                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Rafael Avila,                            :
                          Petitioner     :
                                         :
                    v.                   :
                                         :
Pennsylvania Board of                    :
Probation and Parole,                    :   No. 1350 C.D. 2015
                          Respondent     :   Submitted: April 29, 2016


BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                  FILED: August 19, 2016

             Rafael Avila (Avila), an inmate incarcerated at the State Correctional
Institution at Graterford (SCI-Graterford), petitions this Court for review of the
Pennsylvania Board of Probation and Parole’s (Board) June 29, 2015 order denying
his petition for administrative review (Petition). The issues before this Court are as
follows: 1) whether the Board abused its discretion by failing to determine whether
Avila was entitled to credit for time he spent at liberty on parole; and (2) whether the
Board improperly extended Avila’s judicially-imposed sentence. After review, we
affirm.
             On October 4, 2013, the Board granted Avila parole from a 3 to 6 year
sentence for Persons Not to Possess or Use Firearms, and a 3 to 6 year concurrent
sentence for Firearm Not to Be Carried Without a License (Original Sentence). On
January 2, 2014, Avila signed his Conditions Governing Parole/Reparole (conditional
parole) that specifically advised:
            If you are convicted of a crime committed while on
            parole/reparole and, 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 13.
            Avila was released on parole on January 2, 2014 and transferred to
Kintock Erie halfway house (Kintock). At that time, his maximum sentence release
date was January 5, 2016, leaving 733 days remaining to be served on his Original
Sentence. On May 2, 2014, Avila was released from Kintock.
            On May 22, 2014, the Philadelphia Police Department arrested Avila for
Criminal Conspiracy and Drug Charges (New Charges). On May 23, 2014, Avila
was placed in a county prison and bail was set. Avila did not post bail. On that same
date, the Board authorized a warrant to commit and detain Avila. On November 21,
2014, Avila pled guilty to the New Charges and was sentenced to 11½ to 23 months
incarceration, followed by 4 years of probation (New Sentence). On March 16, 2015,
the Board provided Avila with a notice of charges and its intention to hold a
revocation hearing. On March 17, 2016, Avila waived his right to the revocation
hearing and admitted to his conviction on the New Charges.
            On April 9, 2015 and April 27, 2015, respectively, a Board Examiner
and a Board Member voted to recommit Avila as a convicted parole violator (CPV) to
serve 6 months incarceration and denied him credit for the time he spent while at
liberty on parole. On May 13, 2015, Avila returned to SCI-Graterford to serve 6
months backtime. By order recorded May 14, 2015, the Board determined Avila’s
new maximum sentence release date to be May 15, 2017 by adding the 733 days
remaining on his Original Sentence to the date Avila was returned to SCI-Graterford.




                                         2
            On June 10, 2015, Avila filed his Petition, claiming in pertinent part:

            2. . . . On January 2, 2014, the Department of Correction,
            according to the record, then transferred [Avila] to
            [Kintock] to make parole. Five months later, on May 2,
            2014, [Avila] was paroled from [Kintock] after serving
            approximately four [] years, five [] months and [three] days.
            Therefore, it is apparent that [Avila]’s backtime owed was
            approximately one [] year, six [] months and twenty-nine
            days, and not two years as rendered by the Board’s decision
            on May 28, 2015. The in custody records bear witness to
            this conclusion.

            3. Twenty days later, on May 22, 2014, [Avila] was arrested
            on new criminal charges. On that same day, the [Board]
            according to the record, lodged a detainer on [Avila] which
            remained in place until May 13, 2015.

            4. With that said, [Avila] respectfully asserts that where a
            detainer has been lodged against parolee who has been
            arrested on another charge, credit for such periods of
            confinement must be applied to the original sentence and
            not to any new sentence subsequently merited out of
            following conviction. Since the parolee being held on a
            detainer is in the custody of the [B]oard, [Avila] was no
            longer incarcerated for the offense or offenses for which
            said sentence is imposed. . . .
C.R. at 66-67. Without holding a hearing, the Board responded to Avila, stating:

            When you were released on parole from your [O]riginal
            [S]entence on January 2, 2014, your maximum sentence
            date was January 5, 2016, which left 733 days remaining to
            serve on your [O]riginal [S]entence. While on parole, you
            were arrested and placed into SCI-Graterford on May 13,
            2015 for possible parole violation. The Board lodged its
            warrant to commit and detain you on May 23, 2014 due to
            violation of your parole. You were arrested on May 22,
            2014 by the Philadelphia Police Department of Philadelphia
            County . . . and convicted on November 21, 2014. You
            were released to Pennsylvania authorities on May 13, 2015
            and placed in SCI-Graterford in ‘parole violator pending’


                                          3
              status. The Board decision recorded May 14, 2015
              recommitted you as a [CPV].

              With the above facts in mind, as a [CPV] you automatically
              forfeited credit for all of the time that you spent on parole.
              See 61 P.[a.C.]S. § 6138 (a)(2). You are not entitled to a
              back[]time served credit (i.e. time that you were held solely
              on the Board’s warrant prior to your recommitment order)
              because you were never incarcerated solely on the Board’s
              warrant. See Gaito v. Pa B[d.] of Prob[. &] Parole, 412
              A.2d 568 (Pa. 1980). In your case, you remained
              incarcerated at your new docket so you are not entitled to
              credit at your parole number for the same period. You
              became available to begin serving your back[]time on May
              13, 2015 when you were paroled and released by
              Philadelphia County to Pennsylvania authorities. Adding
              733 days . . . to May 13, 2015 yields a new parole violation
              maximum date of May 15, 2017. Therefore, your parole
              violation maximum sentence date is correct.
C.R. at 70. On June 29, 2015, the Board denied Avila’s Petition and affirmed his
recommitment as a CPV. Avila appealed to this Court.1
              Avila asserts that the Board abused its discretion by “automatically”
denying him credit for the time he spent at liberty on parole.
              Section 6138(a) of the Parole Code states, in relevant part:

              Convicted violators.--
              (1) 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.

       1
        “Our scope of review is limited to determining whether constitutional rights were violated,
whether the adjudication was in accordance with the law, and whether necessary findings were
supported by substantial evidence.” Pittman v. Pa. Bd. of Prob. & Parole, 131 A.3d 604, 607 n.5
(Pa. Cmwlth.), appeal granted, ___ A.3d ___ (Pa. 56 MAP 2016, filed May 23, 2016).
                                                4
              (2) If the parolee’s recommitment is so ordered, 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.
              (2.1) The [B]oard may, in its discretion, award credit to
              a parolee recommitted under paragraph (2) for the time
              spent at liberty on parole, unless any of the following
              apply:
                  (i) The crime committed during the period of parole
                  or while delinquent on parole is a crime of violence
                  as defined in [Section 9714(g) of the Sentencing
                  Code,] 42 Pa.C.S. § 9714(g) (relating to sentences
                  for second and subsequent offenses) or a crime
                  requiring registration under 42 Pa.C.S. Ch. 97
                  Subch. H (relating to registration of sexual
                  offenders).
                  (ii) The parolee was recommitted under [S]ection
                  6143 [of the Parole Code] (relating to early parole
                  of inmates subject to Federal removal order).

61 Pa.C.S. § 6138(a) (text emphasis added).

              Hence, the Board’s exercise of discretion under [S]ection
              6138(a) of the Parole Code is two-fold. First, the Board
              must determine whether to recommit a parole violator.
              Second, when recommitment is so ordered, the parolee shall
              be reentered to serve the remainder of the term, but the
              Board may, in its discretion, award the parolee credit.

Pittman v. Pa. Bd. of Prob. & Parole, 131 A.3d 604, 609 (Pa. Cmwlth.) (emphasis
added), appeal granted, ___ A.3d ___ (Pa. 56 MAP 2016, filed May 23, 2016).
              This Court has held that where the Board has been presented with the
choice to award a parolee street time2 credit, the Board exercises its discretion by
checking the “no” box on the hearing report. Pittman. This Court explained:


       2
         “‘Street time’ is a term for 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).
                                               5
             Based upon its plain language, there are no statutory
             standards in [S]ection 6138(a)(2.1) of the Parole Code that
             define or curtail how, when, or in what manner discretion
             should or must be exercised. It is well-settled that this
             Court cannot supply such guideposts as a matter of judicial
             construction. Commonwealth v. Rieck Inv[.] Corp., . . . 213
             A.2d 277, 282 ([Pa.] 1965) (‘[I]t is not for the courts to add,
             by interpretation, to a statute, a requirement which the
             legislature did not see fit to include.’). Ultimately, the
             absence of statutory standards further supports the
             conclusion that the Board’s checking of ‘no’ on the hearing
             report demonstrates that the Board fully exercised the
             discretion that the legislature afforded to it under [S]ection
             6138 of the Parole Code. Therefore, [the] argument that the
             Board failed to exercise discretion is refuted by the record
             and the statutory language and scheme contained in
             [S]ection 6138 of the Parole Code.

Pittman, 131 A.3d at 611 (footnote omitted).
             Here, the Board checked the “no” box on Avila’s hearing report. See
C.R. at 55. Thus, the Board exercised its discretion when it determined that Avila
was not entitled to credit for his time at liberty on parole. Accordingly, the Board did
not abuse its discretion.
             Moreover, as in Pittman, we here hold that Avila’s reliance on Gillespie
v. Department of Transportation, Bureau of Driver Licensing, 886 A.2d 317 (Pa.
Cmwlth. 2005) is misplaced. The Pittman Court explained:

             [In Gillespie], we concluded that the trial court failed to
             exercise discretion when ruling on the [Department of
             Transportation’s (Department)] request for a continuance.
             We initially reiterated that judicial discretion ‘broadly
             defined, is the option which a judge may exercise either to
             do or not to do that which is proposed to him.’ [Id.] at 319
             (citation omitted). After noting the trial court’s ‘[b]lind
             adherence to an established policy,’ this Court determined
             that the trial court ‘did not exercise its discretion at all.’ Id.
             at 319–20. . . .
             ....


                                             6
             Unlike the trial court in Gillespie, the Board here did not
             ‘punt’ away its duty to exercise discretion in rendering its
             decision. Instead, the Board was presented with a choice
             and affirmatively chose to deny Pittman credit. In
             completing the hearing report, the Board exercised
             discretion in deciding ‘either to do or not do that which is
             proposed to [it],’ id. at 319, under [S]ection 6138(a)(2.1) of
             the Parole Code. Notably, Pennsylvania law presumes that
             the Board acted lawfully and utilized its discretion in good
             faith, see Office of Governor v. Donahue, . . . 98 A.3d 1223,
             1239 ([Pa.] 2014), and Pittman does not contend otherwise.
             Therefore, because the record establishes that the Board
             exercised discretion, Gillespie is clearly distinguishable on
             its facts.
Pittman, 131 A.3d at 611-12.
             Avila also argues that the Board should have exercised its discretion to
award him backtime credit because his New Charges did not involve a crime of
violence or require Avila to register as a sex offender. The language in Section
6138(a)(2.1) of the Parole Code specifically permits the Board to exercise its
discretion to grant credit for time at liberty on parole unless the crime committed
while on parole is a crime of violence or a crime requiring sexual offender
registration. However, the Parole Code does not require the Board to grant such
credit in the absence of those offenses. Thus, Avila is not entitled to credit for time at
liberty on parole solely because his New Charges to which he plead guilty did not
involve a crime of violence or require him to register as a sex offender.
             Next, Avila contends that the Board erred by extending his maximum
sentence release date from January 5, 2016 to May 15, 2017. Specifically, Avila
argues that the Board may not recalculate or alter a judicially-imposed sentence.
             This Court recognizes that “[t]he Board can only require that a parolee
serve the remaining balance of his unexpired term since the Board does not have the
power to alter a judicially-imposed sentence.” Yates v. Pa. Bd. of Prob. & Parole, 48
A.3d 496, 502 (Pa. Cmwlth. 2012) (quoting Savage v. Pa. Bd. of Prob. & Parole, 761


                                            7
A.2d 643, 645 (Pa. Cmwlth. 2000)). However, “when a parolee is recommitted due
to criminal conviction, his maximum sentence date may be extended to account for
all street-time, regardless of good or delinquent standing.” Richards v. Pa. Bd. of
Prob. & Parole, 20 A.3d 596, 599 (Pa. Cmwlth. 2011). The Pennsylvania Supreme
Court has specifically held that the Board’s authority to extend maximum term
expiration dates under such circumstances does not usurp the courts’ sentencing
functions, or violate a parolee’s due process rights. Gaito.3 Thus, the Board acted in
accordance with the law when it recalculated Avila’s maximum sentence release date.
              In recalculating his release date, the law is well-established that:

              [I]f a defendant is being held in custody solely because of a
              detainer lodged by the Board and has otherwise met the
              requirements for bail on the new criminal charges, the time
              which he spent in custody shall be credited against his
              original sentence. If a defendant, however, remains
              incarcerated prior to trial because he has failed to
              satisfy bail requirements on the new criminal charges,
              then the time spent in custody shall be credited to his
              new sentence.

Id. at 571 (bold emphasis added). Further, this Court recently stated:

       3
         The Parole Code was consolidated and became effective on October 13, 2009. Gaito 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 21.1(a) of the Parole
Act similarly stated:

              Any parolee under the jurisdiction of the [Board] released from any
              penal institution of the Commonwealth who, during the period of
              parole or while delinquent on parole, commits any crime punishable
              by imprisonment, for which . . . he pleads guilty . . . in a court of
              record, may, at the discretion of the [B]oard, be recommitted as a
              parole violator. If his recommitment is so ordered, he shall be
              reentered to serve the remainder of the term which said parolee
              would have been compelled to serve had he not been paroled, and
              he shall be given no credit for the time at liberty on parole . . . .

(Emphasis added).

                                                8
            Section 6138(a)(4) of the [Parole] Code provides: ‘The
            period of time for which a 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). . .
            . ‘[O]nce 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).

Palmer v. Pa. Bd. of Prob. & Parole, 134 A.3d 160, 166 (Pa. Cmwlth. 2016)
(emphasis added).
            Because Avila was incarcerated in the Philadelphia County prison
beginning on May 23, 2014 on both the New Charges and the Board’s detainer, he
was not under the Board’s sole custody during this time. Moreover, Avila did not
satisfy the bail requirements on his New Charges. Therefore, the Board properly
concluded that the time Avila spent in custody must be credited to Avila’s New
Sentence rather than his Original Sentence.
            In sum, when Avila was paroled on January 2, 2014, he had 733 days
remaining to be served on his Original Sentence. While on parole, Avila committed a
crime for which he pled guilty. He was not credited for any time served because he
was not detained solely on the Board’s warrant. On May 13, 2015, Avila was
returned to SCI-Graterford to begin serving the remainder of his Original Sentence
without credit for any of the time he was on parole as denoted by the “no” box being
checked on the hearing report. By adding the 733 days remaining on his Original
Sentence to May 13, 2015, the Board properly recalculated Avila’s maximum
sentence release date to May 15, 2017. See C.R. at 55. Thus, the Board properly
extended Avila’s maximum sentence release date from May 13, 2015 to May 15,
2017.


                                          9
For all the above reasons, the Board’s order is affirmed.


                          ___________________________
                          ANNE E. COVEY, Judge




                             10
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Rafael Avila,                           :
                         Petitioner     :
                                        :
                   v.                   :
                                        :
Pennsylvania Board of                   :
Probation and Parole,                   :   No. 1350 C.D. 2015
                         Respondent     :



                                      ORDER


            AND NOW, this 19th day of August, 2016, the Pennsylvania Board of
Probation and Parole’s June 29, 2015 order is affirmed.


                                      ___________________________
                                      ANNE E. COVEY, Judge
