieck Investment Corp., . .
. 213 A.2d 277, 282 ([Pa.] 1965) (‘[I]t is not for the courts
to add, by interpretation, to a statute, a requirement which
the legislature did not see fit to include.’). Ultimately, the
absence of statutory standards further supports the
conclusion that the Board’s checking of ‘no’ on the hearing
report demonstrates that the Board fully exercised the
discretion that the legislature afforded to it under [S]ection
6138 of the Parole Code. Therefore, [the parolee’s]
argument that the Board failed to exercise discretion is
refuted by the record and the statutory language and scheme
contained in [S]ection 6138 of the Parole Code.
Pittman, 131 A.3d at 609-11 (emphasis added; footnotes omitted). As in Pittman, the
Board in this case checked “no” on the Hearing Report denying credit for time spent
at liberty on parole. Accordingly, for the reasons set forth in Pittman, Lizardi-Olan’s
argument fails.
Next, Lizardi-Olan contends that he must receive credit for all of his pre-
sentence commitment time, and that the Board’s calculation fails to provide such
credit. Specifically, he argues:
[Lizardi-Olan] was made eligible [under his new sentence]
for the [RRRI Act5]. 61 Pa.[]C.S.[] §§ 4501[-4512].
5
“The [RRRI] Act enables an offender meeting certain conditions and requirements to
become eligible for early release, but does not obviate the initial imposition of the minimum
sentence.” Commonwealth v. Stotelmyer, 110 A.3d 146, 148 n.4 (Pa. 2015).
[T]he RRRI Act ‘seeks to create a program that ensures appropriate
punishment for persons who commit crimes, encourages inmate
participation in evidence-based programs that reduce the risks of
future crime and ensures the openness and accountability of the
criminal justice process while ensuring fairness to crime victims.’ 61
[Pa.C.S.] § 4502. As part of achieving that aim, the RRRI Act
requires the trial court to determine at the time of sentencing whether
the defendant is an ‘eligible offender.’ 61 [Pa.C.S.] § 4505(a). If the
court finds the defendant to be an eligible offender, or if the
prosecuting attorney waives the eligibility requirements under Section
7
[Lizardi-Olan]’s original maximum date was August 27,
2017. His recomputed maximum date with no credit for
time at liberty on parole was calculated by the [Board] to be
March 5, 2020. The Board therefore increased [Lizardi-
Olan]’s maximum date by 2 years 7 months 5 days. This is
16 months 8 days more than [Lizardi-Olan]’s time at liberty
on parole. The Board decision of [S]eptember 29, 2014,
which was mailed on October 6, 2014 does not explain this
calculation. Moreover, the [d]enial of [Lizardi-Olan]’s
Request for Administrative Relief mailed February 3, 2015,
doesn’t even indicate what the new maximum date is.
However, the record does indicate that [Lizardi-Olan] was
released on parole on February 27, 2012, and the Board
Summary indicates that he was arrested and the Board
detainer imposed on May 30, 2013. He was therefore at
liberty on parole for only 15 months 3 days. [Lizardi-Olan]
was sentenced to 24 months to 8 years on his [N]ew
[S]entence. Having been made eligible for RRRI, he would
be entitled to six months off his sentence and therefore only
have to serve 18 months on the [N]ew [S]entence before he
was eligible to apply for parole. Thus, the [Board’s]
calculation not only adds 16 months 8 days to the sentence
more than the time he spent at liberty on parole, it does not
take the RRRI calculation of 6 months off of his 24 months
sentence into account which would require him to only
serve 18 months on the new sentence. Thus, the [Board]
erred in extending the maximum date to March 5, 2020, and
the matter should be remanded for a new calculation.
4505(b) [of the RRRI Act], the trial court must calculate minimum
and maximum sentences, and then impose the RRRI minimum
sentence, which ‘shall be equal to three-fourths of the minimum
sentence imposed when the minimum sentence is three years or less,’
or ‘shall be equal to five-sixths of the minimum sentence if the
minimum sentence is greater than three years.’ [61 Pa.C.S.] §
4505(c). Furthermore, if an eligible offender ‘successfully completes
the program plan, maintains a good conduct record and continues to
remain an eligible offender,’ he or she may ‘be paroled on the RRRI
minimum sentence date unless the Board determines that parole
would present an unreasonable risk to public safety or that other
specified conditions have not been satisfied.’ 37 Pa. Code § 96.1(b).
Commonwealth v. Chester, 101 A.3d 56, 57 (Pa. 2014).
8
Lizardi-Olan’s Br. at 24 (citations omitted). We disagree.
The Board explained in its brief that:
The March 5, 2020 max date calculation reflects that
Lizardi-Olan had 2008 days remaining on his max date at
the time of parole. This period reflects the total amount of
time that Lizardi-Olan had remaining on his sentence from
the February 27, 2012 parole date to the original August 27,
2017 max date. The Board did not grant Lizardi-Olan
credit for time at liberty on parole so he still had 2008 days
remaining.
The Board did not give Lizardi-Olan any credit on his
[O]riginal [S]entence for the period he was incarcerated
from May 30, 2013 to June 30, 2014. This left Lizardi-Olan
with 2008 days to serve on his sentence. The Board found
that Lizardi-Olan again became available to serve his
[O]riginal [S]entence on September 5, 2014, and added the
2008 days he had remaining to this date to arrive at the new
March 5, 2020 max date.
Board’s Br. at 4 (citations omitted).
Lizardi-Olan was arrested and a Board detainer was imposed on May 30,
2013. However, Lizardi-Olan failed to post bail on the New Charges.
It is well-established that:
[I]f a defendant is being held in custody solely because of a
detainer lodged by the Board and has otherwise met the
requirements for bail on the new criminal charges, the time
which he spent in custody shall be credited against his
original sentence. If a defendant, however, remains
incarcerated prior to trial because he has failed to
satisfy bail requirements on the new criminal charges,
then the time spent in custody shall be credited to his
new sentence.
Gaito, 412 A.2d at 571 (bold emphasis added). Further, this Court recently stated:
Section 6138(a)(4) of the [Parole] Code provides: ‘The
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
9
institution as a parole violator.’ 61 Pa.C.S. § 6138(a)(4). . .
. ‘[O]nce a parolee is sentenced on a new criminal
offense, the period of time between arrest and
sentencing, when bail is not satisfied, must be applied to
the new sentence, and not to the original sentence.’
Armbruster v. Pa. Bd. of Prob. & Parole, 919 A.2d 348,
352 (Pa. Cmwlth. 2007).
Palmer v. Pa. Bd. of Prob. & Parole, 134 A.3d 160, 166 (Pa. Cmwlth. 2016)
(emphasis added). Thus, the Board properly credited the period between May 30,
2013 (when Lizardi-Olan was arrested on the New Charges) and June 30, 2014 (the
date on which the trial court accepted Lizardi-Olan’s guilty plea) to Lizardi-Olan’s
New Sentence, rather than his Original Sentence.6
“[T]he general rule applied in calculations of minimum and maximum
release dates is that the Board must credit time a parolee spent in custody between the
date of conviction for the new charge and the date the Board recommits him as a
direct violator . . . to the new sentence.” Plummer v. Pa. Bd. of Prob. & Parole, 926
A.2d 561, 563 (Pa. Cmwlth. 2007). Further, “a parole violator’s new maximum date
is calculated from the date on which the Board obtained the second signature needed
to recommit him as a [convicted parole violator].” Palmer, 134 A.3d at 166.
Accordingly, the Board correctly declined to credit Lizardi-Olan with the period
between June 30, 2014 (when Lizardi-Olan pled guilty) and September 5, 2014 (the
date on which the Board recommitted Lizardi-Olan), and properly recalculated
Lizardi-Olan’s Original Sentence maximum release date from September 5, 2014, the
date the Board obtained the second signature required to recommit Lizardi-Olan.
Lizardi-Olan’s assertion that his eligibility for the RRRI Program is
relevant to the Board’s backtime determination is likewise without merit. Lizardi-
Olan’s eligibility for early release from his New Sentence under the RRRI Program
6
The trial court’s sentencing order for the New Charges expressly stated that Lizardi-Olan
“is to receive credit of 396 days time served.” C.R. at 44.
10
has no impact on the Board’s recalculation of the maximum sentence release date for
his Original Sentence. See 61 Pa.C.S. §§ 4505(c), 6138.
Lastly, Lizardi-Olan contends that the Board erred by grading his New
Conviction as a first-degree felony offense and calculating the presumptive range
based thereon, which resulted in an excessive recommitment term. However,
Lizardi-Olan failed to raise this issue to the Board. The law is well-established that
“issues not raised by a [convicted parole violator] before the Board in an
administrative appeal are waived for purposes of appellate review by this [C]ourt.”
McCaskill v. Pa. Bd. of Prob. & Parole, 631 A.2d 1092, 1094-95 (Pa. Cmwlth.
1993); see also White v. Pa. Bd. of Prob. & Parole, 833 A.2d 819 (Pa. Cmwlth.
2003). Because Lizardi-Olan failed to raise this issue before the Board, it is waived
and this Court is precluded from addressing it.
For all of the above reasons, the Board’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Alexis Lizardi-Olan, :
Petitioner :
:
v. :
:
Pennsylvania Board :
of Probation and Parole, : No. 224 C.D. 2015
Respondent :
ORDER
AND NOW, this 22nd day of July, 2016, the Pennsylvania Board of
Probation and Parole’s February 3, 2015 order is affirmed.
___________________________
ANNE E. COVEY, Judge