          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Scott Kobesky,                           :
                         Petitioner      :
                                         :
                   v.                    :   No. 812 C.D. 2019
                                         :   SUBMITTED: December 13, 2019
Pennsylvania Board of Probation          :
and Parole,                              :
                        Respondent       :


BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                                    FILED: April 13, 2020


             Scott Kobesky, Petitioner, petitions for review of an order of the
Pennsylvania Board of Probation and Parole (Board) denying his challenge to the
parole violation maximum date established by the Board. At issue is whether the
Board erred by not crediting Petitioner’s original sentence with the time he spent
incarcerated pursuant to both a Board detainer and new criminal charges. Discerning
no error, we affirm.
             In 2015, Petitioner was sentenced to five to twelve years’ imprisonment
for theft-related crimes. (Certified Record “C.R.” at 9.) His original minimum and
maximum dates, respectively, were March 16, 2017, and March 16, 2024. In March
2017, the Board released Petitioner on parole. (Id.) In December 2017, the Board
declared him delinquent. (C.R. at 22.) On December 26, 2017, the Board lodged a
detainer against Petitioner and the Scranton Police Department took him into
custody. (C.R. at 34, 41, and 47.) On December 27, 2017, Petitioner was arrested
on new criminal charges at two Lackawanna County docket numbers and did not
post bail. (C.R. at 116-27.) On January 3, 2018, he was arrested on new criminal
charges at a third docket number and did not post bail. (C.R. at 128-32.) In February
2018, the Board issued a decision detaining Petitioner pending the disposition of the
new criminal charges and recommitting him as a technical parole violator to serve
six months’ imprisonment. (C.R. at 77-79.) In March 2018, Petitioner pled guilty
to the new charges. (C.R. at 116-32.) In July 2018, he was sentenced to three
separate terms of imprisonment of thirty-sixty months, to be served consecutively in
a state correctional institution. (C.R. at 109-11.)
             In a November 2018 decision, the Board recommitted Petitioner as a
convicted parole violator to serve thirty months’ backtime, to be served concurrently
with the six months for the technical parole violation. (C.R. at 142-43.) The Board
did not award him any credit for time spent at liberty on parole. (C.R. at 142.)
However, the Board applied one day of backtime credit to the 2553 days remaining
on his original sentence for the day he was in custody solely on the Board’s detainer
between December 26 and 27, 2017. (C.R. at 140.) Accordingly, taking into account
the 2552 days of backtime owed, the Board recalculated Petitioner’s new maximum
date as July 12, 2025. (Id.)
             In December 2018, Petitioner appealed the Board’s decision. (C.R. at
144.) In May 2019, the Board denied his petition for administrative review and
affirmed its decision. (C.R. at 163-64.) Petitioner’s petition for review followed.
On appeal, Petitioner contends that the Board should have exercised the “equitable
crediting” recognized by the Supreme Court in Martin v. Pennsylvania Board of
Probation and Parole, 840 A.2d 299 (Pa. 2003), and applied the time that he served
on both the Board’s detainer and new criminal charges to his original sentence.



                                           2
Thus, he contends that both his maximum sentence and reparole eligibility dates
should be adjusted accordingly.
             The law pertaining to what credit is owed to a parolee who is
incarcerated pursuant to both a Board warrant and new criminal charges is as
follows. The general rule is that pre-sentence periods of incarceration shall be
credited to a convicted parole violator’s original term only when he has satisfied bail
requirements for a new offense and, therefore, remains incarcerated solely by reason
of the Board’s detainer. Gaito v. Pa. Bd. of Prob. & Parole, 412 A.2d 568, 571 (Pa.
1980). Where bail is not posted, the time incarcerated on both the new criminal
charges and the Board’s detainer must be applied to the new sentence. Id.
             In Martin, the Supreme Court created an exception to the general rule
by which a parolee may be entitled to credit on an original sentence for time spent
in custody. The exception comes into play where a parolee is incarcerated both on
new criminal charges and on a Board detainer before trial and, thereafter, is
sentenced on the new charges to less time than he spent in pre-sentence detention.
Under these circumstances, the time spent in confinement that is in excess of the
sentence for the new criminal charges should be credited toward the original
sentence. Martin, 840 A.2d at 309. Following Martin, the exception has been
applied to cases where it is not possible to apply all of the credit to the new sentence
because the period of pre-sentence incarceration exceeds the maximum term of the
new sentence. See, e.g., Jones v. Pa. Bd. of Prob. & Parole, 872 A.2d 1283, 1285
(Pa. Cmwlth. 2005) (new sentence of two days less than pre-sentence custody time
of four months, seventeen days); Hears v. Pa. Bd. of Prob. & Parole, 851 A.2d 1003,
1007 (Pa. Cmwlth. 2004) (new sentence of four days less than pre-sentence custody
time of four months, twenty days).



                                           3
            In the present case, there was no basis to apply the Martin exception
because the period of pre-sentence confinement was less than the new sentence.
Petitioner was incarcerated on both the Board’s detainer and his new criminal
charges from December 27, 2017, to July 17, 2018, because he did not post bail on
the new charges. When a parolee “[i]s detained under both the Board’s warrant and
the new criminal charges, this time is properly allocated to his new criminal
sentence.” Hammonds v. Pa. Bd. of Prob. & Parole, 143 A.3d 994, 999 (Pa.
Cmwlth. 2016). Consequently, we find no error in the Board’s decision to apply the
pre-sentence period of confinement to the new sentence in accordance with Gaito.
            Accordingly, we affirm.



                                      _____________________________________
                                      BONNIE BRIGANCE LEADBETTER,
                                      Senior Judge




                                        4
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Scott Kobesky,                         :
                       Petitioner      :
                                       :
                 v.                    :   No. 812 C.D. 2019
                                       :
Pennsylvania Board of Probation        :
and Parole,                            :
                        Respondent     :


                                    ORDER


           AND NOW, this 13th day of April, 2020, the order of the Pennsylvania
Board of Probation and Parole is hereby AFFIRMED.




                                     _____________________________________
                                     BONNIE BRIGANCE LEADBETTER,
                                     Senior Judge
