                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Santos Dellior, Jr.,                            :
                              Petitioner        :
                                                :
                       v.                       :
                                                :
Pennsylvania Board of                           :
Probation and Parole,                           :    No. 183 C.D. 2016
                              Respondent        :    Submitted: September 23, 2016


BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                          FILED: December 6, 2016

               Santos Dellior, Jr. (Dellior) petitions this Court for review of the
Pennsylvania Board of Probation and Parole’s (Board) January 8, 2016 order denying
his request for administrative relief. Essentially, Dellior presents one issue for this
Court’s review: whether the Board properly calculated his new maximum sentence
release date as October 23, 2017.1 After review, we affirm.
               Dellior is currently an inmate at State Correctional Institution-Mahanoy
(SCI-Mahanoy). On September 4, 2008, the Board paroled Dellior from a 3 to 6-year
sentence for manufacturing/sale/delivery or possession with intent to deliver a
controlled substance (Original Sentence). At that time, his maximum sentence date




       1
          In his “Questions Presented” and “Argument” sections of his brief, Dellior also presented
the issue of whether the Board failed to exercise reasonable diligence in sanctioning him in a speedy
manner. Dellior Br. at 4, 12-13. However, because Dellior did not raise that issue to the Board, it is
waived. Reavis v. Pa. Bd. of Prob. & Parole, 909 A.2d 28 (Pa. Cmwlth. 2006).
was April 7, 2011. Before his December 10, 2008 release on parole, Dellior agreed
to conditions governing his parole, including:

            If you are convicted of a crime committed 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.

Certified Record (C.R.) at 12.
            On March 26, 2011, the Upper Moreland Police Department arrested
Dellior on drug, forgery, identity theft and child welfare endangerment charges. On
March 27, 2011, the Montgomery County Common Pleas Court (trial court) set bail
for $25,000.00 which Dellior did not post and, thus, remained incarcerated. On
March 28, 2011, the Board lodged a warrant to commit and detain Dellior based on
the new charges. Dellior posted bail on April 4, 2011, and the Board lifted its
detainer on April 7, 2011 (Dellior’s Original Sentence maximum release date).
            On August 8, 2013, Dellior pled guilty to the March 26, 2011 drug
charge. On September 4, 2013, the Board re-lodged its warrant to commit and detain
Dellior. On September 12, 2013, the Board provided Dellior with a notice of charges
and notice of the Board’s intent to hold a parole revocation hearing. On September
17, 2013, the Board held the revocation hearing at the Philadelphia County prison, at
which Dellior was represented by counsel, and he admitted to his Montgomery
County conviction. On September 18, 2013, the trial court revoked Dellior’s bail.
Dellior was transferred to SCI-Mahanoy on October 3, 2013. On September 19,
2013, the Board Hearing Examiner voted and, on October 14, 2013, the Board
Member voted to recommit Dellior as a convicted parole violator (CPV), and to deny
him credit for time he spent at liberty on parole. By decision recorded October 17,



                                          2
2013 (mailed October 31, 2013), the Board formally recommitted Dellior as a CPV,
when available, pending his Montgomery County sentencing.
             By July 30, 2014 decision, the Board recommitted Dellior as a CPV to
serve 12 months backtime. On September 5, 2014, the trial court sentenced Dellior to
11½ to 23 months in county prison, although Dellior remained in the Department of
Corrections’ custody.       By decision recorded August 11, 2015 (mailing date
unknown), the Board modified its July 30, 2014 decision by placing Dellior into
“when available” status, pending his parole from or completion of his Montgomery
County sentence. On August 20, 2015,2 Dellior was paroled from his Montgomery
County sentence. By September 30, 2015 recommitment order, based on his August
20, 2015 parole, the Board recalculated Dellior’s Original Sentence maximum release
date to October 23, 2017.
             The Board calculated Dellior’s new maximum sentence release date as
follows. When Dellior was released on parole on December 10, 2008, his maximum
sentence release date was April 7, 2011 and, thus, he owed 848 days of backtime
toward his Original Sentence. The Board provided Dellior with 73 days of backtime
credit. Specifically, Dellior received 3 days of credit for the period of April 4, 2011
(when he posted bail) to April 7, 2011 (when the Board lifted its detainer). Dellior
also received 70 days of credit for the period of July 1, 2015 (the date he completed
his Montgomery County sentence) to September 9, 2015 (the date he was released on
parole because he reached the Montgomery County maximum release date).3
Notwithstanding the effective date of Dellior’s Montgomery County sentence, Dellior
completed his Montgomery County sentence before his parole date due to his pre-
sentence incarceration. Accordingly, all time Dellior spent incarcerated after he

      2
          Although Dellior’s “parole” date was August 20, 2015, his parole “release” date was
September 9, 2015. Thus, September 9, 2015, is the date used for credit calculation purposes.
       3
          Although Dellior was paroled from his Montgomery County sentence, he remained
incarcerated due to his Original Sentence.
                                             3
completed his Montgomery County sentence must be credited to his Original
Sentence. Crediting 73 days against 848 days of backtime resulted in Dellior owing
775 days toward his Original Sentence. Dellior became available to begin serving
the backtime on his Original Sentence when he was released on parole on September
9, 2015. Adding 775 days to September 9, 2015 resulted in Dellior’s new October
23, 2017 Original Sentence maximum release date.
              On November 5, 2015, Dellior, pro se, submitted an Administrative
Remedies Form challenging the Board’s decision recorded September 30, 2015
(mailed October 16, 2015), which formally recommitted Dellior as a CPV. On
January 8, 2016, the Board denied Dellior’s request for administrative relief. Dellior
appealed to this Court.4
              Dellior argues that the Board miscalculated his new maximum sentence
release date as October 23, 2017. Specifically, Dellior contends that he has been
incarcerated from August 8, 2013 to September 9, 2015, for a total of 763 days.
Dellior claims that because the effective date of his Montgomery County sentence
was September 5, 2014, and he was paroled from that sentence on September 9, 2015,
only 369 days should be deducted from his time served on his Original Sentence for
his Montgomery County sentence. Thus, Dellior maintains he is entitled to 394 days
accreditation, not 73 days. We disagree.
              Dellior was arrested on the Montgomery County charges on March 26,
2011. See C.R. at 51. The trial court set bail on March 27, 2011. See C.R. at 35.
The Board lodged its detainer on March 28, 2011. See C.R. at 70. Dellior posted bail
on April 4, 2011. See C.R. at 50. “[W]here an offender is incarcerated on both a

       4
         “Our scope of review of the Board’s decision denying administrative relief is limited to
determining whether necessary findings of fact are supported by substantial evidence, an error of
law was committed, or constitutional rights have been violated.” Fisher v. Pa. Bd. of Prob. &
Parole, 62 A.3d 1073, 1075 n.1 (Pa. Cmwlth. 2013).


                                               4
Board detainer and new criminal charges, all time spent in confinement must be
credited to either the new sentence or the original sentence.” Martin v. Pa. Bd. of
Prob. & Parole, 840 A.2d 299, 309 (Pa. 2003) (emphasis added).
             Further,

             [our] Supreme Court held that ‘time spent in custody
             pursuant to a detainer warrant shall be credited to a
             convicted parole violator’s original term . . . only when the
             parolee was eligible for and had satisfied bail
             requirements for the new offense and thus remained
             incarcerated only by reason of the detainer warrant
             lodged against him.’ Gaito [v. Pa. Bd. of Prob. & Parole],
             . . . 412 A.2d [568,] 571 [(Pa. 1980)] (quoting Rodriques v.
             [Pa.] [Bd.] of Prob[.] [&] Parole, . . . 403 A.2d 184, 185–86
             ([Pa. Cmwlth.] 1979)) (emphasis added).

Armbruster v. Pa. Bd. of Prob. & Parole, 919 A.2d 348, 352 (Pa. Cmwlth. 2007)
(bold emphasis added). Thus, because Dellior did not post bail until April 4, 2011,
the time he spent incarcerated between March 27, 2011 and April 4, 2011, must be
credited to Dellior’s Montgomery County sentence. Moreover, Section 9760 of the
Judicial Code provides, in pertinent part:

             After reviewing the information submitted under [S]ection
             9737 [of the Judicial Code] (relating to report of
             outstanding charges and sentences) the court shall give
             credit as follows:

             (1) Credit against the maximum term and any minimum
             term shall be given to the defendant for all time spent in
             custody as a result of the criminal charge for which a prison
             sentence is imposed or as a result of the conduct on which
             such a charge is based. Credit shall include credit for
             time spent in custody prior to trial, during trial, pending
             sentence, and pending the resolution of an appeal.

42 Pa.C.S. § 9760 (emphasis added).
             Because the Board lifted its detainer on April 7, 2011, Dellior’s Original
Sentence maximum date, see C.R. at 11, any time Dellior spent incarcerated
                                             5
thereafter was credited to his Montgomery County sentence. Therefore, although
Dellior’s Montgomery County sentence was effective September 5, 2014, and he was
paroled therefrom on September 9, 2015, he completed his Montgomery County
sentence on July 1, 2015 due to his pre-sentence incarceration. See C.R. at 146-147.
Accordingly, after attributing the correct credit for time served on Dellior’s
Montgomery County sentence, the balance was properly credited to his Original
Sentence, i.e., 73 days.
             For all of the above reasons, the Board’s order is affirmed.


                                       ___________________________
                                       ANNE E. COVEY, Judge




                                           6
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Santos Dellior, Jr.,                       :
                            Petitioner     :
                                           :
                       v.                  :
                                           :
Pennsylvania Board of                      :
Probation and Parole,                      :   No. 183 C.D. 2016
                            Respondent     :


                                         ORDER


             AND NOW, this 6th day of December, 2016, the Pennsylvania Board of
Probation and Parole’s January 8, 2016 order is affirmed.


                                         ___________________________
                                         ANNE E. COVEY, Judge
