              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Maurice Schenck,                         :
                   Petitioner            :
                                         :   No. 859 C.D. 2015
            v.                           :
                                         :   Submitted: April 8, 2016
Pennsylvania Board of                    :
Probation and Parole,                    :
                  Respondent             :



BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                      FILED: September 7, 2016


            Maurice Schenck (Petitioner) petitions for review of the March 11, 2015
order of the Pennsylvania Board of Probation and Parole (Board), which denied
Petitioner’s request for administrative review and affirmed its December 2, 2014
decision to reinstate Petitioner as a convicted parole violator (CPV) to serve twenty-
four months back time.


                           Facts and Procedural History
            Petitioner is an inmate currently incarcerated at the State Correctional
Institution (SCI) at Houtzdale.   On or about February 10, 2000, Petitioner was
sentenced to five to fifteen years’ imprisonment for aggravated assault, criminal
conspiracy, and robbery convictions.1               Petitioner’s respective minimum and
maximum release dates were April 18, 2004, and April 19, 2014. (Certified Record
(C.R.) at 1.)
                On July 6, 2004, Petitioner was released on parole. Before his release,
Petitioner signed conditions governing his parole, advising that “[i]f you are
convicted of a crime committed while on parole/reparole, the Board has the authority,
after an appropriate hearing, to recommit you to serve the balance of the sentence or
sentences which you were serving when paroled/reparoled, with no credit for time at
liberty on parole.” (C.R. at 8.)
                On December 26, 2004, Petitioner was arrested for possession of a
controlled substance in a sufficient quantity and/or under sufficient circumstances to
indicate intent to deliver,2 was detained pending disposition of his criminal charges,
and waived his right to a detention hearing. On March 7, 2005, the criminal charges
were dismissed and, on March 16, 2005, Petitioner was released. (C.R. at 11, 13-15,
19-27, 93.)
                On April 7, 2005, the Board issued a warrant to commit and detain
Petitioner for violating parole when he committed a drug violation and, instead of
revoking his parole, placed him in the Penn Capp program at the Joseph E. Coleman
Center for drug use. After successfully completing the program, Petitioner was
released from Penn Capp on July 6, 2005. (C.R. at 29, 56, 59, 93.)



      1
          See Sections 903, 2702, and 3701 of the Crimes Code, 18 Pa.C.S. §§903, 2702, and 3701.

      2
        See Sections 13(a)(16) and 13(a)(30) of The Controlled Substance, Drug, Device, and
Cosmetic Act, Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§780-113(a)(16), (a)(30).



                                                2
              On November 3, 2005, the Board issued a warrant to commit and detain
Petitioner for violating parole following his arrest by the Philadelphia Police
Department on various drug charges. He was placed in state custody on November
16, 2005, pending disposition of the criminal charges. (C.R. at 34-35, 56, 93.)
              On April 18, 2006, federal authorities indicted Petitioner on nine counts
of federal criminal charges3 and, on May 10, 2006, Petitioner was transferred to
federal custody.4 On October 11, 2006, the Board issued a warrant to commit and
detain Petitioner pursuant to his indictment on the federal charges. On October 26,
2006, Petitioner was adjudicated guilty of the federal criminal charges and, on
January 30, 2007, was sentenced to 120 months’ imprisonment in federal custody.
(C.R. at 37, 45-46, 51-54, 93, 95, 118.)
              Prior to serving his federal sentence, Petitioner was returned to state
custody on February 6, 2007. After approximately two months, he was transferred to
federal custody to serve his federal sentence on April 4, 2007. The Board received
verification of Petitioner’s federal conviction on December 3, 2007. On July 25,
2014, Petitioner completed his federal sentence and he was returned to state custody
on July 28, 2014. (C.R. at 38, 93, 101.)
              On September 9, 2014, Petitioner was advised via a “Notice of Charges
and Hearings” form that his revocation hearing would occur on September 15, 2014,
at 9:00 a.m. at SCI-Graterford and requested that his revocation hearing be conducted
by a panel. At the revocation hearing, Petitioner argued that the matter should be

       3
          See 21 U.S.C. §841(a)(1) (possession of a controlled substance with intent to distribute);
21 U.S.C. §846 (conspiracy); 21 U.S.C. §860(a) (possession of a controlled substance with intent to
distribute near a school).

       4
       As a result of the federal criminal charges, the state criminal charges were nolle prossed on
September 11, 2006. (C.R. at 41.)



                                                 3
dismissed on timeliness grounds. Specifically, Petitioner asserted that he had been
sentenced in federal court in January 2007 and was returned to state custody for a
revocation hearing to be conducted; however, a revocation hearing was not performed
during the approximately two-month period he was in state custody prior to serving
his federal sentence.        According to Petitioner, the Board failed to perform a
revocation hearing within 120 days of his return to a state correctional facility and,
therefore, the revocation charges must be dismissed as untimely. The Board rejected
Petitioner’s argument, reasoning that the period that Petitioner was in federal custody
did not count toward the 120-day limit and the revocation was not untimely because it
was performed within 120 days based on a return date of July 27, 2014. By decision
mailed December 8, 2014, the Board recommitted Petitioner as a convicted parole
violator to serve twenty-four months back time based on the federal convictions.5
(C.R. at 57, 61, 64-71, 77-86.)
               On January 7, 2015, Petitioner filed a petition for administrative review
of the Board’s decision, arguing that his revocation hearing was untimely and,
consequently, the revocation charges must be dismissed. Petitioner also argued that

       5
          Although the decision mailed December 8, 2014 did not contain a recalculated parole
violation maximum date, by decision mailed February 6, 2015, the Board recalculated Petitioner’s
maximum date to June 8, 2023. Petitioner filed a petition for administrative review of that decision,
alleging that the Board failed to conduct a timely revocation hearing, failed to provide sufficient
notice of the revocation hearing, and erred in recalculating his maximum parole date. By decision
mailed April 8, 2015, the Board reversed its prior calculation and recalculated Petitioner’s
maximum date to May 14, 2023. (C.R. at 104-05, 108, 120-25.)

        By decision mailed April 9, 2015, the Board dismissed Petitioner’s timeliness challenge as
unauthorized because he had previously requested administrative relief from the December 8, 2014
decision and the Board could not accept a second request. The Board also determined that
Petitioner’s sentence challenge was moot per the April 8, 2015 order recalculating his maximum
date and advised him that he may file an administrative appeal/petition for administrative review of
that decision. (C.R. at 128-29.)



                                                 4
the Board violated his procedural due process rights because it failed to provide him
with sufficient notice of the revocation hearing; specifically, Petitioner alleged that
the notice he was provided was prepared approximately seven years before the
revocation hearing occurred and did not contain the exact time and date of the
revocation hearing. (C.R. at 112-17.)
               By decision mailed March 11, 2015, the Board affirmed its action mailed
December 8, 2014, and dismissed Petitioner’s appeal. (C.R. at 118-19.) Petitioner
appealed that determination to this Court.
               On appeal,6 Petitioner argues that the Board erred because: it failed to
conduct a timely revocation hearing; it failed to provide notice of the exact date and
time of his revocation hearing; and it failed to award him sentence credit for time he
spent in state custody from February 6, 2007, to April 4, 2007.7
               Conversely, the Board argues that the revocation hearing was timely
because it was performed within 120 days of the official verification date of
Petitioner’s federal conviction, excluding any time that Petitioner was unavailable
while in federal custody. The Board also argues that Petitioner was provided with
constitutionally adequate notice of the time, date, and location of the revocation

       6
         In reviewing a recommitment decision, this Court’s review is limited to determining
whether the necessary findings of fact are supported by substantial evidence, whether the decision is
in accordance with the law, and whether the Board violated any of the parolee’s constitutional
rights. Smith v. Pennsylvania Board of Probation and Parole, 81 A.3d 1091, 1093 n.1 (Pa.
Cmwlth. 2013).

       7
         In his appellate brief, Petitioner also asserts that the Board erred because it violated the
primary jurisdiction doctrine when it permitted Petitioner to serve his federal sentence prior to
serving back time on his original sentence and it failed to exercise its discretion and award him
sentence credit for time spent at liberty on parole. However, the law is well settled that issues not
raised in a petition for review are waived and will not be addressed by this Court. Chesson v.
Pennsylvania Board of Probation and Parole, 47 A.3d 875, 878 (Pa. Cmwlth. 2012).



                                                 5
hearing. Moreover, the Board argues that Petitioner never appealed the decision
recalculating his maximum parole date to May 14, 2023 and, therefore, his challenges
to his sentence date cannot be heard for the first time in this Court’s appellate
jurisdiction and must be dismissed.


                                      Discussion
                                Timeliness of Hearing
             Petitioner first argues that the Board failed to conduct a timely
revocation hearing. According to Petitioner, the 120-day period was triggered when
he returned to state custody on February 6, 2007, and, therefore, the Board had until
June 6, 2007, to conduct a revocation hearing, which it failed to do.
             “When a parolee asserts that the Board held a revocation hearing beyond
the 120-day period, the Board bears the burden of proving by a preponderance of the
evidence, that the hearing was timely.”        Vanderpool v. Pennsylvania Board of
Probation and Parole, 874 A.2d 1280, 1283 (Pa. Cmwlth. 2005). The Pennsylvania
Administrative Code (Code) provides that:

             (1) A revocation hearing shall be held within 120 days from
             the date the Board received official verification of the plea
             of guilty or nolo contendere or of the guilty verdict at the
             highest trial court level except as follows:

             (i) If a parolee is confined outside the jurisdiction of the
             Department of Corrections, such as confinement out-of-
             State, confinement in a Federal correctional institution or
             confinement in a county correctional institution where the
             parolee has not waived the right to a revocation hearing by
             a panel in accordance with Commonwealth ex rel. Rambeau
             v. Rundle, 455 Pa. 8, 314 A.2d 842 (1973), the revocation
             hearing shall be held within 120 days of the official
             verification of the return of the parolee to a State
             correctional facility.


                                           6
37 Pa. Code §71.4(1)(i).
             The Code defines “official verification” as “[a]ctual receipt by a
parolee’s supervising parole agent of a direct written communication from a court in
which a parolee was convicted of a new criminal charge attesting that the parolee was
so convicted.” 37 Pa. Code §61.1. It is irrelevant whether the Board had knowledge
of a parolee’s conviction; the relevant inquiry is whether the Board received “official
verification of a conviction.” Vanderpool, 874 A.2d at 1284.
             “[W]hen a convicted parolee is confined outside the jurisdiction of the
Department and then is returned to it, the official verification of return triggers the
120 day period, even if official verification of conviction has not yet been received.”
Montgomery v. Pennsylvania Board of Probation and Parole, 808 A.2d 999, 1001
(Pa. Cmwlth. 2002) (emphasis in original) (internal citation omitted). The Code
states that “[i]f the parolee is in custody in another state, or in Federal custody, the
Board may lodge its detainer but other matters may be deferred until the parolee has
been returned to a State correctional facility in this Commonwealth.” 37 Pa. Code
§71.5(a). “[T]he effect of this provision is to toll the running of any period of time in
which the Board is required to act until the parolee is returned to state custody.”
Elliot v. Pennsylvania Board of Probation and Parole, 458 A.2d 1068, 1069 (Pa.
Cmwlth. 1983).
             Here, under either computation, Petitioner’s argument must fail. Even if
Petitioner’s return to state custody before serving his federal sentence and prior to the
Board’s receipt of the official verification of his federal conviction triggered the 120-
day period, the Board held the revocation hearing within 120 days. Petitioner was
returned to state custody on February 6, 2007, and was confined there for fifty-six
days prior to his transfer to federal custody on April 4, 2007. The 120-day period



                                           7
was tolled during the time that Petitioner was in federal custody. Elliot, 458 A.2d at
1069. After serving his federal sentence, Petitioner returned to state custody on July
28, 2014, and the revocation hearing occurred forty-nine days later, on September 15,
2014. As such, if February 6, 2007, is used as the date that triggered the 120-day
period, the Board conducted the revocation hearing 105 days after that date, well
within the 120-day limit.
             Alternatively, if the date the Board received official verification of
Petitioner’s federal conviction is used, only forty-nine days elapsed before the
revocation hearing was held. Therefore, under either standard, the Board performed a
timely revocation hearing and Petitioner’s argument must fail.


                            Notice of the Revocation Hearing
             Petitioner also argues that the Board violated his right to procedural due
process because it failed to provide him notice of the exact time and date of the
revocation hearing.
             Section 71.4(2)(i) of the Code states that, prior to a revocation hearing, a
parolee will be notified of the right to a revocation hearing, the right to notice of the
exact date of the hearing, and the right to be heard by a panel at the revocation
hearing. 37 Pa. Code §71.4(2)(i).
             Here, after his return to state custody following his federal sentence,
Petitioner was advised via a “Notice of Charges and Hearings” form that his
revocation hearing would occur on September 15, 2014, at 9:00 a.m. at SCI-
Graterford and requested a panel hearing. The record indicates that Petitioner signed
and dated the form as of September 9, 2014. (C.R. at 57, 61-62.) Although the form
suggests that it was prepared prior to the date that it was signed by Petitioner, that has



                                            8
no impact on the sufficiency of the notice. Importantly, both Petitioner and his
counsel appeared at the revocation hearing and failed to object to the adequacy of the
notice.    Therefore, contrary to Petitioner’s assertion, Petitioner was sufficiently
advised of the date, time, and location of the revocation hearing.


                       Sentence Credit for Time in State Custody
              Finally, Petitioner avers that the Board erred when it failed to award him
sentence credit for time that he spent in state custody because the criminal charges
were ultimately nolle prossed.8
              An issue not raised before the Board in an administrative appeal is
waived for purposes of appellate review by this Court. McCaskill v. Pennsylvania
Board of Probation and Parole, 631 A.2d 1092, 1094-95 (Pa. Cmwlth. 1993); see
also Section 703 of the Administrative Agency Law, 2 Pa.C.S. §703(a).
              Here, although the Board’s decision mailed December 8, 2014, did not
contain a recalculated maximum date, the Board recalculated Petitioner’s maximum
date to June 8, 2023, by decision mailed February 6, 2015.                   (C.R. at 104-05.)
Petitioner petitioned for administrative review of that decision, alleging, inter alia,
that the Board miscalculated his back time because he should have received credit for
November 2, 2005 to May 10, 2006, the period he was in state custody prior to being
federally charged, as well as for February 7, 2007, to April 2, 2007, for time spent in
state custody prior to serving his federal sentence. (C.R. at 122.) By decision mailed
April 8, 2014, the Board modified Petitioner’s maximum sentence date from June 8,


       8
          Specifically, Petitioner challenges two periods of custody: November 2, 2005, to May 10,
2006, and February 7, 2007, to April 2, 2007. However, the only period of custody that Petitioner
identified in his petition for review was February 6, 2007, to April 4, 2007.



                                                9
2023, to May 14, 2023. On April 9, the Board advised Petitioner, in response to his
petition for review of its original recalculation and a follow-up correspondence, that:

             To the extent you object to the June 8, 2023 maximum
             sentence date, you seek relief from the recalculation
             decision that changed your maximum sentence date from
             June 8, 2023 to May 14, 2023. Thus, your objection to the
             prior maximum sentence date is now moot.

             Accordingly, your petition is DISMISSED AS
             UNAUTHORIZED to the extent you seek relief from the
             parole revocation decision mailed December 8, 2014.
             However, the recalculation decision mailed February 6,
             2015 has been REVERSED in regards to the June 8, 2023
             max date. If you wish to contest the new max date
             calculation, you may file an administrative appeal/petition
             for administrative review from the board action mailed
             April 8, 2015 (recorded 04/07/2015).
(C.R. at 128-29.)
             Nevertheless, Petitioner failed to file a petition for review of the Board’s
April 8, 2014 decision recalculating his maximum sentence date notwithstanding the
Board’s express advisement. Additionally, Petitioner failed to petition for review of
the Board’s April 9, 2014 decision that determined his petition for review was
unauthorized and his sentence challenge was moot. Therefore, because Petitioner
failed to raise the issue of whether the Board properly awarded him sentence credit
for time in state custody, the issue is waived and not subject to this Court’s appellate
review.


                                      Conclusion
             Petitioner’s argument that the Board failed to perform a timely
revocation hearing is unpersuasive because, under either computation, the revocation
hearing was performed within 120 days. Similarly, we reject Petitioner’s assertion


                                           10
that he was not provided sufficient notice of the revocation hearing because he signed
a form acknowledging the date, time, and location of the revocation hearing. Finally,
Petitioner’s argument that the Board erred in failing to award him sentence credit is
waived because he failed to properly raise the issue before the Board.
            Accordingly, the Board’s order is affirmed.




                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge




                                          11
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Maurice Schenck,                        :
                   Petitioner           :
                                        :    No. 859 C.D. 2015
            v.                          :
                                        :
Pennsylvania Board of                   :
Probation and Parole,                   :
                  Respondent            :


                                     ORDER


            AND NOW, this 7th day of September, 2016, the March 11, 2015
order of the Pennsylvania Board of Probation and Parole is affirmed.



                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge
