              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Clyde Johnson,                           :
                   Petitioner            :
                                         :   No. 1727 C.D. 2015
            v.                           :
                                         :   Submitted: February 26, 2016
Pennsylvania Board of Probation          :
and Parole,                              :
                 Respondent              :


BEFORE:     HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                       FILED: April 29, 2016


            Clyde Johnson (Petitioner) petitions for review of the August 13, 2015
order of the Pennsylvania Board of Probation and Parole (Board) denying his
administrative appeal and recalculating his parole eligibility and maximum sentence
dates.
            Petitioner is currently an inmate at the State Correctional Institution
(SCI) at Fayette. On June 24, 2010, Petitioner pled guilty to possession with intent to
deliver and a trial court sentenced him to two years and eleven months to ten years
imprisonment. The original minimum and maximum dates for Petitioner’s sentence
were December 17, 2011, and January 17, 2019, respectively. (Certified Record
(C.R.) at 1.) On December 21, 2011, Petitioner signed a form entitled, “Conditions
Governing Parole/Reparole,” which advised him: “[i]f you are convicted of a crime
committed while on parole/reparole, the Board has the authority, after an appropriate
hearing, to commit 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 7.) On December 21, 2011, the Board released Petitioner on parole. (C.R. at
11.)
               While on parole, Petitioner committed new crimes and was arrested by
the Philadelphia Police Department on May 9, 2013. On June 5, 2014, Petitioner pled
guilty to third-degree murder, robbery, and criminal conspiracy to commit robbery.
On December 10, 2015, Petitioner was sentenced to a new term of imprisonment to
be served in a state correctional institution.             Petitioner waived his right to a
revocation hearing for the new convictions and admitted to violating his parole when
he pled guilty to the above-mentioned offenses. (Board’s decision at 1; C.R. at 15-
17, 74, 77-78, 87.)
               Per decision recorded May 11, 2015, the Board recommitted Petitioner
as a convicted parole violator and ordered that he serve the entire unexpired term on
his original sentence, 7 years and 5 days, as backtime. This unexpired term was
calculated to reflect the total number of days remaining on Petitioner’s sentence as of
his December 22, 2011 parole release date. Adding 7 years and 5 days to the date
that Petitioner became available to serve his original sentence, December 10, 2015,
the Board extended Petitioner’s maximum sentence date to January 4, 2022, and did
not award him any credit for time spent at liberty on parole. (C.R. at 102.)1



       1
          We note that because Petitioner pled guilty to the crimes of third-degree murder and
robbery, which are statutorily-defined “crimes of violence,” the Board had no discretion to award
Petitioner credit for time spent at liberty on parole. See Section 6138(a)(2.1)(i) of the Prisons and
Parole Code, 61 Pa.C.S. §6138(a)(2.1)(i).



                                                 2
               Petitioner subsequently filed an administrative appeal asserting that the
Board’s backtime calculation2 was excessive and unconstitutional. Citing 37 Pa.
Code §75.2, the Board stated that a conviction of robbery imposed a 30 to 48 month
presumptive range; a conviction of conspiracy to commit robbery imposed a 30 to 48
month presumptive range; and a conviction of third-degree murder imposed a 36
month to unexpired term presumptive range. The Board concluded that because the
maximum presumptive range that it could impose against Petitioner was his total
unexpired term, the 7 year and 5 day recommitment period did not exceed the
presumptive range and, therefore, was not subject to challenge. (Board’s decision at
1.)
               On appeal to this Court,3 Petitioner contends that his constitutional due
process rights were violated because the Board exceeded the presumptive range for
conspiracy to commit third-degree murder. (Petitioner’s brief at 10.) Petitioner
argues that the Board should have followed the presumptive range of 24 to 48 months
for such a conviction and that its failure to do so resulted in a violation of his due
process rights.
               Petitioner’s argument, however, is factually erroneous. Petitioner was
not charged with conspiracy to commit murder, but was instead charged with and

       2
          “When parole is revoked, whether for technical or criminal violations of the conditions for
parole, the Board imposes a specific period of time that must be served in prison and credited to the
sentence being served on parole before the prisoner will again be considered for parole on that
sentence. That period is commonly referred to as ‘backtime.’” Abrams v. Pennsylvania Board of
Probation and Parole, 935 A.2d 604, 605 n.3 (Pa. Cmwlth. 2007).

       3
         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).



                                                 3
pled guilty to third-degree murder, robbery, and criminal conspiracy to commit
robbery. (C.R. at 74, 77-78.) The regulation at 37 Pa. Code §75.2 enumerates a
presumptive range of backtime for each listed crime within which the Board, absent
special factors, is to impose as the appropriate backtime. Abrams v. Pennsylvania
Board of Probation and Parole, 935 A.2d 604, 605 (Pa. Cmwlth. 2007). As the
Board correctly noted, 37 Pa. Code §75.2 states that a conviction of third-degree
murder imposes a presumptive range of 36 months to the length of the entire
unexpired term. See 37 Pa. Code §75.2. Therefore, in ordering Petitioner to serve the
remainder of his unexpired term, the Board adhered to the standards set forth in 37
Pa. Code §75.2 and imposed backtime that was within the presumptive range. Given
that the Board properly applied 37 Pa. Code §75.2, we conclude that Petitioner’s due
process argument fails.
            Moreover, it is well settled that this Court will not review the Board’s
discretion in imposing backtime for parole violations where the backtime imposed is
within the presumptive ranges as stated in 37 Pa. Code §75.2.           Chapman v.
Pennsylvania Board of Probation and Parole, 484 A.2d 413, 417 (Pa. Cmwlth.
1984). In Congo v. Pennsylvania Board of Probation and Parole, 522 A.2d 676 (Pa.
Cmwlth. 1987), the petitioner was convicted of third-degree murder while on parole,
and, consistent with the presumptive range for that crime, the Board ordered the
petitioner to serve the remainder of his unexpired term. This Court concluded that
“[s]ince the backtime imposed for the murder conviction, unexpired term, is within
the presumptive range for that offense . . . the Board’s discretion in imposing that
amount of backtime will not be reviewed.” Id. at 679. Based on Congo, we conclude
that Petitioner’s contention that the Board abused its discretion in imposing an
excessive amount of backtime is meritless.



                                         4
Accordingly, we affirm.



                          ________________________________
                          PATRICIA A. McCULLOUGH, Judge




                          5
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Clyde Johnson,                          :
                  Petitioner            :
                                        :    No. 1727 C.D. 2015
            v.                          :
                                        :
Pennsylvania Board of Probation         :
and Parole,                             :
                 Respondent             :


                                    ORDER


            AND NOW, this 29th day of April, 2016, the August 13, 2015 order of
the Pennsylvania Board of Probation and Parole is affirmed.



                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge
