               IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Alonzo R. Boyd,                            :
                    Petitioner             :
                                           :   No. 912 C.D. 2015
             v.                            :
                                           :   Submitted: December 4, 2015
Pennsylvania Board of Probation            :
and Parole,                                :
                 Respondent                :


BEFORE:      HONORABLE DAN PELLEGRINI, President Judge1
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                           FILED: March 9, 2016



             Alonzo R. Boyd (Petitioner) petitions for review of the May 12, 2015
order of the Pennsylvania Board of Probation and Parole (Board), which denied his
administrative appeal and affirmed its previous decision to recommit him as a
convicted parole violator to serve forty-eight months backtime with a new parole
violation maximum sentence date of April 12, 2024.
             The underlying facts of this case are not in dispute. Petitioner was
originally sentenced to a term of incarceration of eight years and six months to
eighteen years following multiple drug convictions. Petitioner’s original maximum
      1
          This case was assigned to the opinion writer on or before December 31, 2015, when
President Judge Pellegrini assumed the status of senior judge.
sentence date was November 30, 2016.            Following expiration of his minimum
sentence, on July 30, 2007, Petitioner was released on parole to a community
corrections center. Four days earlier, on July 26, 2007, Petitioner acknowledged
receipt of a list of conditions governing his parole. In this list, the Board specifically
advised Petitioner that should he be convicted of a crime on parole, it had the
authority to recommit him, after a hearing, to serve the balance of his sentence with
no credit for any time spent at liberty on parole. Petitioner later moved to Ohio, with
the approval of the Board.
               Nearly seven years later, on May 2, 2014, Petitioner was arrested in
Ohio and later charged with two counts of drug possession. On September 6, 2014,
Petitioner pled guilty to these new criminal charges.         On September 25, 2014,
Petitioner was sentenced to a term of incarceration of six months in Ohio, with credit
for ninety-two days served. The Board, following notice from the Ohio authorities,
issued a warrant to commit and detain Petitioner.           Petitioner was returned to
Pennsylvania on December 15, 2014, and incarcerated at the State Correctional
Institution at Albion. Two days later, the Board provided Petitioner with a notice of
charges and hearing relating to his new convictions. At that time, Petitioner executed
a waiver of his right to a revocation hearing and counsel and admitted to his Ohio
convictions.
               By decision dated March 2, 2015, the Board recommitted Petitioner as a
convicted parole violator to serve forty-eight months backtime and recalculated his
parole violation maximum sentence date to be April 12, 2024. On March 30, 2015,
Petitioner filed an administrative appeal challenging the length of his recommitment
and his newly-calculated parole violation maximum sentence date, and alleging that
the Board’s recommitment violated his constitutional rights.          More specifically,



                                            2
Petitioner alleged that the Board’s action violated the cruel and unusual punishment2
and double jeopardy clauses3 of the United States and Pennsylvania Constitutions and
constituted impermissible detention beyond the terminate date of a judicially imposed
maximum sentence, which equates to a violation of his constitutional right to due
process.4 Petitioner emphasized that he spent seven years on parole in “[g]ood [f]aith
[s]tanding” and was never “delinquent or on the run.” (Record at Item No. 5.)
                By decision dated May 12, 2015, the Board denied Petitioner’s
administrative appeal.        Citing section 6138(a)(2) of the Prison and Parole Code
(Parole Code),5 the Board explained that Petitioner, as a convicted parole violator,
automatically forfeited credit for all of the time that he spent on parole. The Board
did not address Petitioner’s constitutional arguments. Petitioner subsequently filed a
petition for review with this Court reiterating his previous allegations.
                We first address Petitioner’s argument that the Board erred in
recommitting him as a convicted parole violator to serve forty-eight months
backtime.6 The Board concedes in its brief to this Court that such recommitment was


       2
           U.S. CONST. amend. VIII; PA. CONST. art. I, §13.

       3
           U.S. CONST. amend. V; PA. CONST. art. I, §10.

       4
           U.S. CONST. amend. XIV, §1; PA. CONST. art. I, §1.

       5
         This section states that a convicted parole violator “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 . . . shall be given no credit for the time at liberty on parole.” 61 Pa.C.S.
§6138(a)(2).

       6
        Our scope of review is limited to determining whether constitutional rights were violated,
an error of law was committed, or whether necessary findings are supported by substantial
evidence. Prebella v. Pennsylvania Board of Probation and Parole, 942 A.2d 257, 259 (Pa.
Cmwlth. 2008).



                                                  3
not within the proper presumptive range. The Board notes that Petitioner’s Ohio
convictions would be comparable to the offense of possession of a controlled
substance in Pennsylvania, which carries a presumptive range of only three to six
months. The Board requests that this issue be remanded for the issuance of a new
recommitment term that is within the presumptive range. This Court grants the
Board’s request.7
               We next address Petitioner’s constitutional arguments. Petitioner alleges
that the Board’s action in extending his parole violation maximum sentence date
infringes upon his constitutional protections against cruel and unusual punishment
and double jeopardy, as well as his right to due process. However, these arguments
have been consistently rejected by both the Pennsylvania Supreme Court and this
Court. See, e.g., Gaito v. Pennsylvania Board of Probation and Parole, 412 A.2d
568, 570 (Pa. 1980); Young v. Pennsylvania Board of Probation and Parole, 409
A.2d 843 (Pa. 1979); Santo v. Pennsylvania Board of Probation and Parole, 568
A.2d 296 (Pa. Cmwlth. 1990); Epps v. Pennsylvania Board of Probation and Parole,
565 A.2d 214 (Pa. Cmwlth. 1989); Monroe v. Pennsylvania Board of Probation and
Parole, 555 A.2d 295 (Pa. Cmwlth. 1989).
               Accordingly, the order of the Board, insofar as it affirmed its previous
order recommitting Petitioner to serve forty-eight months backtime is vacated and
this matter is remanded to the Board for the issuance of a new recommitment term



       7
          We note that Petitioner has not raised any challenge to the Board’s denial of credit under
section 6138(a)(2.1) of the Parole Code, 61 Pa.C.S. §6138(a)(2.1), which grants the Board
discretion to award a convicted parole violator credit for time spent on parole if the new conviction
is for a non-violent offense, does not relate to registration for sexual offenders, and the parolee was
not subject to deportation under a federal removal order.



                                                  4
that is within the applicable presumptive range.8 In all other respects, the Board’s
order is affirmed.



                                                ________________________________
                                                PATRICIA A. McCULLOUGH, Judge




       8
         Given the Board’s concession that the applicable presumptive range for each count was
only three to six months, and the fact that Petitioner has been incarcerated solely on the Board’s
warrant and recommitment order since December 15, 2014, which would already exceed the
maximum presumptive recommitment range, we expect that the Board will act expeditiously in
correcting this matter.



                                                5
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Alonzo R. Boyd,                          :
                   Petitioner            :
                                         :    No. 912 C.D. 2015
            v.                           :
                                         :
Pennsylvania Board of Probation          :
and Parole,                              :
                 Respondent              :


                                     ORDER


            AND NOW, this 9th day of March, 2016, the order of the
Pennsylvania Board of Probation and Parole, dated May 12, 2015, is vacated and
remanded in part and affirmed in part consistent with this opinion.
            Jurisdiction relinquished.



                                             ________________________________
                                             PATRICIA A. McCULLOUGH, Judge
