Bowman v. Pa Bd. of Probation and Parole

• Decision Date: 17 July 2007
• Docket Number: No. 112 C.D. 2007.,112 C.D. 2007.
• Citation: 930 A.2d 599
• Parties: Curtis BOWMAN, Petitioner v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.
• Court: Pennsylvania Commonwealth Court

930 A.2d 599

Curtis BOWMAN, Petitioner v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.

No. 112 C.D. 2007.

Commonwealth Court of Pennsylvania.

Submitted May 25, 2007.

Decided July 17, 2007.

David Crowley, Bellefonte, for petitioner.

Arthur R. Thomas, Asst. Counsel and Victoria S. Madden, Chief Counsel, Harrisburg, for respondent.

BEFORE: LEADBETTER, President Judge, FRIEDMAN, Judge, and McCLOSKEY, Senior Judge.

OPINION BY SENIOR Judge McCLOSKEY.

Curtis Bowman (Petitioner) petitions for review from a determination of the Pennsylvania Board of Probation and Parole (Board) recalculating Petitioner's parole violation maximum date. For the reasons that follow, we affirm.

On December 6, 1990, the Board paroled Petitioner from his original four-year state prison sentence with an original maximum term expiry of December 6, 1992. On June 19, 1991, Philadelphia Police arrested Petitioner on a new state firearms charge. Petitioner was released on bail and, thereafter, on June 21, 1991, he was detained on a Board warrant. Petitioner was returned to the State Correctional Institution at Graterford. After a detention hearing on July 18, 1991, Petitioner was ordered to be detained pending disposition of the new charges on August 14, 1991.

On September 26, 1991, the prosecution of these charges was withdrawn by county authorities in order to facilitate a federal prosecution for the precipitating event. On that date, Petitioner was moved on a writ to the Federal Detention Center in Philadelphia where federal agents arrested him on a new federal firearms charge. Petitioner did not post bail and was immediately returned to Graterford.

On December 2, 1991, Petitioner pleaded guilty to his new federal firearms charge in the United States District court for the Eastern District of Pennsylvania (District Court). On March 2, 1992, the District Court sentenced Petitioner to serve a new term of imprisonment of 188 months (fifteen years, eight months) in the custody of the United States Bureau of Prisons (BOP).

By order dated August 11, 1992, the Board recommitted Petitioner as a convicted parole violator to serve eighteen months backtime. On October 29, 1992, Petitioner was returned to the custody of the BOP to serve his new 188-month federal sentence. On August 16, 2006, fourteen years, ten months and twenty-one days after Petitioner's arrest by federal agents, he was returned to a Pennsylvania State prison.

By a recalculation order mailed November 22, 2006, the Board announced a recalculated maximum term expiry of April 19, 2008, for Petitioner's original four-year State prison sentence. The recalculation order did not credit Petitioner's original four-year state prison sentence with: (1) 158 days from September 26, 1991, to March 2, 1992, that he had been confined on a new federal criminal charge on which he had not posted bail; or (2) 241 days from March 2, 1992, to October 29, 1992, that he had been confined because of his new federal sentence while he awaited return to the BOP to serve his new federal sentence.

On December 8, 2006, Petitioner filed a petition for administrative review of the recalculation order. By determination mailed December 26, 2006, the Board affirmed the recalculation order. Petitioner now appeals to this Court.¹

Initially, Petitioner asserts that additional pre-sentence confinement credit from September 26, 1991, through March 2, 1992, must be applied to his original sentence because it could not be applied to his new sentence.

The general rule governing the allocation of credit for time served awaiting disposition of a 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). In Gaito, the Supreme Court held that "time spent in custody pursuant to a detainer warrant shall be credited to a convicted parole violator's original term ... only when the parolee was eligible for and had satisfied bail requirements for the new offense and thus remained incarcerated only by reason of the detainer warrant lodged against him." Gaito, 488 Pa. at 403, 412 A.2d at 571. If, on the other hand, "a parolee is not convicted, or if no new sentence is imposed for that conviction on the new charge, the pre-trial custody time must be applied to the parolee's original sentence." Gaito, 488 Pa. at 404, 412 A.2d at 571 n. 6 (emphasis added).

In the cases following Gaito, this Court held that once a parolee is sentenced on a new criminal offense, the period of time between arrest and sentencing, when bail is not posted, must be applied toward the new sentence and not to the original sentence. See, e.g., Davidson v. Pennsylvania Board of Probation and Parole, 722 A.2d 232 (Pa.Cmwlth.1998). In this regard, even if the "sentence" imposed was only a fine or a period of probation, and not a period of incarceration, we held that the convicted parolee was not entitled to credit on the original sentence for time served awaiting disposition of those pending charges. See, e.g., Gallagher v. Pennsylvania Board of Probation and Parole, 804 A.2d 729 (Pa.Cmwlth.2002)(probation); McCoy v. Pennsylvania Board of Probation and Parole, 793 A.2d 1004 (Pa. Cmwlth.2002)(fine); Owens v. Pennsylvania Board of Probation and Parole, 753 A.2d 919 (Pa.Cmwlth.2000)(a sentence of guilt without further penalty was a sentence of time served to which all of the pre-sentence custody credit could be applied). Additionally, we held that a parolee who received a new sentence which was less than the period of time spent in pre-sentence custody, was not entitled to a credit against his original sentence for that excess time. Berry v. Pennsylvania Board of Probation and Parole, 756 A.2d 135 (Pa.Cmwlth.2000). In the event no new sentence was imposed due to an acquittal on the new criminal charges, the confinement time served awaiting disposition of the new criminal charges, where bail was not satisfied, was credited to a convicted parole violator's original term. Morrison v. Pennsylvania Board of Probation and Parole, 134 Pa.Cmwlth. 488, 578 A.2d 1381 (1990) (acquittal); Davidson v. Pennsylvania Board of Probation and Parole, 667 A.2d 1206 (Pa.Cmwlth.1995) (nol pros).

In Martin v. Pennsylvania Board of Probation and Parole, 576 Pa. 588, 840 A.2d 299 (2003), our Supreme Court had occasion to address this Court's interpretation of Gaito as it related to the allocation of presentence confinement time when a new sentence was imposed. In particular, the Court determined what credit was owed to a parolee who is incarcerated because of both a Board warrant and new criminal charges, while awaiting trial on these criminal charges.

In Martin, the parolee was on parole from his ten-year prison sentence when, on May 30, 2000, he was arrested and charged, inter alia, with two counts of driving under the influence (DUI). That same day, the Board lodged a detainer against him. The parolee did not post bail. On July 19, 2001, the parolee was convicted and sentenced to forty-eight hours time served and one year of probation, to be served after serving his prior sentence. On November 6, 2001, after a parole revocation hearing, the parolee was recommitted to serve six months backtime.

The parolee in Martin sought administrative relief to challenge the Board's recalculation of his maximum date of expiry, asserting that it failed to give him credit for all of the time he served on the Board's detainer. Specifically, he asserted that because the DUI sentence imposed was forty-eight hours time served,² his original sentence should have been credited for the remaining time he spent in custody, which was from June 1, 2000, to July 19, 2001. The Board rejected the parolee's request for relief and we affirmed, relying on Gaito and its progeny.

On appeal, the Supreme Court reversed, explaining that its decision in Gaito was intended to establish that an offender should receive credit on his original sentence for presentence incarceration where the conviction for the new charge does not lead to a new period of incarceration.³

Thus, the Martin court held that where an offender is incarcerated on both the Board's detainer and new criminal charges, all time spent in confinement must be credited to either the new sentence or original sentence. Otherwise, the Court reasoned, an indigent offender, who is unable to post bail, would serve more time in incarceration than an offender who posts bail. Such a result would be violative of principles of equity. Accordingly, the Supreme Court concluded that the posting of "bail is not determinative as to whether the offender receives credit for time served." Id. at 605-06, 840 A.2d at 309. Applying equitable principles of allocation to the parolee's situation, the Supreme Court concluded that the parolee was entitled to credit toward his original sentence for the remainder of his precustody time served.

Following Martin, this Court has applied the "Martin rule" whenever the parolee's new sentence was less than the time spent in custody awaiting trial on the new charges. See, e.g., Hears v. Pennsylvania Board of Probation and Parole, 851 A.2d 1003 (Pa.Cmwlth.2004)(the petitioner's new sentence of four days was less than the pre-sentence custody time of four months, twenty days); Jones v. Pennsylvania Board of Probation and Parole, 872 A.2d 1283 (Pa.Cmwlth.), petition for allowance of appeal denied, 586 Pa. 731, 890 A.2d 1061 (2005).

In Melhorn v. Pennsylvania Board of Probation and Parole, 883 A.2d 1123 (Pa. Cmwlth.2005), reversed, 589 Pa. 250, 908 A.2d 266 (2006), this Court was faced with a situation where a parolee's new sentence was greater than his presentence time in confinement. In that case, the parolee was confined for five months, ten days, because of a Board detainer and new criminal charges on which he did not post bail. The parolee pleaded guilty and was sentenced to a term of no less than six months and no more than twenty...