             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Shaqual Mercer,                        :
                  Petitioner           :
                                       :
            v.                         :
                                       :
Pennsylvania Board of                  :
Probation and Parole,                  :   No. 912 C.D. 2019
                  Respondent           :   Submitted: November 27, 2019


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                FILED: February 5, 2020

            Shaqual Mercer (Mercer) petitions this Court for review of the
Pennsylvania Board of Probation and Parole’s (Board) August 12, 2019 order
denying his request for administrative relief. Mercer presents two issues for this
Court’s review: (1) whether Mercer’s appeal from the Board’s October 4, 2018
decision (mailed October 11, 2018) was timely; and (2) whether the Board correctly
calculated Mercer’s maximum sentence release date. After review, we affirm.
            On March 21, 2016, Mercer was paroled from his 4- to 8-year sentence
for robbery (Original Sentence). See Certified Record (C.R.) at 2-4. At that time,
Mercer’s Original Sentence maximum release date was March 21, 2020. See C.R. at
4. Mercer agreed to conditions governing his parole, including:

            If you are arrested on new criminal charges, the Board has
            the authority to lodge a detainer against you which will
            prevent your release from custody, pending disposition of
            those charges, even though you may have posted bail or
               been released on your own recognizance from those
               charges.

               ....

               If 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 [(i.e., street time)1].

C.R. at 5. Mercer did not object to the above-quoted parole conditions.
               On February 1, 2018, Mercer was arrested and charged in Delaware
County for, inter alia, Possession with Intent to Deliver a Controlled Substance and
Fleeing or Eluding Police (collectively, New Charges). See C.R. at 8-13. That same
day, the Board lodged a warrant to commit and detain Mercer, and he was
incarcerated at the Delaware County Prison. See C.R. at 14-15, 18. Bail was initially
set on the New Charges on February 2, 2018, but Mercer did not post bail. See C.R.
at 18, 34. On May 9, 2018, the Board issued a decision detaining Mercer pending
disposition of the New Charges. See C.R. at 15. On June 6, 2018, the Delaware
County Common Pleas Court modified Mercer’s bail, which he posted on June 28,
2018, and was released to the Board’s detainer. See C.R. at 34. On July 3, 2018,
Mercer was transferred to the state correctional institution (SCI) at Graterford. See
C.R. at 32. On July 24, 2018, Mercer pled guilty to the New Charges, and he was
sentenced to time served to 24 months in an SCI (New Sentence). See C.R. at 16.
               On August 8, 2018, the Board received notice of Mercer’s conviction
and issued a Notice of Charges. See C.R. at 17. On August 13, 2018, Mercer
admitted to his criminal parole violation and waived his right to a revocation hearing
and counsel. See C.R. at 23-24. On September 10, 2018, the second panel member

       1
         “Street time” refers to “the period of time a parolee spends at liberty on parole.” Dorsey v.
Pa. Bd. of Prob. & Parole, 854 A.2d 994, 996 n.3 (Pa. Cmwlth. 2004).
                                                  2
voted to recommit Mercer as a convicted parole violator (CPV).2                       By decision
recorded on October 4, 2018 (mailed October 11, 2018), the Board formally
recommitted Mercer as a CPV to serve 18 months of backtime.3 See C.R. at 49. The
Board recalculated Mercer’s Original Sentence maximum release date to August 14,
2022; however, the Board’s decision incorrectly stated that the maximum sentence
release date was September 10, 2018. See C.R. at 47, 50, 63, 87. The Board’s
decision specified: “IF YOU WISH TO APPEAL THIS DECISION, YOU MUST FILE A REQUEST
FOR ADMINISTRATIVE RELIEF WITH THE BOARD WITHIN THIRTY                        (30)   DAYS OF THE

MAILING DATE OF THIS DECISION.”         C.R. at 50. Mercer’s appeal was due by November
11, 2018. See C.R. at 85.
               On December 3, 2018, the Board received Mercer’s November 26, 2018
Administrative Remedies Form. Therein, he claimed that the Board violated his
constitutional rights and challenged the Board’s sentence credit and reparole
eligibility date on the bases that he was compelled to enter into an illegal contract
when he was paroled, the Board lacked the authority to change his sentence, the
Board should have credited his street time, and the Board should have credited the
time he served between February 2 and June 28, 2018 to his New Sentence. See C.R.
at 51-71. By May 1 and June 24, 2019 letters, Mercer requested the status of his
appeal. See C.R. at 70-71, 72-84.

       2
          Section 6113(b) of the Prisons and Parole Code (Parole Code) states, in relevant part: “The
[B]oard may make decisions on . . . revocation in panels of two persons. A panel shall consist of
one board member and one hearing examiner or of two board members.” 61 Pa.C.S. § 6113(b).
“[T]he date that the revocation and recommitment Hearing Report was signed by the second panel
member thereby effectively revok[ed] [Mercer’s] parole . . . .” Wilson v. Pa. Bd. of Prob. & Parole,
124 A.3d 767, 769 n.3 (Pa. Cmwlth. 2015).
        3
          The Board denied Mercer credit for the time he spent at liberty on parole between March
21, 2016 and February 1, 2018. The hearing examiner recommended no credit “due to [Mercer]
serving a sentence for a violent offense, his poor adjustment under supervision, and the dangerous
nature of the fleeing from police offense[;]” and the Board member recommended no credit because
Mercer “continues to be a danger to the community. [B]y fleeing he put numerous people in danger
and continues to participate in criminal activity.” C.R. at 27.
                                                 3
            On June 27, 2019, the Board dismissed Mercer’s December 3, 2018
appeal (postmarked November 27, 2018) from the Board’s October 4, 2018 decision
(mailed October 11, 2018) as untimely. Also on June 27, 2019, the Board issued a
decision correcting the maximum release date error made in its October 4, 2018
decision (mailed October 11, 2018). See C.R. at 87.
            On July 1, 2019, Mercer filed an Inmate Request to Staff Member,
wherein he inquired why the Board’s June 27, 2019 maximum release date decision
did not reference his pending appeal. See C.R. at 88. Staff responded that Mercer
should direct his inquiry to the Board within the requisite 30 days. See C.R. at 88.
On July 30, 2019, the Board received an Administrative Remedies Form dated and
submitted by Mercer on July 23, 2019, wherein he repeated his recommitment
challenge that he had raised in his December 3, 2018 appeal. See C.R. at 89-96.
            By August 12, 2019 order, the Board denied Mercer’s appeal and
affirmed its June 27, 2019 decision on the following basis:

            This is a response to the administrative remedies form we
            received date[-]stamped July 30, 2019. Because you object
            to credit applied and your recalculated max date . . . , your
            request is considered a petition for administrative review[]
            from the [B]oard action recorded June 27, 2019. For the
            reasons that follow, your petition is denied.
            The [B]oard paroled you from a[n] [SCI] . . . on March 21,
            2016 with a max date of March 21, 2020. This left you
            with a total of 1461 days remaining on your sentence at the
            time of parole. The Board’s decision to recommit you as a
            [CPV] authorized the recalculation of your sentence to
            reflect that you receive no credit for the time you were at
            liberty on parole. 61 Pa. C.S. § 6138(a)(2). In this case, the
            [B]oard did not award you credit for time at liberty on
            parole. This means you still had a total of 1461 days
            remaining on your sentence based on your recommitment.
            On February 1, 2018 the [B]oard lodged its detainer against
            you. On February 2, 2018[,] you were arrested [sic] for
            new criminal charges in [Delaware County] . . . . You
                                          4
              posted bail on June 28, 2018. You were sentenced on July
              24, 2018 to a term of state confinement.
              Based on these facts, the [B]oard awarded backtime credit
              from February 1, 2018 to February 2, 2018, and from June
              28, 2018 to July 24, 2018 (27 days). Subtracting these 27
              days means there was now a total of 1434 days remaining
              on your original sentence. Any other credit in question will
              go, or has gone, towards your new state sentence when you
              were serving that sentence.
              [Section 6138(a)(5) of t]he Prisons and Parole Code
              [(Parole Code)4] provides that [CPVs] who are paroled from
              a[n] [SCI] and then receive another sentence to be served in
              a[n] [SCI] must serve the original sentence first. 61 Pa.
              C.S. § 6138(a)(5). However, that provision does not take
              effect until the parolee is recommitted as a [CPV]. Thus,
              you did not become available to commence service of your
              original sentence until September 10, 2018, when the
              [B]oard made [its] decision. Adding 1434 days to that date
              yields a new maximum sentence date of August 14, 2022.

August 12, 2019 Board Dec. at 1-2; C.R. at 97-98. Mercer appealed to this Court.5
              Mercer first argues that the Board erred by dismissing his December 3,
2018 appeal from the Board’s October 4, 2018 decision (mailed October 11, 2018) as
untimely, and he seeks to have the matter remanded for consideration of the merits of
his appeal. See Mercer Br. at 10. It is clear, despite that the Board’s June 27, 2019
order dismissed Mercer’s December 3, 2018 appeal as untimely, the Board’s August
12, 2019 order was in response to Mercer’s July 23, 2019 appeal, wherein he again
raised the issues he presented in his December 3, 2018 appeal and, thus, the
timeliness of Mercer’s initial appeal was no longer at issue. Accordingly, the Board




       4
         61 Pa. C.S. §§ 101-6309.
       5
         “Our scope of review of the Board’s decision denying administrative relief is limited to
determining whether necessary findings of fact are supported by substantial evidence, an error of
law was committed, or constitutional rights have been violated.” Fisher v. Pa. Bd. of Prob. &
Parole, 62 A.3d 1073, 1075 n.1 (Pa. Cmwlth. 2013).
                                               5
addressed only the merits of Mercer’s recommitment challenge, and the timeliness of
his December 3, 2018 appeal is now moot.
             Next, Mercer contends that the Board erred in its recalculation of his
Original Sentence maximum release date by failing to credit him for all the time he
was held on the Board’s detainer after he posted bail. Mercer specifically asserts:

             Because [I] posted bail on the new charges on June 28,
             2018, the Board erred in setting [my] date of ‘custody for
             return’ at September 10, 2018. Further undermining the
             Board’s position is the fact that [I] was taken into [] custody
             by the Department of Corrections on July 3, 2018 – three
             weeks before [I] entered guilty pleas on [my] [N]ew
             [C]harges and was sentenced. The Board simply cannot
             legitimately claim that [I] was not within its custody prior to
             September 10, 2018.

Mercer Br. at 12.
             Initially,

             Section 6138(a)(1) of the [Parole Code] provides that
                 [a] parolee under the jurisdiction of the [B]oard
                 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 thereafter in a court
                 of record, may at the discretion of the [B]oard be
                 recommitted as a parole violator.
             61 Pa. C.S. § 6138(a)(1). Where the [Board] determines to
             recommit a parolee as a [CPV],
                 the parolee shall be reentered to serve the remainder
                 of the term which the parolee would have been
                 compelled to serve had the parole not been granted
                 and, except as provided under paragraph (2.1),
                 shall be given no credit for the time at liberty on
                 parole.


                                           6
              61 Pa. C.S. § 6138(a)(2) (emphasis added). Section
              6138(a)(2.1) of the Parole Code provides that, ‘[t]he
              [Board] may, in its discretion, award credit to a parolee
              recommitted . . . for the time spent at liberty on parole,’
              with [] enumerated exceptions, none of which are
              applicable in this case. 61 Pa. C.S. § 6138(a)(2.1).

Smoak v. Talaber, 193 A.3d 1160, 1163-64 (Pa. Cmwlth. 2018) (footnotes omitted).
              Further, Section 6138(a)(4) of the Parole Code states: “The period of
time for which the parole violator is required to serve shall be computed from and
begin on the date that the parole violator is taken into custody to be returned to the
institution as a parole violator.” 61 Pa.C.S. § 6138(a)(4). Section 6138(a)(5)(1) of
the Parole Code specifies that “[i]f a person is paroled from a[n SCI] and the new
sentence imposed . . . is to be served in [an SCI,]” the service of the balance of the
term originally imposed by a Pennsylvania court shall precede the commencement of
the new term. 61 Pa.C.S. § 6138(a)(5)(1). However, “[a]lthough Section [6138(a)(5)
of the Parole Code] requires a [CPV] to serve the balance of his original sentence
before beginning service of a newly imposed term, ‘this rule only becomes operative
when parole has been revoked and the remainder of the original sentence becomes
due and owing.’” Campbell v. Pa. Bd. of Prob. & Parole, 409 A.2d 980, 981-82 (Pa.
Cmwlth. 1980) (quoting Richmond v. Commonwealth, 402 A.2d 1134, 1135 (Pa.
Cmwlth. 1979)).6
              In Wilson v. Pennsylvania Board of Probation & Parole, 124 A.3d 767
(Pa. Cmwlth. 2015), the parolee similarly argued that the Board erred by
recalculating his maximum sentence date from when the Board obtained the second
panel member’s signature, as opposed to the date he was moved from county prison

       6
         The Parole Code was consolidated and became effective on October 13, 2009. Campbell
was based upon Section 21.1 of what was commonly known as the Parole Act, Act of August 6,
1941, P.L. 861, as amended, added by Section 5 of the Act of August 24, 1951, P.L. 1401, formerly
61 P.S. § 331.21a(a), repealed by the Act of August 11, 2009, P.L. 147. Section 6138(a) of the
Parole Code is virtually identical to former Section 21.1(a) of the Parole Act, but with added
subparagraphs.
                                               7
to SCI-Graterford. Therein, this Court explained that, regardless of when the parolee
was moved from county prison to state prison, a parolee does not become available to
begin serving his backtime on his original sentence until the Board revokes parole,
which is when the Board obtains the second required signature on the revocation
hearing report. See id.; see also Palmer v. Pa. Bd. of Prob. & Parole, 134 A.3d 160,
166 (Pa. Cmwlth. 2016) (“[A] parole violator’s new maximum date is calculated from
the date on which the Board obtained the second signature needed to recommit him as
a CPV.”).
              “Here, the Board’s hearing report indicates the hearing examiner
obtained a second signature for [Mercer’s] recommitment on [September 10, 2018].
C.R. at [31]. As such, [Mercer’s] new maximum expiry must be calculated from that
date.” Palmer, 134 A.3d at 166; see also Wilson; Campbell. Accordingly, the Board
properly recalculated the new maximum date of Mercer’s Original Sentence.7
              Based on the foregoing, the Board’s August 12, 2019 order is affirmed.


                                            ___________________________
                                            ANNE E. COVEY, Judge




       7
         “The Board is required to give [CPVs] credit on their original sentence for any pre-
sentence confinement [when] a parolee is incarcerated solely on the Board’s detainer.” Kerak v. Pa.
Bd. of Prob. & Parole, 153 A.3d 1134, 1142 (Pa. Cmwlth. 2016); see also Gaito v. Pa. Bd. of Prob.
& Parole, 412 A.2d 568 (Pa. 1980). Accordingly, the Board credited Mercer’s time served solely
under the Board’s detainer from June 28 to July 24, 2018 to his Original Sentence. In addition, “the
time served by the prisoner [from his conviction on the new charges] to the date parole is revoked
must be applied to the new sentence.” Hill v. Pa. Bd. of Prob. & Parole, 683 A.2d 699, 702 (Pa.
Cmwlth. 1996); see also Campbell. Thus, the Board credited the time Mercer was incarcerated
from July 24 to September 10, 2018 to his New Sentence. See August 12, 2019 Board Dec.; see
also Board Br. at 9-10.
                                                 8
              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Shaqual Mercer,                         :
                  Petitioner            :
                                        :
            v.                          :
                                        :
Pennsylvania Board of                   :
Probation and Parole,                   :   No. 912 C.D. 2019
                  Respondent            :


                                    ORDER

            AND NOW, this 5th day of February, 2020, the Pennsylvania Board of
Probation and Parole’s August 12, 2019 order is affirmed.


                                     ___________________________
                                     ANNE E. COVEY, Judge
