HomeMy WebLinkAbout98-2421 CriminalCOMMONWEALTH
Vo
TERRY L. FRY
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 98-2421 CRIMINAL TERM
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., February 27, 2002
In this criminal case, characterized by several failures on Defendant's part
to obey court orders, a pro se appeal has been filed to the Pennsylvania Superior
Court from an order denying Defendant's petition for reparole.~ This opinion in
support of the order declining to reparole Defendant is written pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
As the result of purchases made on a closed checking account in May of
1997, Defendant Terry L. Fry was charged with a number of offenses.2 He was
eventually extradited from Florida,3 and pled guilty on February 26, 1999, to two
counts of theft by deception (one graded as a misdemeanor of the first degree and
one graded as a misdemeanor of the second degree) and two counts of bad check
(each graded as a summary offense).4
At the time of the guilty pleas, at Defendant's request and without objection
by the Commonwealth, Defendant was released on his own recognizance pending
sentence, subject to a special condition that he not relocate from a certain
Cumberland County address without notification to his counsel.5
Notice of Appeal, filed January 30, 2002.
See Criminal Complaint, District Justice Transcript.
See Writ of Habeas Corpus, filed June 11, 2001.
Order of Court, February 26, 1999.
Order of Court, February 26, 1999.
Defendant failed to appear for sentence.6 A bench warrant was issued for
his arrest,7 and he was eventually extradited a second time from Florida.8 On
September 8, 1999, Defendant was sentenced on the first and second degree
misdemeanor charges to not less than six months nor more than 23 months, and
not less than four months nor more than 23 months, respectively, in the county
prison, and to probationary sentences on the summary charges, all sentences to run
concurrently with each other.9
Defendant was paroled on November 19, 1999, pursuant to a
recommendation of his county probation/parole officer prior to the expiration of
his minimum sentence,l° Within a few months, a petition was filed by the
collections officer for the probation/parole office based upon Defendant's failure
to report to her and failure to make regular payments on costs and restitution. ~
Defendant failed to appear for a hearing on the petition on October 6,
2000. ~2 A bench warrant for his arrest was issued by the Honorable Kevin A. Hess
of this court on that date.~3
On November 30, 2000, a second petition for revocation of parole was
filed, by Defendant's supervisory parole officer, based upon his failure to report to
her and upon her inability to locate him.TM Defendant failed to appear for a hearing
6 Order of Court, May 25, 1999.
7 Order of Court, May 25, 1999.
8 See Writ of Habeas Corpus, filed June 11, 2001.
9 Order of Court, September 8, 1999.
l0 Cumberland County Pre-Parole Investigation and Order, filed November 18,
recommendation for early parole was based upon earned time. Id.
~ Petition for Violation of Parole, filed September 8, 2000.
~2 See Order of Court, October 6, 2000.
~ Order of Court, October 6, 2000.
14 Petition for Revocation of Parole, filed November 30, 2000.
1999. The
2
on that petition on December 5, 2000, and a bench warrant for his arrest was
issued by the writer of this opinion on that date.~5
Defendant was eventually arrested and, at a parole revocation hearing held
on February 13, 2001, admitted that he had failed to report to his parole officer
and that she had been unable to locate him.~6 He claimed, however, that he had
thought that his parole had expired. ~?
The premise for this claim was apparently the proposition that he was
entitled to, and thought he had received, credit in this case for time spent in a
Florida jail, while serving a Florida sentence, prior to his initial removal to
Pennsylvania.~8 However, Defendant's position concerning the supposed
expiration of his parole was incompatible (a) with the sentencing order's limitation
of credit to period(s) of incarceration attributable to the charges herein,~9 (b) with
the period of incarceration served in this case immediately following his
sentence,2° (c) with the minimum and maximum sentence dates indicated on his
original parole order,2~ (d) with the parole expiration date indicated in the written
conditions of parole which he executed,22 and (e) with the law.23 Defendant's
~s Order of Court, December 5, 2000.
16 See Order of Court, February 13,2001.
~7 See Order of Court, February 13,2001.
~8 N.T. 2-4, Hearing, February 13, 2001.
19 See Order of Court, September 8, 1999.
:0 Defendant was paroled on November 19, 1999, at the expiration of his minimum sentence of
six months (less a one-month credit for earned time). See Cumberland County Pre-Parole
Investigation and Order, filed November 18, 1999. His parole based upon the minimum sentence
would not have been delayed to that date had he received the credit which he later claimed he
thought he had received. See infra note 2 land accompanying text.
:~ These were December 18, 1999, and July 27, 2001, respectively. See Cumberland County Pre-
Parole Investigation and Order, filed November 18, 1999. They reflected credit for about three
months, spent partly in a Florida prison prior to his second extradition and partly in the
Cumberland County Prison prior to his sentence on September 8, 1999. See N.T. 2, Sentencing
Colloquy, September 8, 1999.
:: See Commonwealth's Exhibit 1, Hearing, February 13, 2001.
:3 See, e.g., Nicastro v. Cuy/er, 78 Pa. Commw. 539, 544, 467 A.2d 1218, 1221 (1983).
3
parole officer commented at the parole revocation hearing that "Terry is a con
,,24
man .
The court did not find persuasive Defendant's contention that his parole
had terminated, nor credible his assertion that he thought it had. At the conclusion
of the hearing, the court found that Defendant had intentionally, voluntarily and
willfully failed to comply with the terms of his parole; his parole was revoked, his
street time was withdrawn, and he was recommitted to the Cumberland County
Prison to serve the unexpired balance of the term previously imposed.25 No appeal
was filed from this order.
A series of motions and other filings from Defendant ensued. These
included petitions for transcripts,26 a notice that he was dismissing the public
defender as his counsel,27 petitions for leave to proceed as an indigent,28 a "writ of
habeas corpus,''29 a second "writ of habeas corpus,''3° and, on December 17, 2001,
the petition for reparole which is the subject of this opinion.3~
The petition was supported by a brief setting forth the grounds for the relief
requested. These, in their entirety, were as follows:
THE PETITIONER, TERRY L. FRY ( OTN:E930455-5 ),
WAS SENTENCED IN THE COURT OF COMMON PLEAS,
24 N.T. 1, Hearing, February 13, 2001.
25 Order of Court, February 13, 2001. Defendant received credit most recently with respect to the
sentence for 41 days in a Florida prison where he had been incarcerated awaiting extradition on
the bench warrant issued by this court as a result of his failure to appear for the parole revocation
hearing. Id.
26 Petition for Transcripts, filed April 9, 2001, Petition Pro Se, filed April 3, 2001.
27 Notice, filed May 30, 2001.
28 Petition for Leave To Proceed as an Indigent, filed July 27, 2001; Petition for Leave To
Proceed As an Indigent, filed June 30, 2001.
29 Writ of Habeas Corpus, filed July 11, 2001.
30 Writ of Habeas Corpus, filed July 27, 2001. A "Writ of Habeas Corpus" was apparently also
filed with the Superior Court on August 8, 2001, along with a "Petition for Leave To Proceed As
an Indigent." See Order, 63 M.D.M. 2001 (Pa. Super. Ct. August 20, 2001) (dismissing matter as
moot in absence of appeal).
~ Petition for Reparole and Transfer, filed December 17, 2001.
4
YORK COUNTY, PA., ON 29 OCTOBER 2001 TO: ONE (1)
YEAR MINUS ONE (1) DAY TO TWO (2) YEARS MINUS
TWO (2) DAYS ON ONE (1) COUNT OF THEFT BY
DECEPTION; AND FIVE (5) YEARS COUNTY
PROBATION ON ONE (1) COUNT OF FORGERY, PLUS
COURT COSTS AND RESTITUTION IN THE AMOUNT
OF $5,000.00; BOTH SENTENCES TO RUN
CONCURRENT AND BEGIN ON 6 JUNE 2001.
PETITIONER IS PRESENTLY INCARCERATED IN
CUMBERLAND COUNTY PRISON FOR A TECHINiCAL
VIOLATION OF PROBATION [sic] ( 1st ) OFFENSE, AND
HAS BEEN THERE SINCE 12 JANUARY 2001 ( 10+
MONTHS).
PROVIDING REPAROLE IS GRANTED, PETITIONER
THEN REQUESTS TRANSFER OF THE BALANCE OF
SAID PAROLE TO THE JURISDICTION (YORK
COUNTY), IN WHICH ADDITIONAL CONCURRENT
SENTENCES EXCEED THE MAXIMUM DATE OF THE
PRESENT SENTENCE IMPOSED BY CUMBERLAND
COUNTY ( MAXIMUM RELEASE DATE 30 JUNE 2002 ).
PLAINTIFF'S LONG TERM GOALS ARE TO
ESTABLISH RESIDENCE AND GAINFUL EMPLOYMENT
IN YORK COUNTY, PA.
THE GRANTING OF THIS PETITION WOULD ASSIST
IN THE SUCCESSFUL ACCOMPLISHMENT OF THE
AFOREMENTIONED GOALS; AS WELL AS RELIEVING
THE ALREADY OVERBURDENED OFFICE OF ADULT
PAROLE AND PROBATION OF CUMBERLAND COUNTY
OF THE CONTINUATION OF THEIR CURRENT BURDEN
AND RESPONSIBILITIES.
PETITIONER PRAYS THAT THIS HONORABLE
COURT VIEW THIS ACTION IN A FAVORABLE LIGHT,
AND THEREBY FIND IT PROPER AND FITTING TO
GRANT THE AFOREMENTIONED PETiTiON.32
In response to Defendant's petition for reparole, the court issued a Rule
upon the Commonwealth to show cause why the relief requested should not be
Petitioners Supporting Brief, filed December 17, 2001.
5
granted.33 The answer filed by the Commonwealth indicated that it would not join
in Defendant's petition in the absence of a recommendation for reparole by
Defendant's parole officer.34
No such recommendation was forthcoming from the parole officer, and
based, inter alia, upon Defendant's history of noncompliance with court orders
and failure to succeed on parole in the past, the court denied Defendant's petition
for reparole by order dated January 7, 2002.35 Defendant filed a notice of appeal
from this denial on January 30, 2002.36
DISCUSSION
"The grant to parole or reparole [in the case of a county sentence] is subject
to the [trial] court's discretion as to what 'may seem just and proper.'"
Commonwealth v. Fair, 345 Pa. Super. 61, 64, 497 A.2d 643, 645 (1985) (quoting
Act of June 19, 1911, P.L. 1059, §1, as amended, 61 P.S. § 314). Reparole is
appropriate only "if, in the judgment of [the] court, there is a reasonable
probability that the convict will be benefited by again according liberty to such
convict ." 61 P.S. § 314.
In the present case, Defendant's petition was addressed to this discretionary
aspect of parole.37 Several factors led the court to conclude, at that time, that there
was not a reasonable probability that granting the petition would be of benefit to
Defendant or to society. These included (a) Defendant's history of
nonappearances in court, (b) his prior refusal to comply with conditions of parole
(which were not onerous), and (c) the disingenuousness of the explanation he
~ Order of Court, December 17, 2001.
34 Commonwealth's Response to Defendant's Petition for Reparole and Transfer, filed January 3,
2002.
~5 Order of Court, January 7, 2002.
36 Defendant's Notice of Appeal, filed January 30, 2002.
37 The grounds for the petition did not include Defendant's earlier argument at the parole
revocation hearing that he was entitled, as a matter of law, to credit on the sentence for time
spend in a Florida jail pending his original extradition.
6
provided for this failure. In addition, any putative benefit of a reparole in the form
of a reinstatement of "liberty" was not available to Defendant because of his
subjection to a concurrem prison semence from another county.
For the foregoing reasons, the court denied Defendant's
reparole.
petition for
BY THE COURT,
Office of the District Attorney
Terry L. Fry
Cumberland County Prison
1101 Claremont Road
Carlisle, PA 17013
Defendant, Pro Se
J. Wesley Oler, Jr., J.
7