IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Guy Wayne Moyer, :
Petitioner :
:
v. : No. 181 C.D. 2015
: Submitted: July 31, 2015
Pennsylvania Board of Probation :
and Parole, :
Respondent :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE LEAVITT FILED: October 19, 2015
Guy Wayne Moyer petitions for review of an order of the
Pennsylvania Board of Probation and Parole (Board) denying his request to
recalculate the backtime imposed on him following his recommitment as a
convicted parole violator. Because the backtime imposed on Moyer fell within the
statutory presumptive range, the Board declined to recalculate it. For the reasons
that follow, we affirm.
On March 5, 2010, Moyer was sentenced to one to five years of
confinement for a charge of driving under the influence (DUI). At the time of
sentencing, the maximum expiration date for Moyer’s sentence was September 15,
2014. The Board released Moyer on parole on December 8, 2010.
On January 8, 2013, Moyer was arrested and charged with various
driving offenses. On July 14, 2014, Moyer pled guilty to one count of fleeing or
attempting to elude a police officer; one count of driving under the influence; and
one count of driving while operating privilege is suspended. The Court of
Common Pleas of Berks County sentenced Moyer to a prison term of two to five
years, with the proviso that Moyer receive 533 days credit for time already served.
On September 24, 2014, the Board issued an order recommitting Moyer as a
convicted parole violator to serve 18 months backtime. As a result, Moyer’s new
maximum sentence date was June 27, 2018.
Moyer, pro se, filed an administrative appeal challenging the
recommitment term. By decision mailed January 27, 2015, the Board denied
Moyer’s administrative appeal. The Board concluded that it did not err in
awarding 18 months of backtime because it fell within the statutory presumptive
range of up to 24 months for Moyer’s offenses. Moyer petitioned for this Court’s
review.
On appeal,1 Moyer argues that the Board erred in imposing separate
backtime for the offenses of DUI, 75 Pa. C.S. §3802(c),2 and DUI with a
suspended license, 75 Pa. C.S. §1543(b)(1.1)(iii).3 Moyer asserts that because DUI
1
This Court’s review is to determine whether errors of law were committed, constitutional rights
were violated, or findings of fact were supported by substantial evidence. Hughes v.
Pennsylvania Board of Probation and Parole, 534 A.2d 589, 590 n.1 (Pa. Cmwlth. 1987).
2
Section 3802(c) of the Vehicle Code states, in relevant part:
(c) Highest rate of alcohol.-- An individual may not drive, operate or be in
actual physical control of the movement of a vehicle after imbibing a sufficient
amount of alcohol such that the alcohol concentration in the individual’s blood or
breath is 0.16% or higher within two hours after the individual has driven,
operated or been in actual physical control of the movement of the vehicle.
75 Pa. C.S. §3802(c).
3
Section 1543(b)(1.1) of the Vehicle Code states, in relevant part:
(1.1)(i) A person who has an amount of alcohol by weight in his blood that is
equal to or greater than .02% at the time of testing or who at the time of testing
(Footnote continued on the next page . . .)
2
is a lesser-included offense of DUI with a suspended license, the two offenses
merged for sentencing purposes and the Board erred in aggregating the
presumptive ranges for those two offenses. The Board counters that Moyer’s
merger issue is waived because he is raising it for the first time on appeal.
In order to decide whether Moyer’s issue on appeal is waived, we first
consider the arguments he raised in his administrative appeal. That appeal, filed
with the Board on October 29, 2014, provided in relevant part as follows:
I am writing this for Administrative Relief based on the
decision 18 months of backtime.
Since the day of my arrest on Jan. 8, 2013, I have had alot [sic]
of time to look back at things in my life and the severity of my
“Disease to Alcohol and Drugs” which at this point in my life
being 58 years of age had taken just about everything [I have]
worked or lived for. The remorse that I have for my actions
(continued . . .)
has in his blood any amount of a Schedule I or nonprescribed Schedule II or III
controlled substance, as defined in the act of April 14, 1972 (P.L. 233, No. 64),
known as The Controlled Substance, Drug, Device and Cosmetic Act, or its
metabolite or who refuses testing of blood or breath and who drives a motor
vehicle on any highway or trafficway of this Commonwealth at a time when the
person's operating privilege is suspended or revoked as a condition of acceptance
of Accelerated Rehabilitative Disposition for a violation of section 3802 or former
section 3731 or because of a violation of section 1547(b)(1) or 3802 or former
section 3731 or is suspended under section 1581 for an offense substantially
similar to a violation of section 3802 or former section 3731 shall, upon a first
conviction, be guilty of a summary offense and shall be sentenced to pay a fine of
$1,000 and to undergo imprisonment for a period of not less than 90 days.
***
(iii) A third or subsequent violation of this paragraph shall constitute a
misdemeanor of the first degree, and upon conviction thereof the person shall be
sentenced to pay a fine of $5,000 and to undergo imprisonment for not less than
two years.
75 Pa. C.S. §1543(b)(1.1).
3
will be there for the rest of my life and the consequences are
getting even greater.
While being confined in Berks county prison I received the
news on my wife dealing with cancer and now she is suffering
with the early [stages] of dementia and can no longer function
as well as she once could have normally being alone at home to
take care of things.
Also, while being confined in Berks county prison I received
papers that my home is being put up for sheriff sale and the
bank is going to [foreclose] on my home. My daughter who I
almost lost due to my neglectful action has assume[d] some of
my responsibilities to go back home and help out as much as
she can doing what she can do without neglecting her own life
responsibilities.
The time has come and now my daughter is scared as to what to
do or what will happen as she cannot continue to financially
afford to care for my wife or maintain our home for much
longer.
***
I hope you will consider a reconsideration to amend the 18
months decision served to me so that I can be home soon to
provide for my family.
Certified Record at 79 (emphasis in original).
Essentially, Moyer asked the Board to reduce his backtime so that he
could be released sooner to care for his ailing wife and relieve the familial burdens
on his daughter. These are laudable goals. Nevertheless, Moyer’s administrative
appeal to the Board did not raise the legal issue that his sentences had merged for
purpose of applying the presumptive range for backtime. “It is well-settled that
failure to raise an issue before the Board results in a waiver and precludes this
Court from review.” Newsome v. Pennsylvania Board of Probation and Parole,
4
553 A.2d 1050, 1052 (Pa. Cmwlth. 1989); PA. R.A.P. 1551(a) (“No question shall
be heard or considered by the court which was not raised before the government
unit[.]”).
In sum, because Moyer’s argument is not properly before this Court,
we must affirm the Board’s order.
______________________________
MARY HANNAH LEAVITT, Judge
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Guy Wayne Moyer, :
Petitioner :
:
v. : No. 181 C.D. 2015
:
Pennsylvania Board of Probation :
and Parole, :
Respondent :
ORDER
AND NOW, this 19th day of October, 2015, the order of the
Pennsylvania Board of Probation and Parole dated January 27, 2015, in the above-
captioned matter is hereby AFFIRMED.
______________________________
MARY HANNAH LEAVITT, Judge