Leymeister v. Pa. Parole Bd.

1

Robert Dustin Leymeister, Petitioner v. Pennsylvania Parole Board, Respondent

No. 719 C.D. 2023

Commonwealth Court of Pennsylvania

August 21, 2024

OPINION NOT REPORTED

Submitted: July 5, 2024

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge HONORABLE ELLEN CEISLER, Judge HONORABLE MARY HANNAH LEAVITT, Senior Judge

MEMORANDUM OPINION

ELLEN CEISLER, Judge

Petitioner Robert Dustin Leymeister (Leymeister), an inmate currently incarcerated within our Commonwealth's prison system petitions for review of Respondent Pennsylvania Parole Board's (Board) June 21, 2023 decision. Through that decision, the Board, in relevant part, affirmed its refusal to award Leymeister credit towards his carceral sentence for time he had spent residing at a community corrections center.^[1] We affirm.

I. Background

The relevant facts are as follows. Leymeister pled guilty to a single count of aggravated assault and, on September 9, 2014, was sentenced by the Court of Common Pleas of Schuylkill County (Common Pleas) to between 8 and 16 years in state prison. Certified Record (C.R.) at 1. The Board subsequently issued a decision on March 28, 2015, that paroled Leymeister to Wernersville community corrections center (CCC), at which point the maximum date on his 2014 sentence was June 11, 2022. Id. at 6-8.^[2]

Leymeister's release on parole did not mark the end of his troubles, however. On September 8, 2015, the Board determined that there was probable cause that Leymeister had violated the terms of his parole and ordered that he be held in a parole violator center, while also directing that a parole violation hearing be held "in abeyance, pending completion of recommended programming." Id. at 14. Thereafter, on May 2, 2016, the Board declared that Leymeister was a technical parole violator (TPV), due to his failure to successfully complete his assigned program at Wernersville CCC, and ordered him to serve six months of backtime on his 2014 sentence as a result. Id. at 15-19. Leymeister was then automatically reparoled on September 15, 2016. Id. at 20-24.

Shortly thereafter, the Board declared Leymeister delinquent effective October 1, 2016. Id. at 25. Leymeister was subsequently arrested by police in Pottsville, Pennsylvania, on November 29, 2016. Id. at 30. On January 24, 2017, the Board again recommitted Leymeister as a TPV, due to his decision to change his residence without permission, and ordered that he be held until he completed "prescribed programs" or six months had passed, whichever occurred first. Id. at 26-27.

The Board also recalculated the maximum date on Leymeister's 2014 sentence as July 9, 2022. Id. The Board then modified its January 24, 2017 decision on February 28, 2017, recalculating the maximum date on his 2014 sentence as August 9, 2022, and ordering that he be detained pending the disposition of charges resulting from his November 2016 arrest. Id. at 30-31. Thereafter, Leymeister was convicted in Common Pleas of possession of a controlled substance. Id. at 32. The Board responded by issuing a decision on September 29, 2017, through which it declared him to be a convicted parole violator (CPV) and, as a consequence, ordered that he serve nine months of backtime on his 2014 sentence. Id. at 32-33. The Board then paroled Leymeister from his 2014 sentence on October 18, 2018. Id. at 36-37. Leymeister was not actually released from prison until January 29, 2019, at which point he was directed to reside at Wernersville CCC. See C.R. at 38-39.

Once again, this release did not mark the end of Leymeister's troubles. On November 20, 2020, the Board declared Leymeister delinquent effective November 17, 2020. Id. at 42. He was then arrested in Pottsville on January 9, 2021, which prompted the Board to issue a detainer warrant that same day. Id. at 43, 46-48. The Board then issued a decision on February 10, 2021, through which it declared Leymeister to be a TPV, consequently ordered him to serve nine months of backtime on his 2014 sentence, and recalculated the maximum date on that sentence as October 1, 2022. Id. at 46-48. In addition, the Board ordered that Leymeister be detained pending resolution of charges resulting from his January 2021 arrest. Id. at 46. On October 26, 2021, Leymeister pled guilty to one count each of fleeing or attempting to elude a police officer; driving while operating privilege was suspended or revoked; and careless driving, as well as two counts of violating "duties at stop sign," and was sentenced by Common Pleas to an aggregate carceral term of one to two years in state prison. Id. at 53. On January 25, 2022, Leymeister waived his right to a parole revocation hearing. Id. at 51. On February 2, 2022, the Board ordered that Leymeister be recommitted as a CPV and to serve 12 months of backtime on his 2014 sentence as a result. Id. at 90-91. In addition, the Board declined to award Leymeister any credit for time spent at liberty on parole and recalculated the maximum date on his 2014 sentence as May 6, 2025. Id. at 91.

On February 22, 2022, Leymeister challenged the Board's February 2, 2022 decision by submitting an administrative remedies form. Id. at 94-101. Therein, Leymeister argued that the Board's decision was erroneous for three reasons. First, the Board did not award him credit towards his 2014 sentence for the time he spent at Wernersville CCC between January 29, 2019, and March 6, 2020. Id. at 96, 100. Second, the Board failed to properly apply all credit towards his 2014 sentence for time he served in presentence detention on the Board's detainer. Id. at 96. Finally, the Board did not provide a legally adequate reason for declining to award him credit for time served at liberty on parole. Id.

The Board responded on March 22, 2023, by ordering that an evidentiary hearing be held regarding the question of whether Leymeister should receive credit for the time he spent at Wernersville CCC in 2019 and 2020. Id. at 102-03. This hearing was held on April 25, 2023. Id. at 104. During the course of the hearing, Leymeister testified that the conditions at Wernersville CCC were "the equivalent of a work release program for [him] when [he] was in the county jail[,]" to which Daniel Walters, a parole agent assigned to the hearing, responded by objecting on the basis that such a comparison was merely speculative. Id. at 111, 133. The Board's hearing examiner then sustained the Board's objection and prevented Leymeister from making such a comparison. Id. at 113-14. Leymeister then continued by offering additional testimony about the conditions at Wernersville CCC. Id. at 114-122. Walters then presented testimony from Corey Barton, Wernersville CCC's director, who testified that his facility does not have doors that are locked from the inside, fences, or bars on its windows. Barton further testified that parolees are allowed to leave Wernersville CCC for work or leisure activities and can "walk through the residence without escorts[.]" Id. at 126-27. In addition, Barton testified that parolees who leave the facility without authorization are not charged with escape and that the facility's employees do not have authorization to prevent a parolee from making an unauthorized departure or to use physical restraints. Id. at 126.

On April 25, 2023, the Board's hearing examiner issued a decision ruling that Leymeister failed to meet his burden to show that the circumstances of his confinement at Wernersville CCC in 2019 and 2020 were functionally equivalent to incarceration. Id. at 133-35. Accordingly, the hearing examiner recommended that Leymeister be given no credit towards his 2014 sentence for the time he spent at Wernersville CCC between January 29, 2019, and March 6, 2020. Id. at 135. The Board adopted the hearing examiner's decision and formally denied Leymeister's Wernersville CCC time credit request on May 11, 2023. Id. at 138-40. Leymeister then filed an administrative remedies form on May 23, 2023 challenging the Board's May 11, 2023 decision. Id. at 149-156. The Board responded on June 21, 2023, via letter, through which it denied both of Leymeister's administrative challenges (i.e., the arguments he had made through his February 22, 2022 and May 23, 2023 administrative remedies forms). Id. at 157-59. This appeal to our Court followed shortly thereafter.

II. Discussion

We reorder and summarize Leymeister's arguments as follows.^[3] First, Leymeister acknowledges that the General Assembly amended the Parole Code several years ago to specifically state that "a parolee is at liberty on parole" when residing at a CCC. Leymeister's Br. at 19-20 (quoting Section 6138(a)(2.3) of the Parole Code, 61 Pa. C.S. § 6138(a)(2.3)).^[4] He also admits that this Court has already held that this amendment can be applied retroactively. See id. at 20-22 (citing El-Amin v. Pa. Parole Bd., 273 A.3d 1255 (Pa. Cmwlth. 2022). Nevertheless, Leymeister maintains that El-Amin was wrongly decided and that retroactive application of this statute violates the ex post facto clauses of the Pennsylvania and United States Constitutions.^[5] Id. at 19-22. Second, he maintains that the Board's hearing examiner abused her discretion by preventing him from testifying that the conditions at Wernersville CCC were comparable to those he experienced while serving county-level sentences that included work release components. Id. at 11-18.

We need only address Leymeister's first argument to effectively resolve this appeal. Generally speaking,

[t]he ex post facto prohibition bars enactments by the States "which, by retroactive operation, increase the punishment for a crime after its commission." Garner v. Jones, 529 U.S. 244, 249 (2000) (citing Collins v. Youngblood, 497 U.S. 37, 42 (1990)). "Retroactive changes in laws governing

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