E. Raymond v. PPB ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Edmond Raymond, :
Petitioner :
:
v. : No. 904 C.D. 2020
: Submitted: July 2, 2021
Pennsylvania Parole Board, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE BROBSON FILED: December 16, 2021
Edmond Raymond (Raymond) petitions for review of a final determination of
the Pennsylvania Parole Board (Board), dated July 17, 2020, which denied
Raymond’s petition for administrative review of the Board’s decision recommitting
him to a state correctional institution (SCI) as a convicted parole violator (CPV) and
declining to award him credit for the time he spent at liberty on parole. We now
vacate the Board’s final determination and remand the matter to the Board.
On February 16, 2000, after pleading guilty to attempted murder and drug
offenses, Raymond was sentenced to 11 to 22 years in an SCI. (Certified Record
(C.R.) at 5-6.) At that time, his maximum sentence date was July 28, 2021.
(Id. at 1, 4.) On June 9, 2015, he was released on parole. (Id. at 4.)
On July 25, 2017, the Philadelphia Police Department arrested Raymond and
charged him with intimidation, retaliation, possession of an instrument of crime,
terroristic threats, and simple assault. (Id. at 11.) The affidavit of probable cause
alleged that on July 15, 2017, Raymond approached a man who had witnessed a
homicide (Witness) and who was cooperating with police investigators.
(Id. at 13-14.) Using a handgun, Raymond threatened Witness, telling Witness to
retract his statements regarding the homicide. (Id.)
On the same day that Raymond was arrested, the Board issued a detainer
warrant. (Id. at 15.) Raymond waived his right to counsel and a detention hearing.
(Id. at 20.) The Board issued a decision, recorded on October 19, 2017, detaining
Raymond pending disposition of the new criminal charges. (Id. at 26.)
On August 1, 2018, Raymond was found guilty of intimidation of a witness
under Section 4952 of the Crimes Code, 18 Pa. C.S. § 4952, and was sentenced on
November 7, 2018, by the Court of Common Pleas of Philadelphia County to a term
of 6 to 12 years in an SCI.1 (Id. at 27-29, 96.) He was found not guilty of possession
of an instrument of crime and was acquitted of a charge of retaliation against a
witness; charges of terroristic threats and simple assault were dropped. (Id. at 27,
95-96.) Raymond did not post bail on the new criminal charges prior to his
sentencing. (Id. at 90, 95.)
On December 18, 2018, the Board conducted a revocation hearing, at which
Raymond was represented by counsel. (Id. at 78.) The revocation hearing report
indicates that the hearing examiner recommended that Raymond not be credited for
time spent at liberty on parole because his conviction involved possession of a
weapon and was assaultive in nature and also because of his prior history of
1
Raymond explains that this conviction “was reversed.” (Raymond’s Br. at 9.) Raymond
appealed the judgment of sentence entered by the Court of Common Pleas of Philadelphia County.
The Superior Court “vacate[d] the judgment of sentence and remand[ed] for the trial court to grade
[Raymond’s] witness intimidation conviction as a second-degree misdemeanor [instead of a
first-degree felony].” Commonwealth v. Raymond, 233 A.3d 809, 811 (Pa. Super. 2020).
2
supervision failures. (Id. at 80.) On January 21, 2019, a Board member signed the
revocation hearing report, adopting the hearing examiner’s recommendation that
Raymond be recommitted as a CPV for 15 months and that he be denied credit for
time spent at liberty on parole because his conviction, in part, involved possession
of a weapon. (Id. at 80-81, 83-84.) By decision recorded on March 5, 2019 (mailed
March 8, 2019), the Board recommitted Raymond as a CPV to serve 15 months’
backtime in an SCI due to his conviction for intimidation of a witness; the Board
declined to award him credit for the time he spent at liberty on parole because the
“conviction involved possession of a weapon.” (Id. at 108-09.) The Board
recalculated his parole violation maximum date to be March 11, 2025, which was
calculated by adding 2,241 days—the unserved balance of Raymond’s original
sentence—to his custody for return date of January 21, 2019. (Id. at 106-07.)
Raymond, pro se, filed an administrative remedies form, challenging, in part,
the Board’s decision to deny him credit for time spent at liberty on parole.
(Id. at 112-14.) The Board based its decision on its understanding that Raymond’s
conviction involved possession of a weapon, and Raymond argued that he was found
not guilty of possession of an instrument of crime, i.e., a weapon, such that the Board
erred in relying on an inaccurate reason for denying him credit. (Id.)
By final determination mailed on July 17, 2020, the Board denied Raymond’s
request for administrative relief and affirmed its decision recorded on March 5, 2019.
(Id. at 146-47.) With regard to the Board’s denial based on Raymond’s conviction
involving possession of a weapon, the Board first explained that the decision to grant
or deny a CPV credit for time spent at liberty on parole is purely a matter of
discretion and that the Board need only articulate the basis for denying credit, which
it did here by stating that Raymond’s new conviction involved possession of a
3
weapon. (Id. at 146.) In so explaining, the Board quoted a portion of the record
from the affidavit of probable cause, which described the incident in which
Raymond allegedly intimidated Witness and Witness recounted Raymond having a
black handgun. (Id.) Based on this portion of the record, the Board determined that
its reason for denying Raymond credit was legally sufficient. (Id.)
On appeal,2 Raymond argues that the Board abused its discretion by not
awarding him credit for a portion of the time he spent at liberty on parole from
June 9, 2015, to July 25, 2017, which is the period from his release on parole to the
day he was arrested by the Philadelphia Police Department, because the reason
articulated by the Board is contrary to the record. Raymond requests that the matter
be remanded to the Board for reconsideration of its determination to deny credit in
this case. Raymond also argues that, by recomputing his maximum sentence date,
the Board changed the parameters of his judicially imposed sentence, which the
Board does not have the authority to do.
When determining whether there has been an abuse of discretion, the
Pennsylvania Supreme Court has held that “[a]n abuse of discretion is not merely an
error of judgment, but occurs only where the law is overridden or misapplied, or the
judgment exercised is manifestly unreasonable, or the result of partiality, prejudice,
bias or ill will[.]” Zappala v. Brandolini Prop. Mgmt., Inc., 909 A.2d 1272, 1284
(Pa. 2006); see also Moss v. SCI-Mahanoy Superintendent Pa. Bd. of Prob. &
Parole, 194 A.3d 1130, 1133 n.5 (Pa. Cmwlth. 2018), appeal denied, 215 A.3d 562(Pa. 2019). Section 6138(a)(2.1) of the Prisons and Parole Code (Parole
2
This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. 2 Pa. C.S. § 704.
4
Code), 61 Pa. C.S. § 6138(a)(2.1), sets forth guidelines for the Board’s discretionary
power in granting and denying credit for time spent at liberty on parole and provides:
The [B]oard may, in its discretion, award credit to a parolee
recommitted under paragraph (2)[3] 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).
In Pittman v. Pennsylvania Board of Probation and Parole, 159 A.3d 466(Pa. 2017), our Supreme Court observed that Section 6138(a)(2.1) of the Parole
Code “unambiguously grants the Board discretion to award credit to a CPV
recommitted to serve the remainder of his sentence.” Pittman, 159 A.3d at 473.
When exercising its discretion to deny credit for time spent at liberty on parole, the
Board must provide a “contemporaneous statement” explaining its rationale.
Id. at 475. The Board’s explanation need not be extensive, and “a single sentence
explanation is likely sufficient in most instances.” Id. at 475 n.12. This allows the
appellate court reviewing the matter to have a “method to assess the Board’s exercise
3
Section 6138(a)(2) of the Parole Code provides: “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.” 61 Pa. C.S. § 6138(a)(2).
We note that various sections of the Parole Code, including Section 6138(a)(2) and (2.1),
have recently been amended by the Act of June 30, 2021, P.L. 260. We nevertheless quote the
language of those sections that was in effect at the time the Board rendered its decision in this
matter.
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of discretion.” Marshall v. Pa. Bd. of Prob. & Parole, 200 A.3d 643, 651
(Pa. Cmwlth. 2018) (quoting Pittman, 159 A.3d at 474). To meet the standard, “[t]he
Board’s credit decision should contain sufficient facts related to the parolee ‘to
ensure the decision is not arbitrary[,]’” and its “statement of reasons should be
informed by aggravating and mitigating circumstances and account for the parolee’s
individual circumstances[,]” and, “[a]t a minimum, . . . must accurately reflect the
facts informing its decision.” Id. at 652 (quoting Barge v. Pa. Bd. of Prob. & Parole,
39 A.3d 530, 548 (Pa. Cmwlth. 2012), aff’d, 96 A.3d 360 (Pa. 2014)). In addition
to accuracy, we have also considered whether the Board’s stated reason “is
documented in the record and affords the parolee notice of the specific acts being
referenced.” Plummer v. Pa. Bd. of Prob. & Parole, 216 A.3d 1207, 1212 (Pa.
Cmwlth. 2019), appeal denied, 222 A.3d 1130 (Pa. 2020). When the Board’s stated
reason for denying credit is inconsistent with the record, such that it is “an
insufficient articulation of” a reason to deny credit, a “remand to the Board for the
limited purpose of explaining its exercise of discretion in its credit determination[]
and to correct any error in exercising that discretion based on the facts and
circumstances of [the parolee’s] parole revocation” is appropriate. Marshall, 200
A.3d at 651-52 (footnote omitted).
Raymond contends that his conviction for intimidation of a witness is “not
one of the disqualifying offenses . . . which would render him ineligible for
consideration for credit for street time upon his recommitment as a CPV.”
(Raymond’s Br. at 9.) Acknowledging that the Board has discretion to award credit,
Raymond asserts that the Board abused that discretion by denying him credit on the
basis that his conviction involved possession of a weapon because he was found not
guilty of possession of an instrument of crime, i.e., a weapon. Raymond thus
6
requests that the matter be remanded to the Board for reconsideration of its
determination to deny credit in this case.
The Board, in response, concedes that its “decision did not accurately reflect
the recommendation to deny credit which provided that the ‘[c]onviction was
assaultive in nature’ and due to Raymond’s ‘[p]rior history of supervision
failures.[’]” (Board’s Br. at 7 (some alterations in original) (quoting C.R. at 80).)
Thus, the Board agrees with Raymond that this case should be remanded to the Board
for it to issue a new decision explaining its exercise of discretion in its credit
determination as to the time Raymond spent at liberty on parole, so as to enable
meaningful appellate review of the matter. (Id. at 7-8.)
We agree with the parties. The Board’s determination that Raymond’s new
conviction involved possession of a weapon is not supported by the record. While
the affidavit of probable cause, on which the Board relied to support its claim that
Raymond’s conviction involved possession of a weapon, recounts Witness’s claim
that Raymond had a weapon, (see C.R. at 14), Raymond was found not guilty of
possession of an instrument of crime, i.e., a weapon. The only crime for which
Raymond was ultimately found guilty was intimidation of a witness, which does not
involve possession of a weapon. Accordingly, the Board’s conclusion that
Raymond’s new conviction for the crime of intimidation of a witness involved
possession of a weapon is not supported by the evidence of record in this case. We
conclude, therefore, that the Board abused its discretion by denying Raymond credit
based on his alleged possession of a weapon during his commission of the crime of
intimidation of a witness, the only crime of which he was convicted, and further
conclude that a remand is necessary in this case.
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For the reasons set forth above, we vacate the Board’s final determination and
remand the matter to the Board for reconsideration of its denial of credit.4
P. KEVIN BROBSON, President Judge
4
As to Raymond’s argument that the Board is without authority to extend his judicially
imposed sentence, Raymond contends that the Board’s denial of credit and subsequent
recalculation effectively constitutes additional punishment and/or a new sentence. We need not
address this argument at this time, because we are vacating the Board’s final determination and
remanding the matter for the Board to revisit the issue of whether Raymond is entitled to credit.
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Edmond Raymond, :
Petitioner :
:
v. : No. 904 C.D. 2020
:
Pennsylvania Parole Board, :
Respondent :
ORDER
AND NOW, this 16th day of December, 2021, the final determination of the
Pennsylvania Parole Board (Board) is VACATED, and the matter is REMANDED
to the Board for the issuance of a new final determination.
Jurisdiction relinquished.
P. KEVIN BROBSON, President Judge