Raymont Bailey, Petitioner v. Pennsylvania Parole Board, Respondent
No. 871 C.D. 2023
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
September 3, 2024
Submitted: July 5, 2024
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE LORI A. DUMAS, Judge
OPINION
BY JUDGE McCULLOUGH
FILED: September
Raymont Bailey (Petitioner) petitions for review of the July 28, 2023 order of the Pennsylvania Parole Board (Board), which affirmed its March 16, 2023 (mailed March 21, 2023) determination recommitting Petitioner as a convictеd parole violator (CPV) and recalculating his maximum sentence date. On appeal, Petitioner challenges
Background
The relevant facts and procedural history of this case are as follows. On September 26, 2014, Petitioner entered a guilty plea in thе Court of Common Pleas of Philadelphia County (trial court) to one count each of possession with intent to deliver a controlled substance (PWID), criminal conspiracy to commit PWID, and person not to possess a firearm.2 (Certified Record (C.R.) at 1-2.) The trial court sentencеd Petitioner to an aggregate term of 2 1/2 to 10 years’ incarceration, with minimum and maximum dates of April 15, 2015, and October 15, 2022, respectively.
Petitioner was released on parole on August 5, 2015, after he executed a statement detailing the conditions of his parole, including that he report to and maintain regular contact with the parole supervision staff. He was also advised:
If you are convicted of a crime committed while on parole/reparole, the Board has the authority, after an appropriate hearing, to recommit you to serve the balance of the sentence or sentences which you were serving when paroled/reparoled, with no credit for time at liberty on parole.
(C.R. at 7) (emphasis added).
Petitioner was at liberty on parole for 569 days from August 5, 2015, to February 24, 2017, when he was arrested for leaving the district without permission. By decision issued May 21, 2017, the Board recommitted Petitioner as a technical parole violator (TPV) to serve six months for the violation. (C.R. at 11.) He was released on automatic reparole3 to a community corrections center on August 24, 2017,
with the maximum date on his original sentence remaining October 15, 2022. (C.R. at 14-16.)
On August 19, 2021, the Board declared Petitioner delinquent for his failure tо report. On March 2, 2022, Petitioner was arrested by the Philadelphia Police Department on charges of aggravated assault and several related offenses (Docket No. 3723-2022). (C.R. at 39.) On December 12, 2022, Petitioner entered a guilty plea to two counts of aggravated assault and one count each of person not to possess a firearm and possession of an instrument of a crime (PIC).4 The trial court sentenced him to an aggregate term of 2 to 5 years of incarceration. (C.R. at 46.)
On February 22, 2023, the Board issued Petitioner a notice of parolе violation based on the new conviction and informed
at 81) (capitalization in original).6 The Board entered an Order to Recommit, with a recomputed maximum date of July 19, 2029. (C.R. at 79.) In making this calculation, the Board added the 569 days Petitioner spent at liberty on parole before his initiаl recommitment as a TPV in May of 2017, i.e., from August 5, 2015, through February 24, 2017, as time that he forfeited upon recommitment as a CPV.
On April 11, 2023, Petitioner filed both counseled and pro se administrative remedies forms challenging the Board‘s Decision. By order issued July 28, 2023, the Board affirmed its Decision and found that it properly declined to award Petitioner credit for street time under the applicable provisions of the Parole Code given the violent nature of his new offenses. In doing so, it explained:
On February 24, 2023, the Board voted to revoke [Petitioner‘s] parole for the new Philadelphia County conviction. Based on the above facts, [Pеtitioner] was at liberty on parole for 569 days from August 5, 2015[,] to February 24, 2017. [Petitioner] was also left with 1,878 days to serve on his original sentence when he reparoled on August 24, 2017. The Board‘s decision to recommit [Petitioner] as a CPV authorized the recalculation of his maximum date to reflect thаt he received no credit for the time spent at liberty on parole.
61 Pa. C.S. § 6138(a)(2) . Considering [Petitioner‘s] new offenses, namely Aggravated Assault graded as a Felony in the First Degree, prohibit discretion regarding the Board‘s authority to grant or deny such credit, this means that he owed 1,878 days based on the recommitment.61 Pa. C.S. § 6138(a)(2.1)(i) . Because [Petitioner‘s] offense prohibits discretion, he also owed the 569 days he was previously at liberty on parole, thus bringing the total balance to 2,447 days on his original sentence.61 Pa. C.S. § 6138(c)(2) .7
(C.R. at 89-90.)
On August 14, 2023, Petitioner filed a counseled petition for review in this Court. Petitioner retained nеw counsel in March
Issue8
Petitioner‘s sole argument on appeal is that the Board erred by forfeiting his street time credit upon his recommitment as a CPV. (Petitioner‘s Br., at 10-12.)9 Accоrding to Petitioner, the Board was obligated to grant him credit for the time he spent at liberty on parole-i.e., the 569 days between the time he was paroled on August 5, 2015, and when he was arrested for leaving the district without permission on February 24, 2017. Petitioner contends that, when the Board recоmmitted him as a TPV, it awarded him credit for the 569 days spent at liberty on parole and, therefore, was subsequently prohibited from denying him credit for that time when it recommitted him as a CPV. Petitioner argues that the Board‘s forfeiture of this street time violates
this Court‘s decision in Penjuke v. Pennsylvania Board of Probation and Parole, 203 A.3d 401 (Pa. Cmwlth. 2019).
The Board responds that, because it ultimately recommitted Petitioner as a CPV, it properly recalculated his new maximum date when it added the 569 days to the time that remained on his original sentence, as this street time was subject to forfeiture under the relevant provisions of the Parole Code. (Board‘s Br., at 11-13.) We agreе with the Board.
Analysis
We begin by noting the legislature has provided that generally, upon recommitment as a CPV, “the parolee must serve the remainder of the term which he would have been compelled to serve had he not been paroled with no credit given for street time.” Armbruster v. Pennsylvania Board of Probation and Parole, 919 A.2d 348, 351 (Pa. Cmwlth. 2007); see also
However, on June 30, 2021,
(a) Convicted violators.—
(1) The [B]oаrd may, at its discretion, revoke the parole of a paroled offender if the offender, during the period of parole or while delinquent on parole, commits a crime punishable by imprisonment, for which the offender is convicted or found guilty by a judge or jury or to which the offеnder pleads guilty or nolo contendere at any time thereafter in a court of record.
. . . .
(2) If the offender‘s parole is revoked, the offender shall be recommitted to serve the remainder of the term which the offender would have been compelled to serve had the parole not been granted and, except as provided under рaragraph (2.1), shall be given no credit for the time at liberty on parole.
(2.1) The [B]oard may, in its discretion, award credit to an offender recommitted under paragraph (2) for the time spent at liberty on parole, unless any of the following apply:
(i) The crime committed during the period of parole or while dеlinquent on parole is a crime of violence or a crime listed under
. . . .
(2.2) Credit awarded under paragraph (2.1) is subject to forfeiture under this section if an offender is subsequently recommitted as a cоnvicted parole violator.
. . . .
(c) Technical violators.—
(1) Subject to paragraph (1.3), an offender under the jurisdiction of the board who violates the terms and conditions of his parole, other than a convicted violator who has parole revoked under subsection (a), may be detained pending a hearing before the [B]oard or waiver of the hearing or recommitted after a hearing before the [B]oard or a waiver of the hearing.
(2) If the offender is recommitted under this subsection, the offender shall be given credit for the time served on parole in good standing but with no сredit for delinquent time and may be reentered to serve the remainder of the original sentence or sentences. Credit awarded to a technical parole violator for time served on parole in good standing is subject to forfeiture if the offender is subsequently recommitted as a convicted parole violator.10
Thus, the plain language of
As noted, Petitioner relies on Penjuke, 203 A.3d at 420, to support his position that he is entitled to the 569 days of street time hе was previously credited upon his recommitment as a TPV. In examining
Penjuke Court held: “[T]he Board lacks the statutory authority to revoke street time credit previously granted to a parolee as a TPV when it subsequently recommits the parolee as a CPV.” Id. However, Penjuke was decided in 2019 and predates the June 30, 2021 amendment to
Accordingly, we deny Petitioner‘s application to remand and affirm the Board‘s order.
PATRICIA A. McCULLOUGH, Judge
Raymont Bailey, Petitioner v. Pennsylvania Parole Board, Respondent
No. 871 C.D. 2023
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
ORDER
AND NOW, this 3rd day of September, 2024, the Application to Remand filed by Raymont Bailey is DENIED, and the Pennsylvania Parole Board‘s July 28, 2023 Order is hereby AFFIRMED.
PATRICIA A. McCULLOUGH, Judge