IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert Wiggins, :
Petitioner :
:
v. : No. 559 C.D. 2016
: Submitted: October 7, 2016
Pennsylvania Board of Probation :
and Parole, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: February 3, 2017
Petitioner Robert Wiggins (Wiggins) petitions for review of an order
of the Pennsylvania Board of Probation and Parole (Board). The Board denied
Wiggins’ administrative appeal of the Board’s March 9, 2016 order, which
formally recommitted Wiggins as a convicted parole violator and recalculated his
maximum release date. For the reasons set forth below, we affirm the order of the
Board.
Wiggins’ conviction and parole history originally resulted in a
maximum sentence date of October 2, 2016. Before that date, on
February 4, 2015, while Wiggins was on parole, he was charged with possession
with the intent to deliver, criminal attempt delivery of a controlled substance,
criminal use of communication facility, possession of a controlled substance, and
possession of drug paraphernalia. (Certified Record (C.R.) at 23-24.) On
May 7, 2015, Wiggins pled guilty to possession with intent to manufacture or
deliver cocaine, and the remaining charges were nolle prossed. (Id. at 33-34.) The
guilty plea specified that charge entailed a maximum penalty of 10 years and/or a
$100,000 fine. (Id. at 19.) On August 26, 2015, the trial court sentenced Wiggins
to 18 to 36 months confinement. (Id. at 33-34).
On August 20, 2015, the Board provided Wiggins with notice that it
scheduled a parole revocation hearing for September 9, 2015. (Id. at 11.) The
notice identified the new criminal conviction as being for the offense of felony
possession with the intent to deliver. Also on August 20, 2015, Wiggins admitted
to the May 7, 2015 conviction for felony possession with the intent to deliver and
waived his right to counsel and to the revocation hearing. (Id. at 13.) Thereafter,
the Board recommitted Wiggins as a convicted parole violator with no credit for
his time at liberty on parole. (Id. at 39-46). The Board determined that the new
conviction fell within the 18 to 24 months presumptive range for backtime, based
on the conviction for manufacture, delivery, or possession with intent to
manufacture or deliver cocaine, and it imposed 18 months backtime.
(Id. at 41-42.) The Board recalculated Wiggins’ maximum sentence date to
September 30, 2018, and determined that Wiggins would be eligible for reparole
on March 23, 2017. (Id. at 50.)
Wiggins, pro se, filed for administrative relief asserting that: (1) he
never forfeited any parole liberty; (2) the Board never conducted a hearing; (3) the
Board erred in calculating backtime; and (4) the Board does not have the authority
to change the maximum date of a judicially-imposed sentence. (Id. at 52-57.) On
March 9, 2016, the Board denied Wiggins relief. (Id. at 59-60.)
2
Wiggins, now represented by counsel, filed a petition for review of
the Board’s decision. On appeal,1 Wiggins argues that his due process rights were
violated as a result of the Board not holding a revocation hearing. Wiggins
challenges his waiver of the revocation hearing on the ground that the waiver form
only indicated that he was convicted of felony possession with intent to deliver and
did not specify that he was convicted of possession with intent to deliver cocaine.
Accordingly, Wiggins argues, he could not make a knowing waiver of the hearing,
and the signed waiver and admission cannot constitute sufficient evidence of the
new conviction. Wiggins also argues that the Board applied the incorrect
presumptive range for the May 7, 2015 conviction.
In response, the Board argues that it did not violate Wiggins’ due
process rights because it relied on his waiver of a revocation hearing and his
admission of the new conviction. Specifically, the Board argues that these waiver
and admission forms provide the Board with sufficient evidence to recommit a
parole violator. In support of this argument, the Board contends that this Court has
upheld the Board’s reliance on such waiver and admission in prior cases. The
Board further argues that given the admission of the May 7, 2015 conviction, the
Board properly applied the 18 to 24 months presumptive range to calculate the
maximum release date.
First, we reject Wiggins’ challenge to the validity of his waiver of a
revocation hearing and counsel. Wiggins argues that the hearing and counsel
waiver form that he signed provided insufficient specificity of the charge against
1
Our review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, or whether necessary findings of fact are supported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.
3
him. According to Wiggins, by not specifying the drug he was charged with and
corresponding presumptive range, the Board precluded him from making a
knowing waiver when he signed the waiver form. This argument lacks merit. On
May 7, 2015—prior to his August 20, 2015 waiver of a revocation hearing—
Wiggins pled guilty to the charge of possession with intent to deliver cocaine. The
guilty plea also specified that the maximum term of imprisonment was 10 years.2
Presumptive ranges for convicted parole violators are set forth in the Board’s
regulations, specifically at 37 Pa. Code § 75.2. For drug offenses, the range is
based upon the maximum term of imprisonment for the offense. Based on his own
guilty plea, Wiggins knew when he signed his waiver form that he was convicted
of felony possession with intent to deliver cocaine and that the offense carried a
statutory maximum term of imprisonment of 10 years. Moreover, there is no
requirement that the notice or waiver indicate the presumptive recommitment
range of backtime associated with a conviction. Thus, we conclude that Wiggins’
August 20, 2015 waiver was knowing, and the Board did not violate his due
process rights by failing to conduct a hearing.
Wiggins’ argument that the Board erred in determining backtime and
recalculating his reparole eligibility date is equally without merit. Backtime is
defined as: “The unserved part of a prison sentence which a convict would have
been compelled to serve if the convict had not been paroled.” 37 Pa. Code § 61.1.
Statutory presumptive recommitment ranges provide the Board with guidelines for
determining the amount of backtime to impose. Here, the 18 months that the
2
Section 13(f)(1.1) of The Controlled Substance, Drug, Device and Cosmetic Act, Act of
April 14, 1972, P.L. 233, as amended, 35 P.S. § 780-113(f)(1.1).
4
Board imposed is within and is even on the low end of the presumptive range.
Both this Court and our Supreme Court have ruled that where the amount of
backtime does not exceed the presumptive range, courts will not review the
Board’s imposition of backtime. Smith v. Pa. Bd. of Prob. & Parole,
574 A.2d 558, 560 (Pa. 1990); Lotz v. Pa. Bd. of Prob. & Parole, 548 A.2d 1295,
1296 (Pa. Cmwlth. 1988), aff’d, 583 A.2d 427 (Pa. 1990). We likewise decline to
review the Board’s imposition here. Moreover, applying 18 months of backtime to
the September 23, 2015 recommitment date yields the proper parole eligibility date
of March 23, 2017. The Board, therefore, properly calculated the date for reparole.
Accordingly, we affirm the order of the Board.
P. KEVIN BROBSON, Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert Wiggins, :
Petitioner :
:
v. : No. 559 C.D. 2016
:
Pennsylvania Board of Probation :
and Parole, :
Respondent :
ORDER
AND NOW, this 3rd day of February, 2017, the order of the
Pennsylvania Board of Probation and Parole is AFFIRMED.
P. KEVIN BROBSON, Judge