Caldwell v. Pa. Parole Bd.

1

Alfonso Caldwell, Petitioner v. Pennsylvania Parole Board, Respondent

No. 882 C.D. 2022

Commonwealth Court of Pennsylvania

November 30, 2023

OPINION NOT REPORTED

Submitted: May 12, 2023

MEMORANDUM OPINION

PER CURIAM.

Alfonso Caldwell (Petitioner), pro se, petitions for review of the July 27, 2022 order of the Pennsylvania Parole Board (Board), which denied his request for administrative review and affirmed its February 23, 2022 decision to recommit him as a convicted parole violator (CPV) to serve 24 months' backtime. Upon careful review, we affirm.

I. FACTS AND PROCEDURAL HISTORY

Petitioner is an inmate currently incarcerated at the State Correctional Institution (SCI) at Frackville (SCI-Frackville). On September 6, 1990, Petitioner was arrested and convicted of third-degree murder.^[1] (Certified Record (C.R.) at 1-2.) Petitioner was paroled on September 13, 2000. (C.R. at 6-9.)

On July 26, 2004, the Board mailed a decision recommitting Petitioner as a technical parole violator to serve six months' backtime. (C.R. at 11-12.) On March 24, 2005, Petitioner was released on parole with a maximum sentence date of September 6, 2010. (C.R. at 19.) On August 6, 2008, Petitioner was indicted for federal crimes^[2] based on his conduct while at liberty on parole. (C.R. at 52-65.) On August 26, 2008, the federal court issued an order of detention in the new criminal case. (C.R. at 44.) On March 4, 2013, Petitioner was sentenced to 180 months' incarceration in federal prison. (C.R. at 28, 33, 36.) On October 5, 2021, Petitioner was released from federal prison and on October 15, 2021 returned to state custody at SCI-Frackville. (C.R. at 93, 102.)^[3] On January 3, 2022, the Board notified Petitioner via a "Notice of Charges and Hearings" form that his revocation hearing would occur on January 25, 2022, at 9:00 a.m. at SCI-Frackville. (C.R. at 28.) At the revocation hearing, Petitioner was represented by Attorney Anthony List, who argued that the Board should credit the time Petitioner spent in federal custody to his state sentence due to Petitioner's poor health. (C.R. at 84.) Petitioner did not contest his violations. (C.R. at 86.)

On February 23, 2022, the Board recorded a decision (mailed March 1, 2022) that recommitted Petitioner as a CPV and recalculated his maximum sentence date as March 20, 2027. (C.R. at 105-06.) On March 28, 2022, the Board received Petitioner's Administrative Remedies Form. (C.R. at 107-13.) On April 1, 2022, the Board received an additional Administrative Remedies Form on Petitioner's behalf from Attorney Kent D. Watkins challenging the timeliness of the revocation hearing.

(C.R. at 114-16.) On July 27, 2022, the Board affirmed its February 23, 2022 decision. (C.R. at 117-20.) Subsequently, Petitioner appealed to this Court.

II. ISSUES

On appeal,^[4] from what the Court can glean from Petitioner's brief, he raises several issues: (1) whether the Board erred by not considering his individual circumstances in denying his request for administrative review; (2) whether the Board erred by not treating him the same as his similarly situated co-defendant; (3) whether the Board erred when it failed to conduct a timely revocation hearing; (4) whether the Board erred in recalculating his maximum sentence by denying him credit for time spent in federal custody awaiting sentencing; and (5) whether the Board erred in its calculation of the imposed recommitment period of 24 months.

III. DISCUSSION

A. Waiver

Initially, we must address Petitioner's first two issues, namely whether the Board erred by not considering Petitioner's individual circumstances in denying his request for administrative review and whether the Board erred by not treating Petitioner the same as his similarly situated co-defendant.

It is well settled that a party may not assert an issue on appeal from a governmental agency unless he raised it in the first instance at the administrative level. 2 Pa. C.S. § 703(a); Pa. R.A.P. 1551; McCaskill v. Pennsylvania Board of Probation and Parole, 631 A.2d 1092, 1094-95 (Pa. Cmwlth. 1993) ("It has been the holding of this Court that the issues not raised by a CPV before the Board in an administrative appeal are waived for purposes of appellate review by this Court."). Here, Petitioner did not raise either of these issues before the Board in either his pro se or his counseled administrative remedies form. (C.R. at 107-16.) Because these issues were not raised before the Board, we conclude they are waived and cannot be considered for the first time on appeal.

B. Timeliness of the Revocation Hearing

Next, Petitioner argues, relying on Fumea v. Pennsylvania Board of Probation and Parole, 147 A.3d 610 (Pa. Cmwlth. 2016), that, pursuant to Section 6138(a)(5.1) of the Prisons and Parole Code (Code),^[5] 61 Pa. C.S. § 6138(a)(5.1), he was to serve the remaining balance of his original state term before serving the new federal sentence imposed on March 4, 2013. Petitioner asserts he was available to the Board when he was convicted of the federal charges on March 4, 2013, and, as in Fumea, the Board did not ensure that he served the balance of his original state sentence in accordance with Section 6138(a)(5.1), which resulted in an unreasonable delay in the holding of his revocation hearing. Petitioner argues that, between August 25, 2008, when he was detained by the federal agents, and March 4, 2013, the day of his sentencing, the Board had ample time to assert its jurisdiction and have Petitioner serve the balance of his original state term.

The Board responds that the timeliness of a revocation hearing is governed by Section 71.4 of its regulations, 37 Pa. Code § 71.4, which provides that if a parolee is confined to a federal prison, the revocation hearing does not have to be held until 120 days from when the Board received official verification of the parolee's return to an SCI. According to the Board, because Petitioner was not confined at an SCI until October 15, 2021, his revocation hearing, held within 120 days of his return, was timely. The Board further maintains that Petitioner's reliance on Section 6138(a)(5.1) disregards the facts that he was in federal custody until October 5, 2021, and that the Board had no ability to take him from the federal authorities to conduct a revocation hearing and recommit him as a CPV. Finally, the Board argues, Fumea is distinguishable because, unlike in that case, there was no opportunity for the Board to obtain custody of Petitioner after his sentencing and prior to his entering federal custody. Therefore, the Board asserts that Petitioner was not entitled to a revocation hearing prior to his return to an SCI. We agree with the Board.

When a parolee challenges the timeliness of a revocation hearing, the Board has the burden of proving by a preponderance of the evidence that the hearing was, in fact, timely. Ramos v. Pennsylvania Board of Probation and Parole, 954 A.2d 107, 109 (Pa. Cmwlth. 2008) (quotations omitted). If the Board does not present substantial evidence to establish the timeliness of a revocation hearing, the parole violation charges are dismissed with prejudice. Id.

To meet its burden, the Board relies on its regulations addressing the timing of, and procedures related to, revocation hearings to assert that Petitioner's revocation hearing was timely. Section 71.4(1)(i) of the Board's regulations states, in relevant part, that:

The following procedures shall be followed before a parolee is recommitted as a [CPV]:

(1) A revocation hearing shall be held within 120 days from the date the Board received official verification of the pleas of guilty or nolo contendere or of the guilty verdict at the highest trial court level except as follows:

(i) If a parolee is confined outside the jurisdiction of the Department of Corrections, such as confinement out-of-state, confinement in a Federal correctional institution or confinement in a county correctional institution where the parolee has not waived the right to a revocation hearing by a panel in accordance with [Commonwealth ex rel. Rambeau v. Rundle, 314 A.2d 842 (Pa. 1973)], the revocation hearing shall be held within 120 days of the official verification of the return of the parolee to [an SCI].

37 Pa. Code § 71.4(1)(i) (emphasis added). Section 71.5(a), (c)(1) offers additional guidance, providing, in relevant part:

(a) If the parolee is in . . . Federal custody, the Board may lodge its detainer but other matters may be deferred until the parolee has been returned to [an SCI] in this Commonwealth. . . . .

(c) In determining the period of conducting hearings under this chapter, there shall be excluded from the period, a delay in any state of the proceedings which is directly or indirectly attributable to one of the following:

(1) The unavailability of a parolee or counsel.

37 Pa. Code § 71.5(a), (c)(1) (emphasis added). Thus, under this regulation, when a parolee is in federal custody, confined in a federal facility, or is otherwise unavailable, the Board's duty to hold a revocation hearing, or take other action beyond issuing a detainer, is deferred until the parolee is returned to an SCI regardless of when the Board received official verification of a parolee's new conviction. See Brown v. Pennsylvania Board of Probation and Parole, 184 A.3d 1021, 1025 (Pa. Cmwlth. 2017) (quotations omitted).

Petitioner asserts these regulations are inapplicable due to the General Assembly's October 2010 addition of Section 6138(a)(5.1) to the Code,^[6] which provides "[i]f the offender is sentenced to serve a new term of total confinement by a Federal court or by a court of another jurisdiction because of a verdict or please under paragraph (1), the offender shall serve the balance of the...