T. Love v. PA BPP

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tashoun Love, :

Petitioner :

:

v. : No. 149 C.D. 2015

: Submitted: November 6, 2015

Pennsylvania Board of Probation :

and Parole, :

Respondent :

BEFORE: HONORABLE DAN PELLEGRINI, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

PRESIDENT JUDGE PELLEGRINI FILED: December 3, 2015

Tashoun Love petitions for review of the decision of the Pennsylvania

Board of Probation and Parole (Board) denying his request for an administrative

appeal and administrative relief from the Board’s order recommitting him to a state

correctional institution (SCI) as a technical and convicted parole violator to serve a

total of 24 months backtime.1 We affirm.

1

When parole is revoked, whether for technical violations of the conditions of parole or

for subsequent criminal convictions, the Board imposes a specific period of time that must be

served in prison and credited to the sentence being served on parole before the prisoner will

again be considered for parole on that sentence. That period of time is commonly referred to as

“backtime.” A recommitment is not a second punishment for the original offense; it has no

effect on the original judicially imposed sentence. Rather, recommitment is an administrative

determination that the parolee should be reentered to serve all or part of the unexpired term of his

(Footnote continued on next page…)

In 2010, Love was initially sentenced to a 2-year, 3-month to 6-year

term of imprisonment after he pleaded guilty to felonious manufacturing,

delivering or possessing with the intent to manufacture or deliver a controlled

substance (PWID) in violation of Section 13(a)(30) of The Controlled Substance,

(continued…)

original sentence. The period of recommitment set by the Board, which may be less than the

unexpired term of the parolee’s sentence, simply establishes a new parole eligibility date for the

parolee; it does not entitle him to release after that period of time. Upon completion of this

period of backtime, the parolee has the right to again apply for parole and to have his application

considered by the Board. Rivenbark v. Pennsylvania Board of Probation and Parole, 501 A.2d

1110, 1113 (Pa. 1985).

The Board’s guidelines or “presumptive ranges” for determining the amount of backtime

are found in its regulations at 37 Pa. Code §§75.1-75.4. Section 75.1 provides, in relevant part:

(a) Presumptive ranges of parole backtime to be served will be

utilized if a parolee is convicted of a new criminal offense while on

parole and the Board orders recommitment as a convicted parole

violator after the appropriate revocation hearing.

* * *

(d) The presumptive ranges are intended to directly relate to the

severity of the crime for which the parolee has been convicted.

(e) The severity of ranking of crimes listed in §75.2 (relating to

presumptive ranges for convicted parole violators) is not intended

to be exhaustive, and the most closely related crime category in

terms of severity and the presumptive range will be followed if the

specific crime which resulted in conviction is not contained within

the listing.

37 Pa. Code §75.1.

2

Drug, Device and Cosmetic Act (Drug Act).2 The original minimum date for this

sentence was May 27, 2012, and the maximum date was May 27, 2016. (Certified

Record (CR) 1).

Love was released on parole on September 9, 2013, to reside at the

Self Help Movement Center in Philadelphia. He was declared delinquent effective

October 17, 2013, after he left the facility and failed to return or remain in contact

with the parole authorities.

On December 1, 2013, the Falls Township Police arrested Love in

Bucks County and charged him with one count each of: (1) felonious PWID in

violation of Section 13(a)(30) of the Drug Act for “suspected heroin and suspected

marijuana” (CR 35); (2) felonious criminal use of a communication facility in

violation of Section 7512(a) of the Pennsylvania Crimes Code;3 (3) misdemeanor

2

Act of April 14, 1972, P.L. 233, 35 P.S. §780-113(a)(30). Section 13(a)(30) prohibits

“the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled

substance…..” Under Section 13(f)(1), a violation of Section 13(a)(30) involving Schedule I

“narcotic drug” is graded as “a felony and upon conviction [any individual who violates] thereof

shall be sentenced to imprisonment not exceeding fifteen years, or to pay a fine not exceeding

two hundred fifty thousand dollars ($250,000)….” 35 P.S. §780-113(f)(1). However, under

Section 13(f)(2), a violation involving “any other controlled substance classified in Schedule

I…” is graded as “a felony and upon conviction [any individual who violates] thereof shall be

sentenced to imprisonment not exceeding five years, or to pay a fine not exceeding fifteen

thousand dollars ($15,000), or both.” 35 P.S. §780-113(f)(2).

3

18 Pa. C.S. §7512(a). Section 7512(a) states, in relevant part, that “[a] person commits

a felony of the third degree if that person uses a communication facility to commit, cause or

facilitate the commission or the attempt thereof of any crime which constitutes a felony under …

The [Drug Act]….” Section 7512(b) provides that “[a] person who violates this section shall,

upon conviction, be sentenced to pay a fine of not more than $15,000 or to imprisonment for not

more than seven years, or both.” 18 Pa. C.S. §7512(b).

3

possession of a controlled or counterfeit substance in violation of Section 13(a)(16)

of the Drug Act;4 and (4) misdemeanor use or possession of drug paraphernalia in

violation of Section 13(a)(32) of the Drug Act.5 Love did not post bond on the new

charges, and the Board lodged a detainer for the parole violations. On December

9, 2013, Love waived his right to a violation hearing and counsel and admitted that

he violated the terms and conditions of his parole. (CR 40).

In January 2014, the Board recommitted Love as a technical parole

violator and detained him pending disposition of the criminal charges. In February

2014, a criminal information was filed charging him with the foregoing four

crimes. With respect to Counts 1 and 3, the information alleged that the controlled

substances were “TO WIT, HEROIN (SCHEDULE I) AND/OR MARIJUANA

(SCHEDULE I)….” (CR 67). In April 2014, Love pleaded guilty to all four

4

35 P.S. §780-113(a)(16). Section 13(a)(16) prohibits “[k]knowingly or intentionally

possessing a controlled … substance … unless the substance was obtained directly from, or

pursuant to, a valid prescription order or order of a practitioner….” Under Section 13(b), any

person who violates Section 13(a)(16) “shall be guilty of a misdemeanor, and … shall, on

conviction thereof, be sentenced to imprisonment not exceeding one year or to pay a fine not

exceeding five thousand dollars ($5,000), or both….” 35 P.S. §780-113(b). Additionally,

Section 13(b) states that “if the violation is committed after a prior conviction of such person for

a violation of this act under this section has become final, such person shall be sentenced to

imprisonment not exceeding three years or to pay a fine not exceeding twenty-five thousand

dollars ($25,000), or both.” Id.

5

35 P.S. §780-113(a)(32). Section 13(a)(32) prohibits “[t]he use of, or possession with

intent to use, drug paraphernalia for the purpose of … packing, repacking, storing, containing,

[or] concealing … a controlled substance in violation of this act.” Under Section 13(i), any

person who violates Section 13(a)(32) “is guilty of a misdemeanor and upon conviction thereof

shall be sentenced to pay a fine not exceeding two thousand five hundred dollars ($2,500) or to

imprisonment not exceeding one (1) year, or both….” 35 P.S. §780-113(i).

4

counts. He was sentenced to an SCI for a period of 15 to 30 months on Count I

PWID and no further penalty was imposed on the remaining counts. (Id. 66).

In May 2014, Love waived his right to a revocation hearing and

admitted to violating his parole by his PWID conviction. (CR 69). The Board

determined that his PWID conviction involved heroin and imposed a presumptive

range of 24 to 36 months backtime for the conviction under Section 75.2 of its

regulations.6 (CR 60). The Board also imposed a presumptive range of 6 to 12

months backtime for his conviction for felonious criminal use of a communication

facility; a presumptive range of 6 to 12 months backtime for his conviction for

misdemeanor possession of a controlled or counterfeit substance; and a

presumptive range of 3 to 6 months backtime for his conviction for misdemeanor

use or possession of drug paraphernalia; for a total presumptive range of 24 to 66

months backtime. (Id.). As a result, by a decision dated August 7, 2014, and

mailed on August 18, 2014, the Board recommitted Love as a convicted parole

violator to serve 24 months backtime when available for his PWID conviction. (Id.

70). The decision did not provide a reparole eligibility date or a parole violation

maximum date. (Id. 70-71).

6

37 Pa. Code §75.2. Section 75.2 provides for a presumptive range of 24 to 36 months

for a felony Drug Act conviction with a statutory maximum sentence of 15 years; a presumptive

range of 18 to 24 months for a felony Drug Act conviction with a statutory maximum sentence of

10 years; a presumption range of 9 to 15 months for a felony Drug Act conviction with a

statutory maximum sentence of 5 years; a presumptive range of 6 to 12 months for a

misdemeanor Drug Act conviction with a statutory maximum sentence of 2 or 3 years; and a

presumptive range of 3 to 6 months for a misdemeanor Drug Act conviction with a statutory

maximum sentence of 1 year.

5

On September 3, 2014, Love submitted an administrative remedies

form seeking an administrative appeal and administrative relief from the Board’s

August 2014 decision ordering his recommitment as a convicted parole violator

and the imposition of 24 months backtime. (CR 81-83). Love argued that because

the sentence imposed on his PWID conviction was the lowest felony on the offense

gravity score, it fell under Section 13(f)(2) of the Drug Act so that the maximum

sentence that could have been imposed by the trial court was 5 years, and the

presumptive recommitment range under Section 75.2 of the Board’s regulations

was 9 to 15 months. Love also claimed that under Section 71.4(1)(ii) of the

Board’s regulations,7 his original sentence ran from December 9, 2013, the date

that he waived a panel hearing and counsel and admitted to the technical

violations, and concurrently with the new sentence imposed by the trial court on

his PWID conviction that was ordered to run from December 1, 2013.

Specifically, he alleged that “[t]he Parole Board has discretion to modify a judge’s

decision, so my new sentence apparently is coinciding with the parole decision.”

(CR 81). As a result, Love asserted that the backtime that the Board imposed was

outside the presumptive range and incorrect, and that his new and original

sentences should run concurrently from December 2013 onward.

By decision dated September 4, 2014, and mailed September 12,

2014, the Board referred to its August 2014 decision which determined that Love

7

37 Pa. Code §71.4(1)(ii). Section 71.4(1)(ii) states, in relevant part, that “[a] parolee

who is confined in a county correctional institution and who has waived the right to a revocation

hearing by a panel … decision shall be deemed to be within the jurisdiction of the Department of

Corrections as of the date of the waiver.”

6

was not eligible for reparole until April 15, 2016, and calculated his new parole

violation maximum date as October 2, 2016. (CR 80). Love did not seek an

administrative appeal or administrative relief of the Board’s recalculation decision.

In January 2015, the Board denied Love’s request for an

administrative appeal and administrative relief of its August 2014 recommitment

decision explaining:

The Board chose to recommit you to serve 24

months for the aforementioned violations. The

presumptive recommitment range for a conviction of: (1)

PWID (heroin) is 24-36 months; (2) criminal use of a

communication facility is 6-12 months; (3) intentional

possession of a controlled substance is 6-12 months; and

(4) possession of drug paraphernalia is 3-6 months. The

aggregate recommitment presumptive range for all your

convictions is 24-66 months. Therefore, the 24 month

recommitment period imposed for your violations falls

within the presumptive range and is not subject to

challenge. Smith v. Pennsylvania Board of Probation

and Parole, 574 A.2d 558 (Pa. 1990).

To the extent you challenge the Board’s authority

to recalculate your max date beyond your judicially

imposed sentence, your petition is premature. The Board

recommitted you as a convicted parole violator when

available in its August 7, 2014 decision. This is because

you had pending criminal cases at that time. However,

the Board has since recomputed your max date as

October 2, 2016 in the Board decision recorded

September 4, 2014 (mailed 09/12/2014). Therefore, your

challenge is premature to the September 4, 2014

decision.

7

(CR 86). Based on the foregoing, “the appeal panel finds no ground to grant

administrative relief and the decision mailed August 18, 2014 is AFFIRMED.”

(Id. 87).8

In this appeal,9 Love again argues that the Board erred in denying his

administrative appeal and request for administrative relief of its August 2014

recommitment decision because the backtime imposed is excessive. He asserts

that the presumptive recommitment range for his PWID conviction is 9 to 15

months under Section 75.2 of the Board’s regulations and not the 24 to 36 months

as found by the Board. However, even if it is assumed that Love is correct in this

regard, the aggregate10 presumptive recommitment range for all four of his

8

In his appellate brief, Love mischaracterizes the Board’s decision that is the subject of

this appeal stating, “By decision bearing a mailing date of 5 January 2015, a three-member

appeal panel of the Parole Board denied Love’s administrative appeal and affirmed the 4

September, 2014 decision which was mailed on September 12, 2014.” Brief for Petitioner at 7-8.

To the contrary, as indicated above, the instant appeal is from the Board’s August 2014 decision

recommitting him as a convicted parole violator to serve 24 months backtime; Love did not seek

an administrative appeal or administrative relief of the Board’s September 4, 2014 decision

determining that he was not eligible for reparole until April 15, 2016, and calculating his new

parole violation maximum date as October 2, 2016.

9

Our scope of review is limited to determining whether constitutional rights were

violated, whether the adjudication was in accordance with law, or whether the necessary findings

of fact were supported by substantial evidence. Section 704 of the Administrative Agency Law,

2 Pa. C.S. §704; Reavis v. Pennsylvania Board of Probation and Parole, 909 A.2d 28 (Pa.

Cmwlth. 2006).

10

As this Court has explained:

Section 75.2 of the Code sets forth presumptive ranges of

recommitment for various crimes of which a parolee is convicted

while out on parole, and although the Code does not explicitly so

state, the Board may aggregate backtime for various offenses when

(Footnote continued on next page…)

8

convictions under Section 75.2 of the Board’s regulations is 24 to 45 months 11 so

that the 24 months imposed by the Board is within the presumptive recommitment

range and is not subject to challenge on appeal. Smith.12

(continued…)

ordering a parolee’s recommitment. Corley v. Pennsylvania Board

of Probation and Parole, [478 A.2d 146 (Pa. Cmwlth. 1984)]…

Pierce v. Pennsylvania Board of Probation and Parole, 525 A.2d 1281, 1283 (Pa. Cmwlth.),

appeal denied, 535 A.2d 1059 (Pa. 1987). Moreover, contrary to Love’s assertion, the doctrine

of the merger of criminal sentences does not factor into the Board’s decision regarding the

calculation of backtime. See, e.g., McClinton v. Pennsylvania Board of Probation and Parole,

546 A.2d 759, 762 (Pa. Cmwlth. 1988) (“The General Assembly has given the Board the power

to recommit a parolee following a finding of guilt, and the petitioner was found guilty of each

offense for which he was assessed backtime. Accordingly it is not necessary for the Board to

have a final conviction before assessing backtime. It is likewise unnecessary to determine what

constitutes a conviction and how merger affects the assessment of backtime.”) (emphasis added).

11

Love pleaded guilty to all four charges so the applicable presumptive recommitment

ranges under Section 75.2 are: 9 to 15 months (PWID); plus 6 to 12 months (felonious criminal

use of a communication facility); plus 6 to 12 months (misdemeanor possession of a controlled

or counterfeit substance); plus 3 to 6 months (misdemeanor use or possession of drug

paraphernalia); for a total aggregate presumptive recommitment range of 24 to 45 months.

12

As a corollary to this claim, Love sets forth a policy argument that the designation of

marijuana as a Schedule I controlled substance under the Drug Act is erroneous in light of the

current consideration of legalizing medical marijuana by the Pennsylvania General Assembly

and its legalization and decriminalization in other states. However, such a policy argument is not

a proper basis for this Court to reverse the Board’s actions in this matter. See, e.g., Program

Administration Services v. Dauphin County General Services, 928 A.2d 1013, 1017-18 (Pa.

2007) (“[C]ourts should not lose sight of the respective roles of the General Assembly and the

courts in terms of establishing public policy. In particular, it is the Legislature’s chief function to

set public policy and the courts’ role to enforce that policy, subject to constitutional limitations.

See generally Parker v. Children’s Hosp. of Philadelphia, [394 A.2d 932, 937 (Pa. 1978)]

(explaining that ‘the power of judicial review must not be used as a means by which the courts

might substitute [their] judgment as to the public policy for that of the legislature.’)….”).

Nevertheless, we commend Love’s counsel for his candor in acknowledging that “[t]he

controlling law with regard to this issue does not appear to support Petitioner’s position….”

Brief for Petitioner at 16.

9

Finally, Love argues that the Board erred in recalculating his new

reparole eligibility date as April 15, 2016, and his parole violation maximum date

as October 2, 2016, because he was eligible to receive accumulated credit against

his original sentence under Section 6138(a)(2.1) of the Prisons and Parole Code13

for time spent at liberty on parole in good standing. However, as outlined above,

the Board’s recommitment decision at issue in this appeal did not alter his reparole

eligibility date or his parole violation maximum date. Rather, the Board’s

September 4, 2014 recalculation decision denied him credit for the period of

December 9, 2013, to April 14, 2014, that he now seeks and set his new reparole

eligibility date and parole violation maximum date. (CR 78-79, 80). That

recalculation decision was unappealed14 and cannot be contested in the instant

appeal of a prior and distinct Board recommitment decision.15

13

61 Pa. C.S. §6138(a)(2.1). Section 6138(a)(2.1) provides, in relevant part, that “[t]he

board may, in its discretion, award credit to a parolee recommitted [as a convicted parole

violator] for time spent at liberty on parole” subject to two enumerated exceptions not applicable

herein.

14

The September 2014 Board recalculation decision setting his new reparole eligibility

date and new parole violation maximum date specifically informed Love:

IF YOU WISH TO APPEAL THIS DECISION YOU MUST FILE

A REQUEST FOR ADMINISTRATIVE RELIEF WITH THE

BOARD WITHIN THIRTY DAYS OF THIS ORDER. THIS

REQUEST SHALL SET FORTH SPECIFICALLY THE

FACTUAL AND LEGAL BASIS FOR THE ALLEGATIONS.

SEE 37 PA CODE SEC. 73. YOU HAVE THE RIGHT TO AN

ATTORNEY IN THIS APPEAL AND IN ANY SUBSEQUENT

APPEAL TO THE COMMONWEALTH COURT.

(CR 80).

15

See, e.g., Hughes v. Pennsylvania Board of Probation and Parole, 977 A.2d 19, 26-27

(Pa. Cmwlth. 2009) (“In support, Counsel cites Wright v. Pennsylvania Board of Probation and

(Footnote continued on next page…)

10

Accordingly, the Board’s order is affirmed.

____________________________________

DAN PELLEGRINI, President Judge

(continued…)

Parole, 743 A.2d 1004 (Pa. Cmwlth. 1999), and Woodard v. Pennsylvania Board of Probation

and Parole, [582 A.2d 1144 (Pa. Cmwlth. 1990)]. Wright and Woodard stand for the proposition

that a recommitment order and a recalculation order are separate appealable orders. Wright, 743

A.2d at 1006; Woodard, 582 A.2d at 1146. Woodard specifically held that a petitioner could not

challenge a recommitment order, through a challenge of a subsequent recalculation order, where

an appeal of the recommitment order would have been untimely. Id. at 1146-47….”).

11

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tashoun Love, :

Petitioner :

:

v. : No. 149 C.D. 2015

:

Pennsylvania Board of Probation :

and Parole, :

Respondent :

ORDER

AND NOW, this 3rd day of December, 2015, the order of the

Pennsylvania Board of Probation and Parole bearing a mailing date of January 5,

2015, is affirmed.

____________________________________

DAN PELLEGRINI, President Judge