              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Ignatio Cartegena,                        :
                     Petitioner           :
                                          :   No. 418 C.D. 2016
             v.                           :
                                          :   Submitted: August 19, 2016
Pennsylvania Board of                     :
Probation and Parole,                     :
                  Respondent              :


BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                        FILED: January 12, 2017


             Ignatio Cartegena (Petitioner) petitions for review of the February 11,
2016, and April 27, 2016 decisions of the Pennsylvania Board of Probation and
Parole (Board) affirming its prior determinations to reinstate Petitioner as a convicted
parole violator (CPV), serve back time, and modify his maximum sentence date.


                             Facts and Procedural History
             Petitioner is an inmate currently incarcerated at the State Correctional
Institution at Fayette. On or about May 21, 2002, Petitioner was sentenced to ten to
thirty years’ confinement for third degree murder. Petitioner’s respective minimum
and maximum release dates were March 20, 2011, and March 20, 2031. (Certified
Record (C.R.) at No. 1.)
               By decision recorded December 29, 2010, the Board granted Petitioner
conditional parole.        Before his release on March 21, 2011, Petitioner signed
conditions governing his parole, advising, inter alia, that “[i]f you are convicted of a
crime 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.”
(C.R. at No. 2.)
               On June 8, 2012, Petitioner was arrested and detained by the
Philadelphia Police Department for possession of a firearm prohibited, firearm not to
be carried without a license, and carrying a firearm on a public street in Philadelphia.1
The same day, the Board issued a warrant to commit and detain Petitioner. On June
12, 2012, the Board notified Petitioner that it intended to conduct a detention hearing;
however, Petitioner waived his right to a detention hearing, as well as his right to
counsel. The Board detained Petitioner pending the disposition of his new criminal
charges. (C.R. at Nos. 4-6.)
               Petitioner was ultimately convicted of the three new criminal charges
and, on April 28, 2015, the Court of Common Pleas of Philadelphia County sentenced
him to four to ten years’ confinement for the possession of a firearm prohibited
charge; two to seven years’ confinement for the firearm not to be carried without a
license charge; and three years of supervised probation for the carrying firearms on a
public street in Philadelphia charge.
               On May 8, 2015, the Board notified Petitioner that it intended to conduct
a revocation hearing based on his new criminal convictions. The same day, Petitioner
admitted that he was convicted of the new criminal charges and waived his right to a

      1
          18 Pa.C.S. §§6105, 6106, and 6108, respectively.



                                                 2
revocation hearing. On June 4, 2015, the Board voted to recommit Petitioner as a
CPV and subsequently recommitted Petitioner as a CPV to serve forty-eight months
of back time, without credit for time spent at liberty on parole. Accordingly, the
Board determined that Petitioner was not eligible for reparole until November 9,
2016, and that his new parole violation maximum date was November 9, 2032.
              In calculating Petitioner’s new parole violation maximum date, the
Board awarded Petitioner 937 days of sentence credit for the periods of June 8, 2012,
to June 9, 2012, and October 4, 2012, to April 28, 2015. Petitioner’s sentence award
was credited against the time owed on his original sentence, leaving 6,368 days
(seventeen years, five months, and five days) on his sentence. The Board determined
that Petitioner was available to begin serving the back time on his original sentence
on June 4, 2015, the date the Board voted to recommit him as a CPV, resulting in a
new parole violation maximum date of November 9, 2032.2
              By letter dated September 8, 2015, Petitioner filed a request for
administrative relief, challenging the Board’s determination and arguing that a timely
revocation hearing was never performed; the back time imposed was excessive; and
his parole violation maximum date was erroneous.
              By decision mailed February 11, 2016, the Board affirmed its prior
determination. The Board reasoned that Petitioner waived his right to a revocation
hearing and that the back time imposed was not excessive because it was within the


       2
         While Petitioner’s administrative appeal was pending, the Board discovered a one-day
error in calculating Petitioner’s maximum sentence date and, by decision recorded October 30,
2015, issued a decision correcting the error and modifying Petitioner’s maximum sentence date to
November 8, 2023. However, this decision contained a typographical error and, by decision
recorded December 11, 2015, the Board corrected Petitioner’s maximum sentence date to
November 8, 2032.



                                               3
presumptive range for three violations of the Pennsylvania Uniform Firearms Act of
1995.3
               The Board also determined that it properly awarded Petitioner sentence
credit. The Board explained that, pursuant to section 6138(a)(5) of the Prisons and
Parole Code,4 Petitioner must serve his original sentence before his new sentence;
however, according to the Board, Petitioner did not become available to begin service
of his original sentence until the Board voted to recommit him as a CPV on June 4,
2015. The Board explained that it awarded Petitioner 937 days of sentence credit for
the period of June 8, 2012, the date of his arrest on the Board’s detainer, to June 9,
2012, the date he was detained in lieu of bail on the new criminal charges, as well as
the period from October 4, 2012, the date he was released on ROR5 bail, to April 28,
2015, the date he was sentenced on the new criminal charges, because he was held
solely on the Board’s detainer during those periods.      The Board did not award
Petitioner sentence credit for the periods from June 9, 2012, to October 4, 2012, or
from April 28, 2015, to June 4, 2015, because he was confined on the new charges as
well as the Board’s detainer.
               The Board also determined that it properly calculated Petitioner’s new
maximum parole date to November 8, 2032 and, therefore, his objection to the prior




      3
          18 Pa.C.S. §§6101-6127.

      4
          61 Pa.C.S. §6138(a)(5).

      5
          Release on own recognizance.




                                           4
maximum date was moot.6 Accordingly, the Board affirmed its prior determination,
except in regard to the November 9, 2032 maximum date.
                  On appeal to this Court,7 Petitioner argues that the Board violated his
due process rights because it did not conduct a timely revocation hearing. Petitioner
also argues that his due process rights were violated because he was not advised that
his “street time”8 was at risk of being taken by the Board. Moreover, Petitioner
asserts that the Board erred in extending his maximum sentence date.
                 Conversely, the Board argues that it did not violate Petitioner’s due
process rights because he admitted his convictions and waived his right to a
revocation hearing. The Board also argues that it was statutorily authorized to deny
Petitioner sentence credit for time spent at liberty on parole. Finally, the Board
maintains that it correctly calculated Petitioner’s maximum sentence date to
November 8, 2032.




       6
         By letter received on January 15, 2016, Petitioner challenged the Board’s authority to
extend his maximum sentence date to November 8, 2032, essentially appealing the Board’s
December 11, 2015 action correcting the typographical error in its previous decision. By decision
mailed April 27, 2016, the Board affirmed its prior determination, stating that the Board’s decision
to recommit Petitioner as a CPV gave it authority to recalculate his sentence to reflect that he
received no credit for time spent at liberty on parole. The Board further stated that the ability to
challenge the recalculation date after it is imposed satisfies Petitioner’s due process rights.

       7
         Our scope of review is limited to determining whether constitutional rights were violated,
whether the adjudication was in accordance with the law, and whether necessary findings were
supported by substantial evidence. 2 Pa.C.S. §704; Adams v. Pennsylvania Board of Probation and
Parole, 885 A.2d 1121, 1122 n.1 (Pa. Cmwlth. 2005).

       8
           “Street time” is a term frequently used to refer to time spent at liberty on parole.



                                                     5
                                      Discussion
                                 Revocation Hearing
             In the context of a revocation hearing, the United States Supreme Court
has stated that the minimum requirements of due process are: (a) written notice of
the claimed violations of parole; (b) disclosure to the parolee of evidence against him;
(c) opportunity to be heard in person and to present witnesses and documentary
evidence; (d) the right to confront and cross-examine adverse witnesses; (e) a neutral
and detached hearing body; and (f) a written statement by the factfinders as the
evidence relied on and reasons for revoking parole. Morrissey v. Brewer, 408 U.S.
471, 489 (1972); see also 37 Pa. Code §71.3 (delineating Pennsylvania procedures for
parolees charged with a new criminal offense).
             The Board’s regulations provide that:

             (1) A revocation hearing shall be held within 120 days from
             the date the Board received official verification of the plea
             of guilty or nolo contendere or of the guilty verdict at the
             highest trial court level except as follows: . . .

37 Pa. Code §71.4(1).
             However, a parolee may waive his right to a parole revocation hearing.
Fisher v. Pennsylvania Board of Probation and Parole, 62 A.3d 1073,1075 (Pa.
Cmwlth. 2013). This Court has stated that:

             [I]n order to effectuate a knowing and voluntary waiver in
             Parole Board cases, all that is required is for the Board to
             show that it followed its own regulations and provided the
             necessary information to the offender prior to the offender
             signing the written waiver form.




                                           6
Prebella v. Pennsylvania Board of Probation and Parole, 942 A.2d 257, 261 (Pa.
Cmwlth. 2008). Moreover, this Court has held that a parolee is precluded from
challenging the timeliness of a revocation hearing once he waives his right to the
same. Fisher, 62 A.3d at 1076.
             Here, the record indicates that the Board advised Petitioner on May 8,
2015, that it intended to conduct a revocation hearing. The same day, Petitioner
admitted to being convicted of the new criminal charges, executed the Board’s form,
and waived his right to a revocation hearing. The form Petitioner executed expressly
stated that he chose to take said action of his own free will, without promise, threat,
or coercion. Therefore, pursuant to this Court’s decision in Fisher, Petitioner is
precluded from challenging the timeliness of his revocation hearing because he
voluntarily waived his right to the same.


                                    “Street time”
             Next, Petitioner argues that the Board violated his due process rights
because he was never advised that his “street time” was at risk of being taken away.
             Pursuant to section 6138(a) of the Prisons and Parole Code, the Board
has statutory authority to recalculate a CPV’s sentence to reflect that he received no
credit for time spent at liberty on parole. 61 Pa.C.S. §6138(a)(2).     Indeed, in the
present matter, the Board advised Petitioner of the numerous conditions governing his
parole, including that the Board had authority to recommit him to serve the balance of
his original sentence without credit for any time spent at liberty on parole if he was
convicted of a new crime. Additionally, Claimant was given an opportunity to
challenge the Board’s recalculation decision after it was imposed, as evidenced by the




                                            7
present appeal. Thus, the record is clear that Petitioner received the due process he
was entitled to and his argument to the contrary lacks merit.


                                 Maximum Sentence
             Finally, Petitioner argues the Board did not have the authority to
recalculate his maximum sentence date to November 9, 2032. Although convoluted,
it appears Petitioner challenges the Board’s authority to modify a judicial imposed
sentence and add back time to the same.
             Here, by decision recorded December 11, 2015, the Board corrected
Petitioner’s maximum sentence date to November 8, 2032. Thus, any challenge to
the November 9, 2032 date is moot based on the Board’s revised calculation.
Nevertheless, the Board has statutory authority to recalculate a CPV’s sentence to
reflect that he receive no credit for time spent at liberty on parole. 61 Pa.C.S.
§6138(a)(2). The Board’s statutory authority to deny credit for time spent at liberty
on parole does not constitute an encroachment upon the judiciary’s constitutionally
established sentencing power.     Young v. Pennsylvania Board of Probation and
Parole, 409 A.2d 843, 848 (Pa. 1979). Moreover, if a parolee is recommitted, 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 . . . .” 61
Pa.C.S. §6138(a)(2).    Therefore, Petitioner’s argument that the Board was not
authorized to recalculate his maximum sentence date and impose back time is
unpersuasive.
             Accordingly, the Board’s decisions are affirmed.


                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge


                                           8
                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Ignatio Cartegena,                    :
                     Petitioner       :
                                      :    No. 418 C.D. 2016
            v.                        :
                                      :
Pennsylvania Board of                 :
Probation and Parole,                 :
                  Respondent          :


                                   ORDER


            AND NOW, this 12th day of January, 2017, the February 11, 2016,
and April 27, 2016 decisions of the Pennsylvania Board of Probation and Parole
are affirmed.



                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge
