          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brian Holley,                          :
                   Petitioner          :
                                       :
             v.                        :   No. 1860 C.D. 2015
                                       :   Submitted: April 22, 2016
Pennsylvania Board of Probation        :
and Parole,                            :
                 Respondent            :

BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                      FILED: June 8, 2016

             Brian Holley petitions for review of an adjudication of the
Pennsylvania Board of Probation and Parole (Parole Board) denying his request for
administrative review of the Parole Board’s decision recommitting him as a
convicted parole violator to serve 18 months backtime. Holley argues that the
Parole Board erred in calculating his maximum sentence date by not giving him
credit for his time spent at liberty on parole. For the reasons that follow, we affirm
the Parole Board’s order.
             On January 11, 2010, Holley was sentenced to serve two years and six
months to five years of confinement. Holley’s earliest release date was September
1, 2012, and his maximum release date was March 1, 2015.
             On January 28, 2013, Holley received the conditions governing his
parole, which stated, in part, that “[i]f 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.”
Certified Record at 15 (C.R. __). Holley agreed to the conditions of parole and
was released on parole.
               On November 22, 2013, Holley was arrested on new drug and
firearms charges and confined in the Delaware County Prison. On that same day,
the Parole Board was notified of Holley’s arrest and pending criminal charges;
accordingly, it issued a warrant to commit and detain Holley.
               On December 2, 2013, the Parole Board provided Holley with a notice
of charges and detention hearing; he waived his right to the hearing. By decision
of February 12, 2014, the Parole Board determined to detain Holley pending
disposition of criminal charges.
               In the meantime, Holley remained incarcerated in Delaware County
Prison on the new criminal charges because he did not post bail. On February 13,
2015, Holley pled guilty to possession with intent to deliver a controlled substance.
On March 16, 2015, the Parole Board issued a decision declaring Holley
delinquent effective November 22, 2013.1 On April 1, 2015, it issued a warrant to
commit and detain Holley. Thereafter, on May 12, 2015, the Delaware County




1
  The Parole Board’s action of declaring an individual delinquent for control purposes is an
administrative procedure performed to earmark the individual’s case for close review upon
disposition of the outstanding criminal charges. See Passaro v. Pennsylvania Board of
Probation and Parole, 499 A.2d 725, 726 (Pa. Cmwlth. 1985). The Parole Board does this
because it “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 is on parole.” Miskovitch v. Pennsylvania Board of Probation and Parole, 77 A.3d
66, 73 (Pa. Cmwlth. 2013). See also 37 Pa. Code §63.3.


                                                 2
Court of Common Pleas sentenced Holley to a term of imprisonment of 30 to 96
months.2
              On May 28, 2015, Holley waived his right to a parole revocation
hearing and acknowledged his drug conviction in Delaware County while he was
on parole. On July 16, 2015, the Parole Board recommitted Holley to a state
correctional institution as a convicted parole violator to serve 18 months backtime.
The Parole Board calculated Holley’s parole violation maximum date to be August
3, 2017. Holley petitioned for administrative review, asserting that the Parole
Board erred in its recalculation of his maximum sentence date.                Specifically,
Holley argued that the Board should have credited him for the time he was on
parole because he was not a violent offender. The Parole Board denied Holley’s
petition on August 26, 2015. Holley now petitions this Court for review.
              On appeal,3 Holley raises four issues: (1) whether the Parole Board
erred in concluding that he automatically forfeited credit for his time spent at
liberty on parole because of his new conviction; (2) whether the Parole Board erred
in calculating his parole violation maximum date; (3) whether the Parole Board
erred in determining the order of his sentences to be served; and (4) whether the
Parole Board unconstitutionally modified his judicially-imposed maximum
sentence. The Parole Board responds that it has the statutory authority to deny




2
  Holley was given credit on his new sentence for the time he was incarcerated in Delaware
County Prison from November 22, 2013, to May 12, 2015. C.R. 46.
3
  This Court’s review is to determine whether the Parole Board’s adjudication is supported by
substantial evidence, whether an error of law has been committed, or whether constitutional
rights have been violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704;
Moroz v. Pennsylvania Board of Probation and Parole, 660 A.2d 131, 132 (Pa. Cmwlth. 1995).


                                             3
convicted parole violators credit for the period they were at liberty on parole and,
thus, its adjudication should be affirmed.
             We address, first, the issue of credit for time spent on parole, also
referred to as “street time.” Section 6138(a) of the Prisons and Parole Code, 61 Pa.
C.S. §6138(a), governs the Parole Board’s authority to recommit parolees who
have committed new criminal offenses while on parole.            Section 6138(a)(1)
provides:

             A parolee under the jurisdiction of the board 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 board be recommitted as a parole
             violator.

61 Pa. C.S. §6138(a)(1).     When the Parole Board recommits a parolee 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 and, except as provided under
             paragraph (2.1), 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 Prisons and
Parole Code states that “[t]he [Parole] [B]oard may, in its discretion, award credit
to a parolee recommitted … for the time spent at liberty on parole,” with three




                                             4
enumerated exceptions, none of which are applicable in this case.4 61 Pa. C.S.
§6138(a)(2.1).
               Holley does not challenge the Parole Board’s decision to recommit
him as a convicted parole violator for his new drug conviction. Under the Prisons
and Parole Code, recommitment as a convicted parole violator means that credit
for street time, if any, is committed to the discretion of the Parole Board. 61 Pa.
C.S. §§6138(a)(2), 6138(a)(2.1). Here, the Parole Board exercised its discretion
and affirmatively chose to deny Holley any credit for time spent at liberty. C.R.
72, 77. Pennsylvania law presumes that the Board acted lawfully and exercised its
discretion in good faith. See generally Robinson v. City of Philadelphia, 161 A.2d
1, 5 (Pa. 1960) (“Public officials are presumed to have acted lawfully and in good
faith until facts showing the contrary are averred, or in a proper case are averred
and proved.”).
               Holley contends that the Parole Board’s failure to state its reasons for
not awarding him credit for his street time is analogous to an “automatic forfeiture”
of credit; thus, Holley asks this Court to remand his case to the Parole Board to
explain why it did not award him credit.5 The Parole Board responds that it

4
  “The board 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 42 Pa. C.S. §9714(g) (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); (ii) The parolee was recommitted under section 6143 (relating to early parole of
inmates subject to Federal removal order).” 61 Pa. C.S. §6138(a)(2.1).
5
  In the alternative, Holley urges this Court to adopt a rule that where a parolee has more time
remaining on his sentence than the maximum presumptive range for recommitment for a new
crime, then the parolee should not forfeit his street time. There is no statutory authority for such
a “rule” and, in any event, it would be contrary to the express provisions of 61 Pa. C.S.
§6138(a)(2).


                                                 5
properly exercised its discretion in denying Holley credit for his street time and, in
support, it directs this Court to its recent en banc decision in Pittman v.
Pennsylvania Board of Probation and Parole, 131 A.3d 604 (Pa. Cmwlth. 2016),
appeal granted, __ A.3d __ (Pa., No. 90 MAL 2016, filed May 23, 2016).
             In Pittman, Pittman was convicted of a new crime while he was on
parole. The Board’s recommitment hearing report contained the following line:
“BOARD ONLY – Credit time spent at liberty on parole: [ ] No [ ] Yes (excluded
offense on pg. 8).” Id. at 606. The Board checked “No.” Id. On appeal, Pittman
argued that the Board erred by failing to state its reasons for denying him credit.
This Court rejected this claim, explaining that “there is no express requirement that
the [Parole] Board issue a statement of reasons for denying credit to a [convicted
parole violator] for time spent at liberty on parole” and, thus, the Board “was not
legally required to provide Pittman with a statement of reasons for denying him
credit for time spent at liberty on parole.” Id. at 612 and 616.
             Pittman is controlling here. In Holley’s recommitment hearing report,
the Parole Board noted that it was not awarding him credit for his time at liberty on
parole by checking the box for “No.” C.R. 72. Under Pittman this is sufficient.
Additionally, on page 8 of the hearing report in the box labeled “Additional
Information,” the Board made a handwritten notation, “Rec NO credit for street
time.” C.R. 77. This notation confirms that the Parole Board considered whether
to give Holley credit and exercised its discretion not to do so, albeit for reasons
unknown. Holley’s first contention must be rejected.
             Holley next argues that the Parole Board erred in recalculating his
maximum sentence date. At the outset, we note that the Parole Board has “the
power to recommit a convicted parole violator to serve the balance of the court-


                                          6
imposed maximum sentence if the new crime was committed by the parolee before
the expiration of the maximum sentence originally imposed.”             Knisley v.
Pennsylvania Board of Probation and Parole, 362 A.2d 1146, 1148 (Pa. Cmwlth.
1976).   Further, “the constitutional challenges to this procedure [have been]
rejected by this Court….” Id. Because Holley was recommitted as a convicted
parole violator before his original sentence expired, the Parole Board’s
recalculation of his original sentence was appropriate.
             Further, when computing the time to be served on a convicted parole
violator’s original sentence, the parolee’s street time is added to the original
maximum sentence expiration date to create a new maximum sentence date.
Armbruster v. Pennsylvania Board of Probation and Parole, 919 A.2d 348, 351
(Pa. Cmwlth. 2007). When Holley was paroled on January 28, 2013, his maximum
sentence date was March 1, 2015. C.R. 18. Therefore, Holley had 2 years, 1
month and 1 day, or 762 days, remaining on his sentence. C.R. 79. He was
recommitted as a convicted parole violator on July 3, 2015, when the Parole Board
obtained the necessary signatures. C.R. 77, 79. Adding 762 days to July 3, 2015,
results in a parole violation maximum date of August 3, 2017. C.R. 79. Thus, the
Board did not err in calculating Holley’s maximum sentence date to be August 3,
2017.
             In his third issue, Holley argues that the Parole Board erred in
determining the order of his sentences to be served. Specifically, Holley contends
that the Parole Board wrongly credited the time he was incarcerated – November
22, 2013, to July 3, 2015 – to his new sentence and not to his original sentence as
required by 61 Pa. C.S. §6138(a)(5). The Parole Board counters that any pre-




                                         7
sentence period of incarceration on new criminal charges and a board detainer
must apply to the new sentence.
              The seminal case on allocating credit for time served awaiting
disposition of new criminal charges is Gaito v. Pennsylvania Board of Probation
and Parole, 412 A.2d 568 (Pa. 1980). “In Gaito, the Supreme Court held that
‘time spent in custody pursuant to a detainer warrant shall be credited to a
convicted parole violator’s original term … only when the parolee was eligible for
and had satisfied bail requirements for the new offense and thus remained
incarcerated only by reason of the detainer warrant lodged against him.’” Bowman
v. Pennsylvania Board of Probation and Parole, 930 A.2d 599, 601 (Pa. Cmwlth.
2007) (citing Gaito, 412 A.2d at 571). In the cases following Gaito, “this Court
held that once a parolee is sentenced on a new criminal offense, the period of time
between arrest and sentencing, when bail is not posted, must be applied toward the
new sentence and not to the original sentence.” Id. (emphasis added).
              Here, although the Parole Board did file a detainer warrant against
Holley, his detention in Delaware County on the new criminal charges was the
result of his failure to post bail.          Subsequently, Holley was convicted and
sentenced.     Because the Parole Board’s detainer was not the sole reason for
Holley’s incarceration from November 22, 2013, through May 15, 2015, that time
could only be credited to his new sentence. The Delaware County trial court’s
sentencing order did just that by awarding Holley credit on his new sentence for
the time he was incarcerated from November 22, 2013, to May 15, 2015.6 C.R. 46.

6
  Holley seeks additional credit on his original sentence for the time he was incarcerated from
May 15, 2015, the date of his sentencing on the new criminal conviction, until July 3, 2015, the
date the Parole Board recommitted him as a convicted parole violator. This Court has held that
the time served by a parolee prior to the date parole is revoked must be applied to the new
(Footnote continued on the next page . . .)
                                               8
              Next, regarding the order of sentences to be served, Section
6138(a)(5) of the Prisons and Parole Code provides:

              (5) If a new sentence is imposed on the parolee, the service of
              the balance of the term originally imposed by a Pennsylvania
              court shall precede the commencement of the new term
              imposed in the following cases:

                     (i) If a person is paroled from a State correctional
                     institution and the new sentence imposed on the
                     person is to be served in the State correctional
                     institution.

                     (ii) If a person is paroled from a county prison
                     and the new sentence imposed upon him is to be
                     served in the same county prison.

                     (iii) In all other cases, the service of the new term
                     for the latter crime shall precede commencement
                     of the balance of the term originally imposed.

61 Pa. C.S. §6138(a)(5). Holley was paroled from a state correctional institution,
and his new sentence was to be served in a state correctional institution. Because
the Parole Board revoked Holley’s parole, he owed the remainder of his original
sentence and under Section 6138(a)(5)(i) was required to serve the balance of that
sentence first. See Richmond v. Commonwealth of Pennsylvania, 402 A.2d 1134,
1135 (Pa. Cmwlth. 1979) (“Although petitioner is correct in noting that Section




(continued . . .)
sentence. Wilson v. Pennsylvania Board of Probation and Parole, 124 A.3d 767, 770 (Pa.
Cmwlth. 2015). Thus, the Parole Board was correct in not applying credit to Holley’s original
sentence for the period of incarceration between May 15, 2015, and July 3, 2015.


                                             9
21.1(a) of the Act of August 6, 1941,[7] requires a convicted parole violator to serve
the balance of his original sentence before service of the newly imposed term is
commenced, this rule only becomes operative when parole has been revoked and
the remainder of the original sentence becomes due and owing.”). Thus, the Parole
Board did not err in requiring Holley to serve his original sentence first.
              Finally, Holley argues that the Parole Board’s decision denying his
request for administrative relief violated the collateral estoppel doctrine, the double
jeopardy clause, the cruel and unusual punishment clause, and the due process and
equal protection clauses. Holley premises these constitutional claims on the theory
that the Parole Board’s decision impermissibly altered a judicially-imposed
sentence. Holley’s claims are devoid of merit. It is well-established that double
jeopardy does not apply to parole revocation proceedings.                     McClure v.
Pennsylvania Board of Probation and Parole, 461 A.2d 645, 647 (Pa. Cmwlth.
1983). Further, our Supreme Court has held that the Parole Board’s authority to
recalculate the sentence of a convicted parole violator “is not an encroachment
upon the judicial sentencing power.” Young v. Commonwealth of Pennsylvania
Board of Probation and Parole, 409 A.2d 843, 848 (Pa. 1979). Likewise, the


7
  Section 21.1 is part of what was commonly known as the Parole Act, Act of August 6, 1941,
P.L. 861, as amended, 61 P.S. §§331.1-331.34a, and it was the predecessor to Section 6138 of
the Prisons and Parole Code. Section 21.1(a) of the Parole Act similarly stated:
        … If a new sentence is imposed upon him to be served in the same institution
        from which he was paroled, then the service of the balance of said term originally
        imposed shall precede the commenced of the new term imposed for the latter
        crime. If a new sentence imposed upon him to be served in any institution other
        than the one from which paroled, then the service of the new term for the latter
        crime shall precede the commencement of the balance of the term originally
        imposed ….
61 P.S. §331.21(a) (repealed).


                                            10
statutory provision denying credit for time spent on parole does not violate due
process and does not amount to cruel and usual punishment. Id. at 847 & n. 8.
            For these reasons, we affirm the Parole Board’s adjudication.


                                  _____________________________________
                                  MARY HANNAH LEAVITT, President Judge




                                       11
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brian Holley,                       :
                  Petitioner        :
                                    :
            v.                      :   No. 1860 C.D. 2015
                                    :
Pennsylvania Board of Probation     :
and Parole,                         :
                 Respondent         :


                                  ORDER

            AND NOW, this 8th day of June, 2016, the order of the Pennsylvania
Board of Probation and Parole dated August 26, 2015, in the above-captioned
matter is hereby AFFIRMED.
                                  _____________________________________
                                  MARY HANNAH LEAVITT, President Judge
