T.S. Green v. PBPP ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Todd S. Green, :
Petitioner :
:
v. : No. 550 C.D. 2018
: Submitted: December 21, 2018
Pennsylvania Board :
of Probation and Parole, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: April 5, 2019
Todd S. Green (Green) petitions for review of the Order of the Pennsylvania
Board of Probation and Parole (Board) mailed on March 23, 2018. In that Order,
the Board denied Green’s administrative appeals from the Board’s decision, mailed
July 7, 2017, (Decision) recommitting Green as a convicted parole violator (CPV)
to serve 12 months of backtime and recalculating his maximum date from August
24, 2016, to August 13, 2019. On appeal, Green argues the presumptive range of 9
to 15 months for simple assault, set forth in Section 75.2 of the Board’s
regulations, 37 Pa. Code § 75.2, and relied upon by the Board to impose 12 months
of backtime, is unconstitutional. He also asserts the Board’s Decision was not
proper or constitutional because the Board did not give him credit for time he
alleges he spent in custody solely on the Board’s detainer, did not explain why it
denied him credit for the time he spent at liberty on parole (street time), and
impermissibly extended his original, judicially imposed 10-year sentence. Upon
review, we affirm.
I. Background
The Board paroled Green from a 5- to 10-year sentence for burglary via a
decision dated April 7, 2014, and he was released on May 8, 2014. (Reproduced
Record (R.R.) at 10, 12.) At the time of his parole, Green’s maximum date was
August 24, 2016. (Id.) On August 11, 2015, Green was arrested on a variety of
new charges, including simple assault (second degree misdemeanor), and was held
at the Montgomery County Prison (County Jail). (Id. at 19, 23, 26-27, 39.) The
Board issued a Warrant to Commit and Detain Green based on these new criminal
charges on the same day. (Id. at 33.) Green waived his detention hearing and his
right to counsel, and the Board ordered that Green be detained pending disposition
of the new charges. (Id. at 36, 42.) On August 25, 2016, the day after Green’s
original maximum date expired, the Board declared Green delinquent for control
purposes1 effective August 3, 2015. (Id. at 45.) Green posted bail, reset from
$50,000 to $1, on the new charges on November 23, 2016.2 (Id. at 52.)
1
The Board’s action in declaring a parolee delinquent for control purposes is an
administrative action that does not reflect that there has been a final disposition of the parolee’s
case. Miskovitch v. Pa. Bd. of Prob. & Parole, 77 A.3d 66, 73-74 (Pa. Cmwlth. 2013) (citation
omitted). Rather, it “earmark[s a] case for close review upon disposition of [any] outstanding . . .
charge[s].” Passaro v. Pa. Bd. of Prob. & Parole, 499 A.2d 725, 726 (Pa. Cmwlth. 1985).
2
Green asserts that, at this time, he was confined in County Jail solely on the Board’s
detainer, notwithstanding the expiration of his original maximum sentence. (Green’s Brief (Br.)
at 5.)
2
On March 8, 2017, Green pled guilty to simple assault, a second degree
misdemeanor,3 he was sentenced to 11 ½ to 23 months in County Jail and the
payment of costs, and the remaining charges were nolle prossed.4 (Id. at 53-54, 69-
70.) The Court of Common Pleas of Montgomery County (trial court) granted
Green credit for the period between August 11, 2015, (the date of his arrest), and
July 24, 2016, (the date his new minimum sentence was reached). Green was
transported to State Correctional Institution at Graterford (SCI-Graterford) on
April 26, 2017.5 (Id. at 73, 83.)
Green waived his right to counsel and a revocation hearing on April 26,
2017, admitting that his new conviction violated his parole. (Id. at 77-78.) The
Hearing Report reflects the denial of credit for Green’s street time with the
notations that the “new conviction is assaultive” and “H[earing] E[xaminer]
rec[ommends] no credit for street time.” (Id. at 87, 92.) Thereafter, the Board
mailed Green the Decision recommitting him to serve 12 months’ backtime as a
CPV for the offense of simple assault and setting his new maximum date as August
3
Green was charged with and pleaded guilty to simple assault in violation of Section
2701(a)(1) of the Crimes Code, 18 Pa. C.S. § 2701(a), which provides that “a person is guilty of
assault if [the person]: (1) attempts to cause or intentionally, knowingly or recklessly causes
bodily injury to another.” (R.R. at 54.)
4
Although Green asserts in his brief that his new sentence was to run concurrent to his
other sentences, the sentencing sheet and criminal docket do not reflect this. (Id. at 54, 69-70.)
5
Notations in a Supervision History for Green reflect that Green did not notify the Board
of his sentencing on March 8, 2017, and the Board declared him delinquent effective April 21,
2017, after attempts were made to locate him. (Id. at 83.) On April 26, 2017, the Board issued a
new Warrant to Commit and Detain, with the notation that although Green’s original maximum
date had been August 24, 2016, that sentence was being extended due to his new conviction
following the required proceedings. (Id. at 71-72.) Green was taken into custody at the
Montgomery County Adult Probation Office on April 26, 2017. (Id. at 83.) Green indicates in
his brief that it was clear that he had always been confined at County Jail from his arrest date in
August 2015 until he was transported to SCI-Graterford on April 26, 2017. (Green’s Br. at 6.)
3
13, 2019, which reflected that Green had not been granted any credit against his
original sentence. (Id. at 93-94.) The Board’s Order to Recommit reflected that
Green had 839 days remaining on his original sentence when he was paroled, he
was granted no credit to offset any of those days, and adding those days to his
return to custody date (April 26, 2017) resulted in a new maximum date of August
13, 2019. (Id. at 95.)
Green filed an Administrative Remedies Form dated July 17, 2017,
requesting the Board to “reconsider[] and reduc[e] the 12 months that [he] ha[d]
been ordered to serve” given his positive parole history, his maintenance of
employment while on parole, his taking responsibility for his poor decision, which
led to his simple assault conviction, and health issues with his family. (Id. at 98-
99.) He submitted additional correspondence to the Board, dated July 24, 2017,
claiming the Board lacked jurisdiction to change his judicially imposed maximum
date and he was being unlawfully punished due to an illegal contract into which he
and the Board entered. (Id. at 103-07.)
The Board responded, in the March 23, 2018 Order, to the July 17, 2017
Administrative Remedies Form and the July 24, 2017 correspondence, which it
interpreted as arguing the Board “did not have the authority to recalculate [his]
max[imum] date” and “imposed an excessive recommitment term.” (Id. at 108.)
On the first issue, the Board held that, under Section 6138(a)(2) of the Prisons and
Parole Code (Code), 61 Pa. C.S. § 6138(a)(2),6 it had the statutory authority to
recommit him as a CPV without giving him any credit for his street time. (Id.)
6
Section 6138(a)(2) of the Code provides that if a CPV is recommitted, “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.” 61 Pa. C.S. § 6138(a)(2).
4
The Board noted it had advised Green of this potential penalty in his parole
conditions, Green’s ability to challenge the recalculation after it was imposed
satisfied due process, and the recalculation did not violate any other constitutional
provisions, including those relating to double jeopardy. (Id.) On the second issue,
the Board held that the recommitment term was not excessive because it fell within
the presumptive range set forth in Section 75.2 of its regulations for the crime to
which he pled guilty and, therefore, its decision was not subject to review on
appeal. Smith v. Pa. Bd. of Prob. & Parole, 574 A.2d 558, 560 (Pa. 1990). Green
now petitions this Court for review.7
II. Discussion
A. Did the Board rely on an unconstitutional presumptive range for
simple assault to calculate Green’s backtime?
Green first argues the 9- to 15-month presumptive range for simple assault,
upon which the Board relied to set his backtime at 12 months, is unconstitutional.
He asserts that simple assault is typically graded a second-degree misdemeanor,
but can be graded a first-degree misdemeanor,8 which he believes could lead to the
application of a different presumptive range. Green observes that, under the
Board’s regulation, other second-degree misdemeanors carry shorter presumptive
7
In reviewing the Board’s order, our review “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.” Andrews v. Pa.
Bd. of Prob. & Parole, 516 A.2d 838, 841 n.10 (Pa. Cmwlth. 1986).
8
Per section 2701(b) of the Crimes Code, simple assault is generally a second-degree
misdemeanor, unless the crime was committed “in a fight or scuffle entered into by mutual
consent” or “against a child under 12 years of age by a person 18 years of age or older.” 18 Pa.
C.S. § 2701(b). In those cases, the grading is, respectively, a third-degree misdemeanor and a
first-degree misdemeanor. Id.
5
ranges, for example three to six months.9 In light of these issues, he argues the
presumptive range for simple assault is void for vagueness and violates due
process because it fails to provide notice that depending on how the crime is
graded results in a different presumptive range. Green further maintains that in
treating simple assault differently than other second-degree misdemeanors, the
regulation violates principles of equal protection of the law. Thus, in applying the
unconstitutional presumptive range, the Board violated Green’s constitutional
rights.
The Board responds that Green’s arguments that the applicable presumptive
range for simple assault is unconstitutional are waived because they were not
raised in his July 17, 2017 Administrative Remedies Form or July 24, 2017
correspondence. The Board asserts that, in the former, Green asked for leniency
from the 12 months of backtime but did not claim that the 12 months was outside
the presumptive range or that the presumptive range was unconstitutional. In the
latter, the Board points out that Green asserted the Board did not have the authority
to alter the judicially imposed maximum sentence and there was an illegal contract
for which he was being unlawfully punished, neither of which challenges the
constitutionality of the backtime the Board imposed. It further argues that, if not
waived for failure to preserve the issue before the Board, Green has waived his
constitutional claims because the arguments in his brief are conclusory and not
9
The other second-degree misdemeanors addressed by the regulation, and their
respective presumptive ranges, are criminal mischief, theft, theft by deception, receiving stolen
property, theft of services, and retail theft, all of which have a presumptive range of 3 to 6
months, and bad checks, which has a presumptive range of 6 to 12 months. 37 Pa. Code § 75.2.
Section 75.2 also refers to the offense of “credit,” which, when graded a second-degree
misdemeanor, has a presumptive range of three to six months. It is unclear what section of the
Crimes Code defines this offense.
6
adequately developed with citation to supporting legal authority. Newlin Corp. v.
Dep’t of Envtl. Res., 579 A.2d 996, 1000 (Pa. Cmwlth. 1990) (stating issues not
properly raised and developed in a party’s brief will not be considered by the
Court). On the imposition of the 12 months of backtime, the Board argues this
period falls within the presumptive range for simple assault and, therefore, its
discretion should not be disturbed by the Court. Smith, 574 A.2d at 560. The
Board also argues that, to the extent Green attempts to apply “sentencing
principles” to the imposition of backtime, those attempts are misplaced. (Board’s
Brief (Br.) at 8 (citing Krantz v. Pa. Bd. of Prob. & Parole, 483 A.2d 1044, 1047-
48 (Pa. Cmwlth. 1984) (distinguishing between “backtime” and a “sentence”)).)
Section 75.2 of the Board’s regulations establishes the presumptive range for
simple assault, regardless of its grading, as 9 to 15 months. 37 Pa. Code § 75.2.
Where the Board imposes backtime that falls within the presumptive range, this
“Court will not entertain challenges to the propriety of the term of recommitment.”
Smith, 574 A.2d at 560. Moreover, backtime is not a sentence for a new
conviction, but is the part of the existing sentence that the Board directs a parolee
to serve after the parolee is found, in a civil proceeding, to have violated parole,
and the parolee must serve that backtime before becoming eligible for reparole.
Krantz, 483 A.2d at 1047-48. Thus, absent Green’s constitutional challenge to the
presumptive range itself, the Board’s Order would be upheld because the 12
months of backtime imposed in the July 7, 2017 Decision fell within the
presumptive range for Green’s offense. However, after reviewing Green’s July 17,
2017 Administrative Remedies Form and July 24, 2017 correspondence to the
Board, as well as his brief, we must conclude those constitutional arguments are
waived.
7
Section 703(a) of the Administrative Agency Law provides that a “party
may not raise upon appeal any . . . question not raised before the agency.” 2 Pa.
C.S. § 703(a). This provision is echoed in Rule 1551(a) of the Pennsylvania Rules
of Appellate Procedure, which states that
No question shall be heard or considered by the court which was not
raised before the government unit except:
(1) Questions involving the validity of a statute.
(2) Questions involving the jurisdiction of the government unit
over the subject matter of the adjudication.
(3) Questions which the court is satisfied that the petitioner could
not by the exercise of due diligence have raised before the
government unit . . . .
Pa.R.A.P. 1551(a). If a question has not been raised before the government unit
and does not fall into one of the three exceptions, that question is waived. Price v.
Pa. Bd. of Prob. & Parole, 117 A.3d 362, 364-65 (Pa. Cmwlth. 2015).
A review of the July 17, 2017 Administrative Remedies Form and the July
24, 2017 correspondence reveals that neither challenge, as unconstitutional, the
backtime the Board imposed for Green’s conviction for simple assault. In the
former, Green sought review of his “Reparole Eligibility Date,” but only requested
that the Board reconsider the length of the backtime imposed because of his
positive parole history, his history of employment while on parole, his taking
responsibility for his actions, and the poor health of several members of his family.
(R.R. at 98-99.) The latter contains no reference to his reparole eligibility or the
backtime the Board imposed. (Id. at 103-07.) Accordingly, Green’s arguments to
the Board did not relate to the constitutionality of the backtime imposed and were
not preserved therein.
8
Moreover, the exceptions to Rule 1551(a) do not apply here to allow the
Court to consider these issues. Green is not challenging the constitutionality of the
Code, but challenges the constitutionality of the presumptive range for simple
assault in Section 75.2. “[A]n agency is competent to pass upon the validity of its
own rules and regulations.” Manor v. Dep’t of Pub. Welfare, 796 A.2d 1020, 1025
(Pa. Cmwlth. 2002). And, “the Board clearly has jurisdiction in parole matters to
determine whether a parolee’s new criminal conviction warrants recommitment
and a recalculation of a maximum sentence date.” Price, 117 A.3d at 365. Finally,
Green does not assert that he failed to raise the constitutional issues based upon the
failure to discover the existence of those issues, despite his exercise of due
diligence. Therefore, Green has not preserved these issues for consideration on
appeal. Id.
Even if Green’s administrative appeals could be broadly read to include such
challenges or an exception to waiver under Rule 1551(a) did apply, an issue can
also be waived if it is not properly developed in an appellate brief. Balshy v. Pa.
State Police, 988 A.2d 813, 834 n.9 (Pa. Cmwlth. 2010); Rapid Pallet v.
Unemployment Comp. Bd. of Review, 707 A.2d 636, 638 (Pa. Cmwlth. 1998).
“[G]eneral statements, unsupported by citation to applicable authority” do not
adequately develop an argument. Rapid Pallet, 707 A.2d at 638 (quoting Estate of
Lakatosh, 656 A.2d 1378, 1381 (Pa. Super. 1995)). Here, Green’s constitutional
argument is as follows:
In light of the same, the presumptive range for simple assault is void
for vagueness; fails to provide anyone with notice of their [sic]
possible sentence depending upon how the crime is graded and,
therefore violates due process; and, in having a range different from
all other [second-degree] misdemeanors, denies someone convicted of
[second-degree] simple assault with equal protection of the laws and
should be held unconstitutional under both the United States
9
Constitution and the Constitution of the Commonwealth of
Pennsylvania.
(Green’s Br. at 13.) The brief provides no citation to legal authority in support of
the constitutional arguments and does not set forth or apply the relevant legal tests
for determining whether a regulation is void for vagueness, violates due process, or
violates equal protection. Rather, the brief asserts “general statements” regarding
the unconstitutionality of Section 75.2 when applied to second-degree
misdemeanor simple assault, which does not adequately develop the argument.
Rapid Pallett, 707 A.2d at 638. “[I]t is not our role to become the appellant’s
counsel” and “[w]hen a brief is inadequate to present specific issues for review, the
[C]ourt will not consider the merits” of an issue. Grosskopf v. Workmen’s Comp.
Appeal Bd. (Kuhns Mkt.), 657 A.2d 124, 125 (Pa. Cmwlth. 1995). Given the lack
of development of these arguments, we will not consider their merits.10 Id.
B. Did the Board err in recalculating Green’s maximum date?
Green next argues the Board must follow the law in determining whether to
and for how long to recommit a parolee as a CPV and it did not do so here because
it did not address whether Green was entitled to any credit towards the 839 days
remaining on his original sentence. Citing Martin v. Pennsylvania Board of
Probation and Parole, 840 A.2d 299 (Pa. 2003), Green argues the Board must be
equitable in granting sentence credit where a parolee was held on the Board’s
10
We note, however, that the second-degree misdemeanors that have shorter presumptive
ranges are offenses against property, unlike simple assault, which relates to causing or
attempting to cause bodily injury. Compare Section 2701 of the Crimes Code, 18 Pa. C.S.
§ 2701 (simple assault) to Sections 3304, 3922, 3925, 3926, 3928, 3929, and 4105, 18 Pa. C.S.
§§ 3304 (criminal mischief), 3922 (theft by deception), 3925 (receiving stolen property), 3926
(theft of services), 3928 (unauthorized use of automobiles and other vehicles), 3929 (retail theft),
and 4105 (bad checks).
10
detainer and there is no other sentence of incarceration to which the credit can be
applied. Because common pleas credited Green for his presentence confinement
only to July 24, 2016, he argues the Board should have credited him for the
remainder of the time he spent in County Jail beyond that date, particularly after
November 28, 2016, which was when he posted bail on his new charges and he
alleges he was detained solely on the Board’s detainer. Green also argues the
Board did not explain why it denied him credit for his 456 days of violation-free
street time as permitted by Section 6138(a)(2.1) of the Code, 61 Pa. C.S.
§ 6138(a)(2.1),11 which is contrary to Pittman v. Pennsylvania Board of Probation
and Parole, 159 A.3d 466, 468, 473 (Pa. 2017).
The Board argues Green waived any challenge to the Board’s recalculation
of his maximum date, including under Martin and Pittman, because he did not
11
Section 6138(a)(2.1) provides:
(a) Convicted violators.—
....
(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)(2.1). Subsection 2.1 was added to the Code by Section 15 of the Act of
July 5, 2012, P.L. 1050. Neither exception to the Board’s discretion to award credit applies to
Green.
11
specifically challenge the recalculation of that date beyond asserting the Board
lacked the authority to extend the maximum date past the original August 24, 2016
date set by the sentencing court. On the merits, the Board contends it properly
recalculated Green’s maximum date because, once Green was recommitted as a
CPV, it had the statutory authority to require him to serve the remainder of his
original term with no credit for his street time. 61 Pa. C.S. § 6138(a)(2); Hughes v.
Pa. Bd. of Prob. & Parole, 179 A.3d 117, 121 (Pa. Cmwlth. 2018); Armbruster v.
Pa. Bd. of Prob. & Parole, 919 A.2d 348, 351 (Pa. Cmwlth. 2007). Pittman and
Martin do not require reversal, the Board argues, because, respectively, the Board
provided a contemporaneous explanation for denying Green street time credit, as
required by Pittman, in its Hearing Report, (R.R. at 92), and Green’s presentence
confinement did not exceed his maximum sentence for the new conviction and,
therefore, the presentence time that the trial court did not credit towards Green’s
new sentence may not be credited to his original sentence. Armbruster, 919 A.2d
at 355 (distinguishing Martin based on a lack of “excess” presentence
confinement). The Board contends any correction to that credit determination has
to be done by the trial court, not the Board. Id. Finally, the Board presents
multiple reasons why its use of April 26, 2017, the day he was taken into the
Board’s custody and transferred to SCI-Graterford, as Green’s return to custody
date was correct.12
12
The Board first asserts that when Green posted bail on the new charges in November
2016, it was after the expiration of his original maximum date, at a point when he was no longer
detained by the Board. (Board action declaring Green delinquent on August 25, 2016, R.R. at
45; criminal docket reflecting the posting of bail on November 23, 2016, R.R. at 52.) Second, it
argues that, because Green was sentenced to county incarceration, he had to serve that sentence
before resuming his original sentence, 61 Pa. C.S. § 6138(a)(5)(iii) (setting forth the order in
which sentences must be served), and it maintains that it appears that, following his guilty plea
(Footnote continued on next page…)
12
With limited exceptions not applicable here, an issue is waived for review by
an appellate court if the issue is not presented to the government agency in the first
instance. 2 Pa. C.S. § 703(a); Pa.R.A.P. 1551(a); Price, 117 A.3d at 365. In his
July 17, 2017 Administrative Remedies Form, Green did not assert a “Sentence
Credit Challenge,” but challenged his “Reparole Eligibility Date.” (R.R. at 99.)
His written argument in support of that challenge made no reference to the
recalculation of his maximum date. (Id. at 98.) In his July 24, 2017
correspondence, Green did argue the Board erred in changing his original
maximum date, but based on the contention that the Board lacked the legal
authority to extend the judicially imposed maximum date. He also mentioned that
his “sentence credit” and “order of service of sentence” referenced in “the ‘Notice
of Board Decision’” should be recalculated so that his “current maximum date
properly reflects the same maximum term/maximum date which was Ordered by
the [trial c]ourt.” (Id. at 105.) Such arguments, however, do not challenge “the
Board’s specific calculations relative to the various time periods at issue,” and,
therefore, did not preserve a challenge to the manner in which the Board
recalculated his maximum sentence, including its credit determination, after his
recommitment as a CPV.13 Price, 117 A.3d at 365.
_____________________________
(continued…)
and sentencing on March 8, 2017, Green was immediately paroled but did not report to the
Board’s staff. Finally, the Board notes that Green was declared delinquent on April 21, 2017,
“after attempts were made to locate [him]” and Green was subsequently taken into Board
custody on April 26, 2017, at the Montgomery County Adult Probation Office pursuant to a new
Warrant and Detainer. (R.R. at 71, 83.)
13
Notwithstanding our dispositional conclusion that Green waived his challenges to the
recalculation of his maximum sentence, we note that while Pittman requires the Board to
“provide a contemporaneous statement explaining its reason for denying a CPV credit for street
time,” 159 A.3d at 475, the record contains a statement reflecting that Green’s new conviction
was “assaultive” and the “H[earing] E[xaminer] rec[commends] no credit for street time.” (R.R.
(Footnote continued on next page…)
13
C. Did the Board extend Green’s judicially imposed maximum sentence?
Green acknowledges that the Board can, by adding the uncredited days
remaining on an original sentence, go beyond the original maximum date of the
sentence, but asserts the Board unconstitutionally extended his original maximum
sentence of 10 years in its Decision. Green argues that, when the Board
recommitted him
for 12 months for the simple assault, which would be double jeopardy,
unconstitutional and beyond the Board’s jurisdiction, plus 12 months
back[]time for the parole violation, this totals 730 days, the time the
Board gave [Green], in addition to the mandatory custodial time
credits he was not given, exceeded the remainder of his original
sentence and violates the Constitution of the United States and
Constitution of the Commonwealth of Pennsylvania [by] extending
the court’s [10] year sentence.
(Green’s Br. at 22.) From this argument, it appears that Green believes the Board’s
Decision imposed a 12-month “sentence” for simple assault, a second 12-month
period of confinement as backtime, and, by not granting Green any credit, the
remaining 839 days of his original sentence. This misconstrues the Board’s
Decision.
_____________________________
(continued…)
at 92.) Further, under Martin and Armbruster, in order for presentence confinement credit to be
applied to a parolee’s original sentence, the period of presentence confinement must exceed the
parolee’s new maximum sentence. Armbruster, 919 A.2d at 355-56. Green’s maximum
sentence here was 23 months, which would have been until July 11, 2017, several months after
Green was returned to SCI-Graterford on April 26, 2017. Finally, while Green posted nominal
bail on November 23, 2016, his original maximum sentence had expired by that time, which
implicated the Board’s legal custody of him, see 37 Pa. Code § 63.2 (stating that a “parolee shall
remain in the legal custody of the Board until the expiration of his maximum sentence, or until
he is legally discharged”), as reflected by the Board’s declaring him delinquent on August 25,
2016, and its issuing a new Warrant to Commit and Detain on April 26, 2017, pursuant to which
the Board took Green into its custody and transported him to SCI-Graterford. (R.R. at 45, 72-
73.)
14
In that Decision, due to Green’s new conviction, the Board recommitted
Green to serve 12 months of backtime before he again became eligible for
reparole, which is reflected by the notation that he was eligible for reparole on
“04/26/2018,” 12 months after his return to SCI-Graterford on April 26, 2017.
(R.R. at 93.) The Board did not impose a 12-month “sentence” for the simple
assault conviction, as is implied by Green’s arguments. Krantz, 483 A.2d at 1047
(stating “the Board’s imposition of backtime is not a sentence on the parole
violation nor analogous to a sentence”). Rather, that 12-month period of backtime
was imposed based on his admitted violation of his existing parole by committing
the criminal offense of simple assault. (Waiver of Revocation Hearing and
Counsel/Admission Form, R.R. at 77 (reflecting that Green “knowingly,
intelligently, and voluntarily admit[ted] that” he pled guilty to “simple assault
(M2) . . . [i]n violation of parole”).) These 12 months were not added to Green’s
original sentence, but were 365 days of the 839 days remaining on that sentence
that he had to serve before he could apply to be reparoled. Krantz, 483 A.2d at
1047-48. Moreover, to the extent this argument attempts to challenge the Board’s
credit decision, Green waived his challenges to the recalculation of his maximum
date, including his credited-related challenges, as discussed above. Thus, there is
no merit in his position that the Board impermissibly extended his original
sentence.14
14
Moreover, we have held that the Board is authorized by Section 6138(a)(2) of Code to
reenter parolees into an SCI to serve the remainder of the term they would have been required to
serve had they not been paroled. 61 Pa. C.S. § 6138(a)(2). “[W]hen a parolee is recommitted
due to criminal conviction, [the parolee’s] maximum sentence date may be extended to account
for all street[]time, regardless of good or delinquent standing.” Richards v. Pa. Bd. of Prob. &
Parole, 20 A.3d 596, 599 (Pa. Cmwlth. 2011). The Board does not “usurp[] the judicial function
of sentencing” when it makes the parolee “serve the unexpired balance of [the] original
(Footnote continued on next page…)
15
III. Conclusion
For the foregoing reasons, the Board’s Order upholding its Decision
recommitting Green as a CPV to serve 12 months of backtime and recalculating
Green’s maximum date from August 24, 2016, to August 13, 2019, is affirmed.
_____________________________________
RENÉE COHN JUBELIRER, Judge
_____________________________
(continued…)
maximum sentence.” Gaito v. Pa. Bd. of Prob. & Parole, 412 A.2d 568, 570 (Pa. 1980). In such
circumstances, the Board is not altering the maximum length of a parolee’s sentence, only the
maximum date of the sentence.
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Todd S. Green, :
Petitioner :
:
v. : No. 550 C.D. 2018
:
Pennsylvania Board :
of Probation and Parole, :
Respondent :
ORDER
NOW, April 5, 2019, the Order of the Pennsylvania Board of Probation and
Parole, entered in the above-captioned matter, is AFFIRMED.
_____________________________________
RENÉE COHN JUBELIRER, Judge