            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Anthony Luis Rodriguez,                          :
                                                 : No. 1997 C.D. 2015
                              Petitioner         : Submitted: February 19, 2016
                                                 :
                       v.                        :
                                                 :
Pennsylvania Board of                            :
Probation and Parole,                            :
                                                 :
                              Respondent         :


BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                                FILED: March 28, 2016



               Anthony Luis Rodriguez petitions for review of the decision of the
Pennsylvania Board of Probation and Parole (Board) denying his request for
administrative relief after the Board revoked his parole and recommitted him to
serve the 36 months backtime as a convicted parole violator.1 We affirm.

      1
          As this Court has explained:

               “[B]acktime” is merely that part of an existing judicially-imposed
               sentence which the Board directs a parolee to complete following a
               finding after a civil administrative hearing that the parolee violated
               the terms and conditions of parole, which time must be served
               before the parolee may again be eligible to be considered for a
               grant of parole.

(Footnote continued on next page…)
                Rodriguez was initially sentenced to a 6 to 15 year aggregate sentence
on his guilty pleas to 6 counts of burglary, 1 count of criminal attempt-burglary,
and 1 count of unsworn falsification to authorities. The original minimum date for
his sentence was December 2, 2001, and the maximum date was December 2,
2011. Rodriguez was released on parole on August 2, 2004, and was declared
delinquent effective August 21, 2004.
                On January 4, 2005, Rodriguez was arrested in Jersey City, Hudson
County, New Jersey, on 2 counts of armed robbery and 1 count of hindering
apprehension or prosecution. On July 6, 2005, Rodriguez was arrested again in
Jersey City on a number of burglary, theft, and conspiracy charges. A total of 105
criminal charges were filed against Rodriguez and the Board lodged a detainer
based on the new charges. Certified Record (C.R.) at 19, 22. In May 2006, in the
New Jersey Superior Court, Rodriguez pled guilty to 3 counts of burglary of the
third degree,2 and 1 additional count of burglary of the third degree that had been


(continued…)

Krantz v. Pennsylvania Board of Probation and Parole, 483 A.2d 1044, 1047 (Pa. Cmwlth.
1984) (emphasis in original).

      2
          Under the relevant provisions of the New Jersey statute:

                A person is guilty of burglary if, with the purpose to commit an
                offense therein or thereon he:

                (1) Enters a research facility, structure, or a separately secured or
                occupied portion thereof unless the structure was at the time open
                to the public or the actor is licensed or privileged to enter; [or]

                (2) Surreptitiously remains in a research facility, structure, or a
                separately secured or occupied portion thereof knowing that he is
                not licensed or privileged to do so[.]
(Footnote continued on next page…)
                                                 2
(continued…)


N.J. Rev. Stat. §2C:18-2(a)(1), (2). With respect to the grading of the offense, the New Jersey
statute provides:

              Burglary is a crime of the second degree if in the course of
              committing the offense, the actor:

              (1) Purposely, knowingly, or recklessly inflicts, attempts to inflict
              or threatens to inflict bodily injury on anyone; or

              (2) Is armed with or displays what appear to be explosives or a
              deadly weapon.

              Otherwise, burglary is a crime of the third degree.

N.J. Rev. Stat. §2C:18-2(b).

        Likewise, at the time Rodriguez committed the multiple New Jersey burglaries and
entered his guilty pleas in 2005, Section 3502(a) of the Pennsylvania Crimes Code provided that
“[a] person is guilty of burglary if he enters a building or occupied structure, or separately
secured or occupied portion thereof, with intent to commit a crime therein, unless the premises
are at the time open to the public or the actor is licensed or privileged to enter.” 18 Pa. C.S.
§3502(a) (amended 2012). The current version of Section 3502(a) states:

              A person commits the offense of burglary if, with the intent to
              commit a crime therein, the person:

              (1) enters a building or occupied structure, or separately secured or
              occupied portion thereof that is adapted for overnight
              accommodations in which at the time of the offense any person is
              present;

              (2) enters a building or occupied structure, or separately secured or
              occupied portion thereof that is adapted for overnight
              accommodations in which at the time of the offense no person is
              present;

              (3) enters a building or occupied structure, or separately secured or
              occupied portion thereof that is not adapted for overnight
(Footnote continued on next page…)
                                               3
amended from armed robbery. Id. at 28, 36. The court sentenced Rodriguez to an
aggregate 15-year term of imprisonment.
              In September 2014, Rodriguez waived extradition to Pennsylvania,
and he was returned to a Pennsylvania state correctional institution in February
2015, upon his release from custody by the New Jersey authorities. In April 2015,
the Board recommitted Rodriguez as a technical parole violator to serve 6 months
backtime and as a convicted parole violator to serve a concurrent 36 months



(continued…)

              accommodations in which at the time of the offense any person is
              present; or

              (4) enters a building or occupied structure, or separately secured or
              occupied portion thereof that is not adapted for overnight
              accommodations in which at the time of the offense no person is
              present.

18 Pa. C.S. §3502(a). With respect to the grading of the offense, the Pennsylvania Crimes Code
provides:

              (1) Except as provided in paragraph (2), burglary is a felony of the
              first degree.

              (2) As follows:

               (i) Except under subparagraph (ii), an offense under subsection
              (a)(4) is a felony of the second degree.

               (ii) If the actor’s intent upon entering the building, structure or
              portion under subparagraph (i) is to commit theft of a controlled
              substance or designer drug . . . burglary is a felony of the first
              degree.

18 Pa. C.S. §3502(c).


                                               4
backtime. C.R. at 53-56.3 The Board determined that the applicable presumptive
ranges for his New Jersey convictions were 15 to 24 months for one of his burglary
convictions and 24 to 40 months for his armed robbery conviction under Section
75.2 of its regulations, 37 Pa. Code §75.2. Id. at 46.
              Rodriguez filed a pro se administrative appeal of the Board’s
decision4 arguing, inter alia, that the recommitment term of 36 months backtime
was excessive. The Board rejected Rodriguez’s claim, stating:

              [T]he Board recommitted Mr. Rodriguez to serve 36
              months as a convicted parole violator for the offenses of
              Burglary and Armed Robbery. Although the offenses
              were committed in another state, the Board applied the
              range of closely related offenses in Pennsylvania to come
              up with a presumptive range for Mr. Rodriguez. 37 Pa.
              Code §75.1. In this case, the applicable ranges for
              Burglary and Armed Robbery are 15 to 24 months and 24
              to 40 months, respectively. 37 Pa. Code §75.2. Adding
              these ranges together gave the Board a maximum range
              of 64 months for the offenses. Thus, the decision to
              recommit your client to serve 36 months falls below the
              maximum range and is not subject to challenge. Smith v.
              Pennsylvania Board of Probation and Parole, 574 A.2d
              558 (Pa. 1990).
C.R. at 90.
              In this appeal,5 Rodriguez claims that the Board erred in applying the
presumptive ranges in Section 75.2 because the applicable range for an out-of-state

       3
         The Board gave the following reasons for its parole violation decision: “Early failure
on parole/reparole;” “Declared delinquent by the Board;” “Failure to comply with sanctions;”
You are considered a threat to the safety of the community at this time;” “Conviction in court of
record established;” and “Violation(s) Established.” C.R. at 47.

       4
          Initially, the Board improperly dismissed Rodriguez’s administrative appeal as
untimely; however, by August 2015 order, this Court granted the Board’s motion to remand for
consideration of the merits of his administrative appeal.


                                               5
conviction is determined by the maximum sentence that could be imposed.
Rodriguez argues that the Board should have applied the 6 to 12 month
presumptive range for first degree misdemeanors for his New Jersey burglary of
the third degree convictions because the sentence imposed for such an offense
under New Jersey law6 would be graded as a first degree misdemeanor under
Pennsylvania law.7
               However, Section 75.1 of the Board’s regulations states that “[t]he
presumptive ranges are intended to directly relate to the severity of the crime for
which the parolee has been convicted,” and that “[t]he severity ranking of crimes
listed in §75.2 . . . is not intended to be exhaustive, and the most closely related
crime category in terms of severity and the presumptive range will be followed if
the specific crime which resulted in conviction is not contained within the listing.”
37 Pa. Code §75.1(d), (e). As a result, in determining the applicable presumptive


(continued…)
       5
         This Court’s limited scope of review of a Board’s recommitment order is to determine
whether the Board’s findings are supported by substantial evidence and in accordance with the
law, and whether any constitutional rights have been violated. Krantz, 483 A.2d at 1047. This
Court will interfere with the Board’s exercise of administrative discretion only where it has been
abused or exercised in an arbitrary or capricious manner. Green v. Pennsylvania Board of
Probation and Parole, 664 A.2d 677, 679 (Pa. Cmwlth. 1995), appeal denied, 674 A.2d 1077
(Pa. 1996).

       6
          See N.J. Rev. Stat. §2C:43-6(a)(3) (“Except as otherwise provided, a person who has
been convicted of a crime may be sentenced to imprisonment, . . . [i]n the case of a crime of the
third degree, for a specific term of years which . . . shall be between three years and five
years[.]”).

       7
         See 18 Pa. C.S. §106(b)(6) (“A crime is a misdemeanor of the first degree if it is so
designated in this title or if a person convicted thereof may be sentenced to a term of
imprisonment, the maximum of which is not more than five years.”).


                                                6
ranges under Section 75.2 for out-of-state convictions, “[i]t is the severity of the
criminal conduct that determines the presumptive range, not the severity of the
punishment.” Harrington v. Pennsylvania Board of Probation and Parole, 507
A.2d 1313, 1315 (Pa. Cmwlth. 1986). As this Court has explained:

                    The error in Petitioner’s argument is that the Board
              and the courts of Pennsylvania are bound by the
              Pennsylvania legislature’s determination of severity, not
              by the determination made by the jurisdiction where the
              crime was committed. Thus, in selecting the proper
              presumptive range for recommitment of a convicted
              parole violator, the Board must look to the conduct for
              which the parolee was convicted, determine what crime
              that conduct would constitute if it occurred in
              Pennsylvania, and apply the presumptive range for the
              Pennsylvania crime.
Id.
              As outlined above, the elements of the crime of burglary to which
Rodriguez pled guilty in New Jersey are most closely related to the Pennsylvania
crime of burglary. See C.R. at 26-37; N.J. Rev. Stat. §2C:18-2(a)(1), (2); 18
Pa. C.S. §3502(a).8 Moreover, Section 75.2 of the Board’s regulations provides a
presumptive range of 15 to 24 months for each of Rodriguez’s New Jersey
burglary convictions regardless of whether it is graded as a first degree felony or a
second degree felony under the Pennsylvania Crimes Code. 37 Pa. Code §75.2.

       8
          See also Model Penal Code §221.1(1) (1962) (“A person is guilty of burglary if he
enters a building or occupied structure, or separately secured or occupied portion thereof, with
purpose to commit a crime therein, unless the premises are at the time open to the public or the
actor is licensed or privileged to enter.”); 18 Pa. C.S. §3502, Jt. St. Govt. Comm. Comment
(1967) (“This section is derived from Section 221.1 of the Model Penal Code.”); State v. Olivero,
115 A.3d 1270, 1275 (N.J. 2015) (“The Legislature therefore amended the burglary statute to
resemble the Model Penal Code’s narrower version of that offense. See Cannel, New Jersey
Criminal Code Annotated, comment 1 on N.J.S.A. 2C:18-2, at 485 (2014-15) (noting that
burglary statute was derived from MPC 221.0).”).


                                               7
As a result, Rodriguez’s assertion that the Board should have applied the
presumptive ranges for first degree misdemeanors in imposing the amount of
backtime to be imposed, based solely on the punishment that could be imposed
under New Jersey law on his multiple burglary convictions, is patently without
merit. Harrington.
               Accordingly, the Board’s decision is affirmed.9




                                             MICHAEL H. WOJCIK, Judge




       9
          The Board determined that the applicable presumptive ranges for Rodriguez’s New
Jersey convictions were for burglary and armed robbery even though the armed robbery charge
was amended to another burglary charge. C.R. at 28, 46, 70. Nevertheless, the presumptive
range for each of Rodriguez’s burglary convictions is 15 to 24 months, see 37 Pa. Code §75.2,
and the presumptive range for each of those burglary convictions may be aggregated. Massey v.
Pennsylvania Board of Probation and Parole, 501 A.2d 1114, 1116 n.8 (Pa. 1986). As a result,
the correct presumptive range for 2 of Rodriguez’s multiple New Jersey burglary convictions is
30 to 48 months under Section 75.2. Because the 36 months backtime that the Board actually
imposed is within the correct presumptive range for Rodriguez’s burglary convictions, this Court
will not review a challenge to the Board’s exercise of discretion with respect to the length of the
backtime that the Board imposed. See Smith, 574 A.2d at 560 (“As long as the period of
recommitment is within the presumptive range for the violation, the Commonwealth Court will
not entertain challenges to the propriety of the term of recommitment.”) (citations omitted);
Davis v. Pennsylvania Board of Probation and Parole, 841 A.2d 148, 151-52 (Pa. Cmwlth.
2004) (“This court will not interfere with the Board’s discretion where the parole violations are
supported by substantial evidence and the amount of backtime imposed for each offense is within
the applicable presumptive range.”) (citation and footnote omitted); Wright v. Pennsylvania
Board of Probation and Parole, 743 A.2d 1004, 1006 (Pa. Cmwlth. 1999) (“‘This court will not
review the Board’s exercise of discretion in imposing backtime for parole violations where the
violations are supported by substantial evidence and the backtime imposed is within the
published presumptive ranges for those violations.’”) (citation omitted).


                                                8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Anthony Luis Rodriguez,                   :
                                          : No. 1997 C.D. 2015
                          Petitioner      :
                                          :
                 v.                       :
                                          :
Pennsylvania Board of                     :
Probation and Parole,                     :
                                          :
                          Respondent      :



                                       ORDER


           AND NOW, this 28th day of March, 2016, the decision of the
Pennsylvania Board of Probation and Parole dated September 29, 2015, is
AFFIRMED.




                                        __________________________________
                                        MICHAEL H. WOJCIK, Judge
