K.F. Rodriguez v. PPB ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kevin Felix Rodriguez, :
Petitioner :
:
v. : No. 298 C.D. 2021
: SUBMITTED: August 6, 2021
Pennsylvania Parole Board, :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: November 16, 2021
Petitioner, Kevin Felix Rodriguez, petitions for review of an order of the
Pennsylvania Parole Board (Board) that denied his administrative appeal of the
Board’s decision recommitting him to a state correctional institution as a convicted
parole violator and declined to award him credit for the time he spent at liberty on
parole. After review, we affirm the Board’s order.
In December 2017, the Court of Common Pleas of Montgomery County
sentenced Petitioner to one year, three months to two years, six months for criminal
conspiracy and drug manufacture, sale, delivery or possession with intent to deliver,
with a maximum sentence date of December 18, 2019. (Certified Record “C.R.” at
1-2.) In March 2019, the Board released Petitioner to an approved home plan in
Reading, Pennsylvania. (Id. at 7-8.) On October 15, 2019, the Board lodged a
detainer against Petitioner for going to a shooting range and renting a firearm while
on GPS monitoring, and he was taken into custody the same day. (Id. at 11-12, 14,
19.) The next day, the Central Berks Police Department arrested and charged
Petitioner with persons not to possess, use, or transfer firearms, which the Court of
Common Pleas of Berks County subsequently docketed at CP-06-CR-0004725-2019
(2019 Case). (Id. at 55-61.) Bail was set at $15,000, which Petitioner did not post.
(Id. at 56.)
By Board action recorded on November 25, 2019, the Board declared
Petitioner delinquent effective October 15, 2019. (C.R. at 25.) The Board thereafter
detained Petitioner pending disposition of his new criminal charges. (Id. at 23.) On
December 18, 2019, the Board cancelled enforcement of its warrant to commit and
detain Petitioner upon the expiration of his maximum date. (Id. at 24.)
On December 9, 2019, the Reading Police Department arrested Petitioner for
conduct that occurred on August 28, 2019. (C.R. at 29-30, 66.) He was charged
with two counts of manufacture, delivery, or possession with intent to manufacture
or deliver a controlled substance and one count of intentional possession of a
controlled substance by a person not registered. (Id. at 66.) The Court of Common
Pleas of Berks County docketed these charges at CP-06-CR-0000291-2020 (2020
Case). (Id. at 65-72.) Bail was set at $10,000, which Petitioner did not post. (Id. at
66.)
On April 30, 2020, Petitioner pleaded guilty to possession of a firearm
prohibited in the 2019 Case, and was sentenced to three to six years’ imprisonment
in a state correctional institution. (C.R. at 34, 56.) On the same day, Petitioner
pleaded guilty to manufacture, delivery, or possession with intent to manufacture or
deliver, and was sentenced to one to five years’ imprisonment in a state correctional
institution. (Id. at 33, 67.) The remaining charges were dismissed. (Id. at 67.) On
May 20, 2020, the Board relodged its warrant and indicated that although
2
Petitioner’s original maximum sentence date of December 18, 2019, had passed, the
date was being extended due to his new criminal conviction, and that his maximum
date would be calculated upon recording of the Board’s final action. (Id. at 26.)
On May 27, 2020, the Board issued a notice of charges and hearing to
Petitioner based on his new convictions. (C.R. at 27.) Petitioner waived his right to
counsel and revocation and panel hearings, and admitted to his new convictions. (Id.
at 38-41.) On July 1, 2020, a hearing examiner recommended that Petitioner be
recommitted as a convicted parole violator and denied credit for time spent at liberty
on parole. (Id. at 42-48.) On July 31, 2020, a Board member agreed with the hearing
examiner’s recommendation and signed the revocation hearing report. (Id. at 49.)
By decision mailed on October 23, 2020 (recorded on August 13, 2020), the Board
recommitted Petitioner as a convicted parole violator to serve his unexpired term of
8 months and 23 days in a state correctional institution. (Id. at 75-76.) The Board,
in its discretion, denied Petitioner credit for the time he spent at liberty on parole
because one of his new convictions was the same or similar to his original offense.
(Id. at 75.) The Board recalculated Petitioner’s parole violation maximum sentence
date as April 25, 2021.1 (Id. at 73-76.)
On November 20, 2020, Petitioner filed an administrative remedies form
challenging the Board’s October 23, 2020 decision. (C.R. at 77-79.) First, Petitioner
argued that the Board abused its discretion by not awarding him credit for all of the
time he spent in good standing on parole. Second, Petitioner claimed that the Board
1
Although Petitioner’s recalculated maximum sentence date has passed, it appears that
Petitioner is still incarcerated under the jurisdiction of the Pennsylvania Department of
Corrections. See Inmate/Parolee Locator, Pa. Dep’t of Corr., http://inmatelocator.cor.pa.gov (last
visited Oct. 5, 2021). Therefore, this matter is not moot, because any error in the recalculation of
his maximum sentence date could affect the timing of subsequent sentences he may now be
serving. Seilhamer v. Pa. Bd. of Prob. & Parole, 996 A.2d 40, 42 n.2 (Pa. Cmwlth. 2010).
3
failed to give him credit for all of the time he served exclusively on the Board’s
warrant.2 (Id.)
The Board issued a response on March 4, 2021. (C.R. at 83-85.) The Board
first explained that its recommitment of Petitioner as a convicted parole violator
authorized it to deny Petitioner credit for time spent at liberty on parole and to
recalculate Petitioner’s maximum sentence date. The Board further explained that
Petitioner had 269 days remaining on his original sentence when he was released on
parole on March 24, 2019. The Board did not award Petitioner credit for his time
spent at liberty on parole because one of his new convictions was the same or similar
to his original offense, which is a sufficient reason for denying credit. The Board
determined, however, that Petitioner was entitled to one day of presentence credit
for the period from October 15, 2019, to October 16, 2019, when he was confined
solely on the Board’s warrant. Because Petitioner did not post bail on his Berks
County charges, he was not held solely on the Board’s warrant after October 16,
2019. The Board explained that any other time Petitioner spent incarcerated that
was not credited to his original sentence would be calculated by the Department of
Corrections and credited towards his new state sentence. Subtracting 1 day from
269 left 268 days remaining on Petitioner’s original sentence. The Board further
explained that under the Prisons and Parole Code,3 a convicted parole violator who
is released from a state correctional institution and receives a new sentence to be
served in a state correctional institution must serve the original sentence first;
however, that provision does not take effect until a parole violator’s parole is
revoked. Therefore, Petitioner became available to commence service of his original
2
Petitioner submitted a second administrative remedies form pro se on February 4, 2021,
which the Board noted it would not consider because it was filed outside of the 30-day appeal
period. (C.R. at 80-83.)
3
61 Pa. C.S. §§ 101-7301.
4
sentence on July 31, 2020, the day the Board member executed the revocation
hearing report and revoked Petitioner’s parole. Adding 268 days to that date yielded
a recalculated parole violation maximum sentence date of April 25, 2021.
Accordingly, the Board denied Petitioner’s request for administrative relief and
affirmed its October 23, 2020 decision. Petitioner’s petition for review followed.
Petitioner claims that the Board failed to give him credit for all of the time he
served exclusively on the Board’s warrant. Second, he argues that the Board abused
its discretion by not awarding him credit for all of the time he spent at liberty on
parole in good standing.
We first consider Petitioner’s claim that the Board erred by failing to award
him credit for all the time he served exclusively on the Board’s warrant. Petitioner
identifies this issue in both his statement of the questions involved and in the heading
of his first issue in his brief. (Petitioner’s Brief “Br.” at 4, 10.) However, Petitioner’s
argument as to this issue pertains to whether the Board established the correct
custody for a return date. (See Petitioner’s Br. at 10-11.) We conclude that
Petitioner waived his claim that the Board used the wrong custody for a return date
because he did not raise it before the Board in his administrative appeal.4 “The law
is well settled that issues not raised before the Board either at the revocation hearing
or in the petitioner’s administrative appeal are waived and cannot be considered for
the first time on appeal.” Chesson v. Pa. Bd. of Prob. & Parole, 47 A.3d 875, 878
(Pa. Cmwlth. 2012).5
4
The Board does not address waiver in its brief.
5
Even absent waiver, we would conclude that this issue is without merit. Petitioner appears
to challenge the 30-day time period from July 1, 2020, when he claims he was returned to the
Board’s custody, and July 31, 2020, when his parole was officially revoked. He claims that his
new maximum date should have been recalculated from July 1, 2020, instead of July 31, 2020, and
that he is thus entitled to credit against his original sentence for that 30-day period. We disagree.
Section 6138(a)(5)(i) of the Prisons and Parole Code requires that a convicted parole violator
who receives a new sentence to be served in a state correctional institution must serve the backtime
5
Although Petitioner has not provided any argument with respect to his first
issue regarding whether the Board erred by failing to give him credit for all of the
time he served exclusively on its warrant, we note that Petitioner raised the issue in
his administrative appeal to the Board and in his petition for review filed with this
Court. Moreover, because the Board addressed the issue in its March 4, 2021
decision and in its brief filed with this Court, and because we are able to address the
issue based on the Certified Record in this matter, we decline to find waiver of this
issue and will consider it.
In general, presentence periods of incarceration shall be credited to a
convicted parole violator’s original term only when he has satisfied bail
requirements for a new offense and, therefore, remains incarcerated solely by reason
of the Board’s detainer. Gaito v. Pa. Bd. of Prob. & Parole, 412 A.2d 568, 571 (Pa.
1980). Where bail is not posted, the time incarcerated on both the new criminal
charges and the Board’s detainer must be applied to the new sentence. Id. Only if
“it is not possible to award all of the credit on the new sentence because the period
of pre[]sentence incarceration exceeds the maximum term of the new sentence” may
on his original state sentence first. 61 Pa. C.S. § 6138(a)(5)(i). However, it is well settled that the
requirement that a convicted parole violator serve the balance of his original sentence “only
becomes operative when parole has been revoked and the remainder of the original sentence
becomes due and owing.” Campbell v. Pa. Bd. of Prob. & Parole, 409 A.2d 980, 982 (Pa. Cmwlth.
1980). “[C]redit for time a [convicted parole violator] spends in custody between imposition of a
new sentence and revocation of parole must be applied to the new sentence.” Barnes v. Pa. Bd. of
Prob. & Parole, 203 A.3d 382, 392 (Pa. Cmwlth. 2019) (quotations omitted) [quoting Williams v.
Pa. Bd. of Prob. & Parole, 654 A.2d 235, 237 (Pa. Cmwlth. 1995)]. “Parole revocation occurs
once a hearing examiner and Board member . . . sign a hearing report recommitting a prisoner as
a [convicted parole violator],” id., which here occurred on July 31, 2020. (C.R. at 49.)
Accordingly, absent waiver, we find no error in the Board’s decision to recalculate Petitioner’s
new maximum date from July 31, 2020, when the Board member signed the hearing report
recommitting Petitioner as a convicted parole violator, and thus, when Section 6138(a)(5)(i)
became operative and the remainder of his original sentence became due and owing. We also find
no error in the decision to apply that 30-day period from July 1, 2020, to July 31, 2020, to
Petitioner’s new sentence in accordance with Barnes.
6
the excess time be applied to the parolee’s original sentence. Armbruster v. Pa. Bd.
of Prob. & Parole, 919 A.2d 348, 355 (Pa. Cmwlth. 2007) (emphasis omitted).
Applying those rules here, Petitioner was initially detained solely on the
Board’s warrant from October 15, 2019, until he was arrested and charged by the
Central Berks Police Department on October 16, 2019, a period of one day. The
Board credited this one day to Petitioner’s original sentence. (C.R. at 73.) The
Board did not credit Petitioner’s remaining presentence confinement time after
October 16, 2019, toward his original sentence because Petitioner never posted bail
in either the 2019 Case or the 2020 Case and, therefore, remained detained on both
the new criminal charges and on the Board’s detainer, or just on the new criminal
charges, up until his sentencing on both sets of charges on April 30, 2020. Therefore,
the presentence confinement time beginning on October 17, 2019, must be applied
to his new sentence, and, because there is no allegation that the remaining
presentence confinement time exceeds the maximum sentence on his new charges,
Petitioner was not entitled to any further credit against his original sentence. See
Armbruster, 919 A.2d at 355.
Petitioner also argues that the Board abused its discretion by denying him
credit for time spent at liberty on parole in good standing. Specifically, he contends
that neither of his new Berks County convictions are violent offenses under Section
9714(g) of the Judicial Code, 42 Pa. C.S. § 9714(g), such that the Board would be
prevented from awarding him credit for time spent at liberty on parole. (Petitioner’s
Br. at 11-13.) Accordingly, Petitioner maintains that he should at least be awarded
164 days of credit for the period from March 24, 2019, to September 4, 2019, during
which he was under minimum supervision. (Id. at 12-13.) Alternatively, he claims
that he should be awarded 205 days of credit for the period from March 24, 2019,
the date he was paroled, to October 15, 2019, the date of his arrest. (Id.)
7
The Board has discretion to award a convicted parole violator credit for the
time spent at liberty on parole, except where he or she is recommitted for the reasons
stated in Section 6138(a)(2.1)(i) of the Prisons and Parole Code, 61 Pa. C.S. §
6138(a)(2.1)(i), which does not apply here. Further, the Board must articulate the
basis for its decision to grant or deny credit for that time. Pittman v. Pa. Bd. of Prob.
& Parole, 159 A.3d 466, 474 (Pa. 2017). Here, the Board justified its decision to
recommit Petitioner without credit for the time he spent at liberty on parole by
explaining that Petitioner’s new conviction was the same or similar to his original
offense. We have held that this exact reason is sufficient, under Pittman, to support
the Board’s decision to deny credit. See Williams v. Pa. Bd. of Prob. & Parole (Pa.
Cmwlth., No. 1243 C.D. 2018, Aug. 21, 2019), slip op. 10-12 (holding Board’s
reason for denying a parolee street time credit—that his new conviction was the same
or similar to his original offense—was a valid basis to deny credit under Pittman);
Lawrence v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 1132 C.D. 2018, filed
Apr. 12, 2019), slip op. 8-9 (same), appeal denied, (Pa., No. 387 EAL 2019, filed
Jan. 23, 2020).6 As such, the Board did not abuse its discretion when it denied
Petitioner credit for his time spent at liberty on parole.
Accordingly, we affirm the Board’s order.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita
6
Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, unreported
decisions are not binding precedent but may be cited for persuasive value. 210 Pa. Code §
69.414(a).
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kevin Felix Rodriguez, :
Petitioner :
:
v. : No. 298 C.D. 2021
:
Pennsylvania Parole Board, :
Respondent :
ORDER
AND NOW, this 16th day of November, 2021, the order of the
Pennsylvania Parole Board, dated March 4, 2021, is AFFIRMED.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita