               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Tracy S. Painter,                              :
                      Petitioner               :
                                               :
              v.                               : No. 1703 C.D. 2019
                                               : Submitted: May 29, 2020
Pennsylvania Board of                          :
Probation and Parole,                          :
                  Respondent                   :


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                              FILED: July 6, 2020
              Tracy S. Painter (Painter) petitions for review of an adjudication of the
Pennsylvania Board of Probation and Parole (Parole Board)1 denying, in part, his
request for administrative relief from its decision to recommit him as a convicted
parole violator. On appeal, Painter argues that he was entitled to credit on his
original sentence for the time he was incarcerated on the Parole Board’s detainer.
For the reasons that follow, we affirm the Parole Board’s adjudication.
              The relevant facts are not in dispute. Painter was serving a sentence of
incarceration for aggravated assault and endangering the welfare of a child (original
sentence). His maximum date of sentence was July 17, 2019. On June 6, 2017,
Painter was paroled.


1
 Following the filing of the petition for review, the Pennsylvania Board of Probation and Parole
was renamed the Pennsylvania Parole Board. See Sections 15 and 16.1 of the Act of December
18, 2019, P.L. 776, No. 115, §§15, 16.1 (effective February 18, 2020); see also Sections 6101 and
6111(a) of the Prisons and Parole Code, as amended, 61 Pa. C.S. §§6101, 6111(a).
               While on parole, Painter absconded from parole supervision. The
Parole Board declared him delinquent effective September 26, 2017. Subsequently,
on October 7, 2017, local authorities observed Painter driving over the center lines
of the road. When they tried to pull him over, Painter kept driving, eventually
veering off the road. Local authorities took Painter into custody. On that same day,
the Parole Board issued a warrant to detain Painter for violations of his parole.2
               Following further investigation, on October 10, 2017, local authorities
filed new criminal charges against Painter for aggravated assault, fleeing or
attempting to elude a police officer, recklessly endangering another person, resisting
arrest or other law enforcement, driving under the influence of alcohol or a
controlled substance, and agricultural trespass. On October 11, 2017, Painter was
arraigned on the new criminal charges. Painter did not post bail and remained
incarcerated on the new criminal charges.
               On August 31, 2018, Painter pled guilty to fleeing or attempting to
elude a police officer and was sentenced to 11½ to 23 months’ incarceration in
county prison (new sentence).3 Painter received credit on his new sentence for the
time spent incarcerated awaiting disposition of the criminal charges, i.e., October 8,
2017, to August 31, 2018, or 327 days. On September 7, 2018, Painter was paroled
from his new sentence.
               By decision recorded November 13, 2018, the Parole Board
recommitted Painter as a convicted parole violator to serve 18 months’ backtime.
The Parole Board determined not to award Painter credit for the time he spent at

2
  Initially, Painter was arrested on the Parole Board’s warrant on October 7, 2017.
3
  Additionally, Painter pled guilty to recklessly endangering another person and resisting arrest
and was sentenced to two years’ probation to be served consecutive to his sentence of
incarceration. Painter also pled guilty to driving under the influence of a high rate of alcohol and
was sentenced to a term of imprisonment of 72 hours to 6 months.
                                                 2
liberty on parole, citing his unresolved drug and alcohol issues. Painter’s new
maximum sentence date was calculated as November 21, 2020.
               Painter filed a request for administrative relief challenging the Parole
Board’s calculation of his maximum sentence date. Painter sought credit for the
following periods of time: (1) June 6, 2017, to September 27, 2017; (2) October 8,
2017, to August 31, 2018; and (3) September 13, 2018, forward.
               On September 16, 2019, the Parole Board modified its November 13,
2018, decision, recalculating Painter’s maximum sentence date to be October 13,
2020.4    Thereafter, on October 31, 2019, the Parole Board modified its prior
decisions recorded on November 13, 2018, and September 16, 2019, and awarded
Painter credit for the time he spent at Alle-Kiski Pavilion, a drug and alcohol
treatment center, from June 6, 2017, to September 26, 2017, or 112 days, resulting
in a new parole violation maximum sentence date of June 23, 2020.
               Then, by decision mailed November 6, 2019, the Parole Board
responded to Painter’s request for administrative relief. The Parole Board explained
that its decision of October 31, 2019, awarded credit to Painter for the time spent at
liberty on parole at Alle-Kiski Pavilion. Additionally, the Parole Board explained
that Painter was not entitled to credit for his pre-sentence incarceration because he
was not incarcerated solely on its detainer. Painter petitioned for this Court’s review.
               On appeal,5 Painter argues that he is entitled to credit towards his
original sentence for his pre-sentence confinement from October 8, 2017, to August


4
  The Parole Board gave Painter credit for a prior period of parole from October 31, 2016, to
December 6, 2016, or 36 days, pursuant to this Court’s decision in Penjuke v. Pennsylvania Board
of Probation and Parole, 203 A.3d 401 (Pa. Cmwlth. 2019), petition for allowance of appeal
denied (Pa., No. 92 EAL 2019, filed March 27, 2020).
5
  This Court’s review determines whether the Parole Board’s adjudication is supported by
substantial evidence, whether an error of law has been committed, or whether constitutional rights
                                                3
31, 2018. He argues that his inability to post bail for financial reasons should not
cause him to have a longer sentence. The Parole Board responds that Painter is not
entitled to credit on his original sentence for this time because he was not
incarcerated solely on its detainer; rather, credit for this time can only be applied to
his county sentence. Thus, its adjudication should be affirmed.
              We begin with a brief review of the law on credit for time served
awaiting disposition of new criminal charges. Generally, if a defendant “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.” Gaito v. Pennsylvania Board of Probation and Parole, 412 A.2d 568,
571 (Pa. 1980). However, “if a defendant is being held in custody solely because of
a detainer lodged by the [Parole] 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.” Id. at 571.
              In Martin v. Pennsylvania Board of Probation and Parole, 840 A.2d
299 (Pa. 2003), the Supreme Court addressed how to apply Gaito to allocate
pre-sentence confinement time when the length of pretrial confinement exceeds the
sentence imposed for the new crimes. It stated that

              where an offender is incarcerated on both a [Parole] Board
              detainer and new criminal charges, all time spent in confinement
              must be credited to either the new sentence or the original
              sentence.

Id. at 309 (footnote omitted). Recently, the Supreme Court confirmed that




have been violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Moroz v.
Pennsylvania Board of Probation and Parole, 660 A.2d 131, 132 (Pa. Cmwlth. 1995).
                                            4
              Gaito remains the general law in this Commonwealth respecting
              how credit should be allocated for a convicted parole violator
              who receives a new sentence of incarceration, and the exception
              to Gaito, … developed in Martin, is limited to cases in which a
              convicted parole violator receives a term of incarceration for new
              charges that is shorter than his pre-sentence confinement, such
              that application of the general Gaito rule would result in excess
              incarceration.

Smith v. Pennsylvania Board of Probation and Parole, 171 A.3d 759, 768-69 (Pa.
2017).
              The Parole Board lodged a detainer against Painter at the time he was
detained on the new criminal charges; he remained incarcerated for those charges
because he did not post bail. Subsequently, Painter was convicted and sentenced.
Because the Parole Board’s detainer was not the sole reason for Painter’s pre-
sentence confinement, that time must be applied to the new sentence.6 Gaito, 412
A.2d at 571; see also Hill v. Pennsylvania Board of Probation and Parole, 683 A.2d
699, 702 (Pa. Cmwlth. 1996) (“[T]ime served by the prisoner prior to the date parole
is revoked must be applied to the new sentence.”).
              Further, Painter received credit on his new sentence for his pre-sentence
confinement time, i.e., from October 8, 2017, to August 31, 2018. This Court has
held “time credit on a sentence may be granted only when it has not already been
credited toward another sentence.” Bright v. Pennsylvania Board of Probation and
Parole, 831 A.2d 775, 778 (Pa. Cmwlth. 2003); see also Commonwealth v. Merigris,
681 A.2d 194, 195 (Pa. Super. 1996) (“The operative rule … is that a defendant
should receive credit only once for time served before sentencing.”). Because


6
 Painter was detained on the new criminal charges from October 11, 2017, until August 31, 2018,
or 324 days. He was convicted and sentenced to 11½ to 23 months’ incarceration. Since his
sentence was greater than his detention, Martin is inapplicable.
                                              5
Painter has received credit for his pre-sentence confinement time towards his new
sentence, he cannot also receive credit for this time on his original sentence.
             When Painter was paroled on June 6, 2017, his maximum sentence date
was July 17, 2019. Therefore, Painter had 771 days remaining on his original
sentence. In recommitting Painter as a convicted parole violator, the Parole Board
awarded him credit for the 112 days he spent at Alle-Kiski Pavilion. In addition, the
Parole Board gave Painter credit for the time he spent incarcerated solely on the
Board’s detainer, i.e., from October 7, 2017, to October 11, 2017, or 4 days.
Subtracting 116 days from 771 days resulted in Painter having 655 days remaining
on his original sentence. Adding 655 days to September 7, 2018, results in a
maximum sentence date of June 23, 2020. We conclude that the Parole Board
correctly calculated Painter’s parole violation maximum sentence date.
             For these reasons, we affirm the Parole Board’s adjudication.

                                    _____________________________________
                                    MARY HANNAH LEAVITT, President Judge




                                          6
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Tracy S. Painter,                    :
                    Petitioner       :
                                     :
             v.                      : No. 1703 C.D. 2019
                                     :
Pennsylvania Board of                :
Probation and Parole,                :
                  Respondent         :

                                 ORDER

             AND NOW, this 6th day of July, 2020, the adjudication of the
Pennsylvania Board of Probation and Parole, dated November 6, 2019, is
AFFIRMED.
                                 _____________________________________
                                 MARY HANNAH LEAVITT, President Judge
