Patrick v. Pa. Bd. of Prob. & Parole
Patrick v. Pa. Bd. of Prob. & Parole
Opinion of the Court
Opinion by
In this parole revocation appeal, Anthony Patrick, petitioner, appeals here an order of the Pennsylvania Board of Probation and Parole (Board) denying him administrative relief from a Board parole revocation order. That revocation order recommitted him as a technical and a convicted parole violator to serve eighteen months on backtime effective March 14, 1986. We shall affirm.
Patricks sole contention in this appeal is that the Board erred by failing to credit his parole violation backtime with the period he was confined from October 15, 1985, through March 14, 1986. Put another way, he argues that the Board erred by failing to recognize the retroactive nature of the common pleas courts grant of parole on his new sentence. The issue of the validity of a grant of retroactive parole is, to our knowledge, one of first impression in the appellate courts of this Commonwealth.
We initially recognize that it is well-settled in this Commonwealth that the courts have no inherent right to grant paroles and that any power or authority to do so must come from the General Assembly. See e.g., Commonwealth ex rel. Banks v. Cain, 345 Pa. 581, 28 A.2d 897 (1943); Commonwealth v. Harradine, 148 Pa. Superior Ct. 451, 25 A.2d 576 (1942); Commonwealth ex rel. Burrell v. Fluck, 47 Pa. D. & C. 356 (C.P. Montgomery 1943); Commonwealth v. Frezetos, 29 North. 337 (Pa. Q.S. 1939). The power of the common pleas court to grant paroles is conferred by the Act of June 19, 1911, P.L. 1059, as amended, 61 P.S. §314. That statute provides that the common pleas courts are authorized, after due hearing, to release on parole, any prisoner under their jurisdiction who is confined in a county jail or prison. This authority was repealed in
While the common pleas had the power and authority to grant Patrick parole on his new sentences, our analysis of the pertinent statutes and caselaw convinces us that the common pleas court lacked the power to make its grant of parole retroactive to a date prior to the date of the actual imposition of sentence. We initially note that the statutory language contained in 61 P.S. §314 requires a verified petition for parole be filed on the prisoner’s behalf and the common pleas court is re
§9760. Credit for time served
After reviewing the information submitted under section 9737 [42 Pa. C. S. §9737] (relating to report of outstanding charges and sentences) the court shall give credit as follows:
(1) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed or as a result of the conduct on which such a charge is based. Credit shall include credit for time spent in custody prior to trial, during trial, pending sentence, and pending the resolution of an appeal. (Emphasis added.)
We further note that a prisoner paroled under 61 P.S. §314 who is subsequently recommitted by the common pleas court as a parole violator is not entitled to credit against the original sentence for time the prisoner spent on parole in good standing. See e.g., Commonwealth v. Fair, 345 Pa. Superior Ct. 61, 497 A.2d 643 (1985); Commonwealth v. Broden, 258 Pa. Superior Ct. 408, 392 A.2d 858 (1978); Commonwealth ex rel. Forsythe v. Banmiller, 197 Pa. Superior Ct. 69, 178 A.2d 317 (1962); Commonwealth v. Ripka, 37 Pa. D. & C. 315 (Q.S. Philadelphia 1940). Thus, were a common pleas court empowered to make its grant of parole retroactive to a date prior to the actual imposition of sentencing, the prisoner would be deemed to have been on parole since the effective date set by the common pleas court despite the fact that the prisoner was actually incarcerated awaiting sentencing. In the event that the prisoner violates parole and is recommitted by the common pleas court as a parole violator, he would be entitled to no
In resolving this issue, we receive further guidance from Section 1933 of the Statutory Construction Act of 1972, 1 Pa. C. S. §1933, that provides, in part, that where the provisions of two statutes conflict, the two should be construed, if possible, to give effect to both. Appeal of Yerger, 460 Pa. 537, 333 A.2d 902 (1975). Only where such a construction is impossible will the specific statute control the general statutes and will be construed as an exception to the general statute. Paxon Maymar, Inc. v. Pennsylvania Liquor Control Board, 11 Pa. Commonwealth Ct. 136, 312 A.2d 115 (1973). We are satisfied that 42 Pa. C. S. §9760(1) and 61 P.S. §314 are not irreconcilable and that both can be given full effect if 61 P.S. §314 is construed as not authorizing the common pleas courts to grant parole retroactive to the date of the actual imposition of sentence. This construction is consistent with the procedure set forth in 61 P.S. §314 for petitioning the common pleas courts for
We are further strengthened in this conclusion by the concept of parole itself. The Pennsylvania Supreme Court has defined “parole” as “a penological measure for the disciplinary treatment of prisoners who seem capable of rehabilitation outside of prison walls; it does not
Finally, were we to sanction the practice of retroactive parole, this Court would be placing its stamp of ap
For the foregoing reasons, we hold that the common pleas courts have no power to grant parole under 61 P. S. §314 to be effective on a date prior to the date sentence is actually imposed and a parole petition is filed
Now, October 7, 1987, the order of the Pennsylvania Board of Probation and Parole denying administrative relief to Anthony Patrick from its parole revocation order dated June 13, 1986, establishing the effective date of his eighteen months parole violation backtime at March 14, 1986, and a tentative reparóle date of September 14, 1987, is hereby affirmed.
Section 13 of the Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §780-113.
Section 3929 of the Crimes Code, 18 Pa. C. S. §3929.
Section 5121 of the Crimes Code, 18 Pa. C. S. §5121.
Since Patrick was still awaiting sentencing on his guilty plea, he was still under the jurisdiction of the common pleas court and, hence, unavailable to the Board to commence serving the parole violation backtime it had imposed. It is for that reason that the Board in its order of November 27, 1985, did not calculate a tentative reparóle date for Patrick.
The sentencing hearing required by Section 9752 of the Sentencing Code, 42 Pa. C. S. §9752, and Pa. R. Crim. P. 1405 also serves as the hearing required by 61 P.S. §314 on a prisoners parole petition where the sentencing judge grants parole at the time of sentencing.
See also Wile, An Overview of the Parole Revocation Process in Pennsylvania, 92 Dick. L. Rev. 1, 6-7 (1987).
Dissenting Opinion
Dissenting Opinion by
I respectfully dissent. The issue in this case is both simple and important: whether a trial judge, who has absolute discretion to parole an individual pursuant to section 314 of the Act of June 19, 1911, P.L. 1059, as amended, 61 P.S. §314 (Act),
The majority concludes that the imposition of a retroactive parole order as part of the sentence conflicts with section 9760 of the Sentencing Code, 42 Pa. C. S. §9760(1), because a parolee, should he commit a parole vioaltion after release warranting recommitment, would lose time for which the statute provides he receive credit. I believe that this analysis avoids the simple feet that the trial courts retroactive parole order, at the time of imposition, complies entirely with the requirements of the Sentencing Code.
Section 9760 of the Code requires a sentencing judge to credit the defendants new sentence with time
The exercise of the power of parole . . . does not impinge upon the judicial power of sentencing the accused in conformity with the law. . . . The sentence is in no wise interfered with. . . . The parolee is not discharged, but merely serves the remainder of his sentence by having his liberty restrained in a manner analogous to that employed in the ‘trusty’ or ‘honor system of prison discipline. ‘The parole authorized by statute does not suspend service or operate to shorten . the term. While on parole the convict is bound to remain in the legal custody and under the control of the warden until the expiration of the term. . . . While this is an amelioration of punishment, it is in legal effect imprisonment.’
Commonwealth ex rel. Banks v. Cain, 345 Pa. 581, 588-89, 28 A.2d 897, 901 (1942) (quoting Anderson v. Corall, 263 U.S. 193, 196 (1923)) (emphasis in original).
Thus, when the trial judge ordered the 9-18 month concurring sentences, he properly credited towards these sentences the entire time Petitioner had served in jail for failure to post bail since his arrest. The feet that he ordered Petitioner paroled retroactively from October 15, 1985 in no way alters the feet that Petitioner was credited with the 12Vz months time served on the new sentences (March 1, 1985 to March 14, 1986), the first IVz months in incarceration, and the latter five months on constructive parole. What the parole order does per
The majority maintains that section 314 of the Act must be construed as precluding any legislative intent that retroactive parole orders are permissible. I believe that this conclusion misconceives the essential nature of section 314.
Section 314 of the Act states that trial courts with jurisdiction “are authorized, after due hearing, to release on parole any convict confined in the county jail, house of correction, or workhouse of their respective district. . . . After such hearing, the court shall make such order as to it may seem just and proper .” (Emphasis added.) These words are plain and unambiguous. They authorize a trial court to exercise discretion to grant or refuse parole in any manner which the court deems “just and proper.” See Commonwealth v. Fair, 345 Pa. Superior Ct. 61, 497 A.2d 643 (1985). The legislative intent to grant this complete discretionary role to a sentencing judge can be more fully perceived by review of the Sentencing Code, 42 Pa. C. S. §§9701-9781. Under the Code, a sentencing judge may, except where a mandatory minimum sentence is required by law, exercise discretion to “consider and select one or more of
seeks to vindicate society’s interest in imposing appropriate sanctions against those individuals determined to be criminally culpable. At the same time, however, the court must give fair and full consideration to the particular circumstances of individual defendants. . . . Fully recognizing the gravity of the sentencing decision, the Sentencing Code and the Rules of Criminal Procedure clearly contemplate that the ‘sentencing judge’ be the ultimate adjudicator of criminal sentences.
Commonwealth v. Knighton, 490 Pa. 16, 21-22, 415 A.2d 9, 12 (1980).
I believe that this “ultimate adjudicator of criminal sentences” role applies equally in parole matters. To deny a sentencing judge the authority to impose parole retroactively and thereby pronounce sentence as he deems just and proper unduly infringes upon the legislative intent to grant this role to the judge. This is especially so in a constructive parole matter where, for instance, the requirements of the court to place the prisoner under a probation officer’s supervision are obviously inapplicable.
It is asserted that by issuing a retroactive parole order, the trial court is circumventing the Supreme Court’s decision in Commonwealth v. Dorian, 503 Pa. 116, 468 A.2d 1091 (1983), which mandates that a parolee’s new sentence and his recommitment time be served in consecutive order.
In conclusion, I am of the opinion that section 314 of the Act grants the sentencing judge the discretion and flexibility to issue parole orders as the judge deems just and proper. In this case, the trial court deemed that Petitioner serve TVz months of his sentence and that he then be paroled from it. The fact that sentence was imposed on March 14, 1986 necessitated a retroactive parole order. This is the type of flexibility I believe the legislature intended to grant a sentencing judge. To declare such an order illegal would be to interfere with the trial court’s discretion in such matters pursuant to section 314. Accordingly, I respectfully dissent.
Repealed in part by the Act of August 6, 1941, P.L. 861 (Parole Act), as amended, 61 P.S. §§331.1-331.34.
I note that the Boards recommitment order and paroling jurisdiction are in no way affected by the trial courts order. The Boards recommitment penalty of eighteen months is locked in concrete and unaltered by the trial court order. The only issue with regard to the Board is when that recommitment penalty was to commence.
Reference
- Full Case Name
- Anthony Patrick, Petitioner v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole, Respondent
- Cited By
- 14 cases
- Status
- Published