        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Guyliano Laguerre,                       :
                         Petitioner      :
                                         :
            v.                           :   No. 837 C.D. 2015
                                         :   Submitted: October 2, 2015
Pennsylvania Board of Probation          :
and Parole,                              :
                        Respondent       :

BEFORE:     HONORABLE BERNARD L. McGINLEY, Judge
            HONORABLE ROBERT SIMPSON, Judge
            HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                         FILED: December 15, 2015

            Guyliano Laguerre (Laguerre) petitions for review of an order of the
Pennsylvania Board of Probation and Parole (Board) that denied his request for
administrative relief. Laguerre contends the Board erred by not properly crediting
time served solely on the Board’s detainer to his original sentence. In addition, he
asserts the Board erred by not complying with laws regarding service of sentences,
which caused him to improperly serve consecutive time. For the reasons that
follow, we affirm.


                                  I. Background
            In July 2008, Laguerre was convicted of one count of possession with
intent to deliver (PWID), and he was sentenced to a term of two to four years in
prison. Certified Record (C.R.) at 1-3. Laguerre’s original maximum sentence
date was July 24, 2012. C.R. at 1.
              On June 22, 2009, the Board released Laguerre on parole. C.R. at 4-7.
On August 19, 2011, the Board declared Laguerre delinquent, and it issued a
warrant to arrest and detain him for technical parole violations. C.R. at 9-10. On
April 5, 2013, Laguerre was arrested and detained on the Board’s warrant pending
disposition of the technical parole violations. C.R. at 11-16, 17-20.


              While on parole and prior to his arrest, Laguerre was charged with
two offenses in Lancaster County. Specifically, in July 2012, county authorities
charged Laguerre with PWID occurring in February 2011. C.R. at 38-41. Then, in
September 2011, authorities charged him with PWID and possession of drug
paraphernalia that occurred in August 2011. C.R. 54-57. On May 2, 2013, and
June 17, 2013, respectively, authorities set bail, which he did not post. C.R. at 44,
48, 49, 66.


              On May 31, 2013, the Board recommitted Laguerre as a technical
parole violator to serve six months’ backtime for violating conditions of his
parole.1 C.R. at 33-35. According to the Board’s calculations, Laguerre owed 340
days of backtime, and it entered a new maximum date of March 11, 2014. C.R. at
31.


              Laguerre pled guilty to the new criminal offenses. C.R. at 48, 65. On
February 26, 2014, the Court of Common Pleas of Lancaster County (sentencing
court) sentenced him to serve three to six years for each PWID offense and 12

       1
         Laguerre waived his rights to counsel and a detention hearing, and he admitted to the
technical parole violations. Certified Record (C.R.) at 21-22.



                                              2
months of probation for possession of drug paraphernalia. C.R. at 49, 58. The
sentencing court directed confinement on the new sentences to run concurrently.
C.R. at 49. The sentencing also ordered credit for time served. C.R. at 43, 51, 59.


              Based on his new convictions, the Board sent Laguerre a notice of
charges and revocation hearing form. C.R. at 72. Laguerre voluntarily waived his
right to a revocation hearing and counsel at the hearing. He admitted he was
convicted of new criminal offenses. C.R. at 73.


              By decision mailed May 30, 2014, the Board modified its prior action
and recommitted Laguerre as a convicted parole violator to serve 18 months
concurrently with the 6 months previously imposed for his technical parole
violations (revocation decision).2 C.R. at 85. The Board recommitted him on
April 25, 2014. C.R. at 81, 89. The Board determined Laguerre owed 1101 days
in backtime, and it recalculated Laguerre’s new maximum sentence date of May 1,
2017. C.R. at 85-90. The Board also determined Laguerre would not be eligible
for parole until September 29, 2015. C.R. at 85.


              Laguerre, representing himself, filed a request for administrative relief
in June 2014, asserting sentence-credit and reparole-eligibility-date challenges



       2
         The Board retains jurisdiction to recommit an individual as a parole violator after the
expiration of the maximum term, so long as the crimes that lead to the conviction occurred while
the individual was on parole. Miskovitch v. Pa. Bd. of Prob. & Parole, 77 A.3d 66, 74
(Pa. Cmwlth. 2013), appeal denied, 87 A.3d 322 (Pa. 2014).




                                               3
(First Request).3 C.R. at 96-96, 108-109. Specifically, Laguerre challenged the
calculation of his new maximum sentence date of May 1, 2017. C.R. at 95-96,
108-109. Laguerre asserted he owed only 340 days as previously determined and,
on that basis, he claimed his recomputed maximum date should remain March 11,
2014. C.R. at 95, 109. According to Laguerre, he did not forfeit any time between
his date of parole (June 22, 2009) and date of delinquency (August 19, 2011). C.R.
at 95, 109. He claimed the imposition of 18 months’ backtime exceeded the
amount of time owed of 340 days. C.R. at 95, 109. And, he asserted he should be
credited for 27 days served under the Board’s jurisdiction at a halfway house. C.R.
at 95, 109. Laguerre also challenged the calculation of his parole eligibility date.
According to Laguerre, the Board miscalculated his parole eligibility date by not
taking into account 6 months’ backtime served for the technical parole violations
when the Board imposed 18 months’ backtime to run concurrently. C.R. at 95,
109.


               In response, the Board asked for additional information regarding the
halfway house. C.R. at 121. More particularly, the Board asked for the name of
the halfway house and the dates he resided there, and it gave Laguerre 30 days to
supply the information. C.R. at 121. Laguerre sent two letters in reply. C.R. at
122-125. In his first reply, Laguerre advised he was represented by counsel. C.R.
at 124. In the second reply, he asserted he previously provided the information
requested, and inquired as to the status of his appeal. C.R. at 122.



       3
         Laguerre filed two separate requests within the 30-day time limit to appeal the Board’s
decision, which the Board treated as one petition for administrative relief. Resp’t’s Br. at 5 n.1.



                                                4
             Meanwhile, by action mailed September 18, 2014, the Board modified
the revocation decision by changing Laguerre’s maximum sentence date from May
1, 2017, to April 30, 2017, and his reparole eligibility date from September 29,
2015, to September 28, 2015 (modification decision). C.R. at 91.


             By action mailed September 23, 2014, the Board dismissed
Laguerre’s First Request as moot. C.R. at 126. The Board explained Laguerre’s
replies did not contain the information requested. C.R. at 126. The Board advised
that, if Laguerre wished to contest the new maximum sentence or reparole
eligibility dates, he must file a petition for review from the Board’s modification
decision. C.R. at 126.


             On October 8, 2014, Laguerre filed a second uncounseled request for
administrative relief challenging the Board’s calculation of his new maximum date,
sentence credit, and parole eligibility date in the modification decision (Second
Request). C.R. at 127-131. Once again, Laguerre claimed he did not owe more
than 340 days of backtime, and he did not forfeit any of his time at liberty on
parole prior to his delinquency date. C.R. at 128. According to Laguerre, his
delinquency date (August 19, 2011), should be used for calculations, not his parole
date (June 22, 2009). C.R. at 127-128. He reasserted his claim that his parole
eligibility date should be modified to reflect all time served in prison, including 6
months’ backtime for technical parole violations.       C.R. at 130.    In addition,
Laguerre questioned the Board’s custody of return date, maintaining it should be
his date of arrest (April 5, 2013) not his recommitment date (April 25, 2014). C.R.
at 127. And, Laguerre claimed he was entitled to 27 days’ credit for time spent at



                                         5
Wernersville Community Corrections Center (Wernersville CCC) from June 2009
to July 2009. C.R. at 130.


            In response, the Board informed Laguerre an evidentiary hearing
would be held on his claim regarding credit for time spent at Wernersville CCC.
C.R. at 132. It advised, “[b]ecause an evidentiary hearing is pending, the Board
cannot affirm or reverse the calculation reflected in the [B]oard action mailed
September 18, 2014 at this time.” C.R. at 132.


            After an evidentiary hearing, by action mailed on March 26, 2015, the
Board denied credit for time spent at Wernersville CCC. C.R. at 92-94. The
Board explained Laguerre did not prove the program at Wernersville CCC
restricted his liberty in a manner sufficient to warrant backtime credit. C.R. at 93
(citing Cox v. Pa. Bd. of Prob. & Parole, 493 A.2d 680 (Pa. 1985)).


            Thereafter, with assistance of counsel, Laguerre filed a third request
for administrative relief (Third Request). C.R. at 133. In it, Laguerre reasserted
his claim that the Board’s calculation of his maximum date was erroneous. More
particularly, he claimed the Board erred by setting a maximum sentence date
beyond the period that he could be required to serve on the underlying sentence.
Laguerre also claimed the Board lacked jurisdiction to revoke his parole because
he was not on parole or under the Board’s authority at the time of revocation.
Finally, by failing to comply with laws relating to the order in which to serve
sentences, Laguerre asserted the Board improperly caused him to serve consecutive
time. C.R. at 133.



                                         6
              On May 6, 2015, the Board responded Laguerre did not preserve the
jurisdictional issue. C.R. at 135-136. As for Laguerre’s claim that the Board
improperly caused him to serve his sentences consecutively, the Board explained
convicted parole violators must serve their original sentence first followed by their
new sentence. The Board dismissed as unauthorized Laguerre’s Third Request to
the extent it objected to the revocation decision mailed May 30, 2014, and it
affirmed the action mailed March 26, 2015, regarding sentence calculation. C.R. at
136. From this decision, Laguerre petitions for review with this Court.

                                        II. Issues
              On appeal,4 Laguerre contends the Board erred in calculating his new
maximum sentence date because it does not accurately reflect periods during which
he was incarcerated and under the Board’s jurisdiction or credit time served solely
on the Board’s detainer. In addition, he asserts the Board erred by not complying
with the laws regarding the order a recommitted parolee must serve his sentences,
which improperly caused him to serve consecutive time. Laguerre also seeks a
remand because the Board did not address all claims previously raised.


              The Board counters Laguerre waived the revocation claim issues on
appeal by failing to properly raise them before the Board in his First Request. It
asserts a remand is not necessary because it addressed all issues properly raised.
Notwithstanding, the Board maintains it properly calculated Laguerre’s maximum

       4
         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. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§704; Miskovitch v. Pa. Bd. of Prob. & Parole, 77 A.3d 66 (Pa. Cmwlth. 2013), appeal denied,
87 A.3d 322 (Pa. 2014).



                                             7
sentence date and required Laguerre to serve his original sentence before his new
sentence.

                                      III. Discussion
                                        A. Waiver
              We first address the issue of waiver. The Board asserts Laguerre
waived his revocation decision claims by failing to first raise them before the
Board.


              In an administrative agency appeal, a party may not raise any question
not raised before the agency unless allowed by the Court upon due cause shown.
Section 703(a) of the Administrative Agency Law, 2 Pa. C.S. §703(a); Pa. R.A.P.
1551(a). Any issues not raised in an administrative appeal to the Board are waived
for purposes of appellate review. Goods v. Pa. Bd. of Prob. & Parole, 912 A.2d
226 (Pa. 2006); McCaskill v. Pa. Bd. of Prob. & Parole, 631 A.2d 1092
(Pa. Cmwlth. 1993).


              Upon review, Laguerre made an earnest attempt to navigate through
the Board’s multiple recommitment and recalculation decisions as well as its
requests for additional information. In his First Request, Laguerre claimed the
Board miscalculated his maximum sentence date, and it did not credit him for all
time served under the Board’s jurisdiction, including time served at Wernersville
CCC.5 The fact that Laguerre did not adequately respond to the Board’s inquiries
regarding time served at Wernersville CCC did not nullify his other challenges

       5
         Laguerre admits he waived the issue regarding whether he was entitled to a credit for
time spent at Wernersville CCC on appeal. Pet’r’s Br. at 16 n.2.



                                              8
regarding sentence credit and parole eligibility. In fact, when the Board directed
Laguerre to challenge its modification decision, Laguerre reasserted the same
challenges in his Second Request. C.R. at 127. In his Third Request, Laguerre,
through counsel, asserted claims regarding sentence credit and sequence of
sentences. As these issues are the issues now raised on appeal, we decline to find
waiver.6


              Notwithstanding, we also decline Laguerre’s request for remand.
Although Laguerre makes a general claim that the Board did not address all issues
raised in his First Request, he does not identify which issues were not addressed or
provide a legal justification for remand. See Pet’r’s Br. at 16, 17, 20. Upon
review, we conclude the Board adequately responded to and denied Laguerre’s
requests for relief as they pertain to the issues raised and developed in this appeal.


                   B. Maximum Sentence Date & Backtime Credit
              Turning to the merits, Laguerre asserts the Board did not afford him
credit for all time incarcerated under the Board’s detainer. Specifically, he claims
the Board did not account for the period of incarceration from his date of arrest
(April 5, 2013) until sentencing (February 26, 2014). He claims this time should
be credited towards the backtime owed and his maximum sentence date should be
adjusted accordingly.




       6
          Insofar as Laguerre also challenged the Board’s jurisdiction to revoke parole in his
Third Request, he does not raise or otherwise pursue this issue on appeal. See Pet. for Review at
2; Pet’r’s Br. at 11. Consequently, this issue is not before us.



                                               9
              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 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.7
61 Pa. C.S. §§6138(a)(2), (2.1). If a new sentence is imposed, he must serve the
balance of the original sentence prior to commencement of the new term.
61 Pa. C.S. §6138(a)(5)(i).


              “[W]here an offender is incarcerated on both a Board detainer and
new criminal charges, all time spent in confinement must be credited to either the
new sentence or the original sentence.” Martin v. Pa. Bd. of Prob. & Parole, 840
A.2d 299, 309 (Pa. 2003). Time incarcerated shall be credited to a convicted
parole violator’s original term only when he has satisfied bail requirements for the
new offense and, thus, remains incarcerated solely by reason of the Board’s
detainer. Gaito v. Pa. Bd. of Prob. & Parole, 412 A.2d 568 (Pa. 1980). When bail
is not posted, time incarcerated on both the new criminal charges and the Board’s
detainer must apply to the new sentence. Id. Only when it is not possible to award
all of the credit on the new sentence because the period of pre-sentence
incarceration exceeds the maximum term of the new sentence will credit be applied


       7
         In comparison, when a parolee is recommitted for technical parole violations, he is
given credit for time served on parole in good standing, but with no credit for delinquent time.
61 Pa. C.S. §6138(c)(2).



                                              10
to the offender's original sentence. Melhorn v. Pa. Bd. of Prob. & Parole, 908 A.2d
266 (Pa. 2006); Armbruster v. Pa. Bd. of Prob. & Parole, 919 A.2d 348 (Pa.
Cmwlth. 2007).


              Here, the Board recommitted Laguerre as a convicted parole violator
to serve the remainder of his term. At the time of his parole, 1128 days remained
on his original sentence, which is the difference between his original maximum
sentence date (July 24, 2012) and his parole date (June 22, 2009).8 C.R. at 118.
The Board credited 27 days, which represents Laguerre’s period of incarceration
served solely on the Board’s detainer after his arrest (April 5, 2013) but before bail
was set (May 2, 2013) on the new criminal charges. By subtracting 27 days from
1128 days, the Board correctly calculated a total of 1101 days remaining towards
his original sentence. C.R. at 83, 85-90.


              Laguerre did not become available to begin serving backtime until
April 25, 2014, when the Board recommitted him as a convicted parole violator.
C.R. at 81, 89. Adding 1101 days to April 25, 2014, results in a new maximum
sentence date of April 30, 2017. C.R. at 89.




       8
         When Laguerre was initially recommitted as a technical parole violator, he did not lose
all time at liberty on parole in good standing. See 61 Pa. C.S. §6138(c)(2). Consequently, he
owed 340 days, which is the amount of time between his original maximum sentence date (July
24, 2012) and his declared delinquency date (August 19, 2011). C.R. at 31. However, upon his
recommitment as a convicted parole violator, the Board chose not to give credit for time on
parole. See 61 Pa. C.S. §6138(a)(2) & (2.1). Thus, the remainder of his term was 1128 days, not
340 days.



                                              11
              Contrary to Laguerre’s assertions, he is not entitled to pre-sentence
credit for the period between May 2, 2013, when bail was set, and February 26,
2014, the date of sentencing, towards his original sentence. Because Laguerre did
not post bail, Laguerre was detained under the Board’s warrant and the new
criminal charges during this period. When bail is not posted, time incarcerated on
both the new criminal charges and the Board’s detainer must apply to the new
sentence, not the original sentence, unless it is not possible to credit all time to the
new sentence. Melhorn; Gaito. According to the criminal dockets, the sentencing
court directed credit for time served on his new sentence. C.R. at 43, 51, 59. As
Laguerre’s new sentence of three to six years did not exceed his pre-sentence
incarceration period, it was possible for the sentencing court to credit this pre-
sentence time to the new sentence.9 See Melhorn.


              For these reasons, we conclude the Board properly credited
Laguerre’s original sentence and recalculated his maximum sentence date.




       9
           The Department of Corrections (Department) is responsible for reviewing the
sentencing court’s orders and determining the appropriate sentence credit as well as the
minimum and maximum dates for Laguerre’s aggregated new offenses. See 42 Pa. C.S. §§9757,
9760, 9761, 9762; see also McCray v. Dep’t of Corr., 872 A.2d 1127, 1133 (Pa. 2005) (the
Department “is charged with faithfully implementing sentences imposed by the courts”);
Gillespie v. Dep't of Corr., 527 A.2d 1061 (Pa. Cmwlth. 1987) (the Department, not the Board, is
responsible for calculating the minimum and maximum terms of prisoners committed to its
jurisdiction). If there is an issue once the Department establishes the minimum and maximum
sentence dates for new sentences, Laguerre will have an opportunity to challenge it at that time.
See Armbruster v. Pa. Bd. of Prob. & Parole, 919 A.2d 348 (Pa. Cmwlth. 2007).



                                               12
                             C. Consecutive Sentences
             Next, we address whether Laguerre’s claim that the Board violated the
laws regarding the order in which a recommitted parolee must serve his sentences.


             Under the Parole Code, where a new sentence is imposed, a parolee
must first serve the balance of term originally imposed before serving any time on
the new sentence. 61 Pa. C.S. §6138(a)(5). Sentences for crimes committed on
parole must be served consecutively with the original sentence. Commonwealth v.
Dorian, 468 A.2d 1091 (Pa. 1983). This rule takes effect when parole is revoked
and the remainder of the sentence is due and owing. Richmond v. Commonwealth,
402 A.2d 1134 (Pa. Cmwlth. 1979).


             Here, Laguerre is currently serving his original sentence. Laguerre
will be available to begin serving his new criminal sentence at either the expiration
of his maximum sentence date of April 30, 2017, or some point prior if he is
reparoled. Contrary to Laguerre’s assertions, the Board did not violate any laws
regarding the order in which he must serve his sentences or otherwise cause him to
improperly serve consecutive time.


                                     IV. Conclusion
             Accordingly, we affirm the order of the Board denying Laguerre’s
request for administrative relief.




                                         ROBERT SIMPSON, Judge


                                          13
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Guyliano Laguerre,                    :
                       Petitioner     :
                                      :
           v.                         :   No. 837 C.D. 2015
                                      :
Pennsylvania Board of Probation       :
and Parole,                           :
                        Respondent    :


                                    ORDER

           AND NOW, this 15th day of December, 2015, the order of the
Pennsylvania Board of Probation and Parole is AFFIRMED.




                                     ROBERT SIMPSON, Judge
