            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Justin T. Mathews,                         :
                            Petitioner     :
                                           :
             v.                            :   No. 1953 C.D. 2015
                                           :   Submitted: May 6, 2016
Pennsylvania Board                         :
of Probation and Parole,                   :
                            Respondent     :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                               FILED: September 15, 2016

             Petitioner Justin T. Mathews (Mathews) petitions for review of an
order of the Pennsylvania Board of Probation and Parole (Board). The Board
denied Mathews’ administrative appeal of its June 1, 2015 decision, in which he
sought to challenge the Board’s calculation of his maximum sentence date. We
affirm the Board’s order.
             Mathews pleaded guilty on July 13, 2010, to charges of possession
with intent to deliver and received a sentence of one and one-half-to-four years
imprisonment.1 (Certified Record (C.R.) at 1.) The minimum and maximum dates



      1
        For this conviction, the Board assigned Mathews the institutional identification
“JQ-5154.”
for this charge were November 1, 2011, and November 1, 2014, respectively. (Id.)
On November 2, 2011, Mathews was granted parole. (C.R. at 4.)
             On January 18, 2012, Mathews absconded from parole supervision,
and the Board declared Mathews delinquent. (C.R. at 10, 79.) Mathews was
subsequently apprehended and returned to a state correctional institution on
February 16, 2012. (C.R. at 98.) In a decision mailed April 23, 2012, the Board
recommitted Mathews as a technical parole violator (TPV) for multiple parole
violations and declared him eligible for reparole to a Community Corrections
Center (CCC). (C.R. at 10-11.) Additionally, the Board recalculated Mathews’
maximum date to November 30, 2014. (Id.) On May 15, 2012, Mathews was
transferred from a state correctional institution to Progress CCC. (C.R. at 98.) On
August 6, 2012, Mathews was transferred from Progress CCC to Wernersville
CCC. (C.R. at 79.)
             On December 8, 2012, Mathews absconded from Wernersville CCC,
and police apprehended him on January 11, 2013. (Id.) Thereafter, by a decision
mailed on March 6, 2013, the Board revoked Mathews’ parole. (C.R. at 20-22.)
This decision recommitted Mathews as a TPV and recalculated his maximum date
from November 1, 2014, to January 3, 2015. (C.R. at 20.)
             On July 11, 2013, the Board reparoled Mathews.           (C.R. at 27.)
Thereafter, on November 15, 2013, Mathews again absconded from parole
supervision, and the Board declared him delinquent. (C.R. at 28, 80.) Mathews
was   then   arrested   and   detained    in   the   Berks   County     Prison   on
November 21, 2013. (C.R. at 80.)         Mathews was subsequently placed into
the parole violator center in Lackawanna County on February 27, 2014. (C.R.




                                         2
at 80-81.) On April 7, 2014, Mathews was released from the parole violator center
to Allentown CCC. (C.R. at 80.)
                On June 2, 2014, Mathews again absconded from parole supervision
and was thereafter arrested on new criminal charges and parole violations on
July 15, 2014. (Id.) The Board lodged a detainer against Mathews on the same
day. (C.R. at 31.) By a decision mailed August 25, 2014, the Board recommitted
Mathews as a TPV and recalculated his maximum date from January 3, 2015, to
February 15, 2015. (C.R. at 34.)
                On July 31, 2014, Mathews was detained in lieu of bail for new
criminal charges filed in the Court of Common Pleas of Lackawanna County.
(C.R. at 64.)      By a decision recorded October 17, 2014, the Board detained
Mathews pending disposition of the new criminal charges. (C.R. at 58.) On
December 11, 2014, Mathews pleaded guilty to the new charges and was sentenced
to serve twenty-one months to forty-two months in a state correctional institution.
(C.R. at 62.)
                The Board conducted a revocation hearing on April 8, 2015, wherein
the Board voted to revoke Mathews’ parole and deny him credit for time at liberty
on parole.      (C.R. at 90-97.)   By a decision mailed June 1, 2015, the Board
recommitted Mathews as a convicted parole violator (CPV) to serve his unexpired
term of one year, two months, and three days for his criminal convictions. (C.R.
at 99.) This decision recalculated Mathews’ maximum date from January 3, 2015,
to February 18, 2016. (Id.)
                On June 15, 2015, Mathews, then represented by legal counsel, filed
an administrative remedies form, asserting first that Mathews “was not given any
time credit for the period of time that he served at the Berks County Prison


                                          3
exclusively on the technical violations from April 16, 2013 through
July 11, 2013,” a period spanning 87 days. (C.R. at 106-07.) Further, Mathews
asserted that his request for his revocation hearing to be held before a panel was
improperly denied, thereby denying him his right to a panel hearing in accordance
with 37 Pa. Code § 71.4(2)(i) & (4). (Id.) The Board denied the request for
administrative relief, reasoning:
              The record reflects that the Board conducted a panel
              hearing for Mathews on April 8, 2015 at SCI-Graterford.
              George Griffith, Jr. from the Montgomery County Public
              Defender’s Office represented Mr. Matthews (sic) at the
              hearing. Thus, your claim that the Board denied him a
              panel hearing is erroneous.
              Additionally, the PBPP-39 Order to Recommit reflects
              that Mr. Matthews (sic) was not paroled until
              July 11, 2013. This means that he received credit for all
              time prior to that date unless it is specifically listed in the
              prior parole liberty forfeited section. The only prior
              parole liberty forfeited in this case was the periods from
              November 2, 2011 to January 18, 2012 and from
              May 15, 2012 to December 8, 2012. This does not
              encompass       the    period      you     reference      from
              April 16, 2013 to July 11, 2013. Because the time you
              seek was prior to his current parole and not listed in the
              prior parole liberty forfeited section, the calculation
              reflects that Mr. Mathews already received credit for the
              period of April 16, 2013 to July 11, 2013.

(C.R. at 117.)
              Mathews filed a petition for review with this Court,2 taking exception
with the Board’s recalculation of his maximum date, which was extended until

       2
         Our review of a Board order recalculating a maximum release date is limited to
considering whether the Board erred as a matter of law or violated any constitutional rights and
whether necessary factual findings are supported by substantial evidence. 2 Pa. C.S. § 704.



                                               4
February 18, 2016.         Specifically, Mathews contends the time period between
May 12, 2012, and August 9, 2012, is improperly credited to both prior parole
liberty forfeited and confinement time. By this time being categorized as both
liberty time forfeited and confinement time, Mathews avers that this is an
impossibility that must be corrected.               Due to this, Mathews argues that his
maximum date should be reduced by 83 days, which represents the overlapping
period where he was in custody, yet not given credit for it.
               In addressing Mathews’ claim, we note that in this appeal Mathews
seeks credit for a different period of time than he had indicated on his
administrative remedies form. In his brief, Mathews states that this was an error of
his then-attorney and that this Court should review Mathews’ claim based upon the
date range indicated in his brief. (Pet’r’s Br. at 10.) Before the Board, Mathews
sought credit for a period of incarceration from April 16, 2013, to July 11, 2013.
In retort, the Board argues that Mathews has waived this claim of error, as it was
not raised in his administrative appeal.3 We agree.
               By indicating a different date range on the administrative appeals
form, Mathews did not raise the issue of whether he was entitled to credit that he
did not receive for the period of May 12, 2012, to August 9, 2012. Accordingly,
the issue is waived. McDaniel v. Pa. Bd. of Prob. & Parole, 587 A.2d 42, 45 (Pa.

       3
          We also note that the Board filed a supplemental record and, in its brief, requested that
the matter be remanded to correct an error in its calculation that was unrelated to the appeal now
before the Court. Specifically, the Board avers that the February 18, 2016 maximum date is
incorrect due to Mathews receiving an improper credit from November 28, 2012, to
April 16, 2013. As the request for remand would not address the issues raised in this appeal,
remand is unnecessary and would only further delay resolution of the issue now before the Court.
Nothing in this opinion prevents the Board from taking appropriate action in the future to correct
its calculation, if otherwise permissible.



                                                5
Cmwlth. 1991); Newsome v. Pa. Bd. of Prob. & Parole, 553 A.2d 1050 (Pa.
Cmwlth. 1989). This Court is precluded from reviewing any issue not first raised
before the governmental agency. See Section 703(a) of the Administrative Agency
Law, 2 Pa. C.S. § 703(a); Pa. R.A.P. 1551(a); McCaskill v. Pa. Bd. of Prob. &
Parole, 631 A.2d 1092, 1095 (Pa. Cmwlth. 1993), appeal denied, 631 A.2d 1092
(Pa. 1994).
              We note, however, that even if this issue had not been waived,
Mathews would still not prevail. As the Board correctly argues, the record reflects
that Mathews was already credited for this time. (Resp’t’s Br. at 11.) Mathews
was released on parole from a state correctional institution to Progress CCC on
May 15, 2012, and he was subsequently transferred to Wernersville CCC on
August 6, 2012. (C.R. at 79, 98.) Mathews then remained on parole until he
absconded from parole supervision staff on December 8, 2012. (C.R. at 79.) This
period, totaling 207 days, is listed as prior parole liberty forfeited on Mathews’
order to recommit. (C.R. at 101.) The Board determined that Progress CCC,
however, was restrictive enough to constitute confinement, so the 83 days
Mathews spent there is also credited in the confinement time section of Mathews’
order to recommit—meaning that the 83 days is counted as confinement time. (Id.)
Consequently, Mathews’ claim of error as to the calculation of his maximum date
is not only waived, it is without merit.
              Accordingly, we conclude that the Board did not err in its
recalculation of Mathews’ new maximum sentence date, and we affirm the Board’s
order.



                                 P. KEVIN BROBSON, Judge

                                           6
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Justin T. Mathews,                        :
                           Petitioner     :
                                          :
            v.                            :   No. 1953 C.D. 2015
                                          :
Pennsylvania Board                        :
of Probation and Parole,                  :
                           Respondent     :


                                        ORDER


            AND NOW, this 15th day of September, 2016, the order of the
Pennsylvania Board of Probation and Parole is AFFIRMED.




                                 P. KEVIN BROBSON, Judge
