Tubbs v. Pennsylvania Bd. of Probation and Parole
| Decision Date | 14 January 1993 |
| Citation | 620 A.2d 584,152 Pa.Cmwlth. 627 |
| Parties | Eric TUBBS, Petitioner, v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent. |
| Court | Pennsylvania Commonwealth Court |
John K. Sweeney, Asst. Public Defender, for petitioner.
Arthur R. Thomas, Asst. Chief Counsel, for respondent.
Before PALLADINO and PELLEGRINI, JJ., and NARICK, Senior Judge.
Eric Tubbs (Petitioner) appeals the order of the Pennsylvania Board of Probation and Parole (Board) which extended his reparole date due to misconducts. We affirm.
On April 28, 1988, the Board released Petitioner on parole from a sentence of three-to-ten years. Subsequently, Petitioner was arrested on both new federal and state criminal charges. 1
On June 6, 1991, the Board held a revocation hearing to determine whether to recommit Petitioner as a convicted parole violator. The Board recommitted Petitioner to serve ten additional months of his original sentence "when available." (Certified record, p. 74.) The Board notified Petitioner of a recalculated maximum term expiration date of July 3, 1998 and set a tentative reparole date of May 3, 1992 upon the condition that Petitioner commit no misconducts. The Board erred in calculating these dates because it failed to credit Petitioner's original sentence for time he spent in custody. The Board corrected its miscalculation but did not recalculate Petitioner's tentative reparole date. Soon thereafter, the Board modified the reparole date due to Petitioner's misconduct 2 and set a new tentative reparole date of August 3, 1993.
Petitioner filed an administrative appeal challenging the setting of his new tentative reparole date on the ground that in setting the date, the Board did not apply credit for the time he spent in custody. The Board denied Petitioner's request for administrative relief on the ground that the extension of a reparole date due to misconduct is not appealable.
On appeal to this Court, 3 Petitioner argues (1) that the Board abused its discretion in applying the time credit (from April 5, 1990 to July 11, 1990) to Petitioner's maximum term expiration rather than to the extension of his reparole date; and (2) that the Board abused its discretion by modifying the reparole date because of Petitioner's misconduct. 4
Concerning Petitioner's first argument, it is well-settled under Pennsylvania law that a prisoner has no constitutionally protected liberty interest in being released from confinement prior to the expiration of his sentenced maximum term. Reider v. Pennsylvania Board of Probation and Parole, 100 Pa.Commonwealth Ct. 333, 514 A.2d 967 (1986). Section 21.1 of the Act of August 6, 1941, P.L. 861, as amended, added by the Act of August 24, 1951, P.L. 1401, as amended (Parole Act), 61 P.S. § 331.21a, gives the Board the power to return parole violators to prison to serve the entire remaining balance of their unexpired maximum term. The General Assembly has given the Board broad discretion to determine if and when a prisoner under its jurisdiction should be released on parole. Krantz v. Pennsylvania Board of Probation and Parole, 86 Pa.Commonwealth Ct. 38, 483 A.2d 1044 (1984). This reasoning also applies to the Board's decision to modify a reparoling order and thus, administer more "setback" time. 5
The decision of whether to "set back" a prisoner's reparole date is an exercise of the Board's discretion not to release a prisoner on parole. Johnson v. Pennsylvania Board of Probation and Parole, 110 Pa.Commonwealth Ct. 142, 532 A.2d 50 (1987). The amount of setback time levied against an inmate is solely within the Board's discretion. Id. The Board could conceivably set back an inmate's reparole date to encompass the entire remaining unexpired term of his sentence. Therefore, due process is satisfied when a time credit, such as the one before us, is applied solely to a prisoner's maximum term.
Petitioner's second argument is without merit. In his appeal, Petitioner asks this Court to review the Board's decision to rescind an unexecuted tentative parole...
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