            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


William L. Blake,                                :
                       Petitioner                :
                                                 :
               v.                                :
                                                 :
Pennsylvania Board of                            :
Probation and Parole,                            :    No. 1461 C.D. 2018
                  Respondent                     :    Submitted: March 22, 2019



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


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                               FILED: July 1, 2019

               William L. Blake (Blake) petitions for review from the September 6,
2018 decision of the Pennsylvania Board of Probation and Parole (Board) denying
Blake’s request for administrative relief that challenged the Board’s recalculation of
his parole violation maximum date.1 We affirm.
               On June 27, 2013, the Board released Blake on parole from a state
correctional institution after serving time on his 1-year 6-month to 5-year sentence
resulting from his convictions for false identification to law enforcement authorities,
reckless endangerment, and fleeing or attempting to elude an officer. Certified

       1
          Although Blake did not file his petition for review with this Court until October 24, 2018,
we note that it was timely. Because the Board’s September 6, 2018 decision addressed to Blake
was returned to the Board as undeliverable, the Board resent that decision to Blake and indicated
that the official mailing date for purposes of filing a petition for review with this Court would be
September 27, 2018. Certified Record (C.R.) at 124.
Record (C.R.) at 1-2. Upon release, Blake had a maximum sentence date of
December 27, 2016. Id. at 5. On May 13, 2016, the police arrested Blake on new
criminal charges. Id. at 14.
                  On May 14, 2016, the Board detained Blake pending disposition of the
new charges.2 C.R. at 12. Blake did not post bail on the new criminal charges. Id.
at 53. On May 3, 2017, Blake pleaded guilty to one count of possession with intent
to distribute and received a sentence of 3 to 6-years’ incarceration at a state
correctional institution. Id. at 35 & 48. On May 18, 2017, the Board issued a
detainer and provided, in part, “[a]lthough [Blake’s] original maximum sentence
date was [December 27, 2016], the maximum sentence is being extended due to a
new conviction. The new maximum sentence will be computed upon recording the
Board’s final action.” Id. at 32. On August 28, 2017, the Board recommitted Blake
as a convicted parole violator to serve 24 months’ backtime and did not award Blake
credit for time spent at liberty on parole. Id. at 77-78. See 61 Pa. C.S. § 6138(a)(2)
& (2.1) (explaining that if the parolee is recommitted as a convicted parole violator,
the parolee shall be given no credit for the time spent at liberty on parole unless the
Board, in its discretion, decides to award the time as provided therein). The Board
calculated Blake’s new parole violation maximum date to January 24, 2021. Id. at
78. Meanwhile, Blake filed a petition for post-conviction relief with the Lehigh
County Court of Common Pleas (trial court) seeking relief on the sentence relating
to his second conviction. Id. at 91.
                  On June 8, 2018, the trial court granted Blake’s petition for post-
conviction relief and vacated its sentencing order of May 3, 2017. C.R. at 105. In
its June 8, 2018 order, the trial court reduced Blake’s sentence to a term of

         2
             The Board declared Blake delinquent for control purposes effective May 13, 2016. C.R.
at 31.
                                                  2
imprisonment in county jail of no more than “two years less a day” followed by five
years of probation, granted Blake immediate parole and ordered that “credit be given
you, as required by law, for all time spent in custody, as a result of these criminal
charges for which the sentence is imposed.” Id. In response to the trial court’s order,
the Board entered an order, mailed June 25, 2018, modifying its August 28, 2017
order to change Blake’s parole eligibility date to June 8, 2020 and his parole
violation maximum sentence date to December 8, 2021. C.R. at 100.
             On June 27, 2018, Blake, pro se, filed an administrative appeal from
the June 25, 2018 Board decision. Id. at 118. In his appeal, Blake asserted, inter
alia, that the Board erred in recalculating his maximum sentence date. Id. On
September 6, 2018, the Board denied Blake’s request for relief, explaining:

             The Board paroled you from a state correctional institution
             on June 27, 2013 with a max sentence date of December
             27, 2016. This means you had a total of 1279 days
             remaining on your sentence at the time of parole . . . . The
             Board did not grant you credit for time at liberty on parole
             in this case. This means you still had 1279 days remaining
             on your sentence based on your recommitment.
             ....
             [T]he Board did not give you any credit for the period you
             were incarcerated from May 14, 2016 to June 8, 2018,
             because you were being held on both the new criminal
             charges and the Board detainer, or just the new criminal
             charges during this period. . . . This time was credited
             toward your new county sentence. . . . [Y]ou could not
             become eligible to commence service of your original
             sentence until you were released from your new sentence.
             This did not occur until you were resentenced and
             immediately paroled on June 8, 2018. Adding 1279 days
             to that date yields a new maximum sentence date of
             December 8, 2021.
C.R. at 121-22. Blake petitions this Court for review.

                                          3
             Before this Court, Blake asserts that the Board erred in recalculating his
maximum sentence date because the Board failed to give him credit for “time
served.” Blake’s Brief at 20. Specifically, Blake contends that the Board did not
give him credit for 354 days that he served from May 14, 2016 (when the Board
detained him on the new criminal charges) until May 3, 2017 (when Blake pleaded
guilty to the new charge). Id. To support his assertion that he is entitled to credit
for this time, Blake relies on Section 9760(1) of the Pennsylvania Sentencing Code,
which provides:

             Credit against the maximum term and any minimum term
             shall be given to the defendant for all time spent in custody
             as a result of the criminal charge for which a prison
             sentence is imposed or as a result of the conduct on which
             such a charge is based. Credit shall include credit for time
             spent in custody prior to trial, during trial, pending
             sentence, and pending the resolution of an appeal.

42 Pa.C.S. § 9760(1) (emphasis added). Relying on this provision, Blake asserts
that the trial court intended to credit him with the 354 days he spent in custody from
May 14, 2016 through May 3, 2017 toward the “original sentence.” Blake’s Brief
at 22. But, Blake’s assertion is incorrect. The trial court in its June 8, 2018
sentencing order provided that “credit be given you, as required by law, for all time
spent in custody, as a result of these criminal charges for which sentence is being
imposed.” C.R. at 108 (emphasis added). The trial court properly gave Blake credit
for time spent in custody awaiting disposition on his new criminal charges against
his sentence on his new criminal conviction.            See 42 Pa.C.S. § 9760(1);
Commonwealth v. Mann, 957 A.2d 746, 748 (Pa. Super. 2008) (holding that the
sentencing court must include credit for time served in its order imposing the


                                          4
sentence for the new offense, as the Board is without jurisdiction to apply credit
when it is omitted from a sentencing order).
             Further, the Board did not err by refusing to credit Blake’s original
sentence for time Blake served awaiting disposition on the new criminal charge. The
Board detained Blake on May 14, 2016, after his arrest on the new charges, and held
him in custody. C.R. at 12 & 14. Blake failed to post bail and, therefore, Blake
remained in custody on the new criminal charges until May 3, 2017, the day he
pleaded guilty to the new crime and received his new sentence. Id. at 48. Due to
Blake’s failure to post bail, the 354 days he spent in custody from May 14, 2016
through May 3, 2017 on the new criminal charges must be credited to his new
sentence. See Gaito v. Pa. Bd. of Prob. & Parole, 412 A.2d 568, 571 (Pa. 1980)
(holding that if a parolee remains incarcerated 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”); see also Hardy v. Pa. Bd. of Prob. & Parole, 487
A.2d 99, 100 (Pa. Cmwlth. 1985) (explaining that if a parolee remains incarcerated
prior to trial because he failed to satisfy bail requirements on new criminal charges,
the time spent in custody should be credited to the new sentence) (citing Rivera v.
Pa. Bd. of Prob. & Parole, 470 A.2d 1088, 1091 (Pa. Cmwlth. 1984)). As a result,
Blake is not entitled to credit towards his original sentence for the 354 days he spent
in custody pre-trial and awaiting sentencing on the new criminal charges, and
therefore, the Board did not err in its recalculation of Blake’s maximum sentence
date.
             Accordingly, we affirm.


                                        __________________________________
                                        CHRISTINE FIZZANO CANNON, Judge

                                          5
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


William L. Blake,                     :
                    Petitioner        :
                                      :
            v.                        :
                                      :
Pennsylvania Board of                 :
Probation and Parole,                 :   No. 1461 C.D. 2018
                  Respondent          :


                                  ORDER


            AND NOW, this 1st day of July, 2019, the September 6, 2018 decision
of the Pennsylvania Board of Probation and Parole is AFFIRMED.



                                    __________________________________
                                    CHRISTINE FIZZANO CANNON, Judge
