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...)
2

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...)
3

 

(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...)
4

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).
5

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 

decision4arguing, 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.
6

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.”).
7

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).”).
8

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).
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Anthony Luis Rodriguez, :

: No. 1997 C.D. 2015

Petitioner : 

:

v. :

:

Pennsylvania Board of :

Probation and Parole, :

:

Respondent :

O R D E R

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