Opinion
92 C.D. 2021
09-13-2021
Christopher L. Cash, Petitioner v. Pennsylvania Parole Board, Respondent
OPINION NOT REPORTED
SUBMITTED: July 23, 2021
MEMORANDUM OPINION
PER CURIAM
Petitioner Christopher L. Cash (Cash) petitions for review of the Pennsylvania Parole Board's (Board) December 28, 2020 decision, which affirmed the Board's June 19, 2020 decision to recommit Cash to serve his unexpired term as a convicted parole violator (CPV) and denied him credit for time spent at liberty on parole. After review, we affirm the Board's decision.
In 2010, Cash was originally sentenced to serve four to eight years in a state correctional institution (SCI) for aggravated assault (fear of serious bodily injury to officials); persons not to possess or use firearms; and terroristic threats with intent to terrorize another, with a maximum sentence date of November 14, 2017. Certified Record (C.R.) at 1-2. Cash was released on parole to Renewal, Inc. (Renewal) on February 24, 2014, but was returned to SCI-Pittsburgh on October 15, 2014, due to his threatening behavior toward Renewal staff. Id. at 15. On April 15, 2015, Cash was reparoled to Gateway Braddock (Gateway), but he absconded and was declared delinquent effective June 2, 2015. Id. After Cash pled guilty to summary disorderly conduct in November 2015, the Board mailed Cash a decision on March 28, 2016, recommitting him as a technical parole violator (TPV) to serve up to six months in a community corrections center/facility for multiple technical parole violations and recalculating his maximum sentence date as April 17, 2018. Id. at 4-6, 15.
On May 3, 2016, Cash was automatically reparoled from SCI-Pittsburgh to Gateway, subject to any detainers. C.R. at 7-8. On February 23, 2018, Cash was arrested by the Allegheny County Sheriff's Office and charged with possession of a firearm prohibited; firearms not to be carried without a license; the manufacture, delivery, or possession with intent to manufacture or deliver a controlled substance; resisting arrest; and two counts of possession of a controlled substance by a person not registered. Id. at 19-21, 22-28. On February 24, 2018, the Board issued a warrant to commit and detain Cash. Id. at 13. Monetary bail was set at $25,000, which Cash did not post. However, on March 8, 2018, Cash's bail was changed, and he was released on his own recognizance after waiving the charges to court. Id. at 20. Cash remained detained under the Board's detainer until April 17, 2018, when the Board cancelled its detainer upon the expiration of Cash's maximum sentence date. Id. at 33-34. By administrative action dated April 18, 2018, the Board declared Cash delinquent for control purposes effective February 23, 2018. Id. at 38. Cash's bail was ultimately revoked on February 5, 2019, and he was returned to the Board's custody at SCI-Greene on February 7, 2020. Id. at 56, 79, 81.
On January 22, 2020, Cash pled guilty in the Court of Common Pleas of Allegheny County (trial court) to possession of a firearm prohibited (count one); possession of a controlled substance by a person not registered (count four); and resisting arrest (count six); the other drug and firearms charges were withdrawn. C.R. at 82-83. Cash was sentenced to two and a half to five years of incarceration in an SCI, bootcamp recommended, and one year of probation on count one; and one year of probation each on counts four and six, with all probation sentences running concurrently to one another and consecutively to his incarceration. Id. at 52-53, 82-83. The Board issued a warrant to commit and detain Cash the same day he was sentenced. Id. at 39.
On March 3, 2020, the Board issued a notice of charges and hearing to Cash, noting his new convictions and indicating that a revocation and panel hearing would be held on March 18, 2020. C.R. at 54. Cash initially requested a panel hearing on March 5, 2020; however, on March 18, 2020, Cash waived his rights to counsel and a panel hearing. Id. at 55-58. The March 18, 2020 revocation hearing took place before a Hearing Examiner, at which Cash appeared and admitted to his new convictions. Id. at 59, 66. Following the hearing, the Hearing Examiner recommended that Cash be recommitted as a CPV to serve 24 months' backtime and denied credit for time spent at liberty on parole, and a second Board member signed this decision on April 1, 2020. Id. at 73-78. In a Board decision mailed on June 19, 2020, the Board recommitted Cash as a CPV to serve his unexpired term of 1 year, 10 months, and 5 days in an SCI with a new maximum sentence date of February 4, 2022. Id. at 93-94. The Board also denied Cash credit for time spent at liberty on parole because he "committed a new offense involving possession of a weapon . . . [and] has a history of supervision failures . . . ." Id. at 94.
Cash submitted an administrative remedies form, which the Board received on June 30, 2020, alleging that he "never got any notice of revocation while on parole," that he had "good standing time over a year," and that his custody for return date should have been February 7, 2020, rather than April 1, 2020. C.R. at 95, 97. Cash then submitted correspondence to the Board, which it received on July 7, 2020, again challenging his custody for return date and further alleging that he did not get credit for two months he already served. Id. at 97. He submitted another administrative remedies form, which the Board also received on July 7, 2020, questioning credit time in 2009 and suggesting that the maximum sentence date that had occurred in 2017 should have occurred in 2016. Id. at 99. Additionally, Cash submitted two substantively identical administrative remedies forms on October 13, 2020, and November 6, 2020, respectively, which he marked as "Amended Appeal[s]," and in which he alleged various constitutional violations and challenges to sentence credit. Id. at 102-08.
By decision mailed on December 28, 2020, the Board first acknowledged that Cash's June 30, 2020 and July 7, 2020 administrative remedies forms, as well as his correspondence the Board received on July 7, 2020, were timely, but that it would not consider Cash's subsequent administrative remedies forms received on October 13, 2020, and November 6, 2020, pursuant to the Board's regulation at 37 Pa. Code § 73.1 (providing that second or subsequent appeals and petitions for administrative review and those which are out of time will not be received). C.R. at 110. The Board then explained that Cash was paroled from his original sentence on May 3, 2016, with a maximum sentence date of April 17, 2018, leaving him with 714 days remaining on his original sentence. Id. Because the Board recommitted him as a CPV pursuant to Section 6138(a)(2) of the Prisons and Parole Code (Parole Code), 61 Pa.C.S. § 6138(a)(2), and denied Cash credit for the time he spent at liberty on parole, he owed 714 days on his original sentence. Id. The Board further explained that it credited 40 days to Cash's original sentence for time spent incarcerated solely on the Board's detainer between March 8, 2018 (the date he was released on his own recognizance by the trial court), and April 17, 2018 (Cash's original maximum sentence date). Id. This left Cash with 674 days remaining on his original sentence. Id.
We note that various sections of the Parole Code, including Section 6138(a)(2), have recently been amended by the Act of June 30, 2021, P.L., No. 59. We nevertheless reference the version of the Parole Code that was in effect at the time the Board rendered its decision in this matter.
The Board clarified that while Cash's bail was revoked by the trial court on February 5, 2019, and he reentered detention again thereafter, Cash was not available to commence service of his original sentence until April 1, 2020, the day the Board voted to revoke his parole. C.R. at 111. Therefore, the Board recalculated his maximum sentence date by adding 674 days to his April 1, 2020 availability date, which yielded a recalculated maximum sentence date of February 4, 2022. Id. The Board therefore determined that it did not err in recalculating Cash's maximum date.
Finally, the Board noted that Section 6138(a)(5) of the Parole Code, 61 Pa.C.S. § 6138(a)(5), provides that a CPV who was released from an SCI and receives a new sentence to be served in an SCI must serve the original sentence first. C.R. at 111. Thus, any time spent incarcerated that was not allocated toward Cash's original sentence will be calculated by the Department of Corrections and credited toward his new state sentence upon commencement of that term. Id. The Board therefore affirmed its June 19, 2020 decision. Cash petitioned this Court for review of the Board's decision.
Section 6138(a)(5) provides, in pertinent part:
(5) If a new sentence is imposed on the parolee, the service of the balance of the term originally imposed by a Pennsylvania court shall precede the commencement of the new term imposed in the following cases:
(i) If a person is paroled from a State correctional institution and the new sentence imposed on the person is to be served in the State correctional institution. . . . .61 Pa.C.S. § 6138(a)(5).
This Court's standard of review is limited to determining whether constitutional rights 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.
Cash raises two issues in his pro se petition for review, filed in this Court on January 27, 2021. First, Cash argues that the revocation of his parole was improper because the Board failed to hold a detention hearing and deprived Cash of the right to appear at said hearing with counsel in violation of his right to due process, and, alternatively, failed to secure a waiver of a detention hearing from Cash. Pet. for Rev., ¶¶ 20-29. Second, he argues that the Board lacked substantive jurisdiction to revoke his parole 22 months after the expiration of his maximum sentence date, which constitutes additional punishment in violation of constitutional protections against double jeopardy. Pet. for Rev., ¶¶ 30-35. On February 12, 2021, this Court ordered the Public Defender of Somerset County (Counsel) to represent Cash, and Counsel thereafter entered her appearance and filed an amended petition for review on Cash's behalf on March 12, 2021, raising one additional issue: that the Board erred by denying him credit for time spent at liberty on parole in violation of Section 6138(a)(2) and/or (2.1) of the Parole Code, 61 Pa.C.S. § 6138(a)(2), (2.1), and failed to adequately articulate its reason for doing so in its decision. Am. Pet. for Rev., ¶ 7(a).
At the outset, we must consider whether the issues Cash raises on appeal are properly before the Court. "The law is well settled that issues not raised before the Board either at the revocation hearing or in the petitioner's administrative appeal are waived and cannot be considered for the first time on appeal." Chesson v. Pa. Bd. of Prob. & Parole, 47 A.3d 875, 878 (Pa. Cmwlth. 2012); see also Section 703(a) of the Administrative Agency Law, 2 Pa.C.S. § 703(a) ("A party who proceeded before a Commonwealth agency . . . may not raise upon appeal any other question not raised before the agency . . . unless allowed by the court upon due cause shown."); Pa.R.A.P. 1551(a) (providing that, with limited exceptions, "[o]nly questions raised before the government unit shall be heard or considered . . .").
Here, as mentioned above, Cash only raised the following issues in his timely filed administrative appeals and correspondence to the Board: he "never got any notice of revocation while on parole"; he had "good standing time over a year"; his custody for return date should have been February 7, 2020, rather than April 1, 2020; he did not get credit for two months he already served; and he questioned credit time in 2009 and suggested that the maximum date from 2017 should have occurred in 2016. C.R. at 95, 97, 99. It appears Cash has since abandoned these issues on appeal, as none of them were raised in either his pro se petition for review or his counseled amended petition for review or argued in his brief to this Court. Therefore, these issues are waived, and we will not address them further. Similarly, none of the issues raised in Cash's petitions for review and brief were raised before the Board, either at the revocation hearing or in his administrative appeals and correspondence, and he cannot now raise them for the first time on appeal to this Court. See Chesson. Consequently, Cash has waived these issues.
We note that the Board did not address waiver in its brief.
Even if we were to put aside Cash's failure to preserve the issues raised in his petitions for review to this Court, which issues the Board has addressed in its brief, we would conclude that they lack merit. Regarding his first issue that his due process rights were violated based on the Board's failure to provide a timely detention hearing, and counsel at said hearing, we observe that under Section 71.3(1)(i)-(iv) of the Board's regulations, the Board may detain a parolee on a Board warrant pending disposition of a criminal charge if one of the following conditions is met:
(i) A district justice has conducted a criminal preliminary hearing and concluded that there is a prima facie case against the parolee.
(ii) The parolee waives a criminal preliminary hearing and is held for court.
(iii) The parolee is convicted of a crime at a trial before a judge of the Philadelphia Municipal Court or a district justice.
(iv) An examiner conducts a detention hearing.37 Pa. Code § 71.3(1)(i)-(iv). Section 71.3(2) further provides that "[a] parolee detained on a Board warrant upon the occurrence of one of the events enumerated in paragraph (1) may be held, without further hearing, pending disposition of the new criminal charge." 37 Pa. Code § 71.3(a)(2) (emphasis added). Our Supreme Court has previously held that "a parolee who is detained as a [CPV] is not constitutionally entitled to a detention hearing. The purpose of the detention hearing is to determine whether there is probable cause to support a charge of parole violation. This purpose is fully served by the proceedings at which the prisoner is convicted." Reavis v. Pa. Bd. of Prob. & Parole, 909 A.2d 28, 35 (Pa. Cmwlth. 2006) (citing Com. ex rel. Rambeau v. Rundle, 314 A.2d 842 (Pa. 1973)).
Here, Cash was arrested on the new criminal charges on February 23, 2018, and the Board issued a warrant to commit and detain him the next day. C.R. at 13, 19-21. Cash initially did not post bail on the new charges, but his bail was later changed, and he was released on his own recognizance on March 8, 2018, after waiving the charges to court. Id. at 20, 33 (4/9/2018 Request for Release Order, noting that "charges waived to court prior to detention hearing"). Cash therefore remained detained solely on the Board's detainer from March 8, 2018, to April 17, 2018, when the Board cancelled its detainer upon the expiration of his maximum sentence date. Id. at 34. In his brief, Cash concedes that the Board was permitted, pursuant to its regulations, to hold him on its warrant without conducting a detention hearing, because he waived his new criminal charges to court on March 8, 2018. Cash's Brief at 11. Had this issue been preserved for our review, we would agree that the Board was not required to hold a detention hearing, or for that matter provide counsel to Cash for the purpose of such hearing, under these circumstances.
As for Cash's argument that the Board lacked jurisdiction to revoke his parole after the expiration of his maximum sentence date, which he claims constitutes additional punishment in violation of constitutional protections against double jeopardy, and putting aside his failure to preserve this issue, we would conclude that it also lacks merit.
Pursuant to Section 6138(a)(1) of the Parole Code:
A parolee under the jurisdiction of the [B]oard released from a correctional facility who, during the period of parole or while delinquent on parole, commits a crime punishable by imprisonment, for which the parolee is convicted or found guilty by a judge or jury or to which the parolee pleads guilty or nolo contendere at any time thereafter in a court of record, may at the discretion of the [B]oard be recommitted as a parole violator.61 Pa.C.S. § 6138(a)(1) (emphasis added). Thus, if a parolee commits a crime while on parole and is convicted "at any time thereafter," he may be recommitted as a CPV. As explained in Miskovitch v. Pennsylvania Board of Probation and Parole, 77 A.3d 66, 74 (Pa. Cmwlth. 2013), "[i]t is well-settled law that the Board retains jurisdiction to recommit an individual as a parole violator[, and thus recalculate his maximum sentence date, ] after the expiration of the maximum term, so long as the crimes that lead to the conviction occurred while the individual [was] on parole." See also Adams v. Pa. Bd. of Prob. & Parole, 885 A.2d 1121, 1124 (Pa. Cmwlth. 2005).
In Miskovitch, 77 A.3d at 74, the parolee received new charges while on parole in 2004, his original sentence expired in 2008, and he was not convicted on the new charges until 2010.
In this case, there is no dispute that the crimes to which Cash ultimately pled guilty occurred on February 23, 2018, when he was on parole from his original state sentence with a maximum date of April 17, 2018. C.R. at 82-83. The fact that Cash was not convicted until January 22, 2020, after the expiration of his original sentence, is irrelevant. As such, had the issue been preserved, we would reject Cash's claim that the Board was without authority to recommit him and recalculate his original maximum sentence date after the expiration of his original sentence.
As for his constitutional argument, we have consistently rejected challenges to the Board's credit decisions based on constitutional protections against double jeopardy and cruel and unusual punishment. See Staton v. Pa. Bd. of Prob. & Parole, 171 A.3d 363, 367 (Pa. Cmwlth. 2017); Monroe v. Pa. Bd. of Prob. & Parole, 555 A.2d 295, 296 (Pa. Cmwlth. 1989). Therefore, Cash's constitutional argument also fails.
Finally, and again had the issue been preserved, we would reject Cash's claim that the Board erred by denying him credit for time spent at liberty on parole in violation of Section 6138(a)(2) and/or (2.1) of the Parole Code, 61 Pa.C.S. § 6138(a)(2), (2.1), and failed to adequately articulate its reason for doing so in its decision. He does not raise a specific claim regarding why the Board erred in denying him credit or provide any argument as to why the Board's stated reasons for denying him credit are inadequate. Instead, it appears Cash's argument in this regard is premised on his prior argument that the Board had no authority to extend his maximum sentence date after the expiration of his original sentence. See Cash's Brief at 13-15. As we have explained above, the Board retained jurisdiction to recalculate Cash's maximum sentence date after the expiration of the maximum term because he committed and was subsequently convicted for crimes he committed while on parole.
Accordingly, for the foregoing reasons, we affirm the Board's order.
ORDER
AND NOW, this 13th day of September, 2021, the order of the Pennsylvania Parole Board, dated December 28, 2020, is hereby AFFIRMED.