          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Gregory Harvey,                      :
                                     :
                          Petitioner :
                                     :
                   v.                : No. 1375 C.D. 2017
                                     : Submitted: July 27, 2018
Pennsylvania Board of                :
Probation and Parole,                :
                                     :
                          Respondent :

BEFORE:      HONORABLE ANNE E. COVEY, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE WOJCIK                                      FILED: September 7, 2018


             Gregory Harvey (Harvey) petitions for review of an order of the
Pennsylvania Board of Probation and Parole (Board) that denied his administrative
appeal from a parole revocation decision, which recommitted him as a convicted
parole violator to serve 30 months of backtime. Harvey contends that the Board
improperly extended his judicially-imposed maximum release date, failed to
properly allocate credit for time served on his parole detainer, and abused its
discretion by failing to reconsider its revocation decision in light of an overturned
conviction. Discerning no error, we affirm.
                                  I. Background
             In February 2009, the Court of Common Pleas of Philadelphia County
(trial court) found Harvey guilty of two counts of drug - manufacture/sale/deliver or
possession with intent to deliver (PWID) and one count of engaging in criminal
conspiracy. Certified Record (C.R.) at 1. The trial court sentenced Harvey to a term
of 2 years and 3 months to 6 years. C.R. at 1. Harvey’s maximum sentence date
was February 17, 2015. C.R. at 1.
             On May 24, 2011, the Board released Harvey on parole subject to
conditions. C.R. at 4, 69. On June 26, 2014, while on parole, Harvey was arrested
and charged with PWID, conspiracy, prohibited possession of a firearm, possession
of a controlled substance by person not regulated, possession of an instrument of a
crime with intent, and criminal use of a communication facility. C.R. at 11-15, 18.
             On June 27, 2014, the Board issued a warrant to commit and detain
Harvey based on the new criminal charges. C.R. at 16. The Board charged Harvey
with violating his parole by having new criminal charges pending. C.R. at 26.
Harvey waived his rights to a detention hearing and representation by counsel. C.R.
at 27.
             On August 21, 2014, the trial court changed the bail on the new criminal
charges from $350,000 at 10 percent to “ROR” (release on his own recognizance).
C.R. at 18. From this date forward, Harvey was detained solely on the Board’s
warrant.
             On February 17, 2015, Harvey reached his maximum sentence date,
and the Board released him on parole.         C.R. at 70.    The Board issued an
administrative action declaring Harvey delinquent for control purposes based on the
pending criminal charges. C.R. at 49.


                                         2
               In December 2015, the trial court convicted Harvey of PWID,
conspiracy for the same conduct, possession of an instrument of a crime, and
criminal use of a communication facility. C.R. at 35-36. In response, the Board
lodged a warrant to commit and detain Harvey noting: “Although [the] offender’s
original maximum sentence was 02/17/2015, the maximum sentence is being
extended due to a new conviction. The new maximum sentence will be computed
upon recording of the Board’s final action.” C.R. at 50.
               In February 2016, the trial court sentenced Harvey to a term of 2½ to 5
years on the new charges, followed by 5 years of probation. C.R. at 35-36. Harvey
returned to state custody, pending resolution of his status as a convicted parole
violator. C.R. at 59, 70.
               The Board provided Harvey with notice of charges and a hearing date
regarding his parole violation. Harvey signed waivers of his rights to a revocation
hearing and to counsel, and admitted to having been convicted of the new criminal
charges. C.R. at 56-58. By revocation decision dated May 3, 2016,1 the Board
recommitted Harvey as a convicted parole violator, with no credit for time spent at
liberty on parole, to serve 30 months’ backtime based on the new convictions. C.R.
at 59-66. The Board calculated a new maximum sentence date of August 1, 2019,




       1
         The revocation decision was recorded on May 6, 2016, and mailed on June 8, 2016.
However, May 3, 2016, is the date on which the Board obtained the second signature from a panel
member necessary to recommit Harvey as a convicted parole violator and is the date used as his
custody for return date for calculation purposes. C.R. at 66, 69; see Wilson v. Pennsylvania Board
of Probation and Parole, 124 A.3d 767, 769 (Pa. Cmwlth. 2015) (backtime is computed from the
date the Board obtained the necessary signatures to recommit the parolee); see also Campbell v.
Pennsylvania Board of Probation and Parole, 409 A.2d 980, 982 (Pa. Cmwlth. 1980) (service of
backtime on the old sentence must be computed from and begin on the date the Board revoked
parole).
                                                3
which included credit for 180 days of confinement spent on the Board’s detainer.
C.R. at 1-3, 67-69.
               Harvey, representing himself, filed an administrative appeal
challenging the imposition of backtime based on the possession of an instrument of
a crime conviction, which he appealed, and seeking relief and reconsideration of the
30 months’ backtime imposed. C.R. at 71. In support, Harvey sent several letters
to the Board regarding the status of his criminal appeal. C.R. at 74-81, 83-90, 92-
96. In the latter correspondence, Harvey relayed that the Pennsylvania Superior
Court overturned the possession of an instrument of a crime conviction and
remanded the case to the trial court for resentencing.                  C.R. at 92, 94; see
Commonwealth v. Harvey (Pa. Super., No. 705 EDA 2016, filed March 29, 2017).
Harvey asked the Board whether the outcome in his criminal appeal would affect his
administrative appeal with the Board. C.R. at 92, 94.
               By decision dated September 20, 2017, the Board affirmed its
revocation decision explaining that Harvey waived his right to a revocation hearing
and admitted to the new convictions, including the possession of an instrument of a
crime. C.R. at 97.
               From this decision, Harvey filed a pro se petition for review with this
Court.2 This Court appointed the Public Defender of Montgomery County to
represent Harvey in his appeal.




       2
         Our 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. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Smith
v. Pennsylvania Board of Probation and Parole, 171 A.3d 759, 764 (Pa. 2017).
                                                4
                                        II. Issues
             In his counseled petition, Harvey presents three claims. First, Harvey
asserts that the Board improperly extended his judicially-imposed maximum release
date to August 1, 2019. Second, he claims that the Board failed to properly allocate
credit for time served on his parole detainer. Third, he contends that the Board
abused its discretion by failing to reconsider its revocation decision based upon his
overturned criminal conviction.


                                III. Discussion
                           A. Maximum Sentence Date
             First, Harvey contends that the Board improperly recalculated his
judicially-imposed maximum release date to August 1, 2019. Harvey argues that the
Board does not have jurisdiction to impose additional backtime and alter his
judicially-imposed original maximum release date. He claims his unexpired term of
3 years, 2 months and 28 days exceeds the maximum term of his judicially-fixed
sentence. According to Harvey, any extension of prison time beyond the judicially-
imposed termination date of February 17, 2015, constitutes a violation of his liberty
interests without due process of law.
             Due process is satisfied as long as the statute utilized by the Board
contains “reasonable standards to guide the prospective conduct.” Commonwealth
v. Mikulan, 470 A.2d 1339, 1343 (Pa. Cmwlth. 1983) (quoting Commonwealth v.
Heinbaugh, 354 A.2d 244, 246 (Pa. 1976)). Section 6138(a)(1) of 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 the parolee is recommitted as a convicted parole violator, he must

                                            5
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); Armbruster v.
Pennsylvania Board of Probation and Parole, 919 A.2d 348, 351 (Pa. Cmwlth.
2007).
             When computing the time yet to be served on the original sentence,
time spent at liberty on parole is added to the original maximum expiration date to
create a new maximum expiry. Armbruster, 919 A.2d at 351. However, the Board
cannot require a convicted parole violator to serve more than the remaining balance
of his unexpired sentence. 61 Pa. C.S. §6138(a)(2); Savage v. Pennsylvania Board
of Probation and Parole, 761 A.2d 643, 645 (Pa. Cmwlth. 2000); McCauley v.
Pennsylvania Board of Probation and Parole, 510 A.2d 877, 879 n.8 (Pa. Cmwlth.
1986). In other words, the Board cannot extend the “duration of the sentence.”
Commonwealth ex rel. Banks v. Cain, 28 A.2d 897, 901 (Pa. 1942). “The fixing of
the term of the sentence is exclusively a judicial function.” Id. Therefore, the Board
cannot impose backtime that exceeds the entire remaining balance of the parolee’s
unexpired term. Id.; Hall v. Pennsylvania Board of Probation and Parole, 733 A.2d
19, 23 (Pa. Cmwlth.), appeal denied, 794 A.2d 364 (Pa. 1999); Davenport v.
Pennsylvania Board of Probation and Parole, 656 A.2d 581, 583-84 (Pa.
Cmwlth.1995); McCauley, 510 A.2d at 879 n.8.
             “There is no doubt that the Board can recommit and recompute the
sentence of a parolee who commits a crime while on parole but is not convicted until
after his original sentence would have expired.” Young v. Pennsylvania Board of
Probation and Parole, 409 A.2d 843, 848 (Pa. 1979) (quoting Kuykendall v.
Pennsylvania Board of Probation and Parole, 363 A.2d 866, 868 (Pa. Cmwlth.


                                          6
1976)). Such authority does not usurp the court’s sentencing function or violate a
parolee’s due process rights. Young, 409 A.2d at 846-47. As our Supreme Court
has explained:

              A parole, . . . , does not obliterate the crime or forgive the
              offender. It is not an act of clemency, but a penological
              measure for the disciplinary treatment of prisoners who
              seem capable of rehabilitation outside of prison walls. It
              does not set aside or affect the sentence, . . . .

Id. at 847 (quoting Banks, 28 A.2d at 899) (emphasis omitted).
              Here, at the time of Harvey’s parole, 1365 days (3 years, 2 months and
28 days) remained on his original sentence.3 C.R. at 69. Based on his new criminal
convictions, the Board voted to recommit Harvey as a convicted parole violator on
May 3, 2016. C.R. at 59-66. The Board chose not to award credit for time spent at
liberty on parole based on Harvey’s extensive history of illegal drug involvement
and his new criminal convictions. C.R. at 61, 66. The Board credited Harvey with
180 days for the time he spent solely on the Board’s detainer after the trial court
removed the bond requirement (February 17, 2015 – August 21, 2014 = 180 days).
As a result, Harvey owed 1185 days on his original sentence (1365 – 180 = 1185).
Adding 1185 days to his May 3, 2016 recommitment date resulted in a new
maximum expiration date of August 1, 2019. Moreover, Harvey’s unexpired term
exceeds the 30 months’ backtime imposed by the Board. Upon review, the Board
did not err in its calculation.
              Insofar as Harvey objects to the fact that the new maximum expiration
date, August 1, 2019, is beyond the expiration of his original maximum sentence
date of February 17, 2015, this argument is specious. It is the length or duration of

       3
         This is the time between May 11, 2011, his release date, and February 17, 2015, his
original maximum sentence date.
                                             7
the maximum sentence that controls, not the date. Banks. While the Board may not
alter the duration of a judicially-imposed sentence, it may recommit the parolee to
serve the remainder of his original sentence and recalculate the date of his maximum
sentence accordingly. Young. Although the new maximum sentence date of August
1, 2019, is beyond the expiration of Harvey’s original maximum release date, the
Board did not extend or otherwise alter the duration of his original sentence. The
Board merely directed completion of the original judicially-imposed sentence. We,
therefore, conclude that the Board acted within its authority and did not err in this
regard.

                             B. Credit for Time Served
             Next, Harvey contends that the Board erred or abused its discretion by
not crediting him for time spent in good standing on parole and by failing to properly
allocate credit for time served on his parole detainers.
             Section 6138(a)(2) of the Parole Code, which governs the revocation of
parole and the subsequent computation of a convicted parole violator’s remaining
sentence, states no credit “shall be given . . . for the time at liberty on parole.”
61 Pa. C.S. §6138(a)(2). The Board “may, in its discretion award credit” to a
convicted parole violator for time spent at liberty on parole unless the offender is
convicted of certain specified offenses. 61 Pa. C.S. §6138(a)(2.1). These offenses
include:

             (i) The crime committed during the period of parole or
             while delinquent on parole is a crime of violence as
             defined in 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).


                                          8
             (ii) The parolee was recommitted under section 6143
             (relating to early parole of inmates subject to Federal
             removal order).

61 Pa. C.S. §6138(a)(2.1)(i), (ii).
             When the offense does not fall within one of the enumerated
exceptions, the Board must conduct an individual assessment of the facts and
circumstances surrounding his parole revocation. Pittman v. Pennsylvania Board of
Probation and Parole, 159 A.3d 466, 474 (Pa. 2017). “[T]he Board must articulate
the basis for its decision to grant or deny . . . credit for time served at liberty on
parole.”   Id.   Failure to provide a reason constitutes an abuse of discretion
necessitating a remand. Id.
             In this case, Harvey was not recommitted for reasons enumerated in
Subsections 6138(a)(2.1)(i) and (ii).      Indeed, the Board concedes that “[t]he
conviction for which the Board recommitted Harvey is not among the offenses that
would automatically prohibit him from receiving credit for time at liberty on parole.”
Respondent’s Brief at 17 (emphasis added). Nevertheless, the Board denied credit.
In so doing, the Board provided a contemporaneous statement of reasons for the
denial. C.R. at 66. Specifically, the Board cited Harvey’s extensive history of illegal
drug involvement and the fact that Harvey was convicted of the new charges, which
he committed while on parole, subsequent to what would have been the natural
maximum date of his original sentence. C.R. at 66. The Board’s reason is sufficient
to deny Harvey credit for time served at liberty on parole. See Pittman. Thus, we
conclude that the Board did not err or abuse its discretion in this regard.
             With regard to allocation of time served on the Board’s detainers, we
likewise discern no error. “[W]here an offender is incarcerated on both a Board
detainer and new criminal charges, all time spent in confinement must be credited to

                                          9
either the new sentence or the original sentence.” Martin v. Pennsylvania Board of
Probation and Parole, 840 A.2d 299, 309 (Pa. 2003); accord Gaito v. Pennsylvania
Board of Probation and Parole, 412 A.2d 568, 571 n.6 (Pa. 1980); see Smith v.
Pennsylvania Board of Probation and Parole, 171 A.3d 759, 769 (Pa. 2017)
(holding Martin and Gaito remain the rule in this Commonwealth for how credit is
applied). As our Supreme Court held in Gaito:

             [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.

412 A.2d at 571.
             On June 26, 2014, Harvey was arrested on new criminal charges. As a
result of his arrest, the Board issued a warrant to commit and detain Harvey. Because
Harvey did not post bail, the time served was applied to his new sentence, not to his
original sentence. Once the trial court released Harvey on his own recognizance on
August 21, 2014, Harvey remained in custody solely on the Board’s detainer until
the expiration of his original maximum sentence date of February 17, 2015. The
Board properly credited this period of detention, 180 days, to the unexpired term on
Harvey’s original sentence. C.R. at 69. Thus, we conclude that the Board properly
credited the time served on the Board’s detainer.

                       C. Effect of Overturned Conviction
             Lastly, Harvey claims that the Board erred or abused its discretion by
refusing to investigate the current status of his convictions or reconsider its

                                         10
determination based on changes in both his criminal convictions and sentences.
Harvey asserts that the Board’s failure in this regard constitutes a denial of his
constitutional right to due process by taking away his right to liberty without first
conducting a hearing.
             “This [C]ourt will not interfere with the Board’s discretion where the
parole violations are supported by substantial evidence and the amount of backtime
imposed . . . is within the applicable presumptive range.” Davis v. Pennsylvania
Board of Probation and Parole, 841 A.2d 148, 151-52 (Pa. Cmwlth. 2004) (footnote
omitted).   Indeed, “[a]s long as the period of recommitment is within the
presumptive range for the violation, the Commonwealth Court will not entertain
challenges to the propriety of the term of recommitment.” Smith v. Pennsylvania
Board of Probation and Parole, 574 A.2d 558, 560 (Pa. 1990).
             As to the applicable presumptive ranges at issue here, the Board’s
regulation states:

             If the Board orders the recommitment of a parolee as a
             convicted parole violator, the parolee shall be recommitted
             to serve an additional part of the term which the parolee
             would have been compelled to serve had he not been
             paroled, in accordance with the following presumptive
             ranges:


              Offense Categories                          Presumptive
                                                          Ranges
                                         ****
              Criminal Mischief:
                     Felony of the Third Degree           6 months to
                                                          12 months


                                           11
                                        ****
             Drug Law Violations:
                 Felony with Statutory Maximum of 15 24 months to
                 years                               36 months
                                        ****
             Possessing Instruments of Crime              6 months to
                                                          12 months


37 Pa. Code §75.2. The Board applied these presumptive ranges to Harvey’s new
convictions as follows:


             Arrest       Convictions / Grading           Presumptive
                                                          Range
                                                          [in months]
             1            PWID (Percocet/Cocaine) / F        24 – 36 M
             2            [Criminal Conspiracy]-PWID /       24 – 36 M
                          F
             3            [Possessing Instruments    of       6 – 12 M
                          Crime] / M1
             4            Criminal   Use      of      a       6 – 12 M
                          Communications Facility / F3


C.R. at 61; see C.R. at 35-36. The new convictions carried a range of 24 to 96
months. C.R. at 61.
            The Board recommitted Harvey to serve 30 months’ backtime based on
all four convictions. Shortly thereafter, Harvey succeeded in having his possession
of an instrument of a crime conviction overturned, and he requested the Board to



                                         12
recalculate his backtime on this basis. C.R. at 94. The Board affirmed the imposition
of 30 months. C.R. at 97.
             Upon review, the reversal of the conviction of possession of an
instrument of a crime does not entitle Harvey to a reduction in backtime. Harvey’s
backtime penalty of 30 months is within the 24-36 months’ presumptive range
applicable to two of the three admittedly valid convictions remaining (PWID and
criminal conspiracy). See Kyte v. Pennsylvania Board of Probation and Parole, 680
A.2d 14, 18 (Pa. Cmwlth. 1996) (remand not necessary where one parole violation
is set aside provided the recommitment period falls within the presumptive range for
the admitted violations); Lawson v. Pennsylvania Board of Probation and Parole,
524 A.2d 1053, 1057 (Pa. Cmwlth. 1987) (same); cf. Harper v. Pennsylvania Board
of Probation and Parole, 520 A.2d 518, 523-24 (Pa. Cmwlth.), appeal denied, 531
A.2d 432 (Pa. 1987) (remand necessary where backtime for the remaining parole
violations exceeded the presumptive range).           Consequently, there is no
corresponding reduction owed to Harvey with regard to backtime. Thus, we will not
disturb the Board’s decision affirming the imposition of 30 months’ backtime.
             Accordingly, we affirm.




                                       MICHAEL H. WOJCIK, Judge




                                         13
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Gregory Harvey,                    :
                                   :
                        Petitioner :
                                   :
                  v.               : No. 1375 C.D. 2017
                                   :
Pennsylvania Board of              :
Probation and Parole,              :
                                   :
                        Respondent :


                                 ORDER


           AND NOW, this 7th day of September, 2018, the order of the
Pennsylvania Board of Probation and Parole, dated September 20, 2017, is
AFFIRMED.



                                   __________________________________
                                   MICHAEL H. WOJCIK, Judge
