Armbruster v. Bd. of Probation and Parole

• Decision Date: 13 March 2007
• Docket Number: No. 973 C.D. 2006,973 C.D. 2006
• Citation: 919 A.2d 348
• Parties: Matthew ARMBRUSTER, Petitioner v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.
• Court: Pennsylvania Commonwealth Court

919 A.2d 348

Matthew ARMBRUSTER, Petitioner v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.

No. 973 C.D. 2006

Commonwealth Court of Pennsylvania.

Submitted on Briefs December 15, 2006.

Decided March 13, 2007.

David Crowley, Bellefonte, for petitioner.

Chad L. Allensworth, Asst. Counsel and Victoria S. Madden, Chief Counsel, Harrisburg, for respondent.

BEFORE: McGINLEY, Judge, COHN JUBELIRER, Judge, and KELLEY, Senior Judge.

OPINION BY Senior Judge KELLEY.

Matthew Armbruster (Armbruster) petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) which denied his request for administrative relief from a Board order recommitting Armbruster as a technical and convicted parole violator and recalculating his parole availability date and maximum expiration date. Also before this Court is the Board's motion for remand to correct a clerical error. We grant the Board's motion for remand and affirm the Board's order in all other respects.

Armbruster, an inmate currently incarcerated at the State Correctional Institution at Rockview (SCI-Rockview), was initially sentenced on January 23, 1991, to serve an aggregate term of three to thirty years (original sentence) with a minimum expiration date of June 21, 1993 and a maximum expiration date of June 21, 2020. Certified Record (C.R.) at 1. Armbruster was released on parole on his minimum expiration date, June 21, 1993. C.R. at 5.

Following his initial release on parole, Armbruster was paroled and recommitted several times and his maximum expiration date was recalculated each time. By Board action dated March 20, 1997, Armbruster was recommitted as both a technical and convicted parole violator; his maximum expiration date was recalculated to February 3, 2024. C.R. at 11-12. On October 16, 1998, the Board reparoled Armbruster from his original sentence to his detainer sentence. C.R. at 18. The Board then paroled Armbruster from his detainer sentence to an approved home plan on September 20, 1999. C.R. at 24. By decision dated November 27, 2000, the Board recommitted Armbruster as a technical parole violator on his original sentence and recalculated his parole violation maximum date for that sentence to February 28, 2024. C.R. at 33-34. Armbruster was reparoled again from his original sentence and his detainer sentence on July 2, 2001. C.R. at 38. On February 7, 2002, the Board recommitted Armbruster as a technical parole violator on his original sentence the maximum date remained February 28, 2024. C.R. at 42.

On August 4, 2003, the Board reparoled Armbruster from his original sentence for the fourth time. Armbruster was subsequently declared to be delinquent by the Board effective May 12, 2004. C.R. at 52. On January 13, 2005, Johnstown Police arrested Armbruster on new criminal charges. C.R. at 57-63. Armbruster did not post bail from these charges. C.R. at 63. A Board detainer was lodged against Armbruster that same day. C.R. at 54. On July 6, 2005, Armbruster was convicted on the new criminal charges, and sentenced on August 30, 2005 to a term of eight to twenty-four months (new sentence). C.R. at 140-141, 156-163. The trial court's sentencing orders do not indicate that Armbruster is to receive credit for time served. C.R. at 156-163.

On December 14, 2005, a violation/revocation hearing was held. C.R. at 133-155. By decision dated March 8, 2006, the Board recommitted Armbruster as a technical and convicted parole violator. C.R. at 171-172. The Board recalculated Armbruster's maximum expiration date to June 22, 2027 and advised that Armbruster would be reviewed for parole in or after July 2007. C.R. at 171-712. The recalculation reflected that Armbruster forfeited credit for the current period on parole from August 4, 2003 to January 3, 2006 (883 days); forfeited credit for the previous periods he was on parole from September 20, 1999 to April 21, 2000 (214 days) and from July 2, 2001 to October 23, 2001 (113 days); and became available to serve his original sentence on January 3, 2006. C.R. at 173.

On April 6, 2006, the Board received a pro se request for administrative relief from Armbruster objecting to the June 22, 2027 parole violation maximum date and the July 2007 review date. C.R. at 176-183. On May 5, 2006, the Board denied Armbruster's request and affirmed the March 8, 2006 decision. C.R. at 184-185. From this decision, Armbruster petitions for review with this Court.¹ The Board has filed a motion for remand on the grounds that Armbruster's maximum date should actually be May 26, 2028, not June 22, 2027, based upon the discovery of a clerical error.

In this appeal, Armbruster presents the following issues for our review:

1. Did the Board err by failing to credit Armbruster's original sentence with all the time to which he is entitled.

2. Did the Board err by refusing to apply confinement credit in an equitable manner and cause Armbruster to serve a harsher sentence due to his inability to post bail on his new charges.

Before reaching the merits of Armbruster's appeal, we shall first address the Board's motion for remand to correct a clerical error. To begin, this Court has held that an administrative agency, on its own motion, having provided the proper notice and explanation, may correct typographical, clerical and mechanical errors obviated and supported by the record. Lord v. Pennsylvania Board of Probation and Parole, 135 Pa.Cmwlth. 225, 580 A.2d 463, 465 (1990), petition for allowance of appeal denied, 528 Pa. 619, 596 A.2d 801 (1991); see Murgerson v. Pennsylvania Board of Probation and Parole, 135 Pa. Cmwlth. 10, 579 A.2d 1335 (1990) (we allowed the Board to correct a clerical error to properly reflect the total amount of backtime to be served where the error involved merely the Board's failure to add convicted violator and technical violator backtime together, and both were correctly reflected in the original order.).

Section 21.1(a) of what is commonly referred to as the "Parole Act"² provides that a parolee may be recommitted as a convicted parole violator if the parolee commits any crime punishable by imprisonment, while on parole, from which he is convicted or found guilty. Section 21.1(a) further provides that a convicted parole violator "shall be given no credit for the time at liberty on parole." 61 P.S. § 331.21a. Upon recommitment as a convicted parole violator, 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. Id.; Stepoli v. Pennsylvania Board of Probation and Parole, 106 Pa. Cmwlth. 197, 525 A.2d 888 (1986). When computing the time yet to be served on the original sentence, the convicted parole violator's street time is added to the original maximum expiration date to create a new maximum expiry. Palmer v. Pennsylvania Board of Probation and Parole, 704 A.2d 195 (Pa.Cmwlth.1997). While Section 21.1(b) of the Parole Act, 61 P.S. § 331.21a(b), provides that a technical parole violator will be given credit for street time served in good standing, time spent in good standing prior to recommitment for technical violations is not shielded from forfeiture where the parolee subsequently commits a new crime and is recommitted as a convicted parole violator. Houser v. Pennsylvania Board of Probation and Parole, 682 A.2d 1365 (Pa.Cmwlth.1996), petition for allowance of appeal denied, 547 Pa. 759, 692 A.2d 568 (1997); Anderson v. Pennsylvania Board of Probation and Parole, 80 Pa.Cmwlth. 574, 472 A.2d 1168 (1984). Thus, upon recommitment as a convicted parole violator, in addition to losing all time spent at liberty during the current parole, a parolee will also forfeit all credit received for time spent in good standing while on parole prior to his previous recommitment as a technical parole violator. Palmer; Houser.

In this case, Armbruster was recommitted as a convicted parole violator and, as a result, the Board recalculated his parole violation maximum date to June 22, 2027. According to the Board, the Board had intended this calculation to reflect that Armbruster forfeited credit for the current period he was on parole as well as the prior periods he was on parole. However, due to a clerical error, this calculation only reflects that Armbruster forfeited credit for the current period he was on parole and a portion of the prior period he was on parole.

The June 22, 2027 parole violation maximum date reflects that Armbruster forfeited credit for prior periods he was on parole from August 4, 2003 to January 3, 2006 (883 days), September 20, 1999 to April 21, 2000 (214 days) and from July 2, 2001 to October 23, 2001 (113 days). The record shows that Armbruster was also at liberty on parole from October 16, 1998 to September 20, 1999 (339 days). Pursuant to Section 21.1(a) of the Parole Act, Armbruster must also forfeit credit for the period he was at liberty on parole from October 16, 1998 to September 20, 1999. We will therefore grant the Board's motion for remand to correct this error.³

Turning now to the merits of Ambruster's appeal, Armbruster contends that the Board erred as a matter of law by failing to credit Armbruster's original sentence with all the time to which he is entitled causing Armbruster to serve a harsher sentence due to his inability to post bail on the new criminal charges. Specifically, Armbruster argues that he is entitled to 250 days of credit on his original sentence for the period he was incarcerated from January 13, 2005 to September 20, 2005 on both the new criminal charges and the Board's detainer because this credit was not applied to his new sentence. We disagree.

The general rule governing the allocation of credit for time served awaiting disposition of new criminal charge was established by our Supreme Court in Gaito v. Pennsylvania Board of Probation and Parole, 488 Pa. 397, 412 A.2d 568 (1980). The Supreme Court held that "time spent in custody...