D. Clark v. PBPP ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Daniel Clark, :
Petitioner :
:
v. : No. 854 C.D. 2019
: Submitted: January 10, 2020
Pennsylvania Board of :
Probation and Parole, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: October 1, 2020
Petitioner Daniel Clark (Clark) petitions for review of a final determination of
the Pennsylvania Board of Probation and Parole1 (Board), dated June 17, 2019. The
Board denied Clark’s request for administrative relief, thereby rejecting his claim
that the Board failed to credit his sentence properly. For the reasons set forth below,
we affirm.
On April 22, 2016, Clark pleaded guilty to simple assault and unlawful
possession of a firearm, and the Court of Common Pleas of Somerset County
1
Subsequent to the filing of the 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 (effective February 18, 2020); see also Sections 6101 and 6111(a)
of the Prisons and Parole Code (Code), as amended, 61 Pa. C.S. §§ 6101, 6111(a).
sentenced him to a term of incarceration of 18 months to 4 years, including a shorter
concurrent sentence for the simple assault charge. (Certified Record (C.R.) at 1.)
On August 17, 2016, Clark pleaded guilty to possession with the intent to
manufacture a controlled substance, and the Court of Common Pleas of Jefferson
County sentenced him to a term of incarceration of 9 months to 2 years, to be served
concurrently with his Somerset County sentences. (Id.) As a result of these
sentences, Clark had a minimum sentence date of August 25, 2017, and a maximum
sentence date of February 25, 2020. (Id.) On August 21, 2017, Clark was released
on parole to a community corrections facility. (Id. at 4.)
On August 25, 2017, police arrested Clark at the community corrections
facility for possession of controlled substances. (Id. at 28.) That same day, the
Board issued a warrant to commit and detain Clark, and the Court of Common Pleas
of Westmoreland County (Westmoreland CCP) set Clark’s monetary bail at $5,000.
(Id. at 16, 26.) Clark posted bail on September 7, 2017, but Westmoreland CCP
revoked his bail on January 22, 2018. (Id. at 33, 46, 64.) By decision recorded
April 20, 2018, the Board detained Clark pending disposition of his new criminal
charges. (Id. at 43.)
On June 5, 2018, Clark pleaded guilty to one felony and one misdemeanor
count related to possession of a controlled substance, and Westmoreland CCP
sentenced him to a term of incarceration of 11½ months to 23 months. (Id. at 47.)
On June 21, 2018, the Board issued a notice of charges and scheduled a parole
revocation hearing for June 29, 2018, based on Clark’s status as a convicted parole
violator (CPV). (Id. at 32.) On that same date, Clark signed a Waiver of Revocation
Hearing and Counsel/Admission Form, thereby waiving his right to a revocation
hearing, the right to a panel hearing, and the right to have counsel present at that
2
hearing. (Id. at 36.) By signing this form, Clark also admitted that he pleaded guilty
to some of his new criminal charges. (Id.)
By decision recorded July 19, 2018 (mailed August 9, 2018), the Board
recommitted Clark as a CPV to serve 24 months’ backtime following completion of
his parole from his Westmoreland County sentence and his return to a state
correctional institution (SCI). (Id. at 54.) The Board did not recalculate Clark’s
parole violation maximum sentence date at that time. (Id.) Westmoreland CCP
granted Clark parole from his Westmoreland County sentence on March 14, 2019,
and he was released from confinement on March 22, 2019. (Id. at 56.) By decision
recorded May 6, 2019, the Board recalculated Clark’s parole violation maximum
sentence date as May 11, 2021, and calculated Clark’s parole eligibility date as
November 7, 2020. (Id. at 59.) The Board also denied Clark credit for all time spent
at liberty on parole because his “new conviction [was the] same/similar to the
original offense.” (Id.)
Clark challenged the Board’s decision by filing a request for administrative
relief, which the Board received on May 21, 2019. (Id. at 61.) Clark essentially
argued that the Board erred in recalculating his maximum sentence date because it
failed to credit his sentence properly. By decision mailed June 17, 2019, the Board
denied Clark’s request for administrative relief. (Id. at 64-66.) In so doing, the
Board reasoned:
The Board paroled you from a[n SCI] on August 21, 2017[,] with
a max date of February 25, 2020. This left you with a total of 918 days
remaining on your sentence at the time of parole. The Board’s decision
to recommit you as a [CPV] authorized the recalculation of your
sentence to reflect that you receive[d] no credit for the time you were
at liberty on parole. 61 Pa. C.S. § 6138(a)(2). In this case, the [B]oard
did not award you credit for time at liberty on parole. This means you
3
still had a total of 910 [sic2] days remaining on your sentence based on
your recommitment.
On August 25, 2017[,] the Board lodged its detainer against you
and you were arrested for new criminal charges in the Court of
Common Pleas of Westmoreland County at docket number
CP 3978-2017. You posted bail on September 7, 2017[,] and it was
revoked on January 22, 2018. You were sentenced on June 5, 2018, to
a county term and granted parole effective March 22, 2019.
Based on these facts, backtime credit was awarded from
September 7, 2017[,] to January 22, 2018 (137 days). Subtracting this
time means you now had a total of 781 days remaining on your original
sentence.
. . . . In this case, March 22, 2019[,] is your effective date because that
is when you were available to the [B]oard from your Westmoreland
County conviction. Adding 781 days to that date yields a new
maximum date of May 11, 2021.
(Id.)
On appeal to this Court,3 Clark argues that the Board erred or abused its
discretion by failing to give him credit for time he spent in custody on the detainer
lodged by the Board prior to being sentenced for his new criminal charges.4 For the
reasons set forth below, we cannot conclude that the Board improperly denied Clark
credit.
This statement appears to be a typographical error. The Board’s earlier statement—that
2
Clark had 918 days remaining on his sentence at the time of his parole—correctly states the
difference between Clark’s initial maximum sentence date (February 25, 2020) and his parole date
(August 21, 2017). Moreover, the remaining 918 days—not 910 days—is the basis for the Board’s
later calculation that, after crediting Clark the 137 days during which he was detained solely on its
warrant, Clark had 781 days—not 773 days—remaining on his sentence.
This Court’s standard of review is limited to determining whether constitutional rights
3
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.
Clark also suggests that the Board erred because it attributed some period of Clark’s
4
confinement to a sentence received in a jurisdiction outside Pennsylvania. The Board did not,
however, discuss any sentence from another jurisdiction, and the record contains no suggestion
that Clark has received such a sentence. Thus, we will not address this argument further.
4
When the Board has lodged a detainer and the parolee has not posted bail on
his new criminal charges, such that the parolee is being confined on both the Board’s
detainer and as a result of the pending criminal charges, pre-sentence confinement
credit must be applied to reduce the new sentence of incarceration unless the credit
would exceed that new sentence of incarceration. Martin v. Pa. Bd. of Prob. &
Parole, 840 A.2d 299, 307-09 (Pa. 2003). By contrast, when a parolee has posted
bail on the new criminal charges, such that he is detained solely on the Board’s
warrant, the Board must apply the pre-sentence confinement credit to reduce the
unserved balance of the sentence from which the parolee was paroled. Gaito v. Pa.
Bd. of Prob. & Parole, 412 A.2d 568, 571 (Pa. 1980).
Here, Clark had 918 days left on his sentence when he was released on parole.
(C.R. at 64.) Clark was arrested on the new charges on August 25, 2017, the same
day the Board issued its warrant, and he failed to post bail until September 7, 2017.
(Id. at 16, 28, 33.) Clark remained incarcerated, therefore, on both the Board’s
warrant and the new criminal charges from his arrest until September 7, 2017. Under
Martin, that time must be applied to his new sentence. In compliance with Gaito,
the Board credited Clark with the 137 days for which he was detained solely on its
warrant from September 7, 2017, until Westmoreland CCP revoked his bail on
January 22, 2018, effectively detaining him again on the new criminal charges.
(Id. at 64.) After applying the 137-day credit to Clark’s remaining original sentence,
his unserved balance is 781 days. (Id.) Adding 781 days to March 22, 2019—the
date Clark was paroled from his Westmoreland County sentence and became
available to serve the remaining balance of his original sentence5—results in a new
5
Section 6138(a)(4) of the Prisons and Parole Code, 61 Pa. C.S. § 6138(a)(4), provides:
“The period of time for which the parole violator is required to serve shall be computed from and
5
maximum sentence date of May 11, 2021. The Board, therefore, did not err in its
recalculation of Clark’s new maximum sentence date, and it did not deny Clark any
credit to which he is entitled.
Accordingly, we affirm the final determination of the Board.
P. KEVIN BROBSON, Judge
begin on the date that the parole violator is taken into custody to be returned to the institution as a
parole violator.” (Emphasis added.) Clark does not challenge the start date the Board used in
recalculating his maximum sentence date.
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Daniel Clark, :
Petitioner :
:
v. : No. 854 C.D. 2019
:
Pennsylvania Board of :
Probation and Parole, :
Respondent :
ORDER
AND NOW, this 1st day of October, 2020, the final determination of the
Pennsylvania Board of Probation and Parole, dated June 17, 2019, is AFFIRMED.
P. KEVIN BROBSON, Judge