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2023 PA Super 216

COMMONWEALTH OF PENNSYLVANIA

v.

TYLER BLAINE RALING

Appellant :

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: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1430 WDA 2022

Appeal from the Order Entered November 3, 2022

In the Court of Common Pleas of Allegheny County

Criminal Division at CP

- 02

- CR

- 0006296

- 2021

BEFORE: LAZARUS, J., STABILE, J., and MURRAY, J.

OPINION BY MURRAY, J.: FILED: OCTOBER 26, 2023

Ty ler Blaine Raling (Appellant) appeals from the order denying his

motion for parole

, entered after the trial court’s retention of parole

jurisdiction. 1 W e affirm.

_________________ __________ ______ ____ _______

1 An order denying a motion for parole is appealable as a final order under

Pa.R.A.P. 341. See C ommonwealth v. Becker , 172 A.3d 35, 37 (Pa. Super. 2017) (affirming trial court’s order “ denying [appellant’s] petition for immediate parole.”) ; see also 75 Pa.C.S.A. § 381 5 (governing mandatory sentencing and the power of a sentencing judge to parole offenders sentenced to incarceration in a county jail for driving under the influence (DUI) );

Commonwealth v. McDermott , 547 A.2d 1236, 1239 (Pa. Super. 1988) (“When an offender is sentenced to a maximum term of imprisonment of less than two years, the common pleas court retains authority to grant and revoke parole....”)

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Appellant had pled guilty to DUI (controlled substance ) 2 and possession

of a controlled substance

. 3 The trial court detailed the underlying facts as

follows:

Officers of the City of Pittsburgh Police Department were dispatched to the intersection of PJ McArdle Roadway at the Liberty Bridge at 5:30 p.m. [on F ebruary 1 6, 2022 ,] for a report

of a driver slumped over the wheel of his vehicle. When o fficers arrived on scene, they observed [Appellant] stopped at the red [traffic signal] at the intersection [,] slumped over the wheel. [Appellant] abruptly woke up after being initially unresponsive. [ The officers] determined that [Appellant] had an outstanding warrant from Westmoreland County for a parole violation [. The officers performed] a search incident to arrest [ of Appellant’s

person . The search revealed Appellant was] in possession of twelve (12) stamp bags of heroin and a hypodermic syringe. [Appellant] was transported to UPMC Mercy hospital [,] where standardized field sobriety tests were given [

. Appellant] later

consented to a blood dr aw [at the hospital]

. [Appellant’s] blood

was turned over to the Allegheny County Crime Lab for testing [

. The test ] yielded positive results for cocaine, fentanyl and

cannabinoids.

Prior to this arrest, [Appellant] had been charged in a
separate case with two (2) counts of [DUI

, ] ... along with various motor vehicle violations in Butler County.

[Appellant] had completed his [ Court Reporting Network (CR N) 4 ] evaluation on January 25, 2022 [. Appellant completed ]

his drug and alcohol assessment thr ough Mercy Behavioral Health on January 26, 2022, which deemed [Appellant] in need of [a]

“ higher level of care .” When [Appellant] appeared before th [e

trial ] c ourt on August 18, 2022 [(plea /sentencing hearing)] , he

had pled guilty and was sentenced in Butler County on [the above

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2 75 Pa .C.S.A. § 3802(d)(1).

3 35 P.S. § 780

- 113(a)(16).

4 S ee 75 Pa.C.S.A. § 3816 (a) (gover ning CRN e valuation )

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DUI] ... charge [,] which resulted in the instant case becoming [Appellant’s] third [DUI] offense and graded as a f elony of the [third] degree. [ On A ugust 18, 2022

, Appellant ] pled guilty to

... [DUI . T he trial court i mmediately] sentenced [Appellant 5 ] to a period of one (1) to seven (7) years of incarceration to be served in the Allegheny County Jail [,] with permission for alternative housing and with th [e trial] c ourt retaining parole jurisdiction. [ See McDermott

, supra

. Appellant] was further sentenced at [his conviction of] p ossession of a c ontrolled s ubstance

... to a period of eighteen (18) months ’ probation [,] to run concurrently to the sentence imposed [on Appellant’s DUI conviction]

. 1 [Appellant di d not file post

- sentence motions or an appeal

. ]

1 [Appellant] was given credit for time served of a total

of 394 days. [Appellant’s] minimum sentence expired July 20, 2022.

Parole petitions [ regarding Appellant] were submitted by the Allegheny County Jail on August 29, 2022 and September 23, 2022, both of which [did] not recommend [] parole due to [Appellant’s] various [jail] infractions [. The trial court fou nd] the

most serious [ infraction of Appellant his ] “ being in possession of major contraband (an illegal drug

- controlled substance or narcotic). ” [Appellant] , through counsel, filed a p etition for p arole on September 30, 2022, which was [] denied by th [e trial] c ourt
on November [3] , 2022.

Trial Court Opinion, 2/15/23, at 1

- 3 (unnum bered) ( one footnot e in original ;

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5 As discuss ed further below, prior to sentencing, the defense made an oral

motion for immediate parole , emphasizing that Appellant’s minimum sentence
had expired before sentencing . N.T., 8/18/22, at 10. The trial court denied

the motion. Id. at 12, 21

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two footnote s added; some capitalization and citations modified). 6

On December 2, 2022

, Appellant filed a notice of appeal

. On April 26,

2023, this Court issued a r ule on Appellant to s how c ause (RTSC) why we

should not q uash the appeal as untimely filed

. RTSC, 4/26/23, at 2 (observing

Appellant filed the notice of appeal more than 30 days after the trial court’s

November 3, 2022 order, and citing Pa.R.Crim.P. 720(A)(3) (“If the defendant

does not file a ti mely post

- sentence motion, the defendant ’ s notice of appeal

shall be filed within 30 days of imposition of sentence” ) ).

A ppellant filed a r esponse stating he

is not appealing from [] his judgment of sentence. He is not seeking to withdraw or somehow chan ge his plea, nor is he appealing the sentence imposed. Rather, his appeal solely concerns the order [entered] November [3], 202 2

, [ 7 ] which denied

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6 The trial court also explained:

On October 13, 2022, [Appellant] was transferred to alternative housing “Passages to Recovery [.” That same date,] a subsequent parole petition filed by the Allegheny County Jail indicated [Appellant] had begun various treatment goals, had zero [jail] misconducts and par ole was not being recommended as [Appellant] had “not yet completed his treatment goals.” [Appellant’s] parole was again denied on November 16, 2022. On January 13, 2023, [Appellant] was returned to the Allegheny [County] Jail from Passages to Recovery f or admission to

substance abuse [counseling] and diverting medication.

Trial Court Opinion, 2/15/23, at 3 (unnumbered). Appellant did not appeal

the November 16, 2022

, order.

7 Appellant filed an amended notice of appeal in this Court on April 27, 2023

. Appellant clarif ied that he is appeal ing the November 3, 2022 order denying

his motion for parole. Amended Notice of Appeal , 4/27/23

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[Appellant’s] counselled motion for parole filed on September 30,

2022. We thus believe that the appeal is currently properly before

this Court.

Response to RTSC , 4/27/23, at 2 ( foo tnote added; emphasis omitted; some

capitalization modified). On May 5, 2023, this Court discharged the RTSC and

referred the matter to the merits panel.

Appellant presents a single issue:

1. Did the trial court err by denying [Appellant’s] request for parole after completion of his minimum sentence because h e had no t yet completed treatment for his drug and/or alcohol

addiction?

Appellant’s Brief at 4. 8

Preliminarily, Appellant states he

is not challenging the ultimate determination of whether he was entitled to parole on the basis of [Appellant’s] motion denied b y the November [3, 202 2 , o]rder. Instead, [Appellant] is appealing the trial court’s determination that parole was statutorily not

available to [Appellant] until he had completed drug and alcohol

treatment. This is an incorrect statement of the law pertaining to the availability of parole.

Appellant’s Brief at 15 (italics in original )

. Appellant maintains his issue

presents a question of law, to which appellate c ourt s appl y a de novo standard

of review and a plenary scope of review. Id. at 3 (citi ng Commonwealth v.

Finley , 135 A.3d 196, 199 (Pa. Super. 2016) (“ an examination of the

requirements for sentences of total confinement and parole eligibility set forth

in 42 Pa.C.S. § 9756 ... [implicates] statutory interpretation, which is a

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8 Appellant and the trial court have complied with Pa.R.A.P. 1925.J

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question of law

. Accordingly, as with all questions of law, our scope of review

is plenary and our standard of review is de novo .” ) )

.

T he Commonwealth counters that t his Court must apply an abuse of

discretion standard of review :

Appellant did not appeal the t rial c ourt’s decision to deny him parole at the [plea /sentencing hearing] on August 18, 2022, which is the proceeding where the disputed statements by the t rial c ourt regarding [Appellant’s] eligibility for parole were made. Instead,

A ppellant is challenging th e basis for the November [3, 2022,]

o rder, which the record establishes was a discretionary decision made by the t rial c ourt after several subsequent parole petitions

were filed that included information about A ppellant’s progress in the Allegheny County Jail.

Commonwealth Brief at 1 0 n.2 (some capitalization modified) ; see also id. at

2

. We agree.

We review Appellant’s claim for an abuse of discretion. B ecker , 172

A.3d at 39 ( “ When the defendant is eligible for parole, the trial court’s decision

to [deny or] grant parole is a discretionary act, and it is subject to appellate

review under an abuse of discretion standard.” (citation omitted)).

An abuse of discretion is not merely an error of judgment, but if

in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result

of partiality, prejudice, bias, or ill

- will, as shown by the evidence

or the record, discretion is abused

.

Commonwealth v. Jackson , 283 A.3d 814, 817 (Pa. Super. 2022) (citation

and brackets omitted).

Further more:

P arole is nothing more than a possibility, and, when granted, it is nothing more than a favor granted upon a prisoner by the stateJ

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as a matter of grace and mercy shown by the Commonwealth to a convict who has demonstrated a probability of his ability to

function as a law

- abiding citizen in society.

Becker , 172 A.3d at 38

- 39 (citation omitted).

Appellant claims the trial court erred in determ ining at the

plea /sentencing hearing

, 9 that he was not statutorily eligible for parol e

because he did not complete court

- ordered drug and alcohol treatment

. See

Appellant’s Brief at 9

- 29 ; see also N.T., 8/18/22, at 12, 21

- 22 (trial court

denying Appellant’s oral motion for parole ). Appellant cites 75 Pa.C.S.A. §

3815, which provides:

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9 The following exchange occurred between the trial court and Appellant’s

counsel :

[ C ounsel]: ... [The defense is] asking for a sentence today of one to seven years, credit for time served, and we’re ultimately asking Your Honor to parole [Appellant] forthwith. ...

THE COURT: I can tell you I can pa role [ Appellant] per the statute, when I get papers that show that he’s completed. The statute is very specific, the conditions under which someone can be paroled. But if he meets that, I can parole him.

* * *

[Counsel] : [ Appellant has] asked if he ’ s going to be able to leave

to [ sic ] Westmoreland County. That ’ s correct; right? He ’ s paroled

on this case?

THE COURT: No, he ’ s not paroled on this case. I can only parole him per the statute.

N.T., 8/18/22, at 10

, 22 (alth ough t he trial court did n ot identify “the statute

, ” it appears the court was refer encing 75 Pa.C.S.A. § 3815, which we discuss

below )

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An offender who is determined pursuant to section 3814 (relating to drug and alcohol assessments) to be in need of drug and alcohol treatment shall be eligible for parole in accordance with the terms and conditions prescribed in this section following the expiration of the offender’s mandatory minimum term of imprisonment

.

Id. § 3815 (b)(1) (emphasis added) ; Appellant’s Brief at 18

- 19, 21 ;

Appellant’s Reply Brief at 4

. 10

Appellant concedes a sentencing court

may not be inclined to grant parole if a defendant is in the throes of drug and alcohol addiction and treatment; the court may find that parole is not i n the defendant’s best interests and deny the request. But that doesn’t mean that it has no authority to even

consider the notion.

Appellant’s Brief at 3

- 4.

To the c ontrary , the Commonwealth asserts

,

e ven if one were to assume for the sake of argument that Appellant were correct that the trial court[] misapprehended the law concerning his technical eligibility for parole at the August 18, 2022[, plea /sentencing hearing], Appellant’s claim nevertheless fails because the subsequent proceedings belie A ppel lant’s argument on appeal about why he was denied parole on

November [3] , 2022. In that regard, the t rial c ourt’s o rder denying [Appellant] parole

... and the t rial c ourt’s subsequent

o pinion for this appeal articulated reasons for denying A ppellant’s [motion for] parole that were completely within the t rial c ourt’s

discretion and not the sole product of a misinterpretation of the law, as A ppellant now argues in his brief.

Commonwealth Brief at 14. Again, we agree.

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10 In his reply brief, Appellant state s that “ as of the date of writing this reply brief, [Appellant] has been granted parole.” Appellant’s Reply Brief at 3 (filed August 21 , 2023).J

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As t he trial court explain ed:

This c ourt [,] recognizing the limits available for sentencing purposes if [Appellant] were to violate the terms of his parole or

to reoffend [,] believe s it to be in [Appellant’s] best interest to complete treatment afforded to him while incarcerated and be recommended for parole. This court recognizes that a sentencing judge that has reta ined jurisdiction may grant parole under [75

Pa.C.S. A.] § 3815 when an offender is eligible following the expiration of the offender’s mandatory minimum term of imprisonment.

[Appellant ] received the minimum sentence, was given

credit for the same time credited to the case in Butler County and was upset when this court would not [grant his oral motion to] parole him forthwith at the time of sentencing. This court will not grant parole ex cept upon written petition. 42 Pa.C.S. § 9776 [( “ No inmate may be paroled under this section except on petition

... filed in the court in which the inmate was convicted. ” Id. § 9776(b) (emphasis added) )

. ] [Appellant] is thirty (30) years old

and at the ti me of the two (2) pending [DUI] charges (both in Allegheny and Butler Counties), had nineteen (19) prior convictions for various drug and drug[

- ] related offenses [

. Appellant also ] had numerous probation and parole violations in multiple counties. [Appellant] has not been able to meet his treatment goals, follow rules, or abstain from abusing drugs while in the Allegheny County Jail and in alternative housing.

Trial Court Opinion, 2/15/23, at 2

- 3 (unnumbered) (emphasis in original).

T he trial court’s reasoning is supported by the record and the law.

Accordingly , the trial court did not err in denying Appellant’s motion for parole.

Order affirmed.

Judge Lazarus joins the opinion

.

Judge Stabile concurs in the result.J

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Date: 10/26/2023