Burrell v. Pennsylvania Board of Probation and Parole, 111319 PACCA, 308 C.D. 2019
|Docket Nº:||308 C.D. 2019|
|Opinion Judge:||ROBERT SIMPSON, JUDGE|
|Party Name:||Nathan Burrell, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent|
|Judge Panel:||BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MICHAEL H. WOJCIK, Judge|
|Case Date:||November 13, 2019|
|Court:||Commonwealth Court of Pennsylvania|
OPINION NOT REPORTED
Submitted: August 23, 2019
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ROBERT SIMPSON, Judge
ROBERT SIMPSON, JUDGE
Nathan Burrell (Burrell) petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) denying his administrative appeal from an order that recommitted him as a technical parole violator (TPV) and as a convicted parole violator (CPV) and recalculated his maximum sentence date. Burrell argues the Board incorrectly recalculated his maximum sentence date and denied him a timely recommitment hearing. Upon review, we conclude that Burrell did not receive credit for all his time in confinement; accordingly, we vacate and remand.
On May 7, 2015, Burrell was released on re-parole in Pennsylvania. At that time, 1, 102 days remained on his original sentence. While at liberty on parole, Burrell committed a series of new theft-related offenses in Pennsylvania, Virginia, and Maryland.
In August 2015, Virginia police issued a detainer for Burrell's arrest on theft-related charges. In September 2015, when Burrell failed to report to his Pennsylvania parole agent as instructed, he was found delinquent by the Board. This situation was the basis for a technical parole violation. In October 2015, the Board issued a warrant for his detention. During this period, when Burrell's whereabouts were unknown, new Pennsylvania theft-related charges were filed against Burrell.
In January 2016, Maryland police arrested Burrell on new charges there. He remained in Maryland. In May 2016, Burrell pled guilty in a Maryland court and received a three-year sentence of incarceration. This situation was the basis for Burrell's first convicted parole violation. Thereafter, the Board was notified of Burrell's Maryland conviction, and it lodged a warrant for his detention, so he could be extradited to Pennsylvania when available.
In September 2016, Burrell was transferred from Maryland to Cumberland County, Pennsylvania, to deal with new charges there. While in the county prison, he signed Board forms waiving counsel and Board revocation hearings, and he admitted to a technical parole violation and a convicted parole violation based on the Maryland conviction. Certified Record (C.R.) at 81-83.
About two weeks thereafter, on October 18, 2016, Burrell pled guilty in Cumberland County, Pennsylvania, to some of his new Pennsylvania charges, and he received a 9- to 18-month sentence of incarceration. This situation was the basis for Burrell's second convicted parole violation.
Following the Cumberland County, Pennsylvania, sentencing, Burrell was returned to Maryland to serve the remainder of his three-year Maryland sentence. Burrell contends that prior to his return to Maryland the Board should have exercised its jurisdiction over him.
On February 6, 2017, while Burrell was still serving his Maryland sentence, the Board formally recommitted Burrell as a CPV on the Maryland conviction, based on his prior waivers and admissions (first recommitment). Burrell was recommitted to serve a total of 12 months' backtime, when available. Burrell contends he should have been available to serve backtime on his original sentence at the culmination of the recommitment process.
In August 2017, the Maryland Department of Corrections notified the Board of its intention to release Burrell to Virginia. The Maryland agency explained the August 2015 Virginia detainer preceded the Board's October 2015 detainer, and thus took priority. On September 25, 2017, upon the completion of his Maryland sentence, Burrell was transferred to Virginia. Burrell contends he should have been available to the Board, and available to serve backtime, once released from the Maryland sentence.
The Board subsequently notified Virginia of its existing warrant. In November 2017, Burrell pled guilty in a Virginia court and received a 12-month suspended sentence. On November 25, 2017, Burrell was transferred to State Correctional Institution-Benner (SCI) in Pennsylvania.
Again in Pennsylvania, Burrell waived his right to a panel revocation hearing based on the Cumberland County, Pennsylvania, conviction.2 However, he elected to have a recommitment hearing before the Board, which occurred on March 16, 2018. At that time, his counsel objected to the timeliness of the recommitment hearing based on the Cumberland County, Pennsylvania, conviction.
On April 17, 2018, the Board revoked his parole and recommitted Burrell as a CPV to serve 12 months' backtime for his Cumberland County, Pennsylvania...
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