COMMONWEALTH OF PENNSYLVANIA v. RONNIE LEHMAN
No. 601 WDA 2021
IN THE SUPERIOR COURT OF PENNSYLVANIA
June 23, 2022
2022 PA Super 112
BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.
Appeal from the PCRA Order Entered April 14, 2021 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0003380-2018
BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*
OPINION BY PELLEGRINI, J.: FILED: June 23, 2022
*
Retired Senior Judge assigned to the Superior Court.
I.
In 2018, Lehman was residing in a halfway house called Renewal as a condition of parole. Early one morning, Lehman was discovered at Renewal, unconscious on a bathroom floor. First responders found on his person a hypodermic needle and bags of heroin. Lehman was taken to a hospital where he recovered.
Following his overdose, the Commonwealth charged Lehman with three counts: Providing Contraband to a Confined Person (
In response to defense counsel‘s motion, the Commonwealth nolle prossed the controlled substance and paraphernalia charges. The contraband charge was amended to an alleged violation of
On direct appeal, Lehman argued in part that the contraband charge should have been dismissed under the Act. However, we affirmed Lehman‘s judgment of sentence, holding that the Act did not afford him immunity because the crime of possession of contraband by an inmate was not an enumerated offense. See Commonwealth v. Lehman, 231 A.3d 877, 883 (Pa. Super. 2020); see also Commonwealth v. Lehman, 238 A.3d 328 (Pa. 2020) (denying petition for allowance of appeal).
In a concurring opinion, two of the three judges on the panel questioned whether it was proper to assume that parolees residing in halfway houses like Renewal were “inmates” or “prisoners” under the contraband statute. See Commonwealth v. Lehman, 231 A.3d 877, 884 (Pa. Super. 2020) (Pellegrini, J. concurring, joined by Bender, P.J.E.). However, since Lehman‘s counsel had not raised the issue, its merits could not be reached. See id.
Lehman filed a timely PCRA petition, asserting that his trial counsel performed ineffectively by failing to challenge the sufficiency of the evidence based on his parolee status. That is, Lehman argued that his status as a parolee, if raised, would have precluded the Commonwealth from proving beyond a reasonable doubt that he was an “inmate” or a “prisoner” under Section 5123(a.2).
The PCRA court issued a notice of intent to dismiss Lehman‘s petition and an
Lehman now raises one claim in his appellate brief:
Did the [PCRA] court abuse its discretion in denying the PCRA petition, as amended, without a hearing insofar as [Lehman] established the merits of the claim that the evidence was insufficient to sustain a conviction under
18 Pa.C.S. §5123(a.2) , insofar as Mr. Lehman was not a “prisoner” or “inmate” at the time he unlawfully possessed a controlled substance; and prior counsel were ineffective for not raising this issue at trial or on appeal?
Appellant‘s Brief, at 4 (suggested answer omitted).3
II.
Lehman‘s only issue in this appeal is whether the PCRA court erred in dismissing his ineffectiveness claim, which was predicated on counsel‘s failure to argue that Lehman could not be found guilty under Section 5123(a.2) as a matter of law due to his status as a parolee.
To assert a meritorious ineffectiveness claim, a petitioner must establish by a preponderance of the evidence that there is merit to the underlying legal claim, that there was no reasonable basis for counsel‘s conduct, and that the petitioner suffered prejudice. See generally Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987). In this context, prejudice is a reasonable likelihood that but for counsel‘s deficient performance, the petitioner would have had a more favorable verdict. See Commonwealth v. Hanible, 30 A.3d 426, 439 (Pa. 2011).
As to the underlying merit prong (which is the only prong now in dispute), Lehman contends that since he voluntarily resided at Renewal as a parolee and he was free to leave the premises (albeit in violation of parole), he could not qualify as a prisoner or inmate, precluding his conviction. The Commonwealth responds that a parolee may be treated as an inmate if the parolee has been “committed to” the custody of a halfway house.
To resolve this question of statutory interpretation, we begin by reviewing the plain language of Section 5123(a.2), which provides that “[a] prisoner or inmate commits a felony of the second degree if he unlawfully has in his possession or under his control any controlled substance in violation of Section 13(a)(16) of The Controlled Substance, Drug, Device and Cosmetic Act.” “Inmate” is defined in
As a community corrections center, Renewal indisputably qualifies as a correctional institution. See
The phrase “committed to” is not defined in
It is significant that Pennsylvania courts have long recognized that parolees “are not similarly situated with pre-release inmates” because parolees are “at liberty” rather than in official detention or incarceration. Meehan v. Pennsylvania Board of Probation and Parole, 808 A.2d 313, 317 (Pa. Cmwlth. 2002); see also
Accordingly, “parolees, who are at liberty on parole while at [a community corrections facility or center]” are a distinct class of offenders from “pre-release inmates, who are deemed to be in official detention, for purposes of credit for time spent at [a community corrections facility or center].” Commonwealth v. Davis, 852 A.2d 392, 397 (Pa. Super. 2004) (citing Meehan, 808 A.2d at 317) (emphasis added); Jackson v. Pennsylvania Board of Probation and Parole, 568 A.2d 1004 (Pa. Cmwlth. 1990) (same); see also Cox v. Pennsylvania Board of Probation and Parole, 493 A.2d 680 (Pa. Cmwlth. 1985) (same) (seminal case explaining that parolees are generally not entitled to credit time on a sentence while receiving in-patient drug treatment because the restrictions on liberty are not commensurate with incarceration.).6
Renewal is a community corrections center located in downtown Pittsburgh. As explained in Medina v. Pennsylvania Board of Probation and Parole, 120 A.3d 1116 (Pa. Cmwlth. 2015), and Harden v. Pennsylvania Board of Probation and Parole, 980 A.2d 691, 699 (Pa. Cmwlth. 2009), community corrections centers are operated by private entities under contract with the Pennsylvania Department of Corrections.7
As a matter of law, a parolee may only reside at Renewal or any community corrections center pursuant to a parole agreement, which is a contract wherein a parolee accepts conditions, subject to stipulated consequences in the event that those conditions are violated. See
Once a parole agreement has been executed, the parolee “shall remain in the legal custody of the [P]arole Board until the expiration of his maximum sentence, or until he is legally discharged.” Id. at § 63.2. If the parolee violates the agreed-upon terms during the parole period, the Parole Board “may cause his detention or return to a correctional institution.” Id. at § 63.3.
In this case, Lehman was not, as the PCRA court presumed, residing at Renewal against his will. He was at Renewal pursuant to an agreed-upon parole condition. If Lehman wished, he could have left to serve out the remainder of his sentence in prison. Lehman‘s option to leave Renewal, his statutory status as a “parolee at liberty on parole,” and the absence of his right to accrue credit time against his sentence while staying there, made it impossible for Lehman to qualify as an “inmate” for the purposes of Section 5123.
Had Lehman‘s trial counsel sought to have the contraband charge dismissed on the ground that he was not an inmate, there is a reasonable likelihood that the argument would have succeeded, resulting in the dismissal of the charge. Accordingly, the PCRA court abused its discretion in dismissing Lehman‘s ineffectiveness
III.
We conclude our analysis by writing separately in response to certain matters raised in the dissent.
The core of the dissent is its disagreement with the majority that Lehman was not “committed to” Renewal because he was there as a voluntary condition of parole. Not accepting Black‘s Law dictionary of the term, the dissent instead cites definitions of “commit” found in the Merriam-Webster Dictionary. However, these definitions do not, as the dissent contends, demonstrate that there is a voluntary aspect to being “committed to” a correctional institution under Section 5123(a.2). In fact, of the five definitions provided, the one closest in context to the present circumstances is “3b,” and its examples of usage (provided below but omitted by the dissent) highlight the involuntary nature of being “committed to” a prison or a community corrections center:
[3]b: to place in a prison or mental institution
// The patient was committed by the court to a mental hospital.
// He was committed to the state penitentiary for 10 years[.]
https://www.merriam-webster.com/dictionary/commit (definition 3) (last visited May 18, 2022) (emphasis in original).
Even if there was a whiff of validity in the dissent‘s interpretation of Section 5123(a.2), the Rule of Lenity would preclude us from adopting it. This fundamental tenet of statutory construction, which the dissent ignores, requires courts to construe ambiguous terms in the way that avoids imposition of a penal sanction. Under the dissent‘s own analysis of whether Lehman was a parolee or an inmate under Section 5123(a.2), the phrase, “committed to” may be susceptible to multiple meanings, including the one favorable to Lehman. Thus, if there was any ambiguity in these disputed terms, then they would have to be construed in Lehman‘s favor.
Moreover, the dissent‘s reliance on Commonwealth v. Cornelius, 180 A.3d 1256 (Pa. Super. 2018), is equally unavailing because it involves completely different facts and speaks to points of law that are not now at issue. In Cornelius, the defendant was a parolee who was arrested at his home for a parole violation. Authorities later discovered during jail intake that the defendant had contraband hidden on his person. On appeal, the defendant conceded that he “was in fact confined” at a jail, but he argued in relevant part that he was not yet an “inmate” during the intake processing stage. This Court held that the defendant could be found guilty of violating Section 5123(a.2) because upon his arrest and transfer to jail, he qualified as an
It is undisputed that Appellant was arrested for a parole violation, transported, and surrendered to the custody of the staff at the Warren County Jail. Once his intake processing began, Appellant was committed to the custody of the Warren County Jail. Accordingly, that is when he first became an inmate of the jail as defined under subsection 5123(e).
180 A.3d at 1261 (emphasis added).
The material distinctions between Cornelius and this case are obvious. The defendant in Cornelius was handcuffed and arrested for violating parole and then taken to a jail against his will, at which point he was found to have possessed contraband. It was only after being arrested, handcuffed, transported and surrendered to a jail for processing that “he first became an inmate of the jail as defined under subsection 5123(e).” Id. By clear implication, the defendant was a parolee and not an inmate prior to those events. Here, Lehman went to Renewal voluntarily as a condition of parole and as a parolee. Cornelius would only apply here if Lehman‘s contraband possession had occurred after a parole violation, an involuntary arrest and a transport to a jail. Here, those are not our facts.
Finally, the dissent questions the import of recent revisions to statutes concerning the rights and legal status of a parolee. The majority cited
The legislative intent behind the most recent enactment of Section 6138(2.1) is further evidenced by other revisions to relevant statutes, including
President Judge Emeritus Bender joins the opinion.
Judge Bowes files a dissenting opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/23/2022