R.N. Gaynor v. PA Parole Board ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Richard Neil Gaynor, :
Petitioner :
: No. 272 C.D. 2020
v. :
: Submitted: October 9, 2020
Pennsylvania Parole Board, :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: January 15, 2021
Richard Neil Gaynor (Gaynor) petitions for review from an undated
adjudication of the Pennsylvania Parole Board that denied his administrative requests
to reconsider the Board’s January 7, 2013 and July 14, 2017 decisions that revoked his
parole and recommitted him, in both instances, as a convicted parole violator (CPV).
The Board denied Gaynor relief, concluding that he filed unauthorized, additional
appeals from its previous adjudications. We affirm.
The relevant facts and procedural history of this case are as follows. On
October 10, 2007, Gaynor pled guilty to two counts of criminal mischief and one count
of theft by movable property. On that same date, a court of common pleas sentenced
Gaynor to an aggregate term of one and a half to six years’ imprisonment. At this point
in time, Gaynor’s original minimum and maximum sentence dates were December 9,
2009, and June 9, 2017, respectively. (Certified Record (C.R.) at 1-3.)
On October 2, 2009, the Board granted Gaynor parole, and he was
released to a home plan on January 4, 2010. While Gaynor was on parole, the police
arrested him on January 22, 2012, and, on that same date, the prosecuting authorities
charged Gaynor with criminal trespass, theft by unlawful taking, receiving stolen
property, and false identification to law enforcement. On September 6, 2012, Gaynor
pled guilty to criminal trespass and receiving stolen property and, on November 19,
2012, a court of common pleas sentenced him to one to five years’ imprisonment at a
State Correctional Institution (SCI). After Gaynor waived his rights to counsel and a
revocation hearing and conceded that he was convicted of the crimes that he committed
while on parole, the Board issued a decision recorded on January 7, 2013, recommitting
Gaynor as a CPV to serve six months’ backtime and extending his maximum sentence
date to June 5, 2020. In this decision, the Board did not award Gaynor any credit for
time spent at liberty on parole. (C.R. at 57-60, 68-72, 89-91.)
On October 10, 2013, and December 18, 2013, Gaynor sent
correspondences to the Board, attempting to challenge the Board’s January 7, 2013
decision. By decision mailed April 23, 2014, the Board dismissed Gaynor’s appeals as
untimely because they were not filed within 30 days of the January 7, 2013 decision.
(C.R. at 97-102.)
On September 15, 2014, the Board reparoled Gaynor and he was released
to a home plan on October 26, 2014. Subsequently, the Pennsylvania State Police
arrested Gaynor on June 9, 2015, for new criminal charges and he pled guilty to a
summary offense of retail theft. The Board did not lodge a warrant to commit and
detain against Gaynor and, on July 1, 2015, Gaynor was released from prison. On May
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9, 2016, Gaynor was arrested for violating the technical conditions of his parole. After
Gaynor waived his rights to a violation hearing and counsel and admitted that he
violated his parole conditions, the Board decided not to recommit him and remanded
him to a parole violator center to complete a program. On July 9, 2016, Gaynor
successfully completed the program, and the Board reparoled him. (C.R. at 121-35.)
On September 18, 2016, while Gaynor was on re-parole, the police
arrested him for new criminal charges. On December 16, 2016, the police also arrested
Gaynor for new criminal charges. On March 27, 2017, Gaynor pled guilty to retail
theft, access device fraud, and receiving stolen property. On May 11, 2017, a court of
common pleas sentenced Gaynor to an aggregate term of 15 months to 3 years and 4
months’ incarceration. (C.R. at 156, 159-67.)
On April 10, 2017, the Board provided Gaynor with a notice of charges
and of its intent to hold a revocation hearing. On that same day, Gaynor waived his
rights to a revocation hearing and to counsel and he conceded that was convicted of the
crimes that he committed while on parole. By decision mailed July 14, 2017, the Board
recommitted Gaynor as a CPV to serve nine months’ backtime and extended his
original maximum sentence date from June 5, 2020, to May 16, 2023. In this decision,
the Board did not award Gaynor any credit for time spent at liberty on parole. (C.R. at
168-75, 205-08.)
Thereafter, Gaynor did not file an administrative appeal with the Board
within 30 days of the July 14, 2017 decision. Instead, on February 5, 2018 and
February 20, 2018, Gaynor filed administrative remedies forms with the Board,
contending, inter alia, that he was entitled to additional sentencing credit. By response
mailed May 11, 2018, the Board determined that Gaynor’s administrative remedies
3
forms were appeals from its July 14, 2017 decision and dismissed them as untimely.
(C.R. at 212-24.)
On October 21, 2019, February 6, 2020, and March 6, 2020, Gaynor filed
“Applications for Reconsideration,” arguing, inter alia, that the Board should
reconsider its January 7, 2013 and July 14, 2017 decisions based on Pittman v.
Pennsylvania Board of Probation and Parole, 159 A.3d 466, 469 (Pa. 2017), and the
fact that our General Assembly amended the Prisons and Parole Code (Parole Code)1
and added section 6138(a)(2.1) in 2012, the Act of July 5, 2012, P.L. 1050, 61 Pa.C.S.
§6138(a)(2.1). (C.R. at 249-64.)
In an undated decision, the Board determined that it had already issued
final adjudications with respect to its January 7, 2013 and July 14, 2017 decisions.
Citing 37 Pa. Code §73.1, the Board noted that its “regulation authorizing
administrative relief does not permit additional appeals after the Board issues a final
adjudication.” (C.R. at 265.) The Board further determined that Gaynor failed to
establish that he had a right to reconsideration of its final adjudications. As such, the
Board concluded that Gaynor was not entitled to relief.
Gaynor then filed a petition for review in this Court.2 He argues that,
although his “Applications for Reconsideration” were filed untimely, he was entitled
to an exception pursuant to our decision in Threats v. Pennsylvania Board of Probation
and Parole, 518 A.2d 327 (Pa. Cmwlth. 1986), rev’d on other grounds, 553 A.2d 906(Pa. 1989). Gaynor further contends that Pittman enunciated a new rule of law and,
1
61 Pa. C.S. §§101-7123.
2
Our scope of review is limited to determining whether constitutional rights were violated,
whether the adjudication was in accordance with the law, and whether necessary findings were
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704;
Hughes v. Pennsylvania Board of Probation and Parole, 179 A.3d 117, 119 n.1 (Pa. Cmwlth. 2018).
4
because he is entitled to the benefit of that decision, Pittman should be applied
retroactively.
By way of background, prior to the 2012 amendment and addition of
section 6138(a)(2.1) to the Parole Code, section 6138(a)(2) of the Parole Code
mandated, without exception, that a CPV “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 shall be given no credit for the time at liberty on parole.” 61 Pa.C.S.
§6138(a)(2). In other words, the Board did not have any discretion to grant a parolee
credit for time spent at liberty on parole. However, in enacting section 6138(a)(2.1),
the General Assembly, “for the first time in the history of the [p]arole [s]tatutes, vested
the Board with discretion to grant a CPV with credit for time spent at liberty on parole.”
Penjuke v. Pennsylvania Board of Probation and Parole, 203 A.3d 401, 408 (Pa.
Cmwlth. 2019) (en banc).3 In Pittman, the Supreme Court determined that section
6138(a)(2.1) “clearly and unambiguously grants the Board discretion to award credit
to a CPV recommitted to serve the remainder of his sentence.” Id. at 473. In
interpreting this statute, the Supreme Court further concluded that “the Board must
provide a contemporaneous statement explaining its reason for denying a CPV credit
for time spent at liberty on parole” in order to effectuate the intent of the General
Assembly in enacting section 6138(a)(2.1). Pittman, 159 A.3d at 475.
In Threats, this Court generally held that the Board may consider an
untimely application for reconsideration when the petitioner demonstrates that there
has been a subsequent change in the law that should be applied retroactively to produce
a different result from the Board’s disposition of the original appeal. See id. at 328;
3
In relevant part, section 6138(a)(2.1) states: “The [B]oard may, in its discretion, award credit
to a parolee recommitted [as a CPV] for the time spent at liberty on parole,” unless the parolee
commits a crime enumerated in the statute. 61 Pa.C.S. §6138(a)(2.1).
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see also Flowers v. Pennsylvania Board of Probation and Parole, 565 A.2d 185, 186
(Pa. Cmwlth. 1989). However, in order for a legal principle to receive retroactive
application, there must, first and foremost, be a “new rule of law” that is announced
after the appeal period of the Board’s decision. See Office of Disciplinary Counsel v.
Surrick, 749 A.2d 441, 444 (Pa. 2000); Anderson v. Talaber, 171 A.3d 355, 361 (Pa.
Cmwlth. 2017). In other words, if the “law” was available and could have been raised
as a legal issue in the original appeal to the Board, then the petitioner had an adequate
remedy in his initial request for administrative relief and, as such, cannot thereafter
mount a collateral attack on the first appeal. See Flowers, 565 A.2d at 186; see also 37
Pa. Code §73.1(a)(4); Williams v. Pennsylvania Board of Probation and Parole (Pa.
Cmwlth., No. 638 C.D. 2015, filed June 6, 2016) (unreported), slip op. at 6-7.4
In Anderson, this Court explained:
In cases where the Supreme Court is construing a statute,
a new rule of law is not created where the decision adopts
a view of the statute which was not wholly without
precedent or it involves the Court’s first opportunity to
construe the provision at issue. In cases where the Supreme
Court is issuing its first ruling interpreting the specific
statute, the Court’s first pronouncement on the substance
of a statutory provision is purely a clarification of existing
law and the construction of the statute by the Court
becomes a part of that statute from its enactment.
Anderson, 171 A.3d at 361-62 (emphasis added; internal citations and quotation marks
omitted).
The Anderson Court further commented:
In Pittman, the Supreme Court addressed the statutory
language of [s]ection 6138(a)(2.1) of the [Parole] Code
which provides that the Board “may, in its discretion, award
4
We cite Williams for its persuasive value in accordance with section 414(a) of this Court’s
Internal Operating Procedures, 210 Pa. Code §69.414(a).
6
credit to a parolee recommitted under paragraph (2) for the
time spent at liberty on parole” except where a parolee
commits a crime of violence, a crime that requires
registration as a sexual offender or where he is paroled
subject to a federal removal order. The Supreme Court had
never before interpreted paragraph 2.1 of [s]ection 6138(a),
which was added to the [Parole] Code in 2012 . . . .
Because our Supreme Court’s ruling in Pittman was the
Court’s first ruling on the issue, it was not a new rule of
law which could be applied only prospectively for cases
brought after the date of that decision and instead clarified
the legislative meaning of paragraph 2.1 existing from the
date it was first added to the [Parole] Code in 2012.
Anderson, 171 A.3d at 362 (emphasis added).
Here, Gaynor seeks reconsideration of the Board’s revocation and
recommitment decisions of January 7, 2013, and July 14, 2017. However, “[s]ection
6138(a)(2.1) became effective on September 4, 2012, and applies to any CPV
recommitment decisions on or after that date.” Penjuke, 203 A.3d at 407 n.8.
Importantly, the Board issued its decisions after the effective date of section
6138(a)(2.1), and the statutory construction holding in Pittman is deemed to have been
part of the statute since its effective date. Thus, Gaynor could have raised the issue
presented and resolved in Pittman during the administrative appeal process through the
Board and, as such, he “had an adequate remedy in his initial request[s] for
administrative relief.” Flowers, 565 A.2d at 186. However, Gaynor did not assert a
Pittman-type argument during the appeal processes that were available to him in
connection with his recommitments as a CPV. It is well settled that a petitioner “cannot
pursue in a subsequent appeal matters in which he or she could have pursued in a prior
appeal.” Williams, slip op. at 7 (parenthetically quoting Hawk v. Eldred Township
Board of Supervisors, 983 A.2d 216, 223 (Pa. Cmwlth. 2009)); see 37 Pa. Code
7
§73.1(a)(4) (“Second or subsequent appeals . . . will not be received.”). That is the
controlling principle of law in this case.
Therefore, having determined that our Supreme Court’s decision in
Pittman did not provide Gaynor with a legal basis to receive reconsideration of his
recommitment decisions under Threats, and that his requests for reconsideration were
therefore impermissible secondary or additional appeals that sought to raise issues that
could have been raised in the initial appeals, we conclude that the Board did not err in
denying Gaynor’s present “Applications for Reconsideration.” Accordingly, we affirm
the Board’s decision.
________________________________
PATRICIA A. McCULLOUGH, Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Richard Neil Gaynor, :
Petitioner :
: No. 272 C.D. 2020
v. :
:
Pennsylvania Parole Board, :
Respondent :
ORDER
AND NOW, this 15th day of January, 2021, the undated decision of the
Pennsylvania Parole Board denying the “Applications for Reconsideration” filed by
Richard Neil Gaynor, as discussed in this opinion, is hereby AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge