               IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Paul Noble,                               :
                    Petitioner            :
                                          :   No. 289 C.D. 2019
              v.                          :
                                          :   Submitted: August 23, 2019
Pennsylvania Board of                     :
Probation and Parole,                     :
                  Respondent              :


BEFORE:       HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                       FILED: November 18, 2019


              Paul Noble (Noble) petitions for review of the February 22, 2019, decision
of the Pennsylvania Board of Probation and Parole (Board) extending his maximum
sentence date and recalculating his backtime sentence. In its decision, the Board denied
Noble credit that he alleged he was owed while at liberty on parole, while granting him
credit for time he was incarcerated solely on the Board’s detainer.


                        Factual and Procedural Background
              Noble pled guilty to the manufacture, sale, delivery, or possession with
intent to manufacture or deliver a controlled substance. (Certified Record (C.R.) at 1-
2.)   When initially sentenced, Noble’s minimum sentence date was calculated as
December 24, 2008, and his maximum date as December 24, 2011. Id.
               On August 13, 2007, Noble was released on parole for his first offense,
conditioned on abstaining from all activities related to illicit drug manufacture,
possession, sale, or use.        (Supplemental Certified Record (S.C.R.) at 2A-3A.)
Subsequently, as recorded on March 14, 2013, Noble was recommitted because he was
convicted again under The Controlled Substance, Drug, Device and Cosmetic Act
(Drug Act),1 and given a new maximum date of July 21, 2017. (S.C.R. at 4A.) At this
point in time Noble had two relevant convictions in violation of the Drug Act, the first
assigned Department of Corrections (DOC) number GL8106, and the second assigned
DOC number LR9074. (C.R. at 1; 9.) On September 10, 2014, Noble was paroled on
his first sentence while he was still detained at State Correctional Institution (SCI) –
Albion serving time on his second sentence. (C.R. at 4.) Subsequently, he was paroled
from his second sentence on December 28, 2015, and remained on parole until his most
recent arrest. (C.R. at 14.)
               On March 3, 2017 Noble was found with a large amount of crack cocaine.
(C.R. at 20; 22.) On March 26, 2017, criminal charges were brought against Noble.
Id. The Board issued a warrant to commit and detain Noble. (C.R. at 24; 86.) The
Board provided Noble with a notice of charges and hearing. (C.R. at 28.) On March
31, 2017, Noble waived representation by counsel and a detention hearing. (C.R. at
25.) Noble posted bail on the criminal charges on May 15, 2017, and on November
26, 2017, the Board lifted its detainer. (C.R. at 86.) On April 23, 2018, Noble was
sentenced to 12 to 24 months of incarceration on new drug charges. (C.R. at 41.) Noble
did not dispute his conviction and waived his right to a revocation hearing. (C.R. at
44.) The Hearing Report reflects that “[Noble] has been returned on both numbers as
a [convicted parole violator (CPV)] for new drug offenses. He just doesn’t get it.


      1
          Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§780-101—780-144.


                                               2
Because of his poor supervision history and because of the new conviction id [sic]
identical to his instant offenses, he should NOT be given credit for time spent at
liberty.” (C.R. at 52.)       Accordingly, the Board recalculated his maximum date to
October 4, 2020. (C.R. at 89.)
                On July 26, 2018, Noble submitted an administrative remedies form
alleging he should have received credit for his time at liberty on parole and that his new
maximum date was erroneously calculated. (C.R. at 76.) In support of these positions,
Noble alleged that on December 28, 2015, he made parole with a maximum date of
July 21, 2017, giving him “(19) months to max out state institution number GL8106,”
and that on March 24, 2017, 15 months following his release, he violated his parole
and was placed on a parole detainer.2 (C.R. at 77.) According to him, his GL8106
sentence “maxed out” on July 21, 2017, while he was serving time at SCI-Albion, and
his LR9074 institution number expired on November 26, 2017. Id. He explained that
his “street time” of 15 months, plus the remainder of his unexpired term of 4 months,
equates to 19 months left to “max out” his GL8106 sentence. Id. However, he adduced
that he should be given a 10-month credit, thereby reducing his sentence to 9 months
remaining instead of the 24 determined by the Board. Id.
              He further extrapolates that the order to recommit explaining that he owes
“02Y 03M and 22D” in backtime is wrong because he was at liberty on parole for 15
months from December 28, 2015, to March 24, 2017, and explains that his total
remaining time should only be 20 months because he is owed credit for 10 months for
his time on parole. (C.R. at 78.) Finally, he alleges that the calculation should be from
his second sentence, LR9074, not his first sentence at GL8106. Id.


       2
          Noble asserts that he was at liberty on parole until March 24, 2017, however, the record
reflects he was not arrested until March 27, 2017. (C.R at 55.)


                                                3
                In its decision, the Board explained that Noble was paroled on September
10, 2014, with a maximum date of July 21, 2017, leaving 1045 days on his sentence.
(C.R. at 86.) The Board reasoned that its decision to recommit Noble as a CPV
authorized the recalculation of his sentence to reflect that he received no credit for time
spent at liberty on parole, citing Section 6138 (a)(2) of the Prisons and Parole Code.3
Id. Notwithstanding, the Board clearly explained that Noble did not get credit for time
at liberty on parole, but he received 203 days, credit for his confinement from May 15,
2017, to November 26, 2017, and from April 15, 2018, to April 23, 2018. Id. This
credit reduced his maximum date by 842 days and the Board recalculated it to October
4, 2020. Id. The Board added that CPVs who are paroled from a state correctional
institution and receive another sentence must serve the original sentence first, citing to
section 6138(a)(5) of the Prisons and Parole Code.4 (C.R. at 87.) The Board noted that

       3
           Section 6138(a)(2) provides:

                (2) If the parolee’s recommitment is so ordered, 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).

       4
           Section 6138(a)(5) 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.

(Footnote continued on next page…)



                                                    4
section 6138(a)(5) does not take effect until the parolee is recommitted as a CPV, and
that Noble did not become available to begin service of his original sentence until June
15, 2018, thereby resulting in his new maximum date. Id.


                                           Discussion
               On appeal,5 Noble raises two issues. He argues that the Board erred in
failing to award him credit for all of the time he spent in custody, as he was never at
liberty on parole. In the course of his argument, Noble alleges that the Board does not
have the authority to extend his judicially imposed sentence. We disagree.


                                    Extension of Sentence
               Noble asserts that the Board does not have the authority to extend his
judicially imposed sentence where he did not abscond or become a fugitive. (Noble’s
Brief at 5.) Noble’s position is incorrect. Moreover, section 6138(a)(1) states as
follows:



(continued…)
                       (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).

       5
         Our scope of review is limited to determining whether constitutional rights were violated,
whether the decision was in accordance with the law, or whether the necessary findings of fact were
supported by substantial evidence. Kerak v. Pennsylvania Board of Probation and Parole, 153 A.3d
1134, 1138 n.9 (Pa. Cmwlth. 2016).


                                                 5
              (1) 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). This Court has previously considered and rejected this
argument. See Green v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth.,
No. 725 C.D. 2017, filed Apr. 19, 2018), (rejecting the argument that a parolee who
has not absconded and been declared delinquent should not have his maximum date
extended); Vann v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No.
1067 C.D. 2017, filed Apr. 10, 2018) (rejecting the argument that a parolee must be a
fugitive or abscond to justify the extension of his sentence).6
              As a CPV, Noble is undoubtedly under the Board’s jurisdiction and
section 6138 controls here. Noble’s position that the Board cannot recalculate his
sentence is also incorrect.      Section 6138(a)(2) provides that “[i]f the parolee’s
recommitment is so ordered, the parolee shall be reentered to serve the remainder of
the term which the parolee would have been compelled to serve”; this provision, of
course, requires the Board to recalculate a sentence. 61 Pa.C.S. §6138(a)(2). The
Board’s recalculation of a parolee’s maximum sentence is not a modification of his
judicially imposed sentence, but a requirement to serve his entire original sentence.
Young v. Pennsylvania Board of Probation and Parole, 409 A.2d 834, 845-48 (Pa.
1979).



       6
        Vann and Green are unreported opinions. Under section 414(a) of this Court’s Internal
Operating Procedures, an unreported opinion may be cited for its persuasive value. 210 Pa. Code
§69.414(a).


                                              6
                                         Credit
             Noble urges that he is entitled to credit for his time on parole. There are
two periods of parole at issue in this case. The first is Noble’s parole period that began
on September 10, 2014, where he was paroled on his first case while remaining
incarcerated at SCI – Albion serving time on his second case. Subsequently, he was
paroled on his second case on December 28, 2015, and remained on parole until his
arrest on March 27, 2017.
             Initially, we note that the statutory structure in section 6138 clearly
explains the Board’s obligation regarding credit:


             (2) If the parolee’s recommitment is so ordered, 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.

             (2.1) 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).




                                            7
61 Pa.C.S. §6138(a)(2), (2.1) (emphasis added). The exceptions in section 6138(2.1)
are not implicated here. In other words, no credit shall be given, as a matter of right,
for the time at liberty on parole. Nevertheless, the Board in its discretion may award
credit to a CPV, absent circumstances not implicated here. See, e.g., Pittman v.
Pennsylvania Board of Probation and Parole, 159 A.3d 466, 474 (Pa. 2017)
(explaining that the Board has discretion to award credit for time spent at liberty on
parole to a CPV recommitted to serve the remainder of his sentence unless otherwise
enumerated in the statute). The Supreme Court also explained that “the Board must
articulate the basis for its decision to grant or deny a CPV credit for time served at
liberty on parole.” Id. at 474.
               Constructive parole is the situation that occurs where an offender is
released on parole from one sentence, but is not released from confinement, and then
commences serving a second unrelated sentence. Hines v. Pennsylvania Board of
Probation and Parole, 420 A.2d 381, 383 (Pa. 1980); Spruill v. Pennsylvania Board of
Probation and Parole, 158 A.3d 727, 730 (Pa. Cmwlth. 2017). The offender is
considered to be “at liberty” from that first sentence despite being held in custody as a
result of a separate and unrelated sentence.7 Spruill, 158 A.3d at 730. Our Supreme
Court has stated, “one who is on constructive parole is at liberty on parole on that
particular sentence, and is not entitled to credit against his original sentence for his time
spent on constructive parole.” Merritt v. Pennsylvania Board of Probation and Parole,


       7
          Learned scholar, Timothy P. Wile, explains, “Constructive parole is considered as ‘time at
liberty’ on parole for purposes of section 6138(a) of the Prisons and Parole Code, or ‘street time,’ for
purposes of determining to what credit an offender is due against a maximum sentence upon
recommitment as a parole violator.” Timothy P. Wile, West’s Pennsylvania Practice Pennsylvania
Law of Probation and Parole 89 (3d ed 2010).




                                                   8
574 A.2d 597, 598 (Pa. 1990).8 Being “‘at liberty on parole’ is not liberty from all
confinement but at liberty from confinement on the particular sentence for which the
convict is being reentered as a parole violator.” Cox v. Pennslyvania Board of
Probation and Parole, 493 A.2d 680, 683 (Pa. 1985) (quoting Commonwealth ex rel.
Haun v. Cavell, 154 A.2d 257, 261 (Pa. 1959)). However, time spent in custody serving
a particular sentence may only be credited against that sentence. Spruill, 158 A.3d at
731 (citations omitted).9
               Here, based on these legal principles, Noble was considered to be at liberty
on parole from September 10, 2014, until March 27, 2017. Noble was constructively
paroled for 474 days from September 10, 2014, until December 28, 2015. Noble was
then at liberty on parole for 455 days from December 28, 2015, until March 27, 2017.
At the time of his arrest on March 27, 2017, Noble had 116 days left to complete his
GL8106 sentence, which was to expire on July 21, 2017.
               As explained in Merritt, Hines, and Spruill, Noble was considered to be
“at liberty” on parole while he was constructively paroled from September 10, 2014,
to December 28, 2015. Precedent is clear that Noble is not entitled to credit against his
original sentence for his time spent on constructive parole. Therefore, Noble is not
entitled to credit for the 474 days that he was constructively paroled on his original
sentence. Further, while section 6138 allows the Board, in its discretion, to award


       8
          See, e.g., Bowman v. Pennsylvania Board of Probation and Parole, 709 A.2d 945, 948 (Pa.
Cmwlth. 1998) (denying parolee credit for time he was constructively paroled); Rosenberger v.
Pennsylvania Board of Probation and Parole, 510 A.2d 866, 867 (Pa. Cmwlth. 1986) (finding that a
parolee confined to a federal facility is still at liberty on parole when constructively paroled from a
state sentence).

       9
          In other words, “a convicted parole violator is not entitled to credit for time spent on
constructive parole from his sentence when continuing to serve another concurrent sentence because
he is not serving the time on his sentence from which he was paroled.” Spruill, 158 A.3d at 731.


                                                  9
credit for this time, they are not required to do so. However, pursuant to Pittman, the
Board is required to articulate its reason for denying credit for time at liberty on parole.
Here, with respect to the remaining 455 days spent on parole, the Board explained,
consistent with Pittman, why it chose not to exercise its discretion and award him
credit. Specifically, the Board noted Noble’s poor supervision history and a new
conviction identical to his latest offense, as reasons why he should not be given credit.
These reasons are sufficient to satisfy the requirements of Pittman. Thus, the Board
properly exercised its discretion pursuant to section 6138(a)(2.1) of the Prisons and
Parole Code.
               Accordingly, we affirm the decision of the Board that Noble is not
entitled, as a matter of right, to credit for the days in which he was constructively or
actually paroled.




                                             ________________________________
                                             PATRICIA A. McCULLOUGH, Judge




                                            10
              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Paul Noble,                            :
                   Petitioner          :
                                       :    No. 289 C.D. 2019
              v.                       :
                                       :
Pennsylvania Board of                  :
Probation and Parole,                  :
                  Respondent           :


                                    ORDER


              AND NOW, this 18th day of November, 2019, the decision of the
Pennsylvania Board of Probation and Parole mailed February 22, 2019, is affirmed.




                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge
