Opinion
No. 1107 C.D. 2014
03-25-2015
Sheron Sampson, 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 JUDGE LEAVITT
Sheron Sampson petitions for review of an adjudication of the Pennsylvania Board of Probation and Parole (Parole Board) denying his request for administrative relief and review of the Board's revocation of his parole and recommitting him as a convicted parole violator to serve 12 months backtime. Sampson argues that the Parole Board abused its discretion by not considering whether he was entitled to credit for his time spent at liberty on parole. We affirm the Parole Board's order.
Sampson was originally sentenced on February 29, 2008, to an aggregate term of two and one-half to five years of total confinement. Sampson's earliest release date was August 27, 2010, and his maximum release date was February 28, 2013. Sampson was released on parole on November 22, 2010.
On February 4, 2013, Sampson was arrested and charged with aggravated assault, simple assault, and reckless endangerment. The same day, the Parole Board lodged a warrant and detainer against Sampson, which it lifted on February 28, 2013, the maximum sentence date for Sampson's initial conviction. On March 26, 2013, Sampson was released on his own recognizance but then incarcerated on April 8, 2013.
There is no explanation in the record for this incarceration.
On May 21, 2013, Sampson entered a negotiated plea of guilty and was convicted of simple assault. He was sentenced to a term of six to 23 months. On August 5, 2013, Sampson was released on parole. On October 1, 2013, the Parole Board detained Sampson as a convicted parole violator due to the simple assault conviction. Sampson waived his rights to a parole revocation hearing and representation by counsel. He admitted to the facts of his simple assault conviction and that he had violated his parole.
On December 13, 2013, the Parole Board recommitted Sampson as a convicted parole violator to serve 12 months backtime with a parole eligibility date of October 1, 2014, and maximum sentence date of January 8, 2016.
Sampson filed a timely pro se request for administrative relief and review (1) asserting that the Parole Board illegally extended the maximum term expiration of his sentence, (2) challenging the timeliness of his revocation hearing, and (3) challenging the Parole Board's computation of his extended maximum term expiration date. The Parole Board denied Sampson's petition on June 19, 2014. Sampson now petitions for this Court's review.
On July 10, 2014, this Court appointed the Montgomery County Public Defender to represent Sampson and also granted Sampson's request to proceed in forma pauperis. The public defender filed an Amended Petition for Review on July 15, 2014.
On appeal, Sampson raises one issue for our review. Sampson argues that the Parole Board failed to exercise its discretion under Section 6138(a)(2.1) of the Prisons and Parole Code, 61 Pa. C.S. §6138(a)(2.1), to decide whether to award Sampson credit for his time at liberty on parole, also referred to as "street time." The Parole Board contends that Sampson has waived this argument and, alternatively, that it did exercise its discretion in refusing to grant Sampson credit.
Our 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 and Parole, 660 A.2d 131, 132 (Pa. Cmwlth. 1995).
Section 6138(a) states, in relevant part:
* * *
(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).
We first consider the issue of waiver. The Parole Board argues that because Sampson did not raise his issue under Section 6138(a)(2.1) before the Parole Board, it is waived. Sampson counters that the issues he raised in his administrative appeal were broad enough to include his argument that the Parole Board failed to exercise its discretion under Section 6138(a)(2.1).
Section 703(a) of the Administrative Agency Law states that a party "may not raise upon appeal any other question not raised before the agency." 2 Pa. C.S. §703(a). Similarly, Pennsylvania Rule of Appellate Procedure 1551(a) states that "[n]o question shall be heard or considered by the court which was not raised before the government unit." PA. R.A.P. 1551(a). Consequently, an issue not raised before the Parole Board will not be considered by this Court. McCaskill v. Pennsylvania Board of Probation and Parole, 631 A.2d 1092, 1094-95 (Pa. Cmwlth. 1993).
We conclude that Sampson has not waived the issue of whether the Parole Board failed to exercise its discretion under Section 6138(a)(2.1). In his administrative appeal to the Parole Board, Sampson argued, inter alia, that the Board imposed an excessive recommitment term and improperly calculated his maximum sentence date. Whether the Board failed to consider awarding credit for time at liberty on parole is fairly subsumed in those arguments. The Parole Board specifically noted in its decision that it was authorized under Section 6138(a)(2) to recalculate Sampson's sentence and refused to award him credit for his street time. Because Sampson challenged the Parole Board's computation of his maximum sentence date and the Parole Board considered the issue of its discretion under Section 6138(a)(2) to deny credit, we find the issue has not been waived.
Turning to the merits of Sampson's appeal, Section 6138(a) of the Prisons and Parole Code, 61 Pa. C.S. §6138(a), governs the Parole Board's authority to recommit parolees who have committed new criminal offenses while on parole. Section 6138(a)(2.1) states that "[t]he [Parole] [B]oard may, in its discretion, award credit to a parolee recommitted ... for the time spent at liberty on parole," with three enumerated exceptions. 61 Pa. C.S. §6138(a)(2.1). The first exception is where a parolee commits a "crime of violence," as defined by 42 Pa. C.S. §9714(g); the second is for a crime requiring registration of sexual offenders; and the third is for inmates who are released early on parole and are subject to federal removal orders.
Section 9714(g) defines a "crime of violence" as including: murder in the third degree, voluntary manslaughter, manslaughter of a law enforcement officer, murder in the third degree involving an unborn child, aggravated assault of an unborn child, aggravated assault, assault of a law enforcement officer, use of weapons of mass destruction, terrorism, trafficking of persons when the offense is graded as a felony of the first degree, rape, involuntary deviate sexual intercourse, aggravated indecent assault, incest, sexual assault, arson endangering persons or aggravated arson, ecoterrorism, kidnapping, burglary, robbery, robbery of a motor vehicle, drug delivery resulting in death, criminal attempt, criminal conspiracy or criminal solicitation, or an equivalent crime under the laws of Pennsylvania. 42 Pa. C.S. §9714(g). --------
Sampson argues that the Parole Board committed reversible error by not exercising its discretion under Section 6138(a)(2.1) to consider whether he was entitled to credit for his street time. Sampson posits that he was eligible for credit because he was convicted of simple assault, which is a second degree misdemeanor and not a "crime of violence;" he was not required to register as a sexual offender; and he was not subject to a federal removal order. Sampson asks this Court to remand this case to the Parole Board to consider his eligibility for credit under 61 Pa. C.S. §6138(a)(2.1) and, if the Board determines he is not eligible, state the reasons for its decision. The Parole Board counters that the record does, in fact, reflect that it exercised its discretion and, in any event, the Prisons and Parole Code does not require the Board to explain its reasons for not awarding credit for street time. Nevertheless, the Board did explain its decision.
The Board explained in its decision in its October 1, 2013, hearing report that it was not crediting Sampson's street time because his simple assault conviction was for domestic violence. The Hearing Report has a handwritten notation of "DV - assaulted wife" beneath the checkbox for whether to award credit for Sampson's street time. Certified Record, Item 9. Although simple assault, even involving domestic violence, is not a "crime of violence," the Parole Board's decision to deny credit on this basis fell within its discretion. Thus, we reject Sampson's argument that the Parole Board failed to exercise any discretion under Section 6138(a)(2.1).
For these reasons, we affirm the Parole Board's adjudication.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 25th day of March, 2015, the order of the Pennsylvania Board of Probation and Parole dated June 19, 2014, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge
61 Pa. C.S. §6138(a)(2.1). Section 2.1 was added by the Act of July 5, 2012, P.L. 1050, §15.