Opinion
No. 145 C.D. 2014
10-28-2014
Derek Fryer, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Derek Fryer (Fryer) petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) denying his administrative appeal from the Board's order recalculating his maximum sentence date following his recommitment on the basis that he was not entitled to credit for time spent on parole or incarcerated on an unrelated sentence. For the following reasons, we affirm.
I.
Following Fryer's conviction for two counts of theft by unlawful taking, he was sentenced to an aggregate maximum term of confinement of three years and ten months, with an expiration date of August 27, 2012 (original theft sentence). Fryer was released on parole on October 25, 2010, but was re-arrested on March 2, 2011, and was confined in the Delaware County Prison due to his inability to post bail. On April 27, 2011, the Board ordered that Fryer be detained pending disposition of the criminal charges, which were withdrawn on May or June 14, 2011 (first set of withdrawn charges).
See 18 Pa. C.S. §3921(a).
The Certified Record does not contain an official order or filing stating that the charges were withdrawn. However, a hand-written notation appears on the April 27, 2011 order, explaining that the charges were withdrawn on a date certain. This Court is unable to discern whether the date noted is May or June 14, 2011, and the parties disagree on this point. (Compare Br. for Respondent, at 2 with Br. for Petitioner, at 12.) For the purposes of this decision, we will refer to the date on which the March 2, 2011 charges were withdrawn as May/June 14, 2011. Further, because the Certified Record does not contain an order mandating Fryer's release after the charges were dropped, the parties dispute the date of his release, if any.
Following Fryer's third arrest on August 20, 2011, the Board issued an administrative order requiring him to be detained pending disposition of the new charges which were withdrawn on September 27, 2011 (second set of withdrawn charges). The Board released Fryer on parole on June 6, 2012.
On July 19, 2012, Fryer was arrested again and ordered detained at the Chester County Prison pending disposition of the charges. Pursuant to Fryer's guilty plea, he was convicted on November 5, 2012, in the Court of Common Pleas of Delaware County (trial court) of possessing an instrument of crime and was sentenced to a term of six to twenty-three months of incarceration (new county sentence). The Board awarded him pre-sentence credit for the time he spent incarcerated from his arrest through the date of his guilty plea. On December 21, 2012, Fryer was transferred from the Chester County Prison to State Correctional Institution (SCI)-Graterford and placed in parole-violator-pending status.
See 18 Pa. C.S. §907.
The inmate information sheet from the Delaware County Prison indicates that Fryer's projected release date was December 14, 2012. (Certified Record [C.R.] at 58.)
Subsequently, Fryer waived his right to a parole-revocation hearing and admitted to his conviction for possessing an instrument of crime in violation of his parole. The Board ordered Fryer recommitted as a convicted parole violator to serve nine months of backtime, when available, pending parole from or completion of his new county sentence.
On August 26, 2013, the trial court issued an order stating that Fryer "is paroled to a Detainer from the Pennsylvania Board of Probation/Parole." (Supplemental Certified Record at 1a.) Thereafter, the Board recalculated Fryer's maximum sentence date with regard to his original theft sentence to February 7, 2015, crediting him 142 days of time served from March 2, 2011 through June 14, 2011 (the date on which he was arrested on the first set of withdrawn charges through the date they were withdrawn) and August 20, 2011 through September 27, 2011 (the date on which he was arrested on the second set of withdrawn charges through the date they were withdrawn).
II.
Fryer filed, pro se, an administrative appeal, first contending that in recalculating his maximum term expiration date with respect to his original theft sentence, the Board should have credited him for the 300-day period from August 20, 2011 through June 6, 2012 (rather than only through September 27, 2011) because although the second set of withdrawn charges were dropped on September 27, 2011, he was not released on parole until June 6, 2012, as the Board did not rescind its warrant until that date. Fryer further requested credit for the time he spent incarcerated at SCI-Graterford prior to the time he began serving his backtime.
The Board denied Fryer's administrative appeal and affirmed its recalculation order, explaining to Fryer:
[A]s a convicted parole violator, you automatically forfeited credit for all of the time that you spent on parole. See 61 [Pa. C.S.] §6138(a)(2). You are not entitled to a backtime served credit (i.e. time that you were held solely on the Board's warrant prior to your recommitment order) because you were never incarcerated solely on the Board's warrant. See Gaito v. Pa. Board of Probation and Parole, 412 A.2d 568 (Pa. 1980). In your case, you were on secured bail at your new criminal charge and therefore, you are not also entitled to credit at this parole number while secured bail was in place.(C.R. at 60.)
The Board further noted that when Fryer was released on parole on October 25, 2010, his original maximum sentence date was August 27, 2012, which left 672 days remaining on his sentence. He was provided 104 days of confinement-time credit from March 2, 2011 to June 14, 2011 (the date on which he was arrested on the first set of withdrawn charges through the date they were withdrawn). The Board also provided him with 38 days of confinement time credit from August 20, 2011 to September 27, 2011 (the date on which he was arrested on the second set of withdrawn charges through the date they were withdrawn), for a total of 142 days of credit, meaning that Fryer owed 530 days of backtime on his original sentence. The Board found that Fryer was available to begin serving the back time when he was paroled from his new county sentence on August 26, 2013, and, therefore, added 530 days to calculate his new maximum sentence date of February 7, 2015. This appeal followed.
Our scope of review is limited to determining whether the Board's adjudication is supported by substantial evidence, whether an error of law has been committed, or whether constitutional rights have been violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Moroz v. Pennsylvania Board of Probation & Parole, 660 A.2d 131, 132 (Pa. Cmwlth. 1995).
III.
On appeal, Fryer contends that the Board erred in recalculating his maximum sentence date with respect to his original theft sentence because the Board failed to properly credit him for the time he spent: (1) incarcerated from May/June 14, 2011 through September 26, 2011, regarding his second set of withdrawn charges; and (2) incarcerated at SCI-Graterford from December 21, 2012 through August 25, 2013. Fryer further asserts that the Board abused its discretion in failing to consider whether his recalculated maximum original sentence should be reduced with respect to the time he spent on parole before his recommitment.
A.
Regarding his first set of withdrawn charges, Fryer contends that although the charges were dropped on May/June 14, 2011, the Board failed to issue an order rescinding his detention and, therefore, he remained in custody until June 6, 2012. As such, he argues that the Board erred in failing to provide him credit for the time served after June 15, 2011.
The Board contends that Fryer has waived this issue by failing to raise it in his administrative appeal. We are constrained to agree; even a liberal reading of Fryer's administrative appeal fails to reference this issue. Section 703(a) of the Administrative Agency Law, 2 Pa. C.S. §703(a); Pa. R.A.P. 1551(a); see also Newsome v. Pennsylvania Board of Probation & Parole, 553 A.2d 1050, 1052 (Pa. Cmwlth. 1989) (finding waiver of the three issues presented by a petitioner in his appeal to this Court because they were not raised previously before the Board and "cannot be considered for the first time in a judicial appeal").
We note that in his administrative appeal, Fryer contended that he should be credited for the period he spent in confinement from August 20, 2011 (the date on which he was arrested with regard to the second set of withdrawn charges) through June 6, 2012 (the date on which he was re-paroled after those charges were dropped). To the extent that that range overlaps with the time he now claims he is due, his argument was preserved. We will, therefore, address the period of August 20, 2011 through June 6, 2012.
In recalculating his maximum original sentence, the Board credited Fryer for the period of August 20, 2011 to September 27, 2011. However, Fryer has waived on appeal any argument with respect to the period between September 28, 2011 and June 6, 2012 (the date on which he was reparoled) because he failed to make any argument regarding it in his brief. See Van Duser v. Unemployment Compensation Board of Review, 642 A.2d 544, 548 n.3 (Pa. Cmwlth. 1994) ("Issues not briefed are waived.").
B.
With respect to his second claim, Fryer argues that he was paroled from his new county sentence of six to twenty-three months of incarceration on December 21, 2012, seven days after his projected release date, despite the fact that the trial court did not execute its paroling order until August 26, 2013. In support of his argument, Fryer contends that any sentence of less than two years comes under the exclusive paroling jurisdiction of the sentencing court as per 42 Pa. C.S. §9775, and that such sentences must be served in the county prison of the same jurisdiction as the sentencing court under 42 Pa. C.S. §§9762(a)(3) and (b)(3). As such, Fryer argues that he must have been paroled from his new county sentence by December 21, 2012, in order to have been transferred out of the Delaware County Prison and, thus, was available to begin serving his backtime and recalculated original sentence on December 21, 2012. Therefore, he seeks credit for time served between December 21, 2012 and August 25, 2013 (the date on which the Board found him available to begin serving his backtime). We reject this argument.
First, the Board's finding that Fryer was paroled on August 26, 2013, is supported by substantial evidence of record—namely, the trial court's order mandating the same. We do not agree that such a finding constitutes a violation of 42 Pa. C.S. §§9762(a)(3) and (b)(3). Indeed, 42 Pa. C.S. §9762(h), which Fryer fails to cite, provides:
(h) Transfer of prisoners.--Nothing in this section shall prohibit the transfer of prisoners otherwise authorized by law or prevent a judge from changing the place of confinement between State and county facilities to the extent that the judge would have such discretion at the time of imposition of sentence or recommitment.42 Pa. C.S. §9762(h).
Further, as Fryer duly notes, there exists a "well-established presumption of administrative regularity," meaning that "[i]n the absence of contrary evidence, an agency is presumed to have performed its duties properly." Gibson v. Pennsylvania Board of Probation & Parole, 3 A.3d 754, 758 (Pa. Cmwlth.), appeal denied, 13 A.3d 481 (Pa. 2010). Because nothing in 42 Pa. C.S. §9762(h) prohibits an otherwise lawful transfer of prisoners between State and county facilities, and because such a transfer must be deemed lawful in the absence of contrary evidence, of which this record is devoid, we dismiss Fryer's claim that by necessity, he was paroled on December 21, 2012.
Moreover, this holding is consistent with the trial court's sentencing order regarding Fryer's new county sentence. As discussed above, Fryer was sentenced to a term of six to twenty-three months of incarceration and was awarded pre-sentence credit for July 19, 2012 through November 5, 2012 (the date of his arrest through the date of his conviction). The period from July 19, 2012 through August 26, 2013, the date on which he was paroled, therefore, represents his period of incarceration with regard to his new county sentence. This period clearly falls within the six to twenty-three month long sentence. Importantly, however, had Fryer been paroled on December 21, 2012, he would have served just over five months, a sentence shorter than that mandated by the trial court.
C.
Finally, Fryer contends that the Board improperly denied him credit against his maximum sentence for the time he spent at liberty on parole or for his "street time." (Br. for Petitioner, at 21.) While he acknowledges that he is not entitled to credit for his "street time" pursuant to 61 Pa. C.S. §6138(a), he argues that the Board erred in failing to consider whether he should be credited for this time when it found that "as a convicted parole violator [Fryer] automatically forfeited credit for all of the time that [he] spent on parole" under 61 Pa. C.S. §6138(a)(2). (C.R. at 60.) As such, Fryer requests that we remand this matter with instruction to the Board to consider whether Fryer should be credited for any of the time spent on parole prior to his recommitment. However, we need not address this issue because Fryer waived it by failing to assert it in his administrative appeal. See Section 703(a) of the Administrative Agency Law, 2 Pa. C.S. §703(a); Pa. R.A.P. 1551(a); see also Newsome v. Pennsylvania Board of Probation & Parole, 553 A.2d 1050, 1052 (Pa. Cmwlth. 1989).
61 Pa. C.S. §6138(a)(1)-(2.1) provides, in pertinent part:
(a) Convicted violators.--
(1) A parolee under the jurisdiction of the board 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 board be recommitted as a parole violator.
(2) If the parolee's recommitment is so ordered, the parolee shall be reentered to serve the remainder of the term which the parolee would have been compelled to serve had the parole not been granted and, except as provided under paragraph (2.1), shall be given no credit for the time at liberty on parole.
(2.1) The board may, in its discretion, award credit to a parolee 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 delinquent on parole is a crime of violence as defined in 42 Pa. C.S. § 9714(g) (relating to sentences for second and subsequent offenses) or a crime requiring registration under 42 Pa. C.S. Ch. 97 Subch. H (relating to registration of sexual offenders).
(ii) The parolee was recommitted under section 6143 (relating to early parole of inmates subject to Federal removal order).
Accordingly, we affirm the Board's decision dismissing Fryer's appeal.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 28th day of October, 2014, the order of the Pennsylvania Board of Probation and Parole dated January 10, 2014, is affirmed.
/s/_________
DAN PELLEGRINI, President Judge
61 Pa. C.S. §6138(a)(1)-(2.1).