               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Rodney McClinton,                         :
                          Petitioner      :
                                          :
                    v.                    :
                                          :
Pennsylvania Board of                     :
Probation and Parole,                     :    No. 1287 C.D. 2018
                          Respondent      :    Submitted: March 8, 2019

BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                    FILED: May 29, 2019

              Rodney McClinton (McClinton) petitions this Court for review of the
Pennsylvania Board of Probation and Parole’s (Board) April 26, 2018 order denying
his request for administrative relief. McClinton presents one issue for this Court’s
review: whether the Board properly awarded him credit for the time he served
exclusively under the Board’s warrant. After review, we affirm.
             McClinton was serving a 9-month to 3-year sentence for simple assault
and resisting arrest (Original Sentence) at the State Correctional Institution (SCI) at
Waymart.1 See Certified Record (C.R.) at 4-10. On May 25, 2016, the Board voted
to parole McClinton and he was released on July 5, 2016. See C.R. at 7. At that
time, McClinton’s Original Sentence maximum release date was October 28, 2017.
See C.R. at 4. Thus, he had 480 days remaining to be served on his Original
Sentence. See C.R. at 67.



      1
         McClinton is currently incarcerated at SCI-Mahanoy serving a new sentence on drug
charges for which he pled guilty in 2017. See Certified Record at 12-17.
               McClinton agreed to parole conditions, including:

               If you are arrested on new criminal charges, the Board has
               the authority to lodge a detainer against you which will
               prevent your release from custody, pending disposition of
               those charges, even though you may have posted bail or
               been released on your own recognizance from those
               charges.
               ....
               If 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 which you were serving when
               paroled/reparoled, with no credit for time at liberty on
               parole [(i.e., street time)2].

C.R. at 8.
               On October 19, 2016, a criminal complaint was filed against McClinton
in Lackawanna County, and he was arrested and charged with numerous drug-related
offenses (New Charges). See C.R. at 12-17. On October 20, 2016, McClinton’s bail
on the New Charges was set. See C.R. at 30, 34, 58. However, he was detained in
Lackawanna County Prison pending the disposition of his New Charges because he
did not post bail. See C.R. at 20, 30.
               Also on October 20, 2016, the Board lodged a warrant to commit and
detain McClinton pending the disposition of his New Charges. See C.R. at 18-25.
On October 24, 2016, McClinton waived his rights to counsel and a detention
hearing. See C.R. at 26-27. On November 16, 2016, the second panel member voted




       2
         “Street time” refers to “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).
                                                  2
to accept McClinton’s waivers and detain him pending the disposition of his New
Charges.3 See C.R. at 28-29, 33.
               On August 8, 2017, McClinton pled guilty to one of the New Charges
and was sentenced to 1 to 3 years in prison.4 See C.R. at 36, 39, 42. According to the
Pennsylvania Department of Corrections Moves Report, McClinton was moved from
Lackawanna County Prison to SCI-Graterford on September 6, 2017. See C.R. at 66.
On September 13, 2017, the Board received notice of McClinton’s conviction. See
C.R. at 42, 47. On September 25, 2017, McClinton admitted to being convicted of
his New Charges, and waived his right to a revocation hearing and counsel. See C.R.
at 43-46.
               On October 16, 2017, the second panel member voted to accept
McClinton’s waivers, recommit him as a convicted parole violator (CPV) to serve 21
months’ backtime, and deny him credit for time spent at liberty on parole.5 See C.R.
at 47-54. By decision recorded October 31, 2017 (mailed November 3, 2017), the
Board formally recommitted McClinton to an SCI as a CPV to serve his unexpired
term of 1 year, 3 months and 23 days. See C.R. at 69-70. The Board recalculated
McClinton’s Original Sentence maximum release date to February 8, 2019.6 See C.R.
at 67, 69.



       3
          Section 6113(b) of the Prisons and Parole Code states, in relevant part: “The [B]oard may
make decisions on . . . revocation in panels of two persons. A panel shall consist of one [B]oard
member and one hearing examiner or of two [B]oard members.” 61 Pa.C.S. § 6113(b).
        4
          The other New Charges were nolle prossed. See C.R. at 15, 25.
        5
          The Board’s reasons for denying McClinton street time credit were due to his multiple
prior CPV violations, his supervision history, his inability to adapt to the community, his escalating
pattern of criminality, and his risk to public safety. See C.R. at 54.
        6
          This Court recognizes that, under Taylor v. Pennsylvania Board of Probation & Parole,
746 A.2d 671, 674 (Pa. Cmwlth. 2000) (en banc), “the expiration of a parolee’s maximum term
renders an appeal of a Board revocation order moot.” However, because McClinton is still serving
his sentence on his New Charges and is still under the Board’s supervision, the issues herein effect
his new maximum sentence release date and, thus, are not moot.
                                                  3
              On November 29, 2017, McClinton, through his counsel Kent D.
Watkins, Esquire (Attorney Watkins), submitted an Administrative Remedies Form
challenging the Board’s decision recorded October 31, 2017 (mailed November 3,
2017), claiming that his “[r]ecommitment term is excessive and disproportionate[,”]
and that the it “f[a]iled to give [him] credit for all time served exclusively pursuant to
the [B]oard[’s] warrant.”         C.R. at 71.        On April 26, 2018, the Board denied
McClinton’s request for administrative relief and affirmed the Board’s decision. See
C.R. at 72-73. On September 21, 2018, McClinton appealed to this Court.7
              McClinton argues that the Board failed to award him credit for the time
he served exclusively under the Board’s warrant, including credit for the time after he
was returned to state prison as a CPV. He specifically contends that since he was
returned to SCI-Graterford on September 6, 2017, the 480 days remaining on his
Original Sentence should be calculated from that day, so that his maximum sentence
release date would be December 30, 2018. In the alternative, McClinton asserts that
the 480 days remaining on his Original Sentence should be calculated from when he
admitted to his convictions and waived his right to a hearing on September 25, 2017,
thereby making his maximum sentence release date January 18, 2019.


              Initially,


       7
         “Our scope of review of the Board’s decision denying administrative relief is limited to
determining whether necessary findings of fact are supported by substantial evidence, an error of
law was committed, or constitutional rights have been violated.” Fisher v. Pa. Bd. of Prob. &
Parole, 62 A.3d 1073, 1075 n.1 (Pa. Cmwlth. 2013).
       On September 21, 2018, McClinton filed an application for leave to file a petition for review
nunc pro tunc (Nunc Pro Tunc Petition) with this Court. On September 27, 2018, this Court granted
McClinton’s application for leave to proceed in forma pauperis and his Nunc Pro Tunc Petition. On
October 16, 2018, McClinton filed his petition for review. Despite that Attorney Watkins already
represented McClinton, on October 18, 2018, this Court appointed a Schuylkill County Public
Defender to represent McClinton in this matter. On October 26, 2018, Attorney Watkins entered
his appearance for McClinton as public defender.
                                                 4
                 Section 6138(a)(1) of the Prisons and Parole Code (Parole
                 Code) provides that
                     [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.
                 61 Pa. C.S. § 6138(a)(1). Where the [Board] determines to
                 recommit a parolee as a [CPV],
                     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),[8]
                     shall be given no credit for the time at liberty on
                     parole.
                 61 Pa. C.S. § 6138(a)(2) (emphasis added). Section
                 6138(a)(2.1) of the Parole Code provides that, ‘[t]he
                 [Board] may, in its discretion, award credit to a parolee
                 recommitted . . . for the time spent at liberty on parole,’
                 with [] enumerated exceptions, none of which are
                 applicable in this case. 61 Pa. C.S. § 6138(a)(2.1).

       8
           Section 6138(a)(2.1) of the Parole Code states, in relevant part:
                 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] . . . (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).
61 Pa.C.S. § 6138(a)(2.1). Because the drug-related crimes for which McClinton was convicted
were not crimes of violence included in Section 9714(g) of the Sentencing Code, the Board had the
discretion to award McClinton street time credit, but did not.


                                                    5
Smoak v. Talaber, 193 A.3d 1160, 1163-64 (Pa. Cmwlth. 2018) (footnotes omitted).
            Further, Section 6138(a)(4) of the Parole Code states: “The period of
time for which the 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). Section 6138(a)(5) of the
Parole Code specifies that “[i]f a person is paroled from a[n SCI] and the new
sentence imposed . . . is to be served in [an SCI,]” “the service of the balance of the
term originally imposed by a Pennsylvania court shall precede the commencement of
the new term[.]” 61 Pa.C.S. § 6138(a)(5).
            Here, the Board concluded, in relevant part:

            On October 20, 2016, authorities detained [] [Mc]Clinton
            for [his New Charges] in the Court of Common Pleas of
            Lackawanna County. The trial court set monetary bail. []
            McClinton did not post bail . . . . On August 6, 2017 [sic],
            [] McClinton pled guilty to the [New Charges]. That same
            day, the court sentenced him to a new term of imprisonment
            to be served in a[n SCI] [o]n his [New Charges].

            Based on these facts, the Board did not give [] [Mc]Clinton
            any credit for the period he was incarcerated from October
            20, 2016 to October 16, 2017, because he was confined
            solely on the [New Charges] or the [New Charges] and the
            [B]oard detainer. Gaito v. [Pa.] B[d.] of Prob[.] [&]
            Parole, 412 A.2d 568 (Pa. 1980). This time will be applied
            to his new sentence when it is calculated. This means he
            still had 480 days remaining on his [O]riginal [S]entence at
            the time of his recommitment.

            . . . . McClinton did not become available to commence
            service of his [O]riginal [S]entence until October 16, 2017
            because that is when the Board voted to recommit him as a
            parole violator. Campbell v. [Pa.] B[d.] of Prob[.] [&]
            Parole, 409 A.2d 980 (Pa. [Cmwlth.] 1980). Adding 480




                                            6
              days to that date yields a new maximum sentence date of
              February 8, 2019.[9]

C.R. at 72-73.
              In Wilson v. Pennsylvania Board of Probation & Parole, 124 A.3d 767
(Pa. Cmwlth. 2015), the parolee similarly argued that the Board erred by calculating
his new maximum sentence date from the date the Board obtained the second panel
member’s signature, as opposed to the date he was moved from county prison to SCI-
Graterford. Therein, this Court explained that, regardless of when the parolee was
moved from county prison to state prison, a parolee does not become available to
begin serving his backtime on his original sentence until the Board revokes parole,
which is when the Board obtains the second required signature on the revocation
hearing report.10 See id.; see also Palmer v. Pa. Bd. of Prob. & Parole, 134 A.3d
160, 166 (Pa. Cmwlth. 2016) (“[A] parole violator’s new maximum date is calculated


       9
        The Parole Code was consolidated and became effective on October 13, 2009. This Court
acknowledges that Gaito and Campbell were decided under 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. However, in Hill v. Pennsylvania Board of Probation & Parole, 683 A.2d 699
(Pa. Cmwlth. 1996), this Court clarified:
              This Court, . . . in Campbell . . . , held that where the Board pursuant
              to Section 21.1(a) of the Parole Act recommits a [CPV] to serve the
              balance of an original sentence before beginning service of a new
              term, the prisoner’s service of backtime on the original sentence must
              be computed from the date the Board revokes the prisoner’s parole.
              The Court further noted in Campbell that the time served by the
              prisoner prior to the date parole is revoked must be applied to the new
              sentence.
Hill, 683 A.2d at 701-02. Despite the 2009 enactment of Section 6138 of the Parole Code, this
Court has continued to apply the Campbell Court’s reasoning. See Palmer v. Pa. Bd. of Prob. &
Parole, 134 A.3d 160 (Pa. Cmwlth. 2016); see also Wilson v. Pa. Bd. of Prob. & Parole, 124 A.3d
767 (Pa. Cmwlth. 2015).
        10
           By extension, McClinton’s claim that the 480 days remaining on his Original Sentence
should be calculated from September 25, 2017 (when he admitted to his convictions and waived his
hearing rights), is likewise without merit.
                                                 7
from the date on which the Board obtained the second signature needed to recommit
him as a CPV.”).11

              Here, the Board’s hearing report indicates the hearing
              examiner obtained the second signature for [McClinton’s]
              recommitment on [October 16, 2017]. [See] C.R. at [54].
              As such, [McClinton’s] new maximum expiry must be
              calculated from that date. Wilson; Campbell.

Palmer, 134 A.3d at 166. Accordingly, by adding 480 days to October 16, 2017, the
date the second panel member voted to recommit McClinton, the Board properly
recalculated McClinton’s new Original Sentence maximum release date as February
8, 2019.
              For the above reasons, the Board’s order is affirmed.


                                           ___________________________
                                           ANNE E. COVEY, Judge




       11
           This Court’s Wilson and Palmer decisions, which control when McClinton became
available to serve the backtime on his Original Sentence, belie McClinton’s claim that the law is
outdated or unclear.
                                               8
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Rodney McClinton,                        :
                         Petitioner      :
                                         :
                   v.                    :
                                         :
Pennsylvania Board of                    :
Probation and Parole,                    :   No. 1287 C.D. 2018
                         Respondent      :


                                      ORDER

            AND NOW, this 29th day of May, 2019, the Pennsylvania Board of
Probation and Parole’s April 26, 2018 order is affirmed.


                                      ___________________________
                                      ANNE E. COVEY, Judge
