              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David L. Brewster,                            :
                     Petitioner               :
                                              :
              v.                              :
                                              :
Pennsylvania Board of Probation               :
and Parole,                                   :   No. 2372 C.D. 2014
                 Respondent                   :   Submitted: July 24, 2015

BEFORE:       HONORABLE BERNARD L. McGINLEY, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McGINLEY                                 FILED: August 25, 2015
              David L. Brewster (Brewster) petitions for review from a final
determination of the Pennsylvania Board of Probation and Parole (Board) that
recommitted him to serve eighteen months backtime as a convicted parole violator
and established his maximum date as November 7, 2017.1


              On August 31, 1998, Brewster was effectively sentenced to a term of
three to ten years for robbery. He was concurrently sentenced to a term of three to
ten years for criminal conspiracy.



       1
               This Court’s review is limited to determining whether the Board’s findings are
supported by substantial evidence, are in accordance with the law, and whether constitutional
rights have been violated. Krantz v. Pennsylvania Board of Probation and Parole, 483 A.2d 1044
(Pa. Cmwlth. 1984). 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 (Pa. Cmwlth. 1995).
            Brewster was released on parole to a community corrections program
on September 30, 2002.       On April 11, 2003, the Board declared Brewster
delinquent effective April 2, 2003. In a decision recorded on September 2, 2003,
and mailed September 15, 2003, the Board recommitted Brewster to serve twelve
months backtime as a technical parole violator for failure to report as instructed,
the use of drugs, and failure to comply with curfew restrictions. The Board
established Brewster’s maximum date as November 11, 2008. On September 13,
2004, Brewster was released on parole to a community corrections center. On
October 1, 2004, the Board declared Brewster delinquent effective September 29,
2004. In a decision recorded on September 8, 2006, and mailed October 12, 2006,
the Board recommitted Brewster to serve twelve months backtime as a technical
parole violator for leaving the district without permission, changing his residence
without permission, and failing to successfully complete the Liberty Management
Program. The Board established Brewster’s maximum date as August 20, 2010.
On November 1, 2007, Brewster was released on parole.


            The City of Philadelphia Police Department arrested Brewster on
April 24, 2009, and charged him with possession with intent to manufacture or
deliver drugs, aggravated assault, possession of a controlled substance, simple
assault, possession of an instrument of crime, recklessly endangering another
person, and resisting arrest. On June 1, 2009, the Board entered an order to detain
Brewster pending the disposition of criminal charges. On August 25, 2010, the
Board declared Brewster delinquent for control purposes effective April 24, 2009.




                                        2
             On May 14, 2013, following Brewster’s guilty plea, the Court of
Common Pleas of Philadelphia County convicted Brewster of possession with
intent to deliver and sentenced him to serve eleven months fifteen days to twenty-
three months with immediate parole followed by three years’ probation. On July
11, 2013, the Board issued a warrant to commit and detain Brewster for violation
of parole. The Board arrested him on that date at the Philadelphia County Adult
Probation and Parole Office.


             On July 19, 2013, Brewster waived his right to a revocation hearing
and admitted to the conviction. In a decision recorded on September 3, 2013,2 the
Board recommitted Brewster to serve eighteen months backtime as a convicted
parole violator and established his maximum date as October 28, 2017.


             On September 30, 2013, Brewster requested administrative remedies
and alleged that the Board lacked authority to change his maximum date, and that
the Board forced him to enter into an illegal contract with it when he was granted
parole because “any written agreement that compelled him to serve additional
imprisonment that is in excess of the judicially–imposed maximum term
constitutes an illegal contract for attempting to enforce a condition that is against
the law.”   Request for Administrative Remedies, September 30, 2013, at 4;
Certified Record (C.R.) at 90.


             In a decision recorded and mailed May 7, 2014, the Board modified
Brewster’s maximum date to November 7, 2017, due to a “technician error.”

      2
             The Board neglected to state the date that the decision was mailed.



                                              3
Board Decision, May 7, 2014, at 1; C.R. at 96. In a decision mailed May 16, 2014,
the Board dismissed as moot Brewster’s request for administrative remedies
because he objected to the original maximum sentence date which had been
changed in the May 7, 2014, decision.


            On June 8, 2014, the Board received a new Request for
Administrative Remedies from Brewster. In the request Brewster alleged that it
was unconstitutional for the Board to extend a maximum date beyond the original
court ordered maximum sentence date and appears to argue that the Board lacked
the authority to impose backtime for a convicted parole violator. Brewster also
alleged that he attempted to rescind his waiver of his revocation hearing and that
he was entitled to ten days credit from August 20, 2010, to August 30, 2010.


            The Board affirmed the May 7, 2014, decision:

            The Board paroled you from a state correctional
            institution on November 1, 2007 with a max sentence
            date of August 20, 2010. This means you had a total of
            1023 days remaining on your sentence at the time of
            parole. In light of your recommitment as a convicted
            parole violator, the Board was authorized to recalculate
            your sentence to reflect that you received no credit for
            the period you were at liberty on parole. . . . This
            includes any prior time that you were on parole. . . . In
            this case, you were previously on parole from September
            30, 2002 to June 12, 2003 and from September 13, 2004
            to July 8, 2006. Adding the 918 days of prior parole
            liberty forfeited means you still had 1941 days remaining
            on your sentence based on your recommitment.

            On April 24, 2009, authorities detained you for new
            criminal offenses that were docketed in the Court of
            Common Pleas of Philadelphia County at CP # 6197-


                                        4
2009. On April 27, 2009, the Board lodged its detainer
against you. The Board lifted its detainer against you on
August 20, 2010, the date of your original maximum
date. The court granted you unsecured bail on December
10, 2010. On May 14, 2013, you pled guilty to the new
criminal charges, and the court sentenced you to a new
term of imprisonment to be served in the Philadelphia
County Prison that same date. You were subsequently
paroled from your county prison sentence by court order
effective May 14, 2013. As you were released on that
date, the Board once again lodged its detainer against you
on July 11, 2013.

Based on these facts, the Board gave you 361 days credit
for the period you were incarcerated from August 24,
2009 to August 20, 2010 because you were returned to
the state correctional institution and incarcerated solely
on the Board detainer for that period. . . . Subtracting the
credit the Board gave you from the time you had
remaining left 1580 days remaining on your sentence.

The Prisons and Parole Code provides that convicted
parole violators who are paroled from a state correctional
institution and then receive another sentence to be served
in a county prison must serve the new sentence first. . . .
Thus, you could not become available to commence
service of your original sentence until you were released
from your new sentence. While you were paroled on
your county sentence on May 14, 2013, you were not
detained by the Board again until July 11, 2013. Adding
1580 days to that date yields a new maximum sentence
date of November 7, 2017.

To the extent that you are challenging the timeliness of
your hearing, the Board regulation authorizing
administrative relief states that second or subsequent
administrative appeals/petitions for administrative review
will not be received. . . . You already submitted a request
for administrative relief from the September 3, 2013
decision in question, which was received on September
30, 2013. The Board mailed a response to that request on
May 16, 2014. Therefore the Board cannot accept your


                             5
             request for relief because it is second or subsequent.
             (Citations omitted).
Board Decision, December 4, 2014, at 1-2; C.R. at 132-133.


             Brewster contends that the Board erred when it violated his right to
procedural due process when it did not provide him with a hearing within 120 days
after he asserted a right to a hearing. Brewster further contends that the Board
erred when it extended his maximum date “in ways never contemplated by the
sentencing court.” Brewster’s Brief at 2. Brewster also raises the following two
issues:

             C. Was the enforcement of the forfeiture provision a
             violation of Brewster’s notice right under the Due
             Process Clause?

             D.     Does the Court’s deference of the Board’s
             interpretation of the forfeiture provision give it authority
             to belie [sic] established precedent and grossly distort
             legislative intent to abuse its discretion to revoke
             Technical Parole Violator’s time credit under the
             condemned provision?
Brewster’s Brief at 2.


             Initially, Brewster contends that the Board violated his substantive
right to procedural due process when it failed to conduct a revocation hearing
within 120 days following Brewster’s return to state custody.


             The Board argues that Brewster waived his untimeliness claim
because he failed to raise it in his initial request for administrative remedies to the
Board.



                                          6
             This Court has long held that an issue not raised before the Board in
an administrative appeal shall not be raised for the first time before this Court.
McCaskill v. Pennsylvania Board of Probation and Parole, 631 A.2d 1092 (Pa.
Cmwlth. 1993). Further, the Board’s Special Rules of Administrative Practice and
Procedure, 37 Pa. Code §73.1, provides in pertinent part:

             (a) Appeals

             (1) An interested party, by counsel unless unrepresented,
             may appeal a revocation decision. Appeals shall be
             received at the Board’s Central Office within 30 days of
             the mailing date of the Board’s order. When a timely
             appeal of a revocation decision has been filed, the
             revocation decision will not be deemed final for purpose
             of appeal to a court until the Board has mailed its
             decision on the appeal. . . .
             ....
             (3) The failure of an appeal to present with accuracy,
             brevity, clearness and specificity whatever is essential to
             a ready and adequate understanding of the factual and
             legal points requiring consideration will be a sufficient
             reason for denying the appeal.

             (4) Second or subsequent appeals and appeals which are
             out of time under these rules will not be received.


             Here, the Board received Brewster’s waiver of the right to a
revocation hearing on July 19, 2013. As a result, the Board recommitted Brewster
as a convicted parole violator without a hearing. When Brewster timely requested
administrative remedies, he did not raise the issue of the denial of his request for a
hearing. The Board subsequently issued a new decision which only changed
Brewster’s maximum date. At that time, the Board did not change anything else
with respect to the recommitment as a convicted parole violator. When Brewster



                                          7
again petitioned for administrative remedies, he raised not only issues related to his
maximum date but also issues related to the timeliness of the hearing and his right
to it.


             Brewster did not raise this timeliness issue when he had the
opportunity to do so. His subsequent request for administrative remedies was his
first appeal as to the new maximum date but was a second appeal from the
revocation decision. The Board does not consider second or subsequent appeals.
37 Pa. Code §73.1(a)(4). As a result, Brewster failed to properly raise this issue.
This Court agrees with the Board that it is waived.


             Brewster next contends that the Board erred when it extended the
duration of his sentence in ways never contemplated by the sentencing court.
Brewster asserts that he has a right to serve his sentence continuously unless he is
convicted of escape. Because Brewster was not charged with escape, tried for
escape, or convicted of escape, he argues that he may not be confined under the
Board’s custody after his original maximum date.


             Section 6138 of the Prisons and Parole Code (Code), 61 Pa.C.S.
§6138, provides:

             (a) Convicted violators.—

             (1) A parolee under the jurisdiction of the board released
             from a correctional facility who, during the period of
             parole or while delinquent on parole, commits a crime
             punishable by imprisonment, for which the parolee is
             convicted or found guilty by a judge or jury or to which
             the parolee pleads guilty or nolo contendere at any time


                                          8
             thereafter in a court of record may, at the discretion of
             the board be recommitted as a parole violator.

             (2) If the parolee’s recommitment is so ordered, the
             parolee shall be reentered to serve the remainder of the
             term which the parolee would have been compelled to
             serve, and, except as provided under paragraph (2.1),
             shall be given no credit for the time at liberty on parole.


             In Richards v. Pennsylvania Board of Probation and Parole, 20 A.3d
596, 599 (Pa. Cmwlth.), petition for allowance of appeal denied, 29 A.3d 374 (Pa.
2011), this Court explained the ramifications of Section 6138(a) of the Code, 61
Pa.C.S. §6138(a), when it stated, “[c]onsequently when a parolee is recommitted
due to criminal conviction, his maximum sentence date may be extended to
account for all street-time, regardless of good or delinquent standing.”


             Clearly, the Board possessed the statutory authority to recommit
Brewster as a convicted parole violator and to recalculate his maximum date.


             Brewster next contends that his constitutional right to due process was
violated when the Board recommitted him in excess of his original maximum term.
Brewster appears to argue that he has a constitutionally protected liberty interest in
his minimum sentence. As Brewster already served his minimum sentence years
ago, it is unclear exactly the nature of his argument. Once again, the Board’s
action recommitting him and extending his maximum date conformed to the Code.


             Finally, Brewster essentially contends that he should not lose credit
for time spent on parole prior to his technical parole violation because he
subsequently was a convicted parole violator.

                                          9
             In Armbruster v. Pennsylvania Board of Probation and Parole, 919
A.2d 348, 351 (Pa. Cmwlth. 2011), this Court addressed this precise issue and
held:
             [T]ime spent in good standing prior to recommitment for
             technical violations is not shielded from forfeiture where
             the parolee subsequently commits a new crime and is
             recommitted as a convicted paroled violator. . . . Thus,
             upon recommitment as a convicted parole violator, in
             addition to losing all time spent at liberty during the
             current parole, a parolee will also forfeit all credit
             received for time spent in good standing while on parole
             prior to his previous recommitment as a technical parole
             violator. . . . (Citations omitted.)


             Although Brewster argues against this procedure and alleges that it is
unconstitutional, it is well-settled law in Pennsylvania.


             Accordingly, this Court affirms.



                                        ____________________________
                                        BERNARD L. McGINLEY, Judge




                                          10
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David L. Brewster,                  :
                     Petitioner     :
                                    :
             v.                     :
                                    :
Pennsylvania Board of Probation     :
and Parole,                         :   No. 2372 C.D. 2014
                 Respondent         :


                                  ORDER

             AND NOW, this 25th day of August, 2015, the order of the
Pennsylvania Board of Probation and Parole in the above-captioned matter is
affirmed.




                                    ____________________________
                                    BERNARD L. McGINLEY, Judge
