Santiago v. Pennsylvania Board of Probation & Parole

OPINION BY

Pedro Louis Santiago (Santiago) petitions for review from an order of the Pennsylvania Board of Probation and Parole (Board) denying his request for administrative relief by refusing to give him credit toward backtime on his Pennsylvania sentence for time spent in custody in a Pennsylvania State Correctional Institution for a Maryland sentence which was to run concurrent with outstanding or un-served sentences.

Santiago was originally sentenced in Pennsylvania in 1992 to four years, nine months to 10 years for possession with intent to deliver a controlled substance and given a maximum expiration date of April 17, 2003. He was paroled, but rearrested, recommitted and given a new maximum expiration date of May 2, 2004. He was again paroled, but then arrested in Maryland for possession of drugs. When he was released on bail, he returned to Pennsylvania only to be arrested again for drug possession and, as a result, recommitted to a state correctional facility as a technical parole violator. He was sentenced by the court to serve a nine-month to two-year sentence,1 and the Board ordered him to serve 18 months backtime when available. Santiago remained in a Pennsylvania prison serving what he believed was his Pennsylvania sentence for approximately three years until he was returned to Maryland for prosecution on the charges arising from his arrest in Maryland. The Mary*612land court gave him a sentence of four years which was to run “concurrent with any other outstanding or unserved sentence and begin on 02/17/02.”2 He was returned to Pennsylvania custody on October 24, 2004.3 In sum, from 2001 to 2006, Santiago spent about two weeks in custody in Maryland and the rest of the time in prison in Pennsylvania.

Because of his Maryland conviction, the Board recommitted Santiago as a technical and convicted parole violator to serve 18 months backtime “when available.” It calculated his new maximum term expiration as May 24, 2009, based on his original 10-year state prison sentence, giving him no credit for the time he spent in Pennsylvania prisons against his Pennsylvania time for time the Maryland court credited against his Maryland sentence. The effect of the Board’s calculation of his maximum time was that it changed his Maryland sentence from one that ran concurrently with all other time to one that ran consecutively with the backtime on his Pennsylvania sentence, the Maryland sentence being served first.4

Santiago, through his counsel, filed a petition for administrative review arguing that the calculation of his maximum date for his original 10-year state prison sentence improperly excluded time served in Pennsylvania, and it should be ordered that time be counted against his Maryland sentence that was ordered to run concurrently with his Pennsylvania sentence.5 He argued that under the Maryland court order, the Board was required to give him credit for both sentences he was serving in a Pennsylvania State Correctional Institution rather than only for the time he served for the Maryland sentence.6 The Board denied Santiago’s request by letter dated June 26, 2006,7 stating, in effect, that *613it was not required to honor the Maryland court’s order that its sentence was to run “concurrent with any other outstanding or unserved sentences” because Section 21.1(a) of the Probation and Parole Law (Parole Act)8 mandated that sentences for crimes committed on parole had to be served consecutively with time remaining on original sentences. This petition for review by Santiago followed.9

Santiago contends that the Board erred by extending his maximum date because the Maryland court sentenced him to a term of imprisonment that was to run “concurrent with any time he served in Pennsylvania.” Relying on Walker v. Pennsylvania Board of Probation and Parole, 729 A.2d 684 (Pa.Cmwlth.1999), he contends that the Board erred by not following the Maryland court’s order that his Maryland sentence should run concurrent with all time spent in a Pennsylvania State Correctional Institution and violated the Full Faith and Credit Clause of the Pennsylvania Constitution.

In Walker, the parolee was released in Pennsylvania on parole from charges in the Commonwealth, but was arrested in Maryland on charges of battery, assault and reckless endangerment of another person. He posted bail and was released on the condition that he appear at a hearing in Maryland several months later. The Pennsylvania Board declared him delinquent on parole and detained him pursuant to a warrant for his arrest. He was recommitted as a technical parole violator at the state correctional facility to serve 18 months backtime. Eventually, Maryland obtained custody of him; he was taken back to Maryland for a hearing on his criminal charges; and he was convicted to serve five years with credit for all the time served since his arrest. He was returned to Pennsylvania, and the Board recommitted him as a convicted parole violator and *614recalculated his maximum sentence date without giving him credit for time served on his Maryland sentence. Noting that Section 21.1(a) of the Parole Act prohibited prisoners from serving sentences concurrently until their original sentence had been served, this Court, nonetheless, held that Walker was entitled to credit against his original sentence of his time served based on the provisions of the United States Constitution to give full faith and credit10 to a judgment or judicial decree of a sister state.11

What we were trying to convey in Walker was that, even though Maryland’s order that had the effect of allowing time to run concurrently with backtime was not permitted under Pennsylvania law, nonetheless, Section 21.1(a) did not permit the Board to change Maryland concurrent time to run consecutively with Pennsylvania time. We so held that it could not focus on the effect of the order because the Board did not have the power to determine if a Maryland court order was legal or illegal as the sentence was not imposed under the Pennsylvania Sentencing Code, but under the Maryland Sentencing Code for a crime committed in Maryland.

That does not mean, though, that one state is required to give full faith and credit to other state’s criminal orders. As our Supreme Court of the United States stated in Nelson v. George, 399 U.S. 224, 229, 90 S.Ct. 1963, 26 L.Ed.2d 578 (1970), “as a general rule criminal judgments are not entitled to full faith and credit because no State is bound to enforce the penal laws of another State or to punish a person for a wrong committed against it.” In Taylor v. Sawyer, 284 F.3d 1143, 1153, n. 11 (9th Cir.2002), the United States Court of Appeals for the Ninth Circuit explained that:

The reason is that each sovereign is free to determine what conduct shall be proscribed within its jurisdiction, and the wrong committed by violating such proscription is local and does not transcend the sovereignty. The United States Supreme Court has held that States can deny recognition to judgments issued by another State which assess penalties against a criminal defendant. See e.g. Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 290, 8 S.Ct. 1370, 32 L.Ed. 239 (1888) overruled on other grounds by Milwaukee County v. M.E. White Co., 296 U.S. 268, 56 S.Ct. 229, 80 L.Ed. 220 (1935). Applying this general rule, courts have held that a State need not give full faith and credit to another jurisdiction’s directive that sentences run concurrently. See People v. Alba, 189 Misc.2d 258, 730 N.Y.S.2d 191, 199 (N.Y.Sup.Ct.2001); Chalifoux v. Commissioner of Corr., 375 Mass. 424, 377 N.E.2d 923, 926 (1978); Breeden v. New Jersey Dep’t of Corr., 132 N.J. 457, 625 A.2d 1125, 1128-29 (1993).

*615Because full faith and credit does not apply, Pennsylvania was a stranger to the Maryland court order and had no duty or right to enforce it because that duty was solely vested in Maryland officials charged with that responsibility. All that the Board had the power to enforce was time imposed on a Pennsylvania sentencing order, not time imposed by another jurisdiction.

Moreover, to follow the Board’s view that it can change concurrent Maryland time to run consecutively with Pennsylvania time would frustrate Pennsylvania courts from imposing sentences as provided for in the Sentencing Code. Section 9761(b) of the Sentencing Code, 42 Pa.C.S. § 9761(b), provides that Pennsylvania courts can count time spent in other prisons against Pennsylvania time, stating in relevant part:

(b) Sentences imposed by other sovereigns. — If the defendant is at the time of sentencing subject to imprisonment under the authority of any other sovereign, the court may indicate that imprisonment under such other authority shall satisfy or be credited against both the minimum and maximum time imposed under the court’s sentence. If the defendant is released by such other authority before the expiration of the minimum time imposed by the court, he shall be returned to a correctional institution of the Commonwealth to serve the time which remains of the sentence. If the defendant is released after the minimum time has elapsed, he shall be considered for parole on the same basis as a prisoner who has served his minimum time in a correctional institution of the Commonwealth. If the defendant is released after the maximum time imposed under the sentence of imprisonment he shall be deemed to have served his sentence. (Emphasis added.)

In LeGrande v. Department of Corrections, 894 A.2d 219 (Pa.Cmwlth.2006), where a state judge sentenced state time to run concurrently with federal time, we explained the practical implications of allowing a sentencing court to impose concurrent time, stating: “It permits a sentencing judge to partially shift the cost of confinement away from Pennsylvania, thereby attaining a salutary efficiency.” LeGrande, 894 A.2d at 224. “The holding affords greater flexibility to a judge in the complex process of sentencing where multiple offenses against multiple sovereigns are involved. Also, such cases are usually further complicated by the unavailability of the offender. [It] ... allows a trial judge in the proper case to accept plea agreements and thereby expedite resolution of charges. The response to recidivism in the limited circumstances of contemporaneous sentences from multiple sovereigns is not to hamper the trial judge; rather, the remedy is for the Board to take failure on parole into account in determining baektime.” Id. The Board’s position that it cannot give credit frustrates all of those purposes; it increases the cost of confinement to Pennsylvania taxpayers because Pennsylvania now has to pay for incarceration for a Maryland sentence; it also frustrates the trial court’s ability to fashion what it believes is an appropriate sentence, not to mention the “surprise” of criminal defendants who entered a plea conditioned upon the fact that the sentence was to run concurrently but was changed by the Board to run consecutive to other time.

Because the Board and Pennsylvania are strangers to the Maryland order, the Pennsylvania authorities had no authority to convert concurrent time to consecutive time to be served first before his Pennsylvania sentence. As a result, it failed to give Santiago credit for all time served on his Pennsylvania sentence. Accordingly, *616the Board’s order is reversed and the matter remanded to the Board to recalculate Santiago’s maximum term expiration date for his Pennsylvania sentence based on the time served on his Maryland sentence, i.e., credit from November 21, 2003, through September 10, 2004; from October 24, 2004, through March 10, 2006; and March 17, 2006, through the present. •

ORDER

AND NOW, this 3rd day of December, 2007, the order of the Pennsylvania Board of Probation and Parole dated January 8, 2007, is reversed and the matter remanded to the Board to recalculate Santiago’s maximum term expiration date for his Pennsylvania sentence based on the time served on his Maryland sentence, i.e., credit from November 21, 2003, through September 10, 2004; from October 24, 2004, through March 10, 2006; and March 17, 2006, through the present.

Jurisdiction relinquished.