Com. v. Davis

• Decision Date: 14 June 2004
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Derrick DAVIS, Appellant.
• Court: Pennsylvania Superior Court

852 A.2d 392

COMMONWEALTH of Pennsylvania, Appellee, v. Derrick DAVIS, Appellant.

Superior Court of Pennsylvania.

Submitted February 23, 2004.

Filed June 14, 2004.

Derrick K. Davis, appellant, pro se.

Alisa R. Hobart, Asst. Dist. Atty., Reading, for Com., appellee.

BEFORE: JOYCE, BENDER and KELLY, JJ.

OPINION BY BENDER, J.:

¶ 1 These appeals are from an order dismissing Appellant's PCRA petition without a hearing and an order dismissing Appellant's petition for credit for time served.¹ Appellant raises four issues in the first appeal, and two issues in the second.

¶ 2 The issues raised at 1410 MDA 2003 are: (1) whether counsel was ineffective in inducing and coercing Appellant's guilty plea to an offense to which he was not guilty; (2) whether counsel was ineffective in allowing Appellant to plead guilty to an offense not established at the preliminary hearing; (3) whether the court erred in failing to provide Appellant additional time to prepare a response to counsel's no-merit letter, and (4) whether the court lacked jurisdiction over the subject matter as a matter of law?

¶ 3 The issues raised at 1621 MDA 2003 are: (1) whether Appellant should have received credit for time served on his escape charge, and (2) whether Appellant's right to credit for time served was violated when the court dismissed his petition as untimely? We affirm.

¶ 4 On April 7, 2002, Appellant was housed at the Conewago-Wernersville halfway house pursuant to prior convictions for attempted robbery and felony drug possession. Appellant was participating in a work release program and was employed at a Ponderosa steakhouse nearby the halfway house. Appellant returned late on the evening in question and then later left the institution without permission. Appellant was subsequently arrested in July, 2002, in Virginia and returned to Berks County. The criminal complaint filed in the case charged Appellant with escape graded as a misdemeanor two.

¶ 5 A preliminary hearing was subsequently held on August 6, 2002, after which the charge was bound over to court. Following the preliminary hearing, a criminal information was filed on August 30, 2002, charging Appellant with escape graded as a felony three. Appellant was scheduled for trial on December 11, 2002, however, on December 10, 2002, Appellant entered an open plea to escape graded as a felony three and was sentenced to two to seven years' imprisonment. No direct appeal was filed. On April 24, 2003, Appellant filed a pro se petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541-46. Counsel was subsequently appointed to represent Appellant in the PCRA proceedings. On July 3, 2003, Appellant filed a motion entitled "Request for Time Credit."

¶ 6 On July 23, 2003, Appellant's appointed counsel filed a Finley² no-merit letter and a petition to withdraw as counsel asserting that, after a review of the record and the transcripts of Appellant's case, it was counsel's opinion that Appellant was not eligible for PCRA relief. In response to the filing of counsel's no-merit letter, on July 29, 2003, Appellant filed a motion to stay the proceedings and requested that transcripts from the preliminary hearing, and the guilty plea and sentencing proceedings be forwarded to him to allow him an opportunity to file a response to counsel's no-merit letter. Despite Appellant's attempt to postpone a decision on his PCRA petition pending study and preparation of a response to counsel's no-merit letter, the court dismissed Appellant's PCRA petition without a hearing on August 7, 2003. On September 4, 2003, the court further dismissed Appellant's motion for "Time Credit." Appellant filed timely pro se appeals to each of the above orders.

Appeal at 1410 MDA 2003

¶ 7 Appellant first contends that counsel was ineffective in allowing him to plead guilty to an offense which he did not commit. We disagree. The crime of escape is set forth at 18 Pa.C.S. § 5121 and reads:

§ 5121. Escape

(a) Escape.—A person commits an offense if he unlawfully removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period.

...

(e) Definition.—As used in this section the phrase "official detention" means arrest, detention in any facility for custody of persons under charge or conviction of crime or alleged or found to be delinquent, detention for extradition or deportation, or any other detention for law enforcement purposes; but the phrase does not include supervision of probation or parole, or constraint incidental to release on bail.

(Emphasis added.) Although Appellant left the Conewago-Wernersville halfway house without authorization, Appellant contends that he is not guilty of the offense of escape because he was "on parole" at the time of his residency at the halfway house, thus, rendering his residency a condition of his parole and not official detention under the escape statute. Therefore, according to Appellant, leaving the halfway house did not constitute removing himself from "official detention" under the escape statute. Under the definition of official detention contained in the escape statute, if Appellant had been occupying the Conewago Wernersville halfway house as a condition of his parole, it would seem that removing himself from the halfway house might constitute a violation of the conditions of his parole, but would not constitute the offense of escape. As such, Appellant's argument necessitates a closer look at the circumstances of his placement at Conewago-Wernersville halfway house.

¶ 8 According to the guilty plea colloquy, on April 7, 2002, Appellant was:

In official detention at the Conewago Wernersville halfway house.... [Appellant] was in a prerelease program after serving time in SCI Graterford as a result of a felony conviction that resulted from a jury trial on February 6th, 1992, for criminal attempt to commit robbery....

While [Appellant] was in official detention at Conewago Wernersville he had work release at a Ponderosa located in the general area. He was scheduled to return at 8:00. He did not return until 10:50 p.m. He came back to Conewago Wernersville, would not allow himself to be searched as per the rules by Conewago Wernersville worker Robert Pietrack. At 11:45 p.m., he was observed to walk out without authority and without permission.

N.T. Guilty Plea, 12/10/02, at 8-9. Under Pennsylvania law:

"Parole" has been defined as a method of rehabilitation that permits offenders to serve a period of their sentences outside of prison walls, subject to the terms and conditions imposed by the Commonwealth. Rivenbark v. Pennsylvania Board of Probation and Parole, 509 Pa. 248, 501 A.2d 1110 (1985). The essence of parole is the offender's release from prison prior to the expiration of his maximum sentence, conditioned upon his compliance with the terms and conditions of parole established by the Board. Wile, Pennsylvania Law of Probation and Parole § 1.6 (1993).

Miller v. Bd. of Probation and Parole, 837 A.2d 618, 622 (Pa.Cmwlth.2003). Since commitment to a halfway house necessarily requires removal from a prison and allows the prisoner "to serve a period of their sentences outside of prison walls," arguably commitment to a halfway house meets the definition of "parole" quoted above. However, the guilty plea colloquy establishes that Appellant was in a "prerelease program." In the context of the statutory provisions relating to parole the term "prerelease" has been defined at 37 Pa.Code § 95.111 as follows:

A transfer which can be achieved by inmates of state correctional institutions and regional correctional facilities after qualifying in accordance with the criteria, procedures, and policies set forth in §§ 95.113 and 95.117 (relating to minimum criteria for prerelease transfer; and staff responsibilities). Prerelease transfer permits participation in the following programs: work release; educational/vocational training release; temporary home furlough; and community services.

Reider v. Commonwealth, Bur. of Correction, 93 Pa.Cmwlth. 326, 502 A.2d 272, 274 n. 3 (1985). The above definition aside, the term "prerelease" essentially translates into "prior to release" and begs the question, prior to release on what? Given that the provisions for "prerelease programs" are found in the provisions for parole, it logically follows that the term "prerelease program" refers to a program that predates release on parole.³ This premise is further bolstered by the provisions of 61 P.S. § 331.34(a)(3), which reads in relevant part:

In no case shall the board act upon an application of an inmate whose term of imprisonment was commuted from life to life on parole or upon an inmate who was serving a term of imprisonment for a crime of violence... unless the inmate has served at least one year in a prerelease center.

This section refers to an application of a prisoner for parole. Thus, it is apparent that if a prisoner is serving a qualifying sentence, i.e., one for a crime of violence, the prisoner must spend at least a year in a "prerelease program" prior to being eligible for parole. As such, this provision supports the conclusion that a prisoner on a prerelease program has not yet been formally paroled from prison and, therefore, remains under official detention as defined in the statute, even if he is housed outside the walls of a state correctional institution.

¶ 9 We note that the above interpretation is also consistent with the opinion expressed on the matter by the Commonwealth Court. In Meehan v. Bd. Of Probation and Parole, 808 A.2d 313, 317 (Pa. Cmwlth.2002), the Court stated:

As Meehan correctly noted in his brief, under Pennsylvania law, a prisoner may not be paroled before serving his minimum sentence. Krantz v. Pennsylvania Board of Probation and Parole, 86 Pa.Cmwlth. 38, 483 A.2d 1044 (1984). As a result, pre-release inmates at Keenan House are deemed to be in custody,

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