             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Hoffman,                         :
                   Petitioner            :
                                         :
            v.                           : No. 17 C.D. 2018
                                         : Submitted: August 3, 2018
Pennsylvania Board of                    :
Probation and Parole,                    :
                  Respondent             :


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                               FILED: October 23, 2018

            Michael Hoffman petitions for review of an adjudication of the
Pennsylvania Board of Probation and Parole (Parole Board) that recommitted him
as a convicted parole violator and recalculated his maximum sentence date.
Hoffman argues that the Parole Board did not give him the credit he was owed
towards his original sentence and, thus, erred in calculating his new maximum
sentence date. For the reasons that follow, we affirm.
            In 2012, Hoffman was sentenced to a total of two to eight years of
incarceration (state sentence) for attempted burglary and a violation of probation.
On July 13, 2015, Hoffman was paroled to a community corrections center in
Philadelphia, Pennsylvania, but he failed to complete the program. On October 1,
2015, Hoffman fled from the parole office and was declared delinquent. On October
10, 2015, Hoffman was arrested on the Parole Board’s warrant.
             On November 23, 2015, the Parole Board recommitted Hoffman as a
technical parole violator and reparoled him to an inpatient treatment program. It
recomputed his maximum sentence date to June 10, 2019. Certified Record at 35
(C.R. __).
             In the interim, the Lansdale Police Department filed criminal charges
against Hoffman for theft and receipt of stolen property for an incident that had
occurred in October of 2015, while he was delinquent on parole. C.R. 40-42. On
December 16, 2015, following Hoffman’s release on parole, the Lansdale Police
Department arrested him on the new criminal charges. The Parole Board issued a
warrant to commit and detain Hoffman for violating parole. On January 7, 2016,
Hoffman was granted bail on the new criminal charges, but he remained detained as
a result of the Parole Board’s warrant.
             On May 12, 2016, Hoffman pled guilty to theft and was sentenced to a
term of imprisonment of time served to 23 months in the Montgomery County
Correctional Facility (county sentence). C.R. 76. Hoffman received credit on his
county sentence for time served from October 5, 2015, until January 1, 2016, on the
Board’s detainer.
             On July 1, 2016, the Parole Board notified Hoffman of a parole
revocation hearing based upon the Montgomery County theft conviction. Hoffman
waived his right to a parole revocation hearing. On August 8, 2016, the Parole Board
recommitted Hoffman as a convicted parole violator to serve six months of
backtime, when available, pending parole from or completion of his county sentence.
             On August 5, 2016, the trial court issued an order paroling Hoffman
from his county sentence as of May 12, 2016. On August 31, 2016, the Parole Board




                                          2
confirmed its recommitment of Hoffman as a convicted parole violator and
recalculated his maximum sentence date as December 14, 2019.
              Hoffman sought administrative review of the Parole Board’s decision,
contending that it erred because it did not give credit for the period of time between
May 12, 2016, and August 5, 2016, when the trial court entered its parole order. The
Parole Board denied Hoffman’s request, holding that Hoffman was not entitled to
credit on his state sentence for the period between May 12, 2016, and August 5,
2016, because he was serving his county sentence during that period.
              On appeal,1 Hoffman argues that the Parole Board erred. He argues
that the trial court’s parole order of August 5, 2016, was effective as of May 12,
2016. Accordingly, he is eligible for time served after that date. The Board responds
that Hoffman continued to serve his county sentence until August 5, 2016.
              We begin with a review of the relevant law. The Prisons and Parole
Code, 61 Pa. C.S. §§101-6309, requires a convicted parole violator to serve his most
recent sentence before he serves backtime. Section 6138(a)(5) of the Prisons and
Parole Code states as follows:

              (a) Convicted violators. –
                                            ***

                     (5) If a new sentence is imposed on the parolee,
                     the service of the balance of the term originally
                     imposed by a Pennsylvania court shall precede
                     the commencement of the new term imposed in
                     the following cases:

1
  This Court’s review is limited to determining whether the Parole Board’s adjudication is
supported by substantial evidence, whether an error of law has been committed, or whether
constitutional rights have been violated. Section 704 of the Administrative Agency Law, 2 Pa.
C.S. §704; Moroz v. Pennsylvania Board of Probation and Parole, 660 A.2d 131, 132 (Pa.
Cmwlth. 1995).
                                             3
                          (i) If a person is paroled from a State
                          correctional institution and the new
                          sentence imposed on the person is to be
                          served in the State correctional
                          institution.
                          (ii) If a person is paroled from a
                          county prison and the new sentence
                          imposed upon him is to be served in
                          the same county prison.

                          (iii) In all other cases, the service of
                          the new term for the latter crime shall
                          precede commencement of the balance
                          of the term originally imposed.

61 Pa. C.S. §6138(a)(5) (emphasis added).
             Here, Hoffman argues that he was paroled on May 12, 2016, because
he was sentenced to “time served” to 23 months and was directed to register with
adult probation to commence supervision. Hoffman Brief at 6, 9. Hoffman assumes
the sentencing court’s order of May 12, 2016, granted him immediate parole. It did
not. In Presley v. Pennsylvania Board of Probation and Parole, 748 A.2d 791 (Pa.
Cmwlth. 2000), this Court explained as follows:
             [P]risoners … have no absolute right to be paroled upon the
             expiration of his or her minimum term of the sentence. Krantz
             v. Pennsylvania Board of Probation & Parole, 86 Pa. Cmwlth.
             38, 483 A.2d 1044 (1984). The minimum sentence only
             establishes an eligibility date for a parole. Id.

Presley, 748 A.2d at 794 (emphasis added). Thus, an order sentencing a prisoner to
a minimum sentence of time served does not have the effect of ordering immediate
parole. There must be a specific order of parole.
             The May 12, 2016, sentencing order has no language granting parole.
Likewise, the record does not contain a petition for parole or an order disposing of a

                                          4
request for parole. See 42 Pa. C.S. §9776.2 We conclude that Hoffman was not
granted parole on May 12, 2016.
              Hoffman next contends that the sentencing court’s order of August 5,
2016, granted him parole as of May 12, 2016. However, sentencing courts lack
authority to grant retroactive parole. See Vann v. Pennsylvania Board of Probation
and Parole (Pa. Cmwlth., No. 1067 C.D. 2017, filed April 10, 2018), slip op. at 12
(unreported)3 (trial court cannot grant retroactive parole and, thus, parolee not
entitled to credit for the time between the date he was sentenced to the date the trial
court order granted parole); Moyer v. Pennsylvania Board of Probation and Parole
(Pa. Cmwlth., No. 1666 C.D. 2007, filed May 30, 2008), slip op. at 10 (unreported)
(retroactive parole order is a nullity and, thus, parolee not entitled to credit for time
prior to the grant of parole from the county sentence); Banks v. Pennsylvania Board


2
  Section 9776 of the Sentencing Code provides, in relevant part:
        (a) General rule.--Except as otherwise provided under this chapter or if the
        Pennsylvania Board of Probation and Parole has exclusive parole jurisdiction, a
        court of this Commonwealth or other court of record having jurisdiction may, after
        due hearing, release on parole an inmate in the county correctional institution of
        that judicial district.
        (b) Petition required.--No inmate may be paroled under this section except on
        petition verified by the oath of the inmate or by the inmate’s representative and
        presented and filed in the court in which the inmate was convicted.
        (c) Hearing.--On presentation of the petition, the court shall fix a day for the
        hearing. A copy of the petition shall be served on the district attorney and
        prosecutor in the case at least ten days before the day fixed for the hearing. Proof
        of service on the district attorney and the prosecutor shall be produced at the
        hearing.
        (d) Order.--After the hearing, the court shall make such order as it may deem just
        and proper. In case the court paroles the inmate, it shall place the inmate in the
        charge of and under the supervision of a designated probation officer.
42 Pa. C.S. §9776(a)-(d).
3
  An unreported panel decision of this Court, “issued after January 15, 2008,” may be cited “for
its persuasive value[.]” 210 Pa. Code §69.414(a).
                                               5
of Probation and Parole, 928 A.2d 384 (Pa. Cmwlth.), petition for allowance of
appeal denied, 936 A.2d 41 (Pa. 2007) (“retroactive parole has no legal effect on
availability to serve an existing state sentence”). This Court has expressly explained
that a newly convicted parolee is not available to begin serving backtime on his
original sentence until his release from a new sentence is announced. Banks, 928
A.2d at 387.
               Here, the sentencing court’s August 5, 2016, order paroling Hoffman
effective May 12, 2016, was a nullity because the court of common pleas did not
have authority to issue it. Hoffman was paroled on August 5, 2016, the date the
court issued the order granting him parole. Thus, Hoffman is not entitled to credit
on his state sentence for the time between May 12, 2016, and August 5, 2016.
               For these reasons, the Parole Board’s calculation of Hoffman’s
maximum sentence date is correct,4 and we affirm the Parole Board’s order.

                                         _____________________________________
                                         MARY HANNAH LEAVITT, President Judge


4
  When Hoffman was paroled on December 16, 2015, his maximum sentence date was June 10,
2019. Hoffman had 1,272 days remaining on his state sentence. Following his conviction for theft
in May 2016, the Parole Board determined to recommit Hoffman as a convicted parole violator.
The Parole Board did not award Hoffman credit for the time he spent at liberty on parole. See
Section 6138(a)(2) of the Prisons and Parole Code, 61 Pa. C.S. §6138(a)(2) (a parolee is not
entitled to credit for any time spent at liberty on parole, unless the Parole Board determines to
grant the parolee credit). As a result, Hoffman did not receive credit for the time he was on parole
from July 13, 2015, to October 1, 2015, or 80 days. Adding the 80 days to the 1,272 days, Hoffman
had a total of 1,352 days remaining on his state sentence.
        Hoffman did, however, receive credit on his state sentence for the time he spent
incarcerated solely on the Parole Board’s detainer from January 7, 2016, until May 12, 2016, or
126 days. After subtracting 126 days from 1,352 days, Hoffman had a total of 1,226 days
remaining on his state sentence.
        On August 5, 2016, Hoffman became available to commence service of his state sentence.
Adding 1,226 days to August 5, 2016, results in a new maximum sentence date of December 14,
2019.
                                                 6
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Hoffman,                     :
                   Petitioner        :
                                     :
           v.                        : No. 17 C.D. 2018
                                     :
Pennsylvania Board of                :
Probation and Parole,                :
                  Respondent         :


                                 ORDER


           AND NOW, this 23rd day of October, 2018, the order of the
Pennsylvania Board of Probation and Parole dated December 14, 2017, is hereby
AFFIRMED.

                                ______________________________________
                                MARY HANNAH LEAVITT, President Judge
