W.J. Lavenburg v. PBPP ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
William J. Lavenburg, :
Petitioner :
:
v. : No. 1791 C.D. 2019
: SUBMITTED: June 5, 2020
Pennsylvania Board of :
Probation and Parole,1 :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: July 29, 2020
Petitioner William J. Lavenburg (Lavenburg) appeals from a December 3,
2019 ruling by the Pennsylvania Board of Probation and Parole (Board). The Board
affirmed its October 22, 2019 decision recommitting Lavenburg to serve 12 months
of backtime. The Board gave Lavenburg no credit for street time and recalculated
the maximum date on his underlying criminal sentence as March 12, 2021.
Discerning no error, we affirm.
I. Background
On June 14, 2013, Lavenburg was sentenced in the Court of Common Pleas
of Northampton County (Trial Court) to a term of three to six years in state prison,
after pleading guilty to a single count of possession with intent to deliver a controlled
substance. Supplemental Certified Record at 1A. Lavenburg was paroled on January
1
After Lavenburg filed his petition for review, the Pennsylvania Board of Probation and
Parole was renamed the Pennsylvania Parole Board. See Sections 15, 16, and 16.1 of the Act of
December 18, 2019, P.L. 776, No. 115 (effective February 18, 2020); see also Sections 6101 and
6111(a) of the Prisons and Parole Code, as amended, 61 Pa. C.S. §§ 6101, 6111(a).
20, 2015, but failed to abide by the terms of his parole. He was subsequently declared
delinquent by the Board, and on January 12, 2017, he was arrested. Certified Record
(C.R.) at 56.
Lavenburg was released from Lackawanna County Prison on March 13, 2017,
but again violated the terms of his parole. He was again declared delinquent by the
Board, and on May 4, 2017, he was again arrested. Id. at 3.
On August 15, 2017, Lavenburg was paroled from State Correctional
Institution – Frackville. At that point, the maximum date on his June 2013 sentence
was January 29, 2019. Id.
On July 19, 2018, the Board once again declared Lavenburg delinquent due
to his failure to comply with the terms of his parole. Id. at 26. On November 8, 2018,
Lavenburg was charged with several new criminal offenses in connection with his
escape the previous day from an attempted vehicle stop in Lehigh Township,
Pennsylvania: fleeing or attempting to elude an officer (Fleeing), recklessly
endangering another person (REAP), and two summary offenses (collectively, 2018
charges). Id. at 18-21. On December 21, 2018, Lavenburg was arrested on the 2018
charges. The Board issued a warrant for his detainer that same day. Id. at 23-26.
On December 31, 2018, Lavenburg waived his right to a parole revocation
hearing before the Board, as well as his right to counsel, and admitted to violating
the terms of his parole. Id. at 31-35. On February 15, 2019, the Board ordered
Lavenburg to serve six months of backtime as a technical parole violator (TPV),
recalculated the maximum date on his June 2013 sentence as July 3, 2019, and
ordered that he be held pending resolution of the 2018 charges. Id. at 53-54.
Thereafter, Lavenburg pleaded guilty in the Trial Court to one count each of
Fleeing and REAP in relation to the 2018 charges. On May 21, 2019, he was
2
sentenced to 2 concurrent county-level carceral terms of 5 to 10 months. Id. at 55.
The Trial Court’s sentencing order did not specify a date on which Lavenburg was
to be paroled. See id.
Lavenburg again waived his right to a parole revocation hearing before the
Board, as well as to counsel, and admitted to being convicted of the 2018 charges.
Id. at 62-65. On July 2, 2019, the Board ordered Lavenburg to be recommitted to
serve 12 months of backtime as a convicted parole violator (CPV), concurrent with
the already-imposed 6 months of TPV backtime, once he was released from his May
2019 sentence on the 2018 charges. Id. at 85-86.
On September 27, 2019, the Trial Court paroled Lavenburg from his May
2019 sentence. In its parole order, the Trial Court retroactively set Lavenburg’s
parole date as May 21, 2019. Id. at 87.
On October 22, 2019, the Board reiterated its earlier decision ordering
Lavenburg to serve 12 months of backtime. In addition, the Board declined to award
him street time credit. The Board recalculated the maximum date on Lavenberg’s
June 2013 sentence as March 12, 2021. Id. at 90-91.
On October 29, 2019, Lavenburg mailed an administrative remedies form to
the Board. Id. at 92-96. Lavenburg asserted that the Board had erred by failing to
acknowledge the retroactivity of the Trial Court’s September 27, 2019 parole order.
Consequently, he argued the Board had not properly calculated the date of his return
to Board custody. Id. at 92-93. On that basis, Lavenburg requested credit against his
June 2013 sentence for the period between May 21, 2019 and September 27, 2019.
Id.
On December 3, 2019, the Board denied Lavenburg’s request for relief. Id. at
99-101. This timely Petition for Review followed.
3
II. Issues
On appeal,2 Lavenburg raises two issues.3 First, he claims that the Board erred
by failing to acknowledge the retroactive effect of the Trial Court’s September 27,
2019 order and consequently not giving him credit towards his June 2013 sentence
for time served between May 21, 2019, the date which the Trial Court set as his
retroactive parole date, and September 27, 2019, the date upon which the Trial Court
issued its parole order. Lavenburg’s Br. at 10. Second, Lavenburg argues that the
Board abused its discretion by declining to award him credit for street time. Id. at
10-11. We reject both issues as being without merit.
III. Discussion
With regard to the Trial Court’s indication of a retroactive parole date, the
Board is under no obligation to abide by or give credit to a court of common pleas’
attempt to retroactively parole an individual from a county-level sentence. Vann v.
Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 1067 C.D. 2017, filed April 10, 2018),
slip op. at 6-12, 2018 WL 1722658, at *3-*5.4 This is because “a common pleas
court, through the use of retroactive parole, may not do indirectly what it is
powerless to do directly; namely, make a portion of [a parolee’s] Board[-]imposed
2
Under Section 704 of the Administrative Agency Law, our standard of review in this
matter is limited to determining whether the Board violated Lavenburg’s constitutional rights,
committed an error of law, or made findings of fact that were not supported by substantial
evidence. 2 Pa. C.S. § 704.
3
Lavenburg is represented by Kent D. Watkins, Esquire, who became involved in this
matter on November 1, 2019, after Lavenburg mailed his administrative remedies form to the
Board but before the instant appeal was filed. See Lavenburg’s Br. at 12; C.R. at 97.
4
See Section 414(a) of the Internal Operating Procedures of the Commonwealth Court of
Pennsylvania, 210 Pa. Code § 69.414(a) (unreported Commonwealth Court opinions issued after
January 15, 2008, may be cited for their persuasive value).
4
backtime run concurrently with a newly imposed county sentence.” Bailey, 591 A.2d
at 781. Therefore, the Board properly declined to award Lavenburg credit against
his June 2013 sentence for the period between May 21, 2019, and September 27,
2019.5
As for the Board’s refusal to award Lavenburg credit for his street time, it is
well-settled that a parolee waives any issues for purposes of appeal that he did not
first raise before the Board. 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). Lavenburg did
not challenge at the administrative level the Board’s decision not to award him street
time credit. Therefore, he cannot do so now on appeal, as he has waived this issue.
IV. Conclusion
Based on the foregoing discussion, we affirm the Board’s December 3, 2019
ruling.
__________________________________
ELLEN CEISLER, Judge
Furthermore, the Board did not err in calculating Lavenburg’s maximum date. Both
5
Lavenburg and the Board agree that 532 days remained on Lavenburg’s June 2013 sentence. See
Lavenburg’s Br. at 10; Board’s Br. at 10; C.R. at 88. As the Board concluded, adding 532 days to
September 27, 2019, results in a maximum date of March 12, 2021. C.R. at 88, 90-91.
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
William J. Lavenburg, :
Petitioner :
:
v. : No. 1791 C.D. 2019
:
Pennsylvania Board of :
Probation and Parole, :
Respondent :
ORDER
AND NOW, this 29th day of July, 2020, the Pennsylvania Board of Probation
and Parole’s December 3, 2019 Order is AFFIRMED.
__________________________________
ELLEN CEISLER, Judge