Johnson v. Murray

• Decision Date: 08 December 2005
• Citation: 888 A.2d 28
• Parties: Ryan R. JOHNSON, Petitioner v. Lawrence F. MURRAY, Board Secretary, PBPP, Respondents.
• Court: Pennsylvania Supreme Court

888 A.2d 28

Ryan R. JOHNSON, Petitioner v. Lawrence F. MURRAY, Board Secretary, PBPP, Respondents.

Commonwealth Court of Pennsylvania.

Submitted on Briefs October 14, 2005.

Decided December 8, 2005.

Ryan R. Johnson, petitioner, pro se.

Arthur R. Thomas, Asst. Counsel and Victoria S. Freimuth, Chief Counsel, Harrisburg, for respondents.

BEFORE: McGINLEY, Judge, and LEADBETTER, Judge, and KELLEY, Senior Judge.

OPINION BY Senior Judge KELLEY.

Ryan R. Johnson petitions for review pro se from a final determination of the Pennsylvania Board of Probation and Parole (Board) denying his request for administrative relief. We affirm.

On December 15, 1995, Johnson was sentenced to six concurrent four to eight-year prison sentences based upon his guilty pleas in the Court of Common Pleas of Chester County to a number of drug charges. With an effective date of June 19, 1995, the sentence had a minimum expiration date of June 19, 1999 and a maximum expiration date of June 19, 2003. Upon the expiration of his minimum term, Johnson was released on parole on June 20, 1999.

On March 30, 2001, Johnson was declared delinquent by the Board effective March 26, 2001. Johnson was subsequently apprehended and, by decision mailed July 10, 2001, the Board recommitted Johnson as a technical parole violator to serve twelve months backtime, and as a convicted parole violator to serve a concurrent six months backtime. By decision mailed September 24, 2001, the Board recalculated the maximum expiration date of Johnson's sentence to be June 20, 2005. On August 19, 2002, Johnson was again released on parole.

On October 9, 2002, Johnson was declared delinquent by the Board effective October 3, 2002. On October 11, 2002, Johnson was arrested by the Philadelphia Police. By decision mailed January 17, 2003, the Board recommitted Johnson as a technical parole violator to serve twelve months backtime. By decision mailed September 22, 2003, the Board recalculated the maximum expiration date of Johnson's sentence to be June 28, 2005. On February 2, 2004, Johnson was again released on parole.

On April 21, 2004, Johnson was involved in a one-vehicle automobile accident while driving with his ten-year-old son, and he was arrested by the Pennsylvania State Police. Johnson was subsequently charged with two counts of Driving Under the Influence of Alcohol (DUI), and one count each of Recklessly Endangering the Welfare of a Child, Recklessly Endangering Another Person (REAP), Accidents Involving Death or Personal Injury While Not Properly Licensed, Driving While Operating Privilege is Suspended or Revoked, Careless Driving, Reckless Driving and Driving on Roadways Laned for Traffic. Johnson did not post bail on the new charges.

On April 23, 2004, the Board issued a Warrant to Commit and Detain Johnson for the purported violation of his parole. On April 29, 2004, the Board issued a Notice of Charges and Hearings which alleged that Johnson violated his parole based upon the new criminal charges and a number of technical violations. On May 3, 2004, Johnson waived his right to a preliminary hearing and a panel hearing on the parole violations, and requested that the hearing be continued pending the disposition of the new criminal charges.

On March 7, 2005, Johnson pleaded guilty to one count each of DUI and REAP in the Court of Common Pleas of Chester County (trial court). The trial court sentenced Johnson to a forty-day to six-month term of imprisonment for his DUI conviction, and a consecutive one-year term of probation for his REAP conviction, giving him credit for the pre-trial time that he served in custody from April 21, 2004 to May 30, 2004. In addition, that same day, the trial court issued an order retroactively granting Johnson parole from this sentence effective May 30, 2004.

On March 21, 2005, a parole violation hearing was conducted before the Board's hearing examiner. By decision mailed April 22, 2005, the Board recommitted Johnson as a technical parole violator to serve twelve months backtime, and as a convicted parole violator to serve a concurrent twelve months backtime. The decision also stated that Johnson's parole violation maximum date was May 9, 2005. However, by decision mailed April 26, 2005, the Board modified its prior decision by correcting Johnson's parole violation maximum date to May 9, 2006.¹

On May 10, 2005 and May 24, 2005, Johnson filed the instant requests for administrative relief in which he sought more credit from the Board for time that he had previously served. Specifically, Johnson sought credit from May 30, 2004 to October 21, 2004, the time for which he was retroactively paroled by the trial court on his new DUI conviction to the expiration of the maximum sentence imposed for that offense, which was also used by the Board as the date that he was in its custody for return. In the requests, Johnson also sought credit from either September 6 or 9, 2000 to March 20, 2001, the time during which he was required to participate in a home monitoring program as one of the conditions of his prior release on parole.

By decision mailed June 1, 2005, the Board denied Johnson's requests for administrative relief. On June 29, 2005, Johnson filed the instant pro se petition for review.²

The sole claim raised by Johnson in this appeal is that the Board erred in granting him the proper credit on his original sentence. More specifically, Johnson contends that the Board erred in failing to give him credit for the four months and twenty days, from May 30, 2004 to October 21, 2004, the time from which he was retroactively paroled from his new DUI sentence to the time that the Board determined that he was in its custody for return to serve the remainder of his original sentence. Johnson also contends that the Board erred in failing to give him credit for the six months and eleven or fourteen days, from September 6 or 9, 2000 to March 20, 2001, during which time he was required to participate in a home monitoring program as one of the conditions of his prior release on parole.

Johnson first claims that the Board erred in failing to give him credit for the four months and twenty days, from May 30, 2004 to October 21, 2004, the time from which he was retroactively paroled from his new DUI sentence to the time that the Board determined that he was in its custody for return to serve the remainder of his original sentence. Specifically, he asserts that, pursuant to Martin v. Pennsylvania Board of Probation and Parole, 576 Pa. 588, 840 A.2d 299 (2003), he is entitled to credit for this period of time on his original sentence. We disagree because: 1) the order of the trial court retroactively paroling Johnson from service of his DUI sentence is a nullity; and 2) Martin does not apply to the facts of this case.

It is clear that the trial court's March 7, 2005 order paroling Johnson from his DUI sentence effective May 30, 2004 was a nullity as a matter of law, to the extent it attempted to parole him on a date prior to the date of sentencing on his new conviction. As we explained in Patrick v. Pennsylvania Board of Probation and Parole, 110 Pa.Cmwlth. 121, 532 A.2d 487 (1987), another case where a court of common pleas attempted to parole an individual on a date prior to the date he was sentenced on the new charges:

[H]ere, Patrick was given credit by the common pleas court for his pretrial confinement time on his new sentence as he did not post bail on the new offenses. After his guilty plea, he was held in custody on the new charges, and hence unavailable to the Board to serve the parole violation backtime it imposed, until the common pleas court imposed sentence on March 14, 1986. It is on that date, and only upon that date, that the only warrant holding Patrick in confinement was the Board's parole violation warrant. It is only upon that date that he actually became available to the Board to serve the parole violation backtime the Board had previously imposed. Prior to that date, he was still held in custody by virtue of the new charges, to which he had already pleaded guilty, as well as the Board's warrant. By ordering that its grant of parole be made retroactive to October 15, 1985, the common pleas court here attempts to change history and would have this Court and the Board engage in the fiction that, but for the Board's warrant, Patrick could have walked out of prison on October 15, 1985[, prior to being sentenced on the new charges]. This fiction is absurd since all parties acknowledge that Patrick was not free to leave confinement on the new charges until sentence was imposed by the court on March 14, 1986, and parole on that sentence was granted. The common pleas court cannot use its paroling power under [Section 1 of the Act of June 19, 1911, P.L. 1059, as amended,] 61 P.S. § 314[³] to change the uncontested and undisputed fact that up until March 14, 1986, Patrick was held in custody on both the new conviction and the Board's warrant. Parole violation backtime and subsequent sentences must be served in consecutive order and a common pleas court cannot use its paroling power under 61 P.S. § 314 to indirectly do what it is prohibited from doing directly, that is make all or part of its sentence run concurrently with parole violation backtime imposed by the Board.

Patrick, 532 A.2d at 491-492 (emphasis in original). Thus, as a matter of law, on March 7, 2005 the trial court was patently without the authority to retroactively parole Johnson effective May 30, 2004 and its order to that end is a nullity.⁴

In addition, Johnson's reliance on Martin is misplaced. In Martin, the parolee was sentenced to forty-eight hours incarceration and one-year probation. He was arrested on May 30, 2000, at which time the Board lodged its detainer, but he was not sentenced until July 19, 2001. He remained incarcerated that entire time since he could not make bail solely because of his indigent status. The Board denied him credit for...