            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Tyrell Williams,                             :
                     Petitioner              :
                                             :
                     v.                      :    No. 398 C.D. 2015
                                             :    Submitted: December 18, 2015
Pennsylvania Board of Probation              :
and Parole,                                  :
                 Respondent                  :


BEFORE:       HONORABLE DAN PELLEGRINI, President Judge1
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                              FILED: March 7, 2016

              Tyrell Williams (Inmate) petitions this Court, pro se, for review of a
determination of the Pennsylvania Board of Probation and Parole (Board) that
denied his administrative appeal of a Board order that recommitted him as a
convicted parole violator to serve backtime. Finding no error, we affirm.
              In 2008, Inmate was sentenced to a term of 1 year and 8 months to 5
years of incarceration on convictions for violation of a prior probation and for
Drug Manufacture, Sale, Delivery or Possession with the Intent to Distribute.
(Supplemental Certified Record (R.) at 1, 5/7/08 Sentence Status Summary.) The
original maximum date for this sentence was July 8, 2012. (Id.; R. at 73-74, Parole


1
  This case was assigned to the opinion writer on or before December 31, 2015, when President
Judge Pellegrini assumed the status of senior judge.
Revocation Hearing Transcript (H.T.) at 5-6.) On April 5, 2010, Inmate was
released on parole. (R. at 17, Order to Release on Parole; R. at 74, H.T. at 6.) On
April 1, 2010, prior to his release on parole, Inmate signed conditions governing
his parole.     (R. at 12-15, Conditions Governing Parole/Reparole.)              Those
conditions of parole specifically advised Inmate that:

              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.
(R. at 12, Conditions Governing Parole/Reparole ¶7.) At the time of his release,
Inmate had 2 years, 3 months, and 3 days remaining on his original sentence. (R.
at 17, Order to Release on Parole.)
              On October 29, 2012, Inmate was arrested by the Williamsport Police
Department and charged with Robbery, Criminal Conspiracy, Theft by Unlawful
Taking, and Simple Assault for acts committed on January 6, 2012, before his
parole ended on July 8, 2012. (R. at 21, Criminal Arrest and Disposition Report;
R. at 26, 31, Criminal Docket; R. at 75, H.T. at 7.) Inmate was held on those
charges in the Lycoming County Prison from November 4, 2012, when bail was set
at $175,000 and he did not post bail. (R. at 21, Criminal Arrest and Disposition
Report; R. at 26-27, Criminal Docket.) In October 2013, Inmate was convicted in
the Court of Common Pleas of Lycoming County of Robbery, Theft by Unlawful
Taking, and Simple Assault. (R. at 22, Criminal Arrest and Disposition Report; R.
at 32, 36, Criminal Docket.) Inmate was sentenced on March 27, 2014, to a term
of 6 to 12 years of incarceration followed by a consecutive 8 year term of
probation. (R. at 23-25, Sentencing Order; R. at 32, Criminal Docket.)



                                           2
              On August 9, 2014, the Board notified Inmate that it intended to hold
a parole revocation hearing based on his conviction on the new charges, and a
revocation hearing was held on August 27, 2014. (R. at 55, Notice of Charges and
Hearing; R. at 69-84, H.T.) Following that hearing, based on Inmate’s conviction
and its conclusion that he was a threat to the safety of the community, the Board
ordered Inmate recommitted as a convicted parole violator to serve the time
remaining on his original sentence at the time of his 2010 parole, with no credit for
his time at liberty on parole. (R. at 61-68, Hearing Report; R. at 86-87, Order to
Recommit.) In its Order to Recommit, the Board recalculated Inmate’s maximum
sentence date to December 28, 2016. (R. 86, Order to Recommit.) This new
maximum sentence date was based on the fact that Inmate had 2 years, 3 months,
and 3 days remaining on his original sentence and the determination that Inmate
became available to serve that backtime on September 25, 2014.                     (Id.)   On
December 4, 2014, the Board mailed Inmate notice of its decision recommitting
him as a convicted parole violator to serve his unexpired term and changing his
new maximum sentence date to December 28, 2016. (R. at 88-89, Notice of Board
Decision.) Inmate, on December 29, 2014, filed an administrative appeal from this
decision, which the Board denied on March 11, 2015. (R. at 90-95, Request for
Administrative Remedy; R. at 97-98, Board Decision.) Inmate thereafter timely
filed this petition for review of the Board’s decision.
              On appeal,2 Inmate asserts two arguments: 1) that the Board could not
recommit him because his original maximum sentence had expired before he was
charged with and convicted of the new crimes; and 2) that the Board’s


2
  Our review is limited to determining whether constitutional rights were violated, whether the
adjudication was in accordance with law, and whether necessary findings were supported by
substantial evidence. Miskovitch v. Pennsylvania Board of Probation and Parole, 77 A.3d 66,
70 n.4 (Pa. Cmwlth. 2013).
                                              3
recalculation of his maximum sentence date constituted an illegal extension of his
original judicially imposed sentence. Neither of these arguments is meritorious.
            It is well settled that the Board has jurisdiction to recommit a parolee,
after his maximum sentence date, for crimes committed while he was still on
parole, even if he was not charged with and convicted of those crimes until after
his maximum sentence expired.         61 Pa. C.S. § 6138(a)(1); Miskovitch v.
Pennsylvania Board of Probation and Parole, 77 A.3d 66, 73-74 (Pa. Cmwlth.
2013); Reavis v. Pennsylvania Board of Probation and Parole, 909 A.2d 28, 34
(Pa. Cmwlth. 2006); Adams v. Pennsylvania Board of Probation and Parole, 885
A.2d 1121, 1124 (Pa. Cmwlth. 2005). Section 6138(a)(1) of the Prisons and Parole
Code permits the Board to recommit as a convicted parole violator any parolee

            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 ....

61 Pa. C.S. § 6138(a)(1) (emphasis added). The critical issue is thus not when the
parolee was charged with the crime or convicted, but whether he committed the
crime for which he was ultimately convicted before his parole ended. Adams, 885
A.2d at 1124 & n.6 (interpreting substantially identical language in prior statute,
Section 21.1 of Parole Act, Act of August 6, 1941, P.L. 861, added by Act of
August 24, 1951, P.L. 1401, formerly, 61 P.S. § 331.21a, repealed by Act of
August 11, 2009, P.L. 147). Because the crimes for which Inmate was convicted
were committed on January 6, 2012, before the July 8, 2012 expiration of his
maximum sentence date, the fact that he was not charged or convicted until after
July 8, 2012 is irrelevant, and the Board did not err in recommitting Inmate as a
convicted parole violator. Miskovitch, 77 A.3d at 73-74 (upholding recommitment

                                         4
where crime was committed before maximum sentence date even though parolee
did not plead guilty to crime until more than a year and one half after original
sentence expired); Reavis, 909 A.2d at 31-32, 34 (upholding recommitment
following 2003 guilty plea, even though maximum sentence date expired in 1993,
because crime to which parolee pleaded guilty was committed in 1990); Adams,
885 A.2d at 1122, 1124 & n.6 (upholding recommitment because crime was
committed before expiration of maximum sentence date, notwithstanding fact that
parolee was charged with the crime nearly three months after maximum sentence
date expired).
               Inmate’s second argument is equally invalid. The Board’s extension
of Inmate’s maximum sentence date based on the length of time that he was at
liberty on parole does not alter his judicially imposed sentence; rather, it merely
requires him to serve his full original sentence. Young v. Pennsylvania Board of
Probation and Parole, 409 A.2d 843, 845-48 (Pa. 1979); Ohodnicki v.
Pennsylvania Board of Parole, 211 A.2d 433, 435 (Pa. 1965); Davidson v.
Pennsylvania Board of Probation and Parole, 33 A.3d 682, 685-86 (Pa. Cmwlth.
2011). Time spent at liberty on parole does not constitute service of a sentence of
incarceration. Young, 409 A.2d at 846 (“Mere lapse of time without imprisonment
. . . does not constitute service of sentence”) (quoting Anderson v. Corall, 263 U.S.
193 (1923)).
               Under the Prisons and Parole Code, a recommitted parolee must serve
the remainder of his term that he had not yet served at the time of his parole unless
the Board exercises discretion to award credit for time spent at liberty on parole.
61 Pa. C.S. § 6138(a)(2), (2.1). Here, the Board acted within its discretion in
declining to award Inmate credit for the time that he spent at liberty on parole, and
the backtime that it added to his maximum sentence date consists only of the 2

                                         5
years, 3 months, and 3 days of his original sentence that he never served. Inmate’s
reliance on McCauley v. Pennsylvania Board of Probation and Parole, 510 A.2d
877 (Pa. Cmwlth. 1986), is therefore misplaced. In McCauley, this Court held that
the Board could not require an inmate to serve backtime that would exceed the
time remaining on his unexpired sentence. McCauley, 510 A.2d at 879 n.8. In this
case, the backtime did not exceed the remainder of Inmate’s unexpired sentence.
            For the foregoing reasons, we affirm the Board.



                                    __________ ___________________________
                                    JAMES GARDNER COLINS, Senior Judge




                                        6
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Tyrell Williams,                     :
                   Petitioner        :
                                     :
                   v.                :   No. 398 C.D. 2015
                                     :
Pennsylvania Board of Probation      :
and Parole,                          :
                 Respondent          :



                                  ORDER


            AND NOW, this 7th day of March, 2016, the order of the
Pennsylvania Board of Probation and Parole in the above-captioned matter is
AFFIRMED.



                                  __________ ___________________________
                                  JAMES GARDNER COLINS, Senior Judge
