J.A. Kemp v. PA BPP
206 C.D. 2016
| Pa. Commw. Ct. | Jan 12, 2017Background
- Kemp was paroled from a 6½ to 13-year sentence on May 2, 2010; original maximum release date was July 27, 2012.
- Kemp was arrested Dec. 7, 2010 on new charges; Board lodged a detainer that day and lifted it on July 27, 2012; Kemp posted bail Aug. 15, 2012.
- Kemp pled guilty Nov. 26, 2013 to a firearms charge and received a 1–12 month county sentence; Board re-lodged its warrant July 7, 2015 and held a revocation hearing July 20, 2015.
- The Board recommitted Kemp as a convicted parole violator, denied street-time credit, assessed 18 months backtime, and recalculated a new maximum release date of Oct. 1, 2017; Kemp administratively appealed and then petitioned this Court.
- The Court reviewed whether the Board unlawfully altered the judicial sentence, whether it abused discretion by denying credit for (a) time at liberty on parole (including treatment facility time) and (b) 19 months, 20 days of pre-trial county custody on the detainer.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Board improperly modified judicial sentence by extending maximum release date | Kemp: Board impermissibly changed judicially imposed sentence by recalculating max date | Board: may extend max date to account for street time when parolee is recommitted after conviction | Board's recalculation did not alter judicial sentence unlawfully; extension permitted to account for street time |
| Whether Board abused discretion by denying all street-time credit | Kemp: entitled to credit for time at liberty (including certain periods) | Board: exercised discretion (checked “no”); Section 6138 gives Board discretion to deny credit | Court: Board properly exercised discretion in denying general street-time credit (no abuse) |
| Whether Kemp is entitled to credit for time at Gaudenzia House (residential treatment) under Cox equivalence-to-incarceration test | Kemp: Gaudenzia House severely restricted liberty and is equivalent to incarceration so merits credit | Board: did not address; no developed record to deny credit | Remanded: Board must hold evidentiary hearing to determine whether program restrictions equal incarceration and, if so, award credit |
| Whether Kemp is entitled to credit for 19 months/20 days pre-trial custody on the detainer | Kemp: all pre-trial custody should be credited to original sentence | Board: (concedes recalculation needed) time must be allocated between new sentence and original term per Martin/Gaito | Remanded: apply Martin — credit new sentence first (365 days), remainder (233 days) credited to original sentence; Board to recalculate max date |
Key Cases Cited
- Yates v. Pa. Bd. of Prob. & Parole, 48 A.3d 496 (Pa. Cmwlth. 2012) (Board cannot alter judicial sentence but may require serving remainder of unexpired term)
- Savage v. Pa. Bd. of Prob. & Parole, 761 A.2d 643 (Pa. Cmwlth. 2000) (limitations on Board altering judicial sentences)
- Richards v. Pa. Bd. of Prob. & Parole, 20 A.3d 596 (Pa. Cmwlth. 2011) (Board may extend maximum term to account for street-time after conviction)
- Gaito v. Pa. Bd. of Prob. & Parole, 412 A.2d 568 (Pa. 1980) (Board authority to extend maximum term does not usurp sentencing function)
- Pittman v. Pa. Bd. of Prob. & Parole, 131 A.3d 604 (Pa. Cmwlth. 2016) (checking “no” on hearing report demonstrates Board exercised discretion under §6138(a)(2.1))
- Cox v. Pa. Bd. of Prob. & Parole, 493 A.2d 680 (Pa. 1985) (parolee may obtain backtime credit for residential program time if restrictions equal incarceration; burden on inmate; remand for factual inquiry)
- Martin v. Pa. Bd. of Prob. & Parole, 840 A.2d 299 (Pa. 2003) (when confined on both detainer and new charges, credit confinement to either new sentence or original term; allocate to new sentence first when appropriate)
- Armbruster v. Pa. Bd. of Prob. & Parole, 919 A.2d 348 (Pa. Cmwlth. 2007) (clarifies when detainer custody credits apply per Gaito)
- McNally v. Pa. Bd. of Prob. & Parole, 940 A.2d 1289 (Pa. Cmwlth. 2008) (remand appropriate where Board record lacks factual development on custodial nature of program)