        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Corey Heinrich,                          :
                         Petitioner      :
                                         :
            v.                           :   No. 1643 C.D. 2015
                                         :   Submitted: January 15, 2016
Pennsylvania Board of Probation          :
and Parole,                              :
                        Respondent       :

BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                         FILED: March 2, 2016

            Corey Heinrich (Heinrich) petitions for review from an order of the
Pennsylvania Board of Probation and Parole (Board) that denied his administrative
appeal from a Board order that recalculated his maximum sentence date. He
argues the Board erred in its recalculation of his maximum sentence date by
denying him credit for the time he spent in custody on the Board’s detainer. Upon
review, we affirm.


                                  I. Background
            In 2011, Heinrich was sentenced to a term of 1 year, 10 months and
15 days to 5 years for criminal conspiracy and retail theft. Certified Record (C.R.)
at 1. His original maximum sentence date was November 5, 2016. Id.
             In September 2013, after the expiration of his original minimum
sentence date, the Board paroled Heinrich. C.R. at 10. At that time, he had 1140
days remaining on his original sentence. C.R. at 156, 175, 179, 199.


             Shortly thereafter, on October 8, 2013, police arrested Heinrich on
new criminal charges of retail theft, receipt of stolen property and criminal
trespass, which were filed in the Court of Common Pleas of Somerset County
(Somerset County Court). C.R. at 118, 128. Heinrich did not post bail on these
charges. C.R. at 118, 128. The Board lodged its detainer against Heinrich on the
same day as his arrest. C.R. at 11. Thereafter, the Board recommitted Heinrich as
a technical parole violator, and it detained him pending disposition of the new
criminal charges. C.R. at 28-29.


             On February 24, 2014, Heinrich was detained in lieu of bail on
additional criminal charges of retail theft, defiant trespass, disorderly conduct and
theft by unlawful taking, stemming from an incident on October 3, 2013. These
additional new charges were filed in the Court of Common Pleas of Cambria
County (Cambria County Court). C.R. at 109. Heinrich pled no contest to theft by
unlawful taking on June 3, 2014, and the Cambria County Court deferred
sentencing. C.R. at 111. The Cambria County Court released Heinrich on bail on
that date, C.R. at 109, but he remained confined on the Board’s detainer and the
new criminal charges in Somerset County. C.R. at 28, 121; Bd. Op., 8/19/15, at 1.




                                         2
             In July 2014, Heinrich pled guilty to two counts of defiant trespass in
Somerset County.     C.R. at 134.     The Somerset County Court also deferred
sentencing. C.R. at 134-35.


             Shortly thereafter, the Cambria County Court sentenced Heinrich to a
term of 6 months to 12 months in county prison. C.R. at 110, 112. The Board
subsequently issued a decision that recommitted Heinrich as a convicted parole
violator based on his conviction in the Cambria County Court. C.R. at 116-17.
The Cambria County Court paroled Heinrich from this sentence on December 8,
2014. C.R. at 52.


             On December 10, 2014, the Somerset County Court sentenced
Heinrich to 3 months to 282 days in county prison. C.R. at 120-22. At that time, it
granted Heinrich credit for time served from October 8, 2013 to July 16, 2014, a
total of 282 days of credit on this new sentence, thus fulfilling that sentence. C.R.
at 121.


             Thereafter, the Board issued a decision in which it recommitted
Heinrich as a convicted parole violator based on his two convictions in the
Somerset County Court. C.R. at 154-55. The Board also recalculated Heinrich’s
maximum sentence date as January 23, 2018. Id. Heinrich filed a petition for
administrative relief in which he objected to the recalculated maximum sentence
date. C.R. at 162-63. The Board issued a decision in which it revised Heinrich’s
maximum sentence date from January 23, 2018 to January 20, 2018, based on a




                                         3
calculation error.     C.R. at 160.       It then dismissed Heinrich’s petition for
administrative relief as moot. C.R. at 182.


              Heinrich’s recalculated maximum sentence date of January 20, 2018,
reflected a total of 1140 days remaining on his sentence at the time the Board
granted him parole, less three days in which he did not receive credit on his new
county sentences for a total of 1137 days. C.R. at 158. The Board voted not to
grant Heinrich credit for time at liberty on parole. C.R. at 60.


              Heinrich filed a second petition for administrative relief in which he
objected to the January 20, 2018 maximum sentence date, asserting the Board did
not properly afford him credit for the period from July 18, 2014 to December 6,
2014. C.R. at 184-85. The Board denied his petition for administrative relief,
explaining it properly recalculated his maximum sentence date. C.R. at 203-04.
Heinrich now petitions for review to this Court.


                                     II. Discussion
              In his brief filed through appointed counsel,1 Heinrich vaguely asserts
that the Board erred in failing to grant him credit toward his original sentence for
certain periods in which he remained in custody on the Board’s detainer, not just
the periods he was in custody solely on the Board’s detainer. Thus, he contends,



       1
         Our review is limited to determining whether constitutional rights were violated,
whether the adjudication was in accordance with law, and whether necessary findings were
supported by substantial evidence. 2 Pa. C.S. §704; Adams v. Pa. Bd. of Prob. & Parole, 885
A.2d 1121 (Pa. Cmwlth. 2005).



                                            4
this Court should reverse the Board’s decision and remand for a recalculation of
his maximum sentence date and reparole eligibility date.


            The Prisons and Parole Code (Parole Code) provides that any parolee
who, during the period of parole, commits a crime punishable by imprisonment
and is convicted or found guilty of that crime may be recommitted as a convicted
parole violator.   61 Pa. C.S. §6138(a)(1).    If a parolee is recommitted as a
convicted parole violator, he must serve the remainder of the term, which he would
have been compelled to serve had parole not been granted, with no credit for the
time at liberty on parole, unless the Board chooses to award credit. 61 Pa. C.S.
§§6138(a)(2), (2.1).


            In addition, where a parolee is paroled from a state correctional
institution and a new county sentence is imposed on him, the parolee must serve
the new county sentence before serving the balance of his original state sentence.
61 Pa. C.S. §6138(a)(5)(iii); Presley v. Pa. Bd. of Prob. & Parole, 748 A.2d 791
(Pa. Cmwlth. 2000). “The Board is not permitted to credit a parolee with backtime
while the parolee is serving time for a criminal conviction that occurred while on
parole.” Wise v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 2090 C.D. 2011,
filed May 3, 2012), slip op. at 4, 2012 WL 8700089 at *2 (unreported) (citing
Walker v. Pa. Bd. of Prob. & Parole, 729 A.2d 634, 638 (Pa. Cmwlth. 1999)).
Additionally, “once a parolee is sentenced on a new criminal offense, the period of
time between arrest and sentencing, when bail is not satisfied, must be applied to
the new sentence, and not to the original sentence.” Armbruster v. Pa. Bd. of Prob.
& Parole, 919 A.2d 348, 352 (Pa. Cmwlth. 2007) (citations omitted).



                                        5
            Further, “where an offender is incarcerated on both a Board detainer
and new criminal charges, all time spent in confinement must be credited to either
the new sentence or the original sentence.” Martin v. Pa. Bd. of Prob. & Parole,
840 A.2d 299, 309 (Pa. 2003). Time incarcerated shall be credited to a convicted
parole violator’s original term only when he has satisfied bail requirements on the
new offense and, thus, remains incarcerated solely by reason of the Board’s
detainer. Gaito v. Pa. Bd. of Prob. & Parole, 412 A.2d 568 (Pa. 1980). When bail
is not posted, time incarcerated on both the new criminal charges and the Board’s
detainer must apply to the new sentence. Id. Only when it is not possible to award
all of the credit on the new sentence because the period of pre-sentence
incarceration exceeds the maximum term of the new sentence will credit be applied
to the offender’s original sentence. Melhorn v. Pa. Bd. of Prob. & Parole, 908 A.2d
266 (Pa. 2006); Armbruster.


            Here, the Board paroled Heinrich in September 2013. C.R. at 10. At
that time, he had 1140 days remaining on his original sentence. C.R. at 156, 175,
179, 199.


            Shortly after his release on parole, on October 8, 2013, Heinrich was
arrested on new criminal charges, which were filed in the Somerset County Court.
C.R. at 118, 128. The Board lodged its detainer against Heinrich the same day.
C.R. at 11. Heinrich did not post bail on these charges. C.R. at 118, 128. After
his conviction on the new charges, the Somerset County Court sentenced Heinrich
to 3 months to 282 days in county prison. C.R. at 120-21. Heinrich served 282




                                        6
days on this sentence from October 8, 2013 to July 16, 2014, thus completing this
sentence. Id.


              In addition, on July 17, 2014, the Cambria County Court sentenced
Heinrich to 6 to 12 months in county prison on his conviction for theft by unlawful
taking, with credit for time served. C.R. at 51-52. It paroled Heinrich from this
sentence on December 8, 2014. C.R. at 51-52.2 The Board determined Heinrich
became available to serve the remainder of his original state sentence on December
10, 2014.


              With the exception of three days, July 16, 2014 to July 17, 2014 and
December 8, 2014 to December 10, 2014, in which Heinrich did not receive credit
on his new county sentences, the Board declined to grant Heinrich credit on his
original state sentence. Subtracting these three days from the 1140 days Heinrich
had remaining on his original sentence at the time of parole, left 1137 days to serve
on his sentence. C.R. at 158. Adding these 1137 days to December 10, 2014, the
date Heinrich became available to serve the balance of his original sentence, yields
a new maximum sentence date of January 20, 2018. Id. Further, the Board voted
not to grant Heinrich credit for any time spent at liberty on parole. C.R. at 60. 3 No


       2
         On June 3, 2014 Heinrich pled no contest to the criminal charge in Cambria County,
and the Cambria County Court released him on bail. Certified Record (C.R.) at 50. However,
Heinrich remained confined on the Board detainer and the new criminal charges in Somerset
County from June 3, 2014 until July 16, 2014. C.R. at 28, 121; Bd. Op., 8/19/15, at 1.
Additionally, from February 24, 2014 through June 3, 2014, Heinrich was held on both the new
charges in Somerset and Cambria Counties and the Board’s detainer. C.R. at 49-51, 121.
       3
          Heinrich does not challenge the Board’s discretionary decision not to award him credit
for the 16-day period he spent at liberty on parole.



                                               7
error is apparent in the Board’s recalculation of Heinrich’s maximum sentence
date. 61 Pa. C.S. §§6138(a)(2), (2.1); Gaito; Wise (citing Walker).


             Nevertheless, without referencing any specific dates or time periods,
Heinrich asserts he is entitled to credit on his original state sentence based on our
Supreme Court’s decision in Martin and this Court’s decision in Jones v.
Pennsylvania Board of Probation & Parole, 872 A.2d 1283 (Pa. Cmwlth. 2005).
We rejected a similar argument in Banks v. Pennsylvania Board of Probation &
Parole, 928 A.2d 384, 387-88 (Pa. Cmwlth. 2007), stating:

             These cases collectively hold that where an offender is
             incarcerated on both a Board detainer and new criminal
             charges, all time spent in confinement must be credited to either
             the new sentence or the original sentence. … Martin and Jones,
             however, are inapplicable here.

                   In Martin, a parolee was arrested on new criminal
             charges and served approximately 13 months in pre-sentence
             confinement on the charges. Ultimately however, the parolee
             only received a 48–hour sentence on the new charges. Because
             the period served in pre-sentence confinement exceeded the
             sentence received on the new charges, our Supreme Court
             required the Board to credit the parolee’s original sentence for
             the period served in pre-sentence confinement.

                    Unlike Martin, [the parolee’s] sentence on the new
             charges here exceeds the period served in pre-sentence
             confinement, and [the parolee] received credit for his
             confinement on the new charges. … Thus, Martin is factually
             distinguishable.

                   In Jones, a delinquent parolee was arrested on a Board
             warrant. While held on the warrant, he was also arrested for a
             DUI offense which occurred several months earlier. He did not
             post bail on the new DUI charge. The parolee remained in
             custody for a period of 4 months and 17 days before sentencing.
             The parolee was sentenced to 48 hours to 12 months on the new

                                         8
            DUI charge, and was ultimately paroled on the new sentence
            after 48 hours. Applying an ‘equitable treatment’ standard
            derived from Martin, this Court required the Board to account
            for the full time spent in pre-trial confinement. Jones, 872
            A.2d at 1285.

                  The Jones decision has been limited by other cases. …
            [I]n [Armbruster], this Court declined to apply Jones unless a
            parolee’s new sentence was less than the time spent in custody
            awaiting trial.

                   More importantly from a legal perspective, the Martin
            and Jones decisions have been limited by the Supreme Court’s
            recent holding in [Melhorn]. This Court interprets the holding
            as follows:

                  [W]here a parole violator is confined on both the Board’s
                  warrant and the new criminal charges and it is not
                  possible to award all of the credit on the new sentence
                  because the period of pre-sentence incarceration exceeds
                  the maximum term of the new sentence, the credit must
                  be applied to the offender’s original sentence.

            Armbruster, 919 A.2d at 355 (emphasis in original).

                   Here, [the parolee] was held on both a Board detainer and
            new criminal charges. Ultimately, he was convicted on the new
            charges and received a new county sentence with a maximum
            term that exceeded his pre-trial confinement. He received
            credit for time served in county confinement on his new county
            sentence. [The parolee] was not denied due process because he
            did not receive duplicate credit on his original state sentence. …


            Here, as in Banks, Heinrich was held on both a Board detainer and
new criminal charges. Ultimately, he was convicted on the new criminal charges
in both Somerset and Cambria Counties, and he received sentences with maximum
terms that equaled or exceeded his pre-trial confinement. He received credit for
time served in county confinement on his new county sentences. Like the parolee


                                         9
in Banks, Heinrich was not entitled to duplicate credit on his original state
sentence.


             Finally, we reject Heinrich’s reliance on Baasit v. Pennsylvania Board
of Probation and Parole, 90 A.3d 74 (Pa. Cmwlth. 2014). Baasit concerned an
inmate’s entitlement to credit on his original state sentence for a period of pre-
sentence confinement on a new federal sentence where the Board’s detainer pre-
dated the federal charges, the federal court ordered that the federal sentence be
served consecutive to the inmate’s original state sentence, and the federal court did
not award pre-sentence credit toward the inmate’s federal sentence.


             In Baasit, we determined that, in denying the inmate credit for pre-
sentence confinement on the federal charge, the Board overlooked a new statutory
provision, Section 6138(a)(5.1) of the Parole Code, which states that if a parolee is
sentenced to a new term of confinement by a federal court, the parolee shall serve
the balance of his original state sentence before serving the new federal sentence.
Also, because the Board lodged its detainer against the inmate before the federal
charges were filed, the Board had primary jurisdiction over the inmate.          See
Newsuan v. Pa. Dep’t of Corr., 853 A.2d 409 (Pa. Cmwlth. 2004). Additionally,
federal law barred the grant of credit toward the inmate’s new federal sentence for
any time credited toward his original state sentence; as such, there was no
possibility the inmate could receive double credit for his pre-sentence confinement
if the Board credited that time on the inmate’s original state sentence. For these
reasons, we remanded to the Board for “reconsideration of [the] [i]nmate’s




                                         10
entitlement to credit against his original state sentence for confinement before the
new federal sentence was imposed.” Baasit, 90 A.3d at 83.


             Here, unlike in Baasit, Heinrich is not seeking credit for pre-sentence
confinement on a new federal charge; therefore, Section 6138(a)(5.1) of the Parole
Code is not applicable. Further, as explained above, Heinrich already received
credit for the periods of pre-sentence confinement on his new county sentences,
which, unlike in Baasit, he was required to serve before completing the remainder
of his original state sentence. See 61 Pa. C.S. §6138(a)(5)(iii). As such, the
rationale in Baasit does not apply here.


             For all the foregoing reasons, we affirm the Board.




                                       ROBERT SIMPSON, Judge




                                           11
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Corey Heinrich,                       :
                       Petitioner     :
                                      :
           v.                         :   No. 1643 C.D. 2015
                                      :
Pennsylvania Board of Probation       :
and Parole,                           :
                        Respondent    :

                                    ORDER

           AND NOW, this 2nd day of March, 2016, the order of the
Pennsylvania Board of Probation and Parole is AFFIRMED.




                                     ROBERT SIMPSON, Judge
