                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tony Hayward,                                   :
                              Petitioner        :
                                                :
                       v.                       :
                                                :
Pennsylvania Board of                           :
Probation and Parole,                           :   No. 1735 C.D. 2017
                              Respondent        :   Submitted: May 11, 2018


BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                         FILED: July 18, 2018

               Tony Hayward (Hayward) petitions this Court for review of the
Pennsylvania Board of Probation and Parole’s (Board) October 3, 2017 decision
denying his request for administrative relief. Hayward presents four issues for this
Court’s review: (1) whether the Board abused its discretion in denying Hayward
credit for time at liberty on parole; (2) whether the Board misapplied the presumptive
range; (3) whether the Board correctly accounted for time served; and, (4) whether
the Board miscalculated Hayward’s new maximum sentence release date.1 After
review, we affirm.
               Hayward is currently an inmate incarcerated at the State Correctional
Institution (SCI) at Graterford. On September 7, 2009, Hayward was paroled from a
3 ½ to 10-year sentence for the manufacture, sale, delivery or possession with the
intent to deliver a controlled substance (Original Sentence). Hayward’s original


      1
          The order of the issues presented has been changed for ease of addressing them.
maximum sentence release date was November 24, 2014. Before his release on
parole, Hayward 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 violate a condition of your parole/reparole and, after
               the appropriate hearing(s), the Board decides that you are in
               violation of a condition of your parole/reparole you may be
               recommitted to prison for such time as may be specified by
               the Board.

               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.

Certified Record (C.R.) at 7-8. Hayward did not object to the above-quoted parole
conditions.
               On October 20, 2011, Philadelphia police arrested Hayward for
violations of the Pennsylvania Uniform Firearms Act of 1995 (Uniform Firearms
Act)2 (New Charges). On October 21, 2011, the Board lodged a detainer to commit
and detain Hayward. Hayward posted bail on January 3, 2012, at which time he was
transferred back to state custody until November 24, 2014 to continue serving time on
his Original Sentence. At his preliminary arraignment, the Philadelphia County
Common Pleas Court (trial court) set bail for the New Charges at $15,000.00 on




      2
          18 Pa.C.S. §§ 6101-6126.
                                            2
October 21, 2011, which Hayward posted on December 2, 2014.3 See C.R. at 65.4
On June 26, 2016, Hayward was found guilty of Possession of a Firearm Prohibited,
Firearms Not to be Carried Without a License and Carrying a Firearm in Public in
Philadelphia, and on September 9, 2016, the trial court sentenced him to 3 years and 6
months to 7 years of incarceration. See C.R. at 66.
              The Board lodged a warrant to commit and detain Hayward on June 29,
2016 for parole violations. On August 22, 2016, the Board provided Hayward with a
notice of charges and a notice of intent to hold a parole revocation hearing. On
August 26, 2016, the Board held the revocation hearing, at which Hayward was
represented by counsel. The Board panel then voted to recommit Hayward as a
convicted parole violator (CPV), and denied him credit for time spent at liberty on
parole. By decision recorded September 12, 2016 (mailed September 27, 2016), the
Board formally recommitted Hayward as a CPV.                        By September 14, 2016
recommitment order, the Board recalculated Hayward’s Original Sentence maximum
release date to October 17, 2018. By decision recorded on September 12, 2016
(mailed September 27, 2016), the Board formally recommitted Hayward to serve 18
months of backtime as a CPV with a maximum sentence release date of October 17,
2018. By decision recorded on June 20, 2017 (mailed September 22, 2017), the
Board corrected Hayward’s Original Sentence maximum release date to October 25,
2018 due to a technical error.



       3
          The preliminary arraignment date is not part of the certified record. However, this Court
may take judicial notice of information contained in the publicly-available docket in
Commonwealth v. Hayward (Philadelphia County MC-51-CR-44853-2011). See Deyarmin v.
Consol. Rail Corp., 931 A.2d 1 (Pa. Super. 2007). Further, “[i]t is well settled that this Court may
take judicial notice of pleadings and judgments in other proceedings where appropriate. This is
particularly so where, as here, the other proceedings involve the same parties.” Lycoming Cty. v.
Pa. Labor Relations Bd., 943 A.2d 333, 335 n.8 (Pa. Cmwlth. 2007) (citation omitted).
        4
          From December 1, 2014 to June 29, 2016, the Board did not detain Hayward.
                                                 3
              On October 7, 2016, Hayward submitted an Administrative Remedies
Form challenging the Board’s decision recorded September 12, 2016 (mailed
September 27, 2016), which formally recommitted Hayward as a CPV. On October
3, 2017, the Board denied Hayward’s request for administrative relief. Hayward
thereafter appealed to this Court.5
              Hayward argues that the Board abused its discretion and provided an
inadequate reason for choosing to deny him credit for time at liberty on parole. The
Board’s obligation relative to denying a CPV credit for his time spent at liberty on
parole was recently addressed by our Supreme Court in Pittman v. Pennsylvania
Board of Probation and Parole, 159 A.3d 466 (Pa. 2017).
              The Pittman Court held:

              As an initial matter, we hold that [S]ection 6138(a)(2.1) [of
              the Prisons and Parole Code (Parole Code), 61 Pa.C.S. §
              6138(a)(2.1)] clearly and unambiguously grants the Board
              discretion to award credit to a CPV recommitted to serve
              the remainder of his sentence, except when the CPV is
              recommitted for the reasons stated in Subsections
              6138(a)(2.1)(i) and (ii) [of the Parole Code]. In this case,
              [the a]ppellant[, like Hayward] was not recommitted for
              reasons enumerated in Subsections 6138(a)(2.1)(i) and (ii)
              [of the Parole Code]. Thus, . . . the Board unquestionably
              had the discretion to grant [the a]ppellant credit if it so
              desired. . . .

              [W]e recognize that the Board has the broadest of discretion
              over many decisions regarding parolees and that . . . there is
              no explicit requirement that the Board must provide a
              contemporaneous statement explaining its decision in
              Subsection 6138(a)(2.1) [of the Parole Code]. However,
              Article V, Section 9 of the Pennsylvania Constitution grants
              all persons the right to appeal from an administrative

       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).
                                               4
              agency to a court of record. . . . This is consistent with
              inherent notions of due process. To the extent [the
              a]ppellant has a right to appeal, an appellate court hearing
              the matter must have [a] method to assess the Board’s
              exercise of discretion. Accordingly, we hold that the Board
              must articulate the basis for its decision to grant or deny a
              CPV credit for time served at liberty on parole.

Pittman, 159 A.3d at 474. Further, “the reason the Board gives does not have to be
extensive and a single sentence explanation is likely sufficient in most instances.” Id.
at n.12. Here, the Board’s reason for denying Hayward credit for time at liberty on
parole was that his “conviction involved possession of a weapon.” C.R. at 99. Given
the level of deference owed to the Board, its reason is sufficient to deny Hayward
credit for time served at liberty on parole. Accordingly, we hold that the Board did
not abuse its discretion.
              Hayward further contends that the Board abused its discretion by
imposing a period of backtime exceeding the maximum presumptive range. We
disagree.
              The Board recommitted Hayward based upon his three convictions under
the Uniform Firearms Act. Section 75.2 of the Board’s Regulations provides that:
“Violation of any Provision of the [] Uniform Firearms Act” has a “[p]resumptive
[r]ange” of “18 months to 24 months.” 37 Pa. Code § 75.2 (emphasis added).
Accordingly, Hayward’s presumptive range maximum is 72 months (24 months for
each conviction). The 18 months for which Hayward was recommitted falls well
within the presumptive range for his convictions. Therefore, the Board did not abuse
its discretion.
              Hayward asserts that the Board failed to properly credit him for time
served. We disagree. Section 9760(1) of the Judicial Code provides:

              Credit against the maximum term and any minimum term
              shall be given to the defendant for all time spent in custody
              as a result of the criminal charge for which a prison

                                           5
              sentence is imposed or as a result of the conduct on which
              such a charge is based. Credit shall include credit for time
              spent in custody prior to trial, during trial, pending
              sentence, and pending the resolution of an appeal.

42 Pa.C.S. § 9760(1). Further,

              The general rule governing the allocation of credit for time
              served awaiting disposition of [a] new criminal charge was
              established by our Supreme Court in Gaito v. Pennsylvania
              Board of Probation and Parole, . . . 412 A.2d 568 ([Pa.]
              1980). The Supreme Court held that ‘time spent in custody
              pursuant to a detainer warrant shall be credited to a
              convicted parole violator’s original term . . . only when the
              parolee was eligible for and had satisfied bail requirements
              for the new offense and thus remained incarcerated only by
              reason of the detainer warrant lodged against him.’ [Id.] at
              571 (quoting Rodriques v. P[a.] B[d.] of Prob[.] [&] Parole,
              . . . 403 A.2d 184, 185-86 ([Pa. Cmwlth.] 1979)).

Armbruster v. Pa. Bd. of Prob. & Parole, 919 A.2d 348, 352 (Pa. Cmwlth. 2007).
              Here, Hayward was credited for the time served between the date he
posted bond and was transferred back to state custody to continue serving time on his
Original Sentence, i.e., January 3, 2012,6 and the date he was returned on the new
sentence because he reached his Original Sentence maximum release date,7 i.e.,


       6
          In the Board’s response to Hayward’s request for relief from the Board decision mailed
September 27, 2016, the Board identifies January 13, 2012 as the date Hayward posted bond.
However, the Board’s order to recommit states the dates upon which it determined Hayward’s credit
and it lists January 3, 2012 as the start date. Thus, the Board’s decision appears to have a
typographical error. C.R. at 80.
        7
          The fact that Hayward’s Original Sentence had expired on November 24, 2014 does not
alter the Board’s authority to recommit Hayward and extend his maximum sentence release date.
As this Court has reiterated:
              It is well settled law that the Board retains jurisdiction to recommit an
              individual as a parole violator after the expiration of the maximum
              term, so long as the crimes that lead to the conviction occurred while
              the individual is on parole. . . . The fact that [the parolee] did not
              enter his plea until . . . after the expiration of the original term . . . is
              irrelevant.

                                                   6
November 24, 2014 (1056 days). Hayward was further credited for the time he
served from the date the Board relodged its warrant against Hayward, June 29, 2016,
until he was sentenced on the New Charges, September 9, 2016 (72 days) because he
was held solely on the Board’s detainer.            Accordingly, Hayward was properly
credited for his time served.
              Finally, Hayward maintains that the Board miscalculated his new
maximum sentence release date as October 25, 2018. We disagree. Section 6138(a)
of the Parole Code provides, in relevant part:

              (4) 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.

              (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:

                 (i) If a person is paroled from a [s]tate correctional
                     institution and the new sentence imposed on the
                     person is to be served in the [s]tate correctional
                     institution.

61 Pa.C.S. § 6138(a) (emphasis added).
              In the instant case, when Hayward was released on parole on September
7, 2009, his Original Sentence maximum release date was November 24, 2014. Thus,
there were 1904 days remaining on his Original Sentence. As explained above, the
Board awarded Hayward 72 days of credit toward his Original Sentence for his time
spent incarcerated from June 29, 2016 to September 9, 2016, and 1056 days of credit
for the time he was incarcerated from January 3, 2012 to November 24, 2014.

Price v. Pa. Bd. of Prob. & Parole, 117 A.3d 362, 367-68 (Pa. Cmwlth. 2015) (quoting Miskovitch
v. Pa. Bd. of Prob. & Parole, 77 A.3d 66, 73-74 (Pa. Cmwlth. 2013)).


                                              7
Crediting 1128 days against 1904 days of backtime resulted in Hayward owing 776
days of backtime toward his Original Sentence. Hayward became available to begin
serving the backtime on his Original Sentence when he was sentenced on his new
convictions on September 9, 2016. Adding 776 days to September 9, 2016 resulted
in Hayward’s new October 25, 2018 Original Sentence maximum release date.
Accordingly, the Board properly recalculated Hayward’s Original Sentence
maximum release date to October 25, 2018.
            For all of the above reasons, the Board’s order is affirmed.


                                        __________________________
                                        ANNE E. COVEY, Judge




                                          8
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Tony Hayward,                           :
                         Petitioner     :
                                        :
                   v.                   :
                                        :
Pennsylvania Board of                   :
Probation and Parole,                   :   No. 1735 C.D. 2017
                         Respondent     :



                                      ORDER


            AND NOW, this 18th day of July, 2018, the Pennsylvania Board of
Probation and Parole’s October 3, 2017 order is affirmed.


                                      ___________________________
                                      ANNE E. COVEY, Judge
