Opinion
No. 1578 C.D. 2014
07-07-2015
Eric D. Christaldi, Petitioner v. Board of Probation and Parole (Board), Department of Corrections (Department), Respondents
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Eric D. Christaldi petitions this Court for review of the July 8, 2014 determination of the Pennsylvania Board of Probation and Parole (Board), which denied his administrative appeal of a Board order that recommitted him as a convicted parole violator to serve backtime. Finding no error, we affirm.
On April 15, 2012, Christaldi was released on parole from State Correctional Institution (SCI) Cresson; at the time of his release, Christaldi had 981 days remaining on his original 5 to 10 year sentence and a parole violation maximum date of December 22, 2014. (Order to Release, Certified Record (C.R.) at 12.)
On May 13, 2013, the Board lodged a detainer against Christaldi and he was recommitted as a technical parole violator to serve six months with a scheduled date for reparole of November 13, 2013. (Warrant to Commit and Detain, C.R. at 17; July 2, 2013 Notice of Board Decision, C.R. at 18-21.)
On June 7, 2013, Christaldi was arrested by the Pennsylvania State Police on new charges for conduct that occurred in January 2013 while he was on parole. (Criminal Arrest and Disposition Report, C.R. at 33-34.) Bail was set on these new charges on June 27, 2013, which Christaldi failed to post. (Criminal Docket, C.R. at 53, 56, 61.) On January 31, 2014, Christaldi pleaded guilty in the Court of Common Pleas of Lancaster County to (i) indecent assault of a person less than 16 years of age; (ii) corruption of a minor by a defendant aged 18 or above; (iii) unlawful contact with a minor; and (iv) indecent assault by forcible compulsion. (Sentencing Order, C.R. at 35; Criminal Docket, C.R. at 54-55.) He was sentenced on that date to an aggregate term of 10 and ½ years to 21 years of incarceration. (Sentencing Order, C.R. at 35; Criminal Docket, C.R. at 54-55.)
On March 12, 2014, the Board notified Christaldi that it intended to hold a revocation hearing based on his conviction on new charges. (Notice of Charges and Hearing, C.R. at 38-39.) Christaldi waived his revocation hearing and his right to counsel, and admitted his conviction on new charges. (Waiver of Revocation Hearing and Counsel/Admission Form, C.R. at 48-50.) By a decision mailed May 7, 2014, the Board recommitted Christaldi as a convicted parole violator and set his new maximum sentence date at August 24, 2016. (May 7, 2014 Notice of Board Decision, C.R. at 63-64.) In making this calculation, the Board determined that Christaldi had 981 days remaining on his sentence at the time of his April 15, 2012 parole. (Order to Recommit, C.R. at 65.) The Board gave Christaldi 45 days of credit for the time served from his recommitment as a technical parole violator on May 13, 2013 until the date bail was set on his new charges on June 27, 2013, which left Christaldi with 936 days of backtime remaining on his original sentence. (Id.) The Board determined that Christaldi was eligible to serve his original sentence on January 31, 2014 and added the 936 days of backtime to arrive at the new maximum sentence date of August 24, 2016. (Id.) Christaldi filed a petition for administrative review of this decision, which the Board denied. (Administrative Remedies Form, C.R. at 67-68; July 8, 2014 Board Denial of Petition for Administrative Review, C.R. at 70-71.) Christaldi thereafter filed a timely petition for review of the Board's decision.
In his petition for review, Christaldi named both the Board and the Department of Corrections (Department). By an October 20, 2014 order, this Court granted the Department's application to dismiss on the grounds that the Department is not a proper party to an appeal of a recommitment decision by the Board.
On appeal, Christaldi argues that the Board exceeded its authority by extending his original judicially imposed sentence from the original maximum date of December 22, 2014 to August 24, 2016 following his recommitment as a convicted parole violator. Section 6138(a)(1) of the Prisons and Parole Code permits the Board to recommit as a convicted parole violator any parolee:
Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication was in accordance with law, and whether necessary findings were supported by substantial evidence. 2 Pa. C.S. § 704; Davidson v. Pennsylvania Board of Probation and Parole, 33 A.3d 682, 684 n.3 (Pa. Cmwlth. 2011).
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...61 Pa. C.S. § 6138(a)(1); see also 37 Pa. Code § 63.3. The Board has the discretion to award credit to a parolee for time spent at liberty on parole, except where the parolee commits a crime of violence or a crime that requires registration as a sexual offender or where paroled subject to a federal removal order. 61 Pa. C.S. § 6138(a)(2), (2.1). Time spent in custody due to a detainer shall be credited against the original sentence only when the parolee was eligible for and satisfied bail requirements on the new charges, and thus only remained in custody due to the Board's detainer, or where the term of incarceration on the new charges is less than the time spent in custody awaiting trial. Martin v. Pennsylvania Board of Probation and Parole, 840 A.2d 299, 308-09 (Pa. 2003); Armbruster v. Pennsylvania Board of Probation and Parole, 919 A.2d 348, 352-55 (Pa. Cmwlth. 2007).
In Young v. Pennsylvania Board of Probation and Parole, 409 A.2d 843 (Pa. 1979), our Supreme Court addressed the precise argument raised by Christaldi here. The Court concluded that in exercising its power to recommit beyond the maximum date set by a sentencing court without allowing for credit for time spent at liberty on parole, the Board is not engaging in an unconstitutional usurpation of judicial power but rather is operating under the express authority granted to it by the General Assembly. Id. at 845-48; see also Gaito v. Pennsylvania Board of Probation and Parole, 412 A.2d 568, 570 (Pa. 1980); Ohodnicki v. Pennsylvania Board of Parole, 211 A.2d 433, 435 (Pa. 1965); Davidson v. Pennsylvania Board of Probation and Parole, 33 A.3d 682, 685-86 (Pa. Cmwlth. 2011). As the Court explained in Young, the argument that the denial of credit for time at liberty on parole amounts to an extension of the maximum date imposed by the sentencing judge is predicated on the "fallacy of...equat[ing] time served on parole with time served in an institution. 'Mere lapse of time without imprisonment...does not constitute service of sentence....'" Young, 409 A.2d at 846 (quoting Anderson v. Corall, 263 U.S. 193, 196 (1923)). Furthermore, the Court recognized that:
The effectiveness of parole as a penological device to assist in the reintegration of the offender into society as a useful member is dependent upon the state's power to impose reasonable conditions upon the offender who serves in that status. This Court and the courts in the federal system have recognized that statutes denying credit on sentence for time spent on parole, where the offender has committed and has been convicted of an offense while serving in the parole status, represents a reasonable exercise of the penological responsibility and does not offend the constitutional guarantees to the citizens of the state and this nation.Id. at 847 (footnotes omitted).
In support of his argument that the Board encroached on the authority of the sentencing court, Christaldi cites Commonwealth ex rel. Banks v. Cain, 28 A.2d 897 (Pa. 1942), in which our Supreme Court held as unconstitutional those portions of the Parole Act that would allow the Board to extend the period of parole supervision beyond the maximum sentence date set by the sentencing judge or to discharge a parolee from supervision prior to the expiration of the maximum date. Id. at 901. However, this holding does not mean, as Christaldi argues, that the Board usurps judicial power when it recommits a convicted parole violator without giving credit for time spent at liberty on parole, or "street time." Gaito, 412 A.2d at 570; Young, 409 A.2d at 845-48; Knisley v. Pennsylvania Board of Probation and Parole, 362 A.2d 1146, 1148 (Pa. Cmwlth. 1976) (en banc). Rather, as this Court has explained:
Act of August 6, 1941, P.L. 861, as amended, formerly 61 P.S. §§ 331.1-331.34a, repealed by Section 11(b) of the Act of August 11, 2009, P.L. 147. The Parole Act has been consolidated and is currently found at Sections 6101 to 6153 of the Prisons and Parole Code, 61 Pa. C.S. §§ 6101-6153.
Although the distinction between the Board's action in Banks and its action in the instant case is subtle, it is nevertheless critical since here, in altering the expiration dates of sentences, the Board is not altering the total time
to be served by a convict under a court-imposed sentence. In Banks [], it was held that the Board clearly could not require a person to remain on parole for a term of years in excess of the maximum number of years of the court-imposed sentence. In the instant cases, Plaintiffs are not given credit for their 'street time' and, therefore, upon recommitment for parole violation, must serve time for the duration of their previously-imposed original sentence.Knisley, 362 A.2d at 1148 (emphasis added); see also Bunner v. Pennsylvania Board of Probation and Parole, 379 A.2d 1368, 1370 (Pa. Cmwlth. 1977).
Here, Christaldi had 981 days remaining on his maximum sentence at the time of parole, and he was entitled to 45 days of credit for time spent in custody solely due to the Board's detainer from May 13, 2013 until June 27, 2013, the date bail was set on the new charges. By recommitting Christaldi to serve 936 days to commence on January 31, 2014 and recalculating his new maximum sentence date as August 24, 2016, the Board did not exceed the balance remaining on the original sentence and therefore did not infringe on the authority of the sentencing judge. The Board also appropriately denied Christaldi any credit for time spent at liberty on parole because Christaldi's crimes required registration as a sexual offender.
Each of the four crimes to which Christaldi pleaded guilty is a Tier I or Tier II sexual offense requiring registration as a sexual offender. See 42 Pa. C.S. § 9799.14 (listing 18 Pa. C.S. § 6301(a)(1)(ii) as a Tier I sexual offense and 18 Pa. C.S. § 3126(a)(2), 18 Pa. C.S. § 3126(a)(8) and 18 Pa. C.S. § 6318(a)(1) as Tier II sexual offenses); see also Sentencing Order, C.R. at 36 (providing that Christaldi was required to register as a sexual offender). --------
Christaldi further argues that the Court of Common Pleas of Lancaster County did not order the new sentence to run consecutively to any other sentence currently being served, and therefore the sentence must begin from the date it was imposed, January 31, 2014. Christaldi cites to Pennsylvania Rule of Criminal Procedure 705 in support of this argument, however the portion of this rule requiring a sentence to commence on the date of imposition unless otherwise ordered applies only to sentences which are ordered to run concurrently. Pa. R. Crim. P. 705(b) ("If the sentence is to run concurrently, the sentence shall commence from the date of imposition unless otherwise ordered by the judge.") Christaldi's sentences on the four counts to which he pleaded guilty were ordered to run consecutively. (Sentencing Order, C.R. at 35.) Furthermore, the Prisons and Parole Code requires that a convicted parole violator serve the back time owed on the previous sentence consecutively with the new sentence imposed. 61 Pa. C.S. § 6138(a); Commonwealth v. Dorian, 468 A.2d 1091, 1092 (Pa. 1983) (holding under Parole Act that "[t]he law [] is quite clear that a parole violator convicted and sentenced to prison for another offense must serve his or her back time and the new sentence in consecutive order") (quoting Commonwealth v. Zuber, 353 A.2d 441, 443 (Pa. 1976)); Lawrence v. Department of Corrections, 941 A.2d 70, 73 (Pa. Cmwlth. 2007). In this case, the Board correctly ordered that Christaldi serve the balance of his original term prior to the commencement of his new term because he was paroled from an SCI and the new sentence is also to be served in an SCI. 61 Pa. C.S. § 6138(a)(5)(i).
For the foregoing reasons, we affirm the Board.
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 7th day of July, 2015, the order of the Pennsylvania Board of Probation and Parole in the above-captioned matter is AFFIRMED.
/s/ _________
JAMES GARDNER COLINS, Senior Judge