          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Airrick J. Newton,                         :
                     Petitioner            :
                                           :
             v.                            :
                                           :
Pennsylvania Board of                      :
Probation and Parole,                      :   No. 1360 C.D. 2018
                  Respondent               :   Submitted: February 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 FIZZANO CANNON                        FILED: May 15, 2019

             Airrick J. Newton (Newton) petitions for review of the September 6,
2018 order of the Pennsylvania Board of Probation and Parole (Board) denying his
request for administrative relief that challenged the recalculation of his parole
violation maximum sentence date. Upon review, we affirm.
             On November 12, 2013, the Board released Newton on parole after he
served three years in a state correctional institution (SCI) on his 3- to 6-year sentence
resulting from his robbery conviction. Certified Record (C.R.___) at 6. Upon
release, Newton had a maximum sentence date of November 12, 2016. Id. at 2. On
June 12, 2015, the police arrested Newton, charged him with new crimes, and the
Board detained him pending disposition of his new criminal charges. Id. at 11 & 23.
On August 5, 2016, Newton pleaded guilty to the felonies of aggravated assault and
conspiracy to commit aggravated assault and, on that same day, the Court of
Common Pleas of Chester County (trial court) imposed a new sentence of
incarceration at an SCI.1 Id. at 51. On October 5, 2016, Newton was returned to an
SCI. Id. at 43. Subsequently, Newton waived his panel hearing, retained counsel,
and participated in his revocation hearing. C.R. at 29-31 & 53-66.
               After the revocation hearing, the Board, on February 21, 2017, voted to
revoke Newton’s parole and to recommit him as a convicted parole violator to serve
24 months’ backtime.2 Id. at 46 & 50. By decision mailed March 21, 2017, the
Board notified Newton of its decision to recommit him to an SCI as a convicted
parole violator to serve 24 months’ backtime, indicated that he is not eligible for
parole until February 21, 2019, and recalculated his maximum sentence date to
February 22, 2020. Id. at 82. On March 29, 2017, Newton filed an administrative
remedies form with the Board challenging his recalculated maximum sentence date.
C.R. at 85. The Board, by decision mailed September 6, 2018, denied Newton’s
request for relief, explaining:


               Because you object to your recalculated max date and
               credit applied, your petition is a request for administrative
               review of the board decision recorded March 5, 2017
               (mailed March 21, 2017). Upon review of your case, it
               was determined there is no indication the Board failed to
               appropriately recalculate your maximum date, and your
               request for relief is denied.


       1
          The trial court gave Newton credit for time served between his arrest and guilty plea, that
is, from June 12, 2015 to August 5, 2016. C.R. at 51.
       2
        Backtime is “[t]he unserved part of a prison sentence which a convict would have been
compelled to serve if the convict had not been paroled.” 37 Pa. Code § 61.1.



                                                 2
Id. at 114. Newton petitions this Court for review.3
              Before this Court, Newton contends that the Board erred in
recalculating his maximum sentence date and cites three errors for our consideration.
First, Newton argues that the Board should have given him credit against his original
sentence for the time he spent in custody from the date he was convicted and
sentenced on the new criminal charges, August 5, 2016, through the date he was
returned to an SCI, October 5, 2016. Newton’s Brief at 10. Generally, “the Board
must credit time a parolee spent in custody between the date of conviction for the
new charge and the date the Board recommits him as a [convicted parole] violator .
. . to the new sentence.” Plummer v. Pa. Bd. of Prob. & Parole, 926 A.2d 561, 563
(Pa. Cmwlth. 2007); Campbell v. Pa. Bd. of Prob. & Parole, 409 A.2d 980, 981 (Pa.
Cmwlth. 1980). Here, Newton pleaded guilty and received his new sentence on
August 5, 2016 but the Board did not recommit him as a convicted parole violator
until February 21, 2017. C.R. at 50-51. Thus, the Board must credit the time Newton
spent in custody from August 5, 2016 to February 21, 2017 to the new sentence
rather than the original sentence.
              Second, Newton contends that the Board erred because it used an
incorrect date to commence calculating the 24 months’ backtime. Newton asserts
that the Board should have commenced crediting him with the 24 months’ backtime
from the date he was returned to an SCI on October 5, 2016. Newton’s Brief at 8.
Section 6138(a)(4) of the Prisons and Parole Code (Code), 61 Pa.C.S. § 6138(a)(4),
provides that “[t]he 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

       3
         Our review is limited to determining whether necessary factual findings are supported by
substantial evidence, whether any constitutional rights were violated and whether any errors of
law were committed. 2 Pa.C.S. §704; Price v. Pa. Bd. of Prob. & Parole, 117 A.3d 362, 364 n.4
(Pa. Cmwlth. 2015).
                                               3
custody to be returned to the institution as a [convicted] parole violator.”       A
convicted parole violator’s custody for return date is the date that the Board orders
the parole revoked; that is, the date the Board obtains the necessary signatures to
recommit the parolee as a parole violator. See Palmer v. Pa. Bd. of Prob. & Parole,
134 A.3d 160, 166 (Pa. Cmwlth. 2016); see also Hill v. Pa. Bd. of Prob. & Parole,
683 A.2d 699, 702 (Pa. Cmwlth. 1996) (explaining that the parolee’s service of
backtime on the original sentence must be computed from the date the Board revokes
parole); accord Campbell, 409 A.2d at 982 (providing that a parolee must serve the
balance of his original sentence before beginning service on the new sentence but
“this rule only becomes operative when parole has been revoked and the remainder
of the original sentence becomes due and owing”). The Board ordered Newton’s
recommitment as a convicted parole violator on February 21, 2017, when it obtained
the necessary signatures to do so. C.R. at 50. As a result, Newton could not
commence serving his 24 months’ backtime until February 21, 2017, the date of the
Board’s decision to recommit him as a convicted parole violator. See Palmer, 134
A.3d at 166.
               Third, Newton asserts that the Board can only require Newton “to serve
the remaining balance of his unexpired term since the Board does not have the power
to alter a judicially imposed sentence.” Newton’s Brief at 7. It is well settled that
the Board, when recalculating the sentence of a convicted parole violator, is not
encroaching upon judicial powers but merely requiring the parole violator to serve
his entire sentence under the authority granted by the General Assembly. Young v.
Pa. Bd. of Prob. & Parole, 409 A.2d 843, 848 (Pa. 1979) (explaining that the Board’s
recalculation of sentence of convicted parole violator is “not an encroachment upon




                                           4
the judicial sentencing power”). The Board cannot extend the “duration of the
sentence” because fixing the sentence is a judicial function. Id. at 846.
             However, when recalculating a convicted parolee’s maximum sentence
date, the Board cannot impose backtime that exceeds the remaining balance of his
unexpired term. See 61 Pa. C.S. § 6138(a)(2) (directing that when recommitted as a
convicted parole violator “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 . . . ”). It is the duration of the maximum sentence that controls, not
the actual maximum sentence date. Commonwealth ex rel. Banks v. Cain, 28 A.2d
897, 901 (Pa. 1942). Here, Newton had 36 months remaining on his original
sentence when the Board paroled him. C.R. at 80. The 24 months’ backtime
imposed by the Board when it recommitted him as a convicted parole violator did
not exceed the 36 months Newton owed on his original sentence.
             Accordingly, because Newton’s challenges to the Board’s recalculation
of his parole violation maximum sentence date lack merit, we affirm the order of the
Board.



                                       __________________________________
                                       CHRISTINE FIZZANO CANNON, Judge




                                          5
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Airrick J. Newton,                    :
                     Petitioner       :
                                      :
            v.                        :
                                      :
Pennsylvania Board of                 :
Probation and Parole,                 :   No. 1360 C.D. 2018
                  Respondent          :



                                  ORDER


            AND NOW, this 15th day of May, 2019, the September 6, 2018 order
of the Pennsylvania Board of Probation and Parole is AFFIRMED.




                                   __________________________________
                                   CHRISTINE FIZZANO CANNON, Judge
