R. Morton v. PA BPP
2023 C.D. 2016
| Pa. Commw. Ct. | Sep 21, 2017Background
- Morton was paroled from a 9 months–3 years sentence; original maximum sentence expiration (max date) was April 23, 2016.
- He became delinquent on parole as of January 15, 2016; a Board warrant was executed on February 26, 2016 (42 days delinquent).
- Morton was charged with a technical parole violation, waived a preliminary hearing with counsel on April 27, 2016, and admitted the violation.
- The Board recommitted Morton as a technical parole violator and recalculated his max date to June 4, 2016 by adding 42 delinquent days (no credit for delinquent time under 61 Pa.C.S. § 6138).
- Morton filed an administrative appeal and later this Commonwealth Court appeal arguing lack of adequate notice/due process and that the Board unlawfully extended his max date.
Issues
| Issue | Morton’s Argument | Board’s Argument | Held |
|---|---|---|---|
| Whether Morton received adequate notice that admitting a technical parole violation could forfeit street time and extend his max date | The parole "Conditions" form was misleading and did not warn that delinquent time could be forfeited; had he known he would not have admitted the violation | Morton waived notice claim by not raising it administratively; moreover, even without full notice, Morton cannot show prejudice or how a different plea would change the result | The claim is waived for failure to raise it before the Board; alternatively, any lack of notice was harmless because Morton does not show how a different choice would have altered the outcome |
| Whether the Board lawfully recalculated the max date by adding delinquent days beginning when delinquency occurred | Calculation should begin when Board took him into custody on warrant; Board cannot impose backtime beyond unexpired balance | Statute permits forfeiture of delinquent time and computing the remainder from the date delinquent conduct occurred and to serve from the date taken into custody; recalculation adding 42 days is authorized | Recalculation is lawful: Board properly applied 61 Pa.C.S. § 6138(2)-(3) and set new max date (June 4, 2016) |
Key Cases Cited
- Pana v. Pennsylvania Board of Probation and Parole, 703 A.2d 737 (Pa. Cmwlth. 1997) (holding insufficient parole-form notice of forfeiture was harmless where parolee had prior knowledge and failed to show prejudice)
- Newsome v. Pennsylvania Board of Probation and Parole, 553 A.2d 1050 (Pa. Cmwlth. 1989) (failure to raise an issue before the Board results in waiver)
- Adams v. Pennsylvania Board of Probation and Parole, 885 A.2d 1121 (Pa. Cmwlth. 2005) (describing scope of appellate review over Board decisions)