M. Pergolini v. PBPP ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael Pergolini, :
Petitioner :
:
v. : No. 504 C.D. 2019
: SUBMITTED: September 6, 2019
Pennsylvania Board of :
Probation and Parole, :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: January 13, 2020
Petitioner Michael Pergolini (Pergolini) petitions for review of Respondent
Pennsylvania Board of Probation and Parole’s (Board) March 26, 2019 ruling
affirming its April 19, 2018 decision to recommit Pergolini as a convicted parole
violator (CPV) to serve 12 months of backtime, as well as to award him no credit for
time served at liberty on parole. After thorough consideration, we affirm the Board.
Facts and Procedural History
On January 6, 2014, Pergolini pled guilty in the Court of Common Pleas of
Delaware County (Trial Court) to one count of driving under the influence and
received a sentence of 9 to 60 months in state prison. Certified Record (C.R.) at 1.
Pergolini was paroled on December 30, 2014, at which point the maximum date on
his sentence was January 27, 2019. Id. at 6. On June 9, 2015, the Board issued an
administrative action asserting that there was probable cause to believe that Pergolini
had committed drug-related technical parole violations. Id. at 10. The Board stated
that Pergolini should consequently be detained in a parole violator center, and that a
parole violation hearing would be “held in abeyance, pending completion of
recommended programming [at the center].” Id. On July 13, 2015, the Board ordered
Pergolini to be recommitted for six months as a technical parole violator (TPV), due
to his usage of drugs and failure to successfully complete the required treatment
programs. Id. at 11. Pergolini was again paroled on November 11, 2015, and was
released to live with his parents in Boothwyn, Pennsylvania. Id. at 16-17.
On October 14, 2017, at approximately 2:20 a.m., Pergolini was stopped by
police officers in Upper Chichester, Pennsylvania, who had observed him driving
erratically. Id. at 28. The officers administered a field sobriety test and concluded
that Pergolini was under the influence of either drugs or alcohol. Id. Pergolini
subsequently tried to flee the scene on foot, but was subdued and arrested by the
officers after a brief chase. Id. As a result, Pergolini was charged with driving under
the influence, escape, recklessly endangering another person, resisting arrest, and
multiple summary offenses. Id. The Board lodged a detainer against Pergolini that
same day and, on November 29, 2017, issued an administrative decision ordering
Pergolini to be detained pending resolution of the Upper Chichester charges. Id. at
27, 44. On February 6, 2018, Pergolini pled guilty in the Trial Court to driving under
the influence and escape, and was given an aggregate sentence of 15 to 60 months
in state prison. Id. at 51, 56.
On March 5, 2018, Pergolini waived his right to a parole revocation hearing,
as well as to representation by counsel, and admitted to the veracity of his February
6, 2018 guilty plea. Id. at 57-60. Thereafter, on April 19, 2018, the Board ordered
Pergolini to be recommitted as a CPV to serve 12 months of backtime. Id. at 75-76.
2
The Board also elected not to award Pergolini any credit for time served at liberty
on parole, due to Pergolini’s “unresolved drug and alcohol issues[,]” and
recalculated his maximum date as October 29, 2021. Id. at 75.
Pergolini then mailed a timely Administrative Remedies Form to the Board.
Therein, Pergolini explained that he believed the Board had given him two separate,
year-long backtime recommitments, for a total of two years of backtime. Id. at 79.
Pergolini asked the Board to alter the terms of this decision, so that the two
recommitment terms would run concurrently with each other or with his February
2018 sentence. Id. It is unclear why Pergolini thought he had to serve two years of
backtime, as this conclusion is not supported by the Board’s April 19, 2018 decision
itself. See id. at 75. On March 7, 2019, a private attorney representing Pergolini sent
a letter to the Board, asserting that it had miscalculated Pergolini’s parole eligibility
date and requesting the correction of this alleged error. Id. at 81. The Board then
issued a revised decision on March 26, 2019, changing Pergolini’s maximum date
from October 29, 2021, to June 19, 2021, but leaving the remainder of its April 19,
2018 decision unchanged. Id. at 84. The Board revised Pergolini’s maximum date in
order to comply with our Court’s holding in Penjuke v. Pennsylvania Board of
Probation and Parole, 203 A.3d 401 (Pa. Cmwlth. 2019), in which we ruled that
street time credit awarded to a TPV by the Board could not then be revoked in the
event the Board declared him a CPV at some point thereafter. Board’s Br. at 4-5; see
Penjuke, 203 A.3d at 420.
That same day, the Board responded to both Pergolini’s Administrative
Remedies Form and his attorney’s letter, affirming its April 19, 2018 decision on the
basis that it was authorized by law not to award him any credit for time served at
3
liberty on parole, as well as that it had correctly calculated both the time left on his
January 2014 sentence and his maximum date. Id. at 88-89.
On April 24, 2019, Pergolini filed his pro se Petition for Review, after which
we appointed the Public Defender of Montgomery County to represent him.
Assistant Public Defender Dana E. Greenspan, Esquire, then entered her appearance
in this matter on May 14, 2019. Both Pergolini and the Board have since filed their
respective appellate briefs and this matter is now ready for our consideration.
Discussion
On appeal, Pergolini alleges that the Board abused its discretion by denying
him credit for time served at liberty on parole. In essence, Pergolini claims that the
Board did not properly consider the great efforts he had made to overcome his
substance abuse issues between being paroled on November 11, 2015, and being
arrested on October 14, 2017. Pergolini’s Br. at 12-17. Pergolini argues that it is
inherently unfair that one slip-up would result in the complete loss of his street time.
Id. Pergolini further maintains that the Board’s explanation for why it did not give
him any such credit (i.e., “unresolved drug and alcohol issues”) did not satisfy the
requirements set forth by our Supreme Court in Pittman v. Pennsylvania Board of
Probation and Parole, 159 A.3d 466, 475 (Pa. 2017). Pergolini’s Br. at 12-13.1 On
these bases, Pergolini requests that we remand this matter to the Board, so that it
may conduct a more in-depth inquiry into whether the factual circumstances of his
situation justify granting him full or partial street time credit. Id. at 17.
1
In Pittman, our Supreme Court held that the Board has discretionary power in certain
circumstances to award credit for time served at liberty on parole, by virtue of Section 6138(a)(2.1)
of the Prisons and Parole Code, 61 Pa. C.S. § 6138(a)(2.1), but must provide a contemporaneous
and reasonable explanation if it declines to make such an award. 159 A.3d at 473-75.
4
Before addressing the substantive merits of Pergolini’s arguments, however,
we must first address the issue of waiver. A fundamental precept of appellate review
is that a party cannot argue an issue on appeal if they failed to first raise it at the
administrative level.2 2 Pa. C.S. § 703(a); Pa. R.A.P. 1551; McCaskill v. Pa. Bd. of
Prob. & Parole, 631 A.2d 1092, 1094-95 (Pa. Cmwlth. 1993). Though the Board
does not challenge Pergolini’s Petition for Review on this basis, we may sua sponte
consider whether he waived any such issues, as the question of issue preservation is
jurisdictional in nature. Lehman v. Pa. State Police, 839 A.2d 265, 274-75 (Pa.
2003); Brog v. Dep’t of Pub. Welfare, 401 A.2d 613, 615 (Pa. Cmwlth. 1979). Here,
Pergolini made clear in his Administrative Remedies Form that he contested the
Board’s April 19, 2018 decision because he believed, albeit incorrectly, that the
Board had given him 2 separate, 12-month-long backtime recommitments, for a total
of 2 years of backtime. C.R. at 79. At no point did Pergolini expressly or impliedly
attack either the Board’s denial of street time credit itself or the sufficiency of its
explanation for this denial. See id. Therefore, as Pergolini did not raise what can be
construed as a Pittman challenge before the Board, or otherwise contest at the
administrative level the Board’s discretionary denial of street time credit, we hold
that he has waived these issues for purposes of appellate review.3 See Headley v. Pa.
2
There are several exceptions to this rule, none of which are applicable to this matter.
3
Moreover, even if Pergolini had preserved these claims, we would not have found in his
favor. Our standard of review in this type of matter is limited to determining whether the Board
violated a parole violator’s constitutional rights, committed an error of law, or issued an
adjudication that was not supported by substantial evidence (i.e., abused its discretion). Section
704 of the Administrative Agency Law, 2 Pa. C.S. § 704. “Substantial evidence” is defined “as
such relevant evidence which a reasonable mind might accept as adequate to support a conclusion.”
Singer v. Bureau of Prof’l & Occupational Affairs, State Bd. of Psychology, 633 A.2d 246, 248
(Pa. Cmwlth. 1993). Pergolini waived his right to a revocation hearing, leaving the Board with a
cold record, so to speak, which showed a multi-year saga of repeated substance abuse-related
5
Bd. of Prob. & Parole (Pa. Cmwlth., No. 2553 C.D. 2015, filed May 2, 2017), slip
op. at 5-6, 2017 WL 1629441, at *2-*3 (administrative challenge to a Board decision
only preserves for appellate review those issues expressly or impliedly flowing from
the wording used by the parole violator on his Administrative Remedies Form).4
Conclusion
As Pergolini has waived the sole issue he raised in his appellate brief, we are
compelled to affirm the Board’s March 26, 2019 ruling that affirmed its April 19,
2018 decision, as modified.
__________________________________
ELLEN CEISLER, Judge
arrests, convictions, and parole violations. The Board based its denial of street time credit on this
history. Though the Board’s justification for its credit denial is extremely brief, our Supreme Court
has made clear that “the reason the Board gives does not have to be extensive and a single sentence
explanation is likely sufficient in most instances.” Pittman, 159 A.3d at 475 n.12. Given
Pergolini’s past performance, the Board’s statement that he would not get any credit for time
served at liberty on parole because of his “unresolved drug and alcohol issues” was acceptable.
See Smoak v. Talaber, 193 A.3d 1160, 1165 (Pa. Cmwlth. 2018) (Board’s statement that it was
denying a CPV street time credit due to “unresolved drug and alcohol issues” was “barely
adequate” to satisfy the dictates of Pittman and 61 Pa. C.S. § 6138(a)(2.1)). We would have thus
found that the Board neither abused its discretion, nor committed an error of law, and would have
affirmed the Board’s March 26, 2019 ruling on that basis.
4
See Commonwealth Court Internal Operating Procedure § 414(a), 210 Pa. Code §
69.414(a) (unreported Commonwealth Court opinions issued after January 15, 2008, may be cited
for their persuasive value).
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael Pergolini, :
Petitioner :
:
v. : No. 504 C.D. 2019
:
Pennsylvania Board of :
Probation and Parole, :
Respondent :
ORDER
AND NOW, this 13th day of January, 2020, Respondent Pennsylvania Board
of Probation and Parole’s (Board) March 26, 2019 ruling, through which the Board
affirmed its April 19, 2018 decision, as modified on March 26, 2019, that
recommitted Petitioner Michael Pergolini to serve 12 months of backtime as a
convicted parole violator and recalculated his maximum date as June 19, 2021, is
AFFIRMED.
__________________________________
ELLEN CEISLER, Judge