        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Heath N. Rodriguez,                      :
                                         :
                   Petitioner            :
                                         :
            v.                           : No. 1464 C.D. 2013
                                         : Submitted: March 28, 2014
Pennsylvania Board of                    :
Probation and Parole,                    :
                                         :
                   Respondent            :


BEFORE:     HONORABLE BERNARD L. McGINLEY, Judge
            HONORABLE ROBERT SIMPSON, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                     FILED: July 25, 2014


            Heath N. Rodriguez (Petitioner) petitions for review of the May 10,
2013 order of the Pennsylvania Board of Probation and Parole (Board) that denied
his request for administrative relief to review the Board’s order that recommitted
him to serve 1,117 days of backtime, changed his eligibility for parole date to
October 26, 2014, and changed his maximum sentence date to January 29, 2016.
Petitioner contends that the Board erroneously extended his parole violation
maximum date from October 12, 2014 to January 29, 2016. For the following
reasons, we affirm the order of the Board.
             Petitioner was sentenced with a minimum parole eligibility date of
October 12, 2010 and a maximum date of October 12, 2014. (Record Item (R.
Item) 1, Sentence Status Summary).        On November 15, 2010, Petitioner was
paroled. (R. Item 5, Warrant to Commit.) Prior to his release on parole, Petitioner
signed a parole agreement, which, among other things, specified that “[i]f 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 you were serving when paroled/reparoled, with no credit for
time at liberty on parole.” (R. Item 4, Order to Release and Conditions at 15.) At
the time of Petitioner’s release on parole, he had 1,427 days remaining on his
judicially imposed sentence of 4 to 8 years.
             On February 24, 2011, Petitioner was arrested and detained at State
Correctional Institution (SCI) Retreat for violating the conditions of his parole. (R.
Item 6, Supervision History at 22; R. Item 8, PA DOC Moves Report at 52.)
Petitioner was reparoled on April 19, 2011. (Id.) The 54 days Petitioner spent in
custody during the months of February, March, and April of 2011 reduced the days
remaining on his judicially imposed sentence by 54, bringing the total days
remaining on his sentence down to 1,373.
             Petitioner was arrested on new charges on March 16, 2012 and a
detainer was lodged by the Board for violation of the conditions of Petitioner’s
parole. (R. Item 6, Criminal Arrest & Disposition Report at 20.) Petitioner
remained in custody as a result of the new criminal charges until April 26, 2012,
when he was released to the Board’s custody pursuant to its detainer. (R. Item 8,
Criminal Docket Bail Action at 55.) From the time of his arrest on March 16, 2012
until the time of his release to the Board, Petitioner was being held due to the new


                                          2
criminal charges and not solely as a result of the Board’s detainer, therefore the
days Petitioner spent in custody during this period did not reduce the remaining
1,373 days of Petitioner’s judicially imposed sentence.
            On January 7, 2013, Petitioner was sentenced on the new charges to a
minimum term of 7 years and a maximum term of 20 years, as well as 10 years of
probation, following a negotiated guilty plea. (R. Item 8, Disposition/Sentence at
55-56.) Therefore, prior to his January 7, 2013 sentencing, Petitioner was held in
custody from April 26, 2012 until January 7, 2013, or for 256 days, solely as a
result of the Board’s detainer. Crediting the 256 days Petitioner was held solely
due to the Board’s detainer to the existing 1,373 days remaining on Petitioner’s
prior judicially imposed sentence results in a remainder of 1,117 days.
             On February 7, 2013, the Board mailed Petitioner a Notice of
Decision recommitting Petitioner to serve 30 months backtime based upon the
certified copy of the court record of his conviction. (R. Item 8, Notice of Board
Decision at 68.) The Notice of Decision informed Petitioner that he was not
eligible for reparole until April 10, 2015 and that he had a new maximum date of
July 15, 2016.     (Id.)   On March 5, 2013, Petitioner filed a Petition for
Administrative Review with the Board. (R. Item 9, Petition at 69.) However,
before reviewing the substance of Petitioner’s request for administrative review,
the Board discovered that it had erred in its calculation of Petitioner’s maximum
date and, on May 15, 2013, the Board mailed a modified recalculation decision that
changed Petitioner’s maximum date to January 29, 2016. (R. Item 9, May 16,
2013 Letter; R. Item 10, Notice of Board Decision – Recalculation at 81.)
Petitioner filed a Petition for Administrative Review of the Board’s revised
decision and on July 30, 2013, the Board denied the Petition and affirmed the


                                         3
revised decision issued on May 10, 2013. (R. Item 10, Petition at 82, Board’s
Affirmance at 93-94.) Petitioner appealed the Board’s denial to this Court.1
                Petitioner argues that the Board was without authority to recalculate
his maximum sentence date, that by doing so the Board erred by imposing
backtime that exceeded his judicially imposed sentence, and that the Board’s order
was misleading because it did not include language specifying that Petitioner’s
recommitment was not to exceed his unexpired term.2
                The Prisons and Parole Code3 (Code) contains a provision applicable
to convicted parole violators that provides, in part:

         (1) A parolee under the jurisdiction of the board 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 board be
         recommitted as a parole violator.

         (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.


1
  Our review of an appeal from the Board is limited to determining whether constitutional rights
were violated, whether an error of law was committed or whether the necessary findings of fact
are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S.
§ 704; Davidson v. Pennsylvania Board of Probation and Parole, 33 A.3d 682, 684 n.3 (Pa.
Cmwlth. 2011).

2
  Petitioner also argues that the Board’s actions, taken together, amount to a denial of due
process. Because of our disposition of this appeal, we need not address this argument. We do,
however, note that beyond a bare allegation, Petitioner’s brief fails to develop this argument.

3
    61 Pa. C.S. §§ 101-6309.
                                               4
61 Pa. C.S. § 6138(a). As a result of the statutory mandate that a convicted parole
violator “shall be given no credit for the time at liberty on parole,” Petitioner’s
maximum date was extended by the number of days remaining on his judicially
imposed sentence when he was paroled, minus the days he was in custody due to
the Board’s detainer, and Petitioner was not given credit towards his maximum
date for the days in which he was on parole and not in the Board’s physical
custody. Id.; Richards v. Pennsylvania Board of Probation and Parole, 20 A.3d
596, 599 (Pa. Cmwlth. 2011) (en banc)4; see also generally Martin v. Pennsylvania
Board of Probation and Parole, 840 A.2d 299 (Pa. 2003); Gaito v. Pennsylvania
Board of Probation and Parole, 412 A.2d 568 (Pa. 1980). Both Pennsylvania
statutory law and judicial precedent provide that the Board has not only the
authority to recalculate a convicted parole violator’s maximum date in this manner,
but it also has a duty to do so. Therefore, the Board did not err when it extended
Petitioner’s maximum date.
               Next, Petitioner contends that the Board erred in its recalculation of
his maximum date because the Board imposed backtime that exceeds his judicially
imposed sentence. The Board recommitted Petitioner for 1,117 days, extending
Petitioner’s maximum date to January 29, 2016.                      As detailed above, when
Petitioner was paroled on November 15, 2010 he had 1,427 days remaining on his
judicially imposed sentence. Following his parole, Petitioner was held in custody
by the Board’s detainer twice prior to his January 7, 2013 sentencing on new

4
  “It is clear from a plain reading of the statute, that while technical parole violators are entitled
to credit for time served while on parole in good standing, such that they may only be
recommitted for the remainder of their original sentences, convicted parole violators, on the
other hand, are not entitled to any credit for street-time. Consequently, 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, 20 A.3d at 599.

                                                  5
charges. The period of time Petitioner spent in custody prior to his new sentencing
amounted to 54 days in 2011 and 256 days beginning on April 26, 2012 and ending
on January 7, 2013, for a total of 310 days. Crediting 310 days to the 1,427 days
remaining on Petitioner’s sentence when he was paroled on November 15, 2010,
reduces his remaining term to 1,117 days. While it is well-settled that the Board is
not permitted to impose backtime which exceeds the remainder of a parole
violator’s unexpired term, the Board did not act contrary to this principle here;
instead, the Board simply did not credit Petitioner’s time at liberty on parole as
time served. Davenport v. Pennsylvania Board of Probation and Parole, 656 A.2d
581, 584 (Pa. Cmwlth. 1995). Therefore, Petitioner’s correct maximum date is
January 29, 2016 and not October 12, 2014 as Petitioner contends.
            Finally, Petitioner argues that the Board must include language
specifying that backtime imposed is not to exceed the remaining balance of his
unexpired term. See Savage v. Pennsylvania Probation and Parole, 761 A.2d 643,
645 (Pa. Cmwlth. 2000) (“The Board must clarify its order when it decides to
recommit a parolee for the balance of his unexpired term.”). Petitioner’s argument
is of no moment. Petitioner was not recommitted to serve more than the balance of
his unexpired term. Petitioner was recommitted to serve precisely the balance of
his unexpired term. The order Petitioner received is thus quite unlike the order at
issue in Savage, which did erroneously impose backtime that exceeded that
petitioner’s unexpired term. Savage, 761 A.2d at 644-645. While we agree with
Petitioner that inclusion of the unexpired term language in recommitment orders is
good practice, Petitioner offers no argument to suggest that he was injured by the
absence of this language here. We also reiterate that where ambiguity does exist,
an order issued by the Board must be interpreted to comply with the long-standing


                                         6
principle that the Board may not extend a judicially imposed sentence. See, e.g.
Massey v. Pennsylvania Board of Probation and Parole, 501 A.2d 1114, 1115 n.7
(Pa. 1985).
              The order of the Board is affirmed.

                                     __________ ___________________________
                                     JAMES GARDNER COLINS, Senior Judge




                                          7
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Heath N. Rodriguez,                   :
                                      :
                  Petitioner          :
                                      :
            v.                        : No. 1464 C.D. 2013
                                      :
Pennsylvania Board of                 :
Probation and Parole,                 :
                                      :
                  Respondent          :



                                   ORDER


            AND NOW, this 25th day of July, 2014, the order of the Pennsylvania
Board of Probation and Parole in the above-captioned matter is AFFIRMED.



                                  __________ ___________________________
                                  JAMES GARDNER COLINS, Senior Judge
