                          [J-42-2017] [MO: Dougherty, J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                                 MIDDLE DISTRICT


DEREK SMITH,                                  :   No. 82 MAP 2016
                                              :
                    Appellee                  :   Appeal from the Order of the
                                              :   Commonwealth Court dated February
                                              :   23, 2016 at No. 1007 CD 2015 vacating
             v.                               :   the Order of the Pennsylvania Board of
                                              :   Probation and Parole dated May 21,
                                              :   2015 at No. 7679-0 and remanding the
PENNSYLVANIA BOARD OF                         :   case
PROBATION AND PAROLE,                         :
                                              :   ARGUED: May 10, 2017
                    Appellant                 :


                                 DISSENTING OPINION


JUSTICE TODD                                            DECIDED: October 18, 2017
      I join Chief Justice Saylor’s cogent Dissenting Opinion in all respects but one.

First, I share his worthy observations about the lack of legislative guidance in this area.

Even though nearly a decade and a half has elapsed since our Court’s observation in

Martin v. Pennsylvania Board of Probation and Parole, 840 A.2d 299, 302 (Pa. 2003),

that “the General Assembly . . . has not addressed the permutations that arise when

applying credit for time served in the parole revocation context,” the legislature has not

amended either the Parole Code or the Sentencing Code to specifically address the

question of the proper allocation of time credit when a parolee is detained awaiting trial

on new criminal charges and is also subject to a detainer lodged by the Board of

Probation and Parole. In the absence of explicit instruction from the legislative branch,
our Court, motivated by equitable considerations,1 has fashioned a framework for

assigning time credit whenever both the parolee’s original sentence and new sentence

are imposed by a Pennsylvania state court for crimes committed in Pennsylvania, and

both sentences will be served in Pennsylvania correctional facilities.         See Gaito v.

Pennsylvania Board of Probation and Parole, 412 A.2d 568 (Pa. 1980); Martin.

       I also agree with Chief Justice Saylor that Gaito does not govern the outcome of

this case, nor, in my estimation, does Martin, as neither case involved the type of

sentences at issue here, i.e., the offender’s new sentence was imposed by a federal

court for a crime committed outside of Pennsylvania, and the offender’s prior sentence

was imposed by a Pennsylvania court for a Pennsylvania crime. However, I wholly

concur in Chief Justice Saylor’s assessment, and that of the lower court, that a

compelling indication of the legislature’s intent in this situation can be discerned from

Section 6138(a)(5.1) of the Prisons and Parole Code which specifies the ordering of

service of these two type of sentences: “[i]f the parolee is sentenced to serve a new

term of total confinement by a Federal court or by a court of another jurisdiction . . . the

parolee shall serve the balance of the original term before serving the new term,” 61

Pa.C.S. § 6138(a)(5.1). While this statutory provision does not speak directly to the

issue of time credit, it indicates a legislative preference that, in these situations, the

Pennsylvania sentence must be served first. Thus, it is reasonable to conclude, as the

Commonwealth Court did, that credit for time served should also be assigned to

Appellee’s Pennsylvania sentence, as Pennsylvania seemingly has the most significant

interest in seeing this time credit applied to its own court’s sentence. It is, after all, the

Commonwealth’s correctional system and, by extension, our Commonwealth’s budget

1
   See Martin, 840 A.2d at 308 (“Decision making in this context is . . . particularly
suited to a discretionary framework with guidelines to ensure equitable treatment.”).



                            [J-42-2017] [MO: Dougherty, J.] - 2
supported by the taxpayers which will bear the costs of incarcerating Appellee, and all

others similarly situated, in a Pennsylvania prison because of a Pennsylvania sentence.

       However, because, in my view, Gaito and Martin provide an appropriate

framework for the proper assignment of time credit whenever the sentences are

imposed by Pennsylvania courts and the terms of incarceration will be served in

Pennsylvania correctional facilities, unlike the Chief Justice, I see no reason to revisit

either case in the absence of further legislative direction in this area.     In all other

respects, I join him in dissenting from the Majority Opinion.




                           [J-42-2017] [MO: Dougherty, J.] - 3
