holding that imposition of backtime, even if within presumptive range, cannot exceed the parolee’s unexpired term
How later courts described this case
- holding that imposition of backtime, even if within presumptive range, cannot exceed the parolee’s unexpired term
- “The backtime imposed by the Board cannot be more than the entire remaining balance of the unexpired term which [a parole violator] would have been compelled to serve if he had not been paroled.”
Written by the judges who cited it.
The opinion
PELLEGRINI, Judge,
dissenting.
I respectfully dissent. I am perplexed by the majority decision not to grant the Public Defender’s (Counsel) request for leave to withdraw. I do not disagree with the majority opinion’s holding that Lucius Davenport (Davenport) can only be required to serve the balance of his unexpired term. That law is well settled. I am perplexed because as I read the Pennsylvania Board of Probation and Parole’s (Board) order, that’s what it has done. 1
The critical facts are as follows: At the time of his most recent parole, Davenport had an unexpired term of 10 years, 1 month and 15 days. Because he was convicted of 14 counts of Robbery and several counts of Criminal Conspiracy, a parole revocation hearing was held by the Board. As a result of the hearing, the Board issued an order that stated “Recommit as a CPV to serve 624 months, (unexpired term)”. (Original record p. 71). The Report of the Board’s decision which was sent to Davenport stated the decision as - “Recommit to a State Correctional Institution as a CPV to serve 624 months baektime, in effect unexpired term — 10 *585 years, 1 month, and 15 days.” (O.R. p. 73) 2 The form attached to the notice recomputes Davenport's maximum release date by adding 10 years, 1 month and 15 days to the date of custody for serving backtime. (O.R. p. 74).
Davenport filed a petition for review of the decision of the Board contending that 624 months backtime is excessive. This contention is meritless because, even though the Board exercised its discretion in stating the amount of backtime it would impose based on the presumptive ranges for Davenport’s convictions, that is, 624 months, it qualified this statement by stating that the effect of the order was a recommitment for Davenport’s unexpired term.
The principle is clear. The Board cannot recommit a convicted parole violator to serve more than the balance of his or her unexpired term, so that the aggregate of time served prior to parole and the backtime imposed does not exceed the maximum sentence first imposed by the trial court. Merritt v. Pennsylvania Board of Probation and *586 Parole, 524 Pa. 577 , 574 A.2d 597 (1990); 37 Pa.Code § 75.2. I believe that is exactly what the Board did in this case. Unfortunately, the majority opinion focuses on the number 624 months, the Board’s expression of the number it would order based on the presumptive ranges for the crimes Davenport committed, but fails to deal with the Board’s language limiting the baektime ordered to the unexpired term.
Although the Board could have left out the number 624 months, it appears that the choice of a number within the presumptive range with a limitation of up to the balance of the unexpired term is administratively easier. The form used to report the Board’s decision does not contain background information, such as the exact balance of the unexpired term. The form includes only the convictions established in the record, the aggregate presumptive range for those convictions (any mitigating or aggravating circumstances, if applicable), and the decision. In filling out the form, the panel members checked recom-mitment and filled in the blank for months as 624, with the qualifying phrase “unexpired term”. 3 At the end of the page, there is a section to be completed by the Case and Records Management Division Staff which states “[i]f baektime is to UNEXPIRED TERM, compute and enter amount of back-time in months.” The form contemplates that the panel members will indicate unexpired term which then will be computed by staff and stated in the Board’s order. 4
While I believe the Board’s order is clear that it is ordering Davenport to serve only the balance of his unexpired term, the Supreme Court has determined that if the Board’s order is ambiguous, we are constrained to interpret the order to comply with the legal principle that recommitment cannot be more than the balance of the unexpired term. Massey v. Pennsylvania Board of Probation and Parole, 509 Pa. 256 , 501 A.2d 1114 (1985). See also Robinson v. Pennsylvania Board of Probation and Parole, 108 Pa.Commonwealth Ct. 495, 500-01, 520 A.2d 1230, 1234 (1987). In Massey , where the Board ordered recommitment for both technical parole violations and convicted parole violations, the Supreme Court stated:
Although not explicitly stated, we assume the period of recommitment as a technical violator was to run concurrent with the period of recommitment for the conviction violation since any other interpretation would lead to the impermissible result of the appellant remaining incarcerated for a period of time in excess of the sentence originally imposed by the trial judge.
Massey, 509 Pa. at 258 n. 7, 501 A.2d at 1115 -16 n. 7. In light of this precedent, even if there were some ambiguity about whether the Board ordered the unexpired term or more than the unexpired term, when presented with the merits, we would be required to interpret the Board’s order to require a recommitment for the balance of the unexpired term because the other possible interpretation is impermissible. Because the outcome of the case on the merits is controlled by the Supreme Court’s decision in Massey , even if there is some ambiguity in the Board’s order, the issue is meritless.
Because the Board ordered Davenport to serve his unexpired term of 10 years, 1 month, and 15 days, even though expressing that based on the presumptive ranges, it would have imposed 624 months, the recom-mitment is not excessive and the appeal is meritless. Accordingly, I would permit Counsel to withdraw from this appeal.
. I do not disagree with the majority’s determinations that Counsel complied with the technical requirements for withdrawal and that the timeliness issue raised by Davenport is meritless.
. This is a reproduced copy of the Report of the Board’s order:
COMMONWEALTH OF PENNSYLVANIA PENNA. BOARD OF PROBATION AND PAROLE
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. This court has previously determined that the use of the phrase "unexpired term” is not ambiguous, referring only to the actual number of time remaining on the original sentence. Congo v. Pennsylvania Board of Probation & Parole, 104 Pa.Commonwealth Ct. 511, 522 A.2d 676 (1987).
. The letter denying Davenport’s petition for administrative review by the Board is also within the record. (O.R. 78). This letter does not address the limit of baektime imposed to the unexpired term because that issue was not raised by Davenport. The brief letter addresses only Davenport’s contentions, which, on this issue, was "624 months of baektime is excessive”. In response, the Board correctly argues that 624 months is within the presumptive range relative to Davenport’s convictions and, therefore, was within the Board’s discretion but does not go beyond the specific issue to address the limit of baektime to his unexpired term. Additionally, this court reviews the order of the Board rather than the denial of administrative appeal which is the means of making the order final and appeal-able. See 37 Pa.Code § 73.1. See generally Pa. Rules of Appellate Procedure Chapter 3.