Smith v. Pa. Bd. of Prob. & Parole

• Decision Date: 18 October 2017
• Docket Number: No. 82 MAP 2016,82 MAP 2016
• Citation: 171 A.3d 759
• Parties: Derek SMITH, Appellee v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Appellant
• Court: Pennsylvania Supreme Court

171 A.3d 759

Derek SMITH, Appellee

v.PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Appellant

No. 82 MAP 2016

Supreme Court of Pennsylvania.

ARGUED: May 10, 2017

DECIDED: October 18, 2017

Alan Matthew Robinson, Esq., PA Board of Probation & Parole, for Appellant.

David R. Crowley, Esq., Centre County Public Defender's Office, for Appellee.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

JUSTICE DOUGHERTY

We consider whether the Commonwealth Court erred when it vacated the decision of the Pennsylvania Board of Probation and Parole (the Board) regarding the allocation of pre-sentence confinement credit to which appellee Derek Smith is entitled. We hold the Commonwealth Court erred, and we therefore remand for recalculation of appellee's maximum release date.

On November 4, 1998, appellee was found guilty of robbery¹ and sentenced to ten to twenty years' imprisonment; his minimum release date was December 31, 2010, and maximum release date was December 31, 2020. He was released on parole on October 27, 2011. On January 27, 2013, while on parole, appellee was arrested in North Carolina for multiple jewelry store robberies; the record indicates appellee did not post bail and thus remained in custody. Board's Crim. Arrest & Disposition Rpt., 8/5/13, Certified Record (C.R.) at 14; Board's Ltr. to Appellee, 4/17/15, at 1, C.R. at 100 ("There is no indication that you posted bail from [your federal] charges and you do not claim that you posted bail."). The following day, the Board, which had received notice of the arrest, lodged a detainer against appellee. See 61 Pa.C.S. § 6138(c)(1) (parolee under Board's jurisdiction who commits technical violation of parole may be detained pending hearing before Board). On April 23, 2013, federal authorities indicted appellee in North Carolina on charges arising from the jewelry store robberies.² On May 2, 2013, he was detained by federal authorities and subsequently, while still on the federal detainer, transferred to the Columbia County Prison in Pennsylvania. The Board issued a notice of charges, citing appellee's arrest for the federal crimes and his leaving the district without permission, and appellee waived his right to a parole revocation hearing and admitted only that he committed a technical violation by leaving the district without permission. On November 27, 2013, the Board recommitted appellee as a technical violator, imposed six months' imprisonment for the violation, and reparoled him immediately, subject to his federal detainer and pending the disposition of his outstanding federal charges.

Meanwhile, appellee agreed to the transfer of his federal case from the United States District Court for the Eastern District of North Carolina to the Middle District of Pennsylvania, and on December 10, 2013, he pleaded guilty to those federal charges. The federal court imposed an aggregate term of 246 months' imprisonment on June 3, 2014. On September 10, 2014, appellee was transferred to SCI Rockview to serve the remainder of his state sentence with the same maximum release date as when he was initially sentenced, December 31, 2020, before being transferred to the federal prison system.³

The Board issued a second notice of charges, and appellee again waived his right to a revocation of parole hearing, this time admitting he committed the new federal criminal offenses. On December 12, 2014, the Board: reversed the portion of its November 27, 2013 decision reparoling appellee (after imposing its six month sentence for the technical violation); recommitted him as a convicted parole violator; and ordered him to serve 48 months' back time consecutively to the previously-imposed six months' term for the technical violation.⁴ The Board also calculated appellee's new maximum date as May 7, 2023, thus declining to credit his original state sentence with any time he was confined on the Board's detainer following his North Carolina arrest.

Appellee filed two pro se administrative appeals, arguing, inter alia, the Board should have awarded him credit on his state sentence for all the time he was detained.⁵ The Board denied relief, explaining it awarded 93 days' credit for the period he was held solely on its detainer (January 29 to May 2, 2013), but it did not award credit for the 397 days he was held on both its detainer and the federal detainer (May 2, 2013 to June 3, 2014), because that time must be applied to his federal sentence.⁶ In doing so, the Board expressly relied on Gaito v. Pa. Bd. of Prob. & Parole, 488 Pa. 397,412 A.2d 568 (1980).⁷

Appellee filed a counseled petition for administrative review, again arguing the Board improperly failed to credit him all the time to which he was entitled on his state sentence. The Board denied relief via letter decision, again maintaining it properly declined to apply credit toward his original state sentence pursuant to Gaito.

Appellee filed a timely petition for review with the Commonwealth Court, arguing the Board erred in not awarding him credit on his state sentence for all the time he was held on both the Board's detainer and the federal detainer. In support, appellee relied on Baasit v. Pa. Bd. of Prob. & Parole, 90 A.3d 74 (Pa. Cmwlth. 2014), for the proposition that, under the primary jurisdiction doctrine, if Pennsylvania is the sovereign that arrests a defendant first, the Board must apply pre-sentence confinement credit to his original state sentence. See id. at 83, citing Newsuan v. Pa. Dept. of Corrections, 853 A.2d 409, 412 (Pa. Cmwlth. 2004).⁸ Appellee also argued the Prisons and Parole Code previously required a convicted parole violator to serve a new federal sentence before state parole back time, see 61 Pa.C.S. § 6138(a)(5)(i)–(iii), amended by Act 2010–95 (S.B. 1161), P.L. 931, § 20, but current Section 6138(a)(5.1) reverses the order and requires the original state sentence be served first, before the federal sentence.⁹ Appellee construed this more recent enactment as legislative intent to address "[t]he concern that other sovereigns have used Pennsylvania prisons and ... tax dollars to satisfy their sentences." Appellee's Cmwlth. Ct. Brief at 10–11. Appellee claimed the Board therefore erred in relying on Gaito for its application of the time he was incarcerated on both detainers to his federal sentence.

The Board denied it was required to award appellee credit on his state sentence for the time he was held on both detainers simply because Pennsylvania was the first to arrest him. It also averred Baasit incorrectly interpreted Section 6138(a)(5.1) as affecting allocation of pre-sentence credit, and claimed instead that provision merely changed the order of sentences for a convicted parole violator who received a new federal or out-of-state sentence. The Board asserted the Commonwealth Court itself recognized this principle in Armbruster v. Pa. Bd. of Prob. & Parole, 919 A.2d 348 (Pa. Cmwlth. 2007).¹⁰ The Board maintained Gaito remains controlling precedent and the lone exception to Gaito was set forth in Martin, which allowed credit to be applied to a parolee's original sentence only if it were not possible to award all credit toward his new sentence because the new sentence was shorter than the period of pre-sentence confinement. The Board contended appellee's case is distinguishable from Martin, and thus under Gaito, it properly denied the credit on appellee's state sentence because appellee was not detained solely on the Board's detainer but also on a federal detainer.

In a published opinion, a unanimous panel of the Commonwealth Court rejected the Board's arguments and vacated its order. Smith v. Pa. Bd. of Prob. & Parole, 133 A.3d 820 (Pa. Cmwlth. 2016). The panel extensively cited Baasit, including its statements that: Gaito's bright line rule regarding how to allocate credit for time held on detainers no longer applied because Martin afforded the Board discretion to fashion equitable awards of credit; pre-sentence confinement credit should be applied in accordance with Section 6138(a)(5.1) ; and the doctrine of primary jurisdiction compelled that credit should be applied to appellee's original sentence. Id. at 823. The panel specifically rejected the Board's contention Section 6138(a)(5.1) does not affect how pre-sentence credit should be applied. Id. at 824. The panel thus vacated the Board's decision and remanded for it to apply the credit at issue toward appellee's original state sentence. Id. at 825.¹¹

The Board filed a timely petition for allowance of appeal, and we granted review to determine whether the Commonwealth Court's decision conflicts with our decision in Gaito. Smith v. Pa. Bd. of Prob. & Parole, 143 A.3d 891 (Pa. 2016). The Board maintains "[a]lthough there are hundreds of Commonwealth Court decisions addressing various fact patterns," the "straightforward credit allocation rule" of Gaito remains the cornerstone for awarding credit, as the Commonwealth Court recognized in Armbruster. Board's Brief at 11, 13. The Board reiterates the only exception to the rule announced in Gaito is found in Martin, which effectively eliminated what was colloquially referred to as "dead time"—pre-sentence confinement that could not be credited to any sentence—by recognizing a convicted parole violator is entitled to credit on his original sentence if the period of presentence detention exceeds the maximum term of his new sentence; the Board notes that situation is not present here. The Board also asserts Section 6138(a)(5.1) does not govern how confinement credit should be applied, but instead simply dictates the order in which a convicted parole violator's original sentence and new sentence must be served. The Board reasons regardless of which sentence must be served first, presentence confinement credit has always been governed by Gaito and Martin, and those decisions directed its denial of credit toward appellee's original state sentence. Finally, the Board claims the primary jurisdiction doctrine...