          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Braheem Morgan,                        :
                                       :
                            Petitioner :
                                       :
          v.                           : No. 658 C.D. 2019
                                       : Submitted: November 1, 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 JUDGE WOJCIK                                           FILED: April 29, 2020

               Braheem Morgan (Morgan) petitions for review from an order of the
Pennsylvania Board of Probation and Parole (Board) that denied his request for
administrative review challenging the calculation of his maximum sentence date and
how credit was allocated between his original and new sentences. Upon review, we
affirm the Board’s order.
               In 1999 and 2000, Morgan was found guilty of three counts of robbery,
two counts of possession of an instrument of a crime, and conspiracy. Certified
Record (C.R.) at 1. Morgan was sentenced to serve a term of imprisonment of 11
years and 2 months to 22 years and 4 months. Id. Morgan’s maximum sentence
date for the convictions was July 5, 2022. Id. On September 15, 2014, the Board
released Morgan on parole. Morgan had 2,850 days remaining on his sentence at
the time that he was paroled. C.R. at 7-8.
             On May 29, 2015, Morgan was arrested and charged with simple assault
and recklessly endangering another person. Id. at 13, 27. On that same date, the
Board issued a warrant to commit and detain Morgan for parole violations based on
his arrest. Id. Morgan did not post bail on the foregoing charges. Id. at 26.
             On June 15, 2015, Morgan was arrested on new charges for receiving
stolen property, unlawful taking, and criminal conspiracy. Id. at 15-16. On the same
date, the Board issued a second warrant to commit and detain Morgan for parole
violations based on his arrest. Id. The trial court released Morgan on his own
recognizance, but Morgan remained in custody solely on the Board’s detainer
pending disposition of the new charges. Id. at 16, 59.
             On September 3, 2015, Morgan was found not guilty of simple assault
and recklessly endangering another person. Id. at 34. On September 7, 2016,
Morgan pled guilty to access to a device used to obtain property/service and criminal
conspiracy, and was sentenced to a term of two to four years, and a three-year
probationary term. Id. at 40. The remaining charges were dismissed.
             Based on his new convictions, the Board charged Morgan as a
convicted parole violator (CPV). C.R. at 46. Morgan waived his right to counsel
and a revocation hearing. Id. at 49. A hearing examiner determined that Morgan
should be recommitted as a CPV based on his convictions. Id. at 50-57. On February
16, 2017, the Board revoked Morgan’s parole via the second signature on the hearing
report. Id. at 57.
             By decision dated March 1, 2017, the Board recommitted Morgan as a
CPV to serve 24 months’ backtime. C.R. at 78-79. The Board did not award Morgan
credit for the time spent at liberty on parole, citing Morgan’s prior failure to complete
parole, that he was unamenable to parole supervision, and his new conviction. Id. at


                                           2
53. The Board awarded Morgan credit for the 467 days1 he spent confined solely
under the Board’s detainer based on his May and June 2015 arrests, which left a
balance of 2,383 days (2,850 days – 467 days) remaining on his original sentence.
The Board added the balance of 2,383 days to his recommitment date of February
16, 2017, recalculated Morgan’s new maximum sentence date as August 27, 2023,
and declared that he would not be eligible for parole until November 23, 2018. Id.
at 78.
              Morgan timely requested administrative review of the Board’s March
1, 2017 decision on the basis that the Board miscalculated his reparole eligibility
date. C.R. at 80. More particularly, Morgan asserted that he had “23 months
incarcerated already” and that his reparole eligibility date “should be 5-17” because
he was released on his own recognizance for the underlying criminal charge and,
therefore, the days that he was confined solely on the Board’s detainer prior to being
recommitted as a CPV should be counted towards the 24 months of backtime. Id.
              Morgan submitted a second request for administrative review of the
Board’s March 1, 2017 decision. C.R. at 86. Morgan requested that the 450 days
he was confined prior to being convicted of the June 2015 theft charge be credited
towards either the 24 months’ backtime penalty or his new 2- to 4-year sentence
instead of his original sentence. Id. at 86. There is no evidence in the record that
the Board responded to either of these administrative review requests.
              On August 30, 2018, the Board issued a decision to constructively
reparole Morgan to begin serving his new sentence on November 23, 2018. C.R. at


         1
        The Board credited Morgan for the 17 days he spent detained between May 29, 2015, and
June 15, 2015, on the Board’s warrant pending resolution of the simple assault and reckless
endangerment of another person charges. The Board awarded Morgan credit for the 450 days he
spent confined pending resolution of the June 2015 theft charges.
                                             3
88. On October 18, 2018, the Board issued a decision modifying Morgan’s reparole
eligibility date, stating “DUE TO TECHNICIAN ERROR, MODIFY BOARD
ACTION OF 03/01/2017 TO NOW READ: NOT ELIGIBLE FOR REPAROLE
UNTIL 11/23/2017.” Id. at 92. In effect, the Board reduced Morgan’s backtime
from 24 months to 12 months. Morgan’s maximum sentence date remained August
27, 2023. Id. The next day the Board modified its August 30, 2018 decision to
immediately constructively reparole Morgan to serve his new sentence. C.R. at 95.
             In four separate letters, Morgan requested administrative review of the
Board’s October 2018 decision. C.R. at 99, 101-02, 104, 106. Morgan requested
that the additional 12 months he served due to the technician’s error be credited
towards his new sentence. Id. In the last of the 4 requests, Morgan asked that “450
days [] be credit[ed] to my current 2- to 4-year sentence I’m serving. []Due to
technician error, made by [the Board], in which [it] gave me [an] extra 12 month[s]
to serve due [to an] error and the 450 days that I sat in State custody pending outcome
of the new charges.” C.R. at 106.
             By decision mailed May 17, 2019, the Board denied Morgan’s request
for administrative review. Id. at 116-17. The Board explained that when Morgan
was paroled on September 15, 2014, his original maximum sentence date was July
5, 2022, with 2,850 days remaining on his sentence. Id. When Morgan was
recommitted as a CPV, the Board did not grant him credit for the time that he was
at liberty on parole, leaving the full 2,850 days remaining on his sentence. Id. The
Board awarded Morgan 17 days of confinement credit and 450 days of backtime
credit for the time that he was detained solely on the Board’s detainer, leaving 2,383
days remaining on his original sentence. Id. The Board explained that, under




                                          4
Section 6138(a)(1), (4)-(5) of the Prisons and Parole Code (Parole Code),2 Morgan
was not available to begin serving the balance on his original sentence until he was
recommitted as a CPV on February 16, 2017. Id. Thus, the Board concluded that,
based on a recommitment date of February 16, 2017, Morgan’s new maximum date
was correctly calculated as August 27, 2023 (adding 2,383 days). Id. at 116-17.
Morgan then petitioned this Court for review.3
                 Morgan, now represented by counsel, acknowledges that he must serve
the backtime imposed prior to serving his new sentence. Morgan had served 20
months of the 24 months’ backtime at the time that the Board corrected the
technician error and reduced the backtime penalty to 12 months. Morgan appears to
argue that the Board abused its discretion by failing to award him credit for the eight
months that he served over the corrected backtime. Specifically, Morgan argues that
he is entitled to credit for all of the time that he served that is not attributable to his
new sentence and that any time spent in state custody that is not attributable to his
backtime should be allocated to his new sentence.
                 However, Section 6138(a)(1) of the Parole Code provides that any
parolee who, during the period of parole, commits a crime punishable by
imprisonment and is convicted or found guilty of that crime may be recommitted as
a CPV. 61 Pa. C.S. §6138(a)(1). A parolee recommitted as a CPV must serve the
remainder of the term that he would have been compelled to serve had parole not
been granted, with no credit for the time spent at liberty on parole, unless the Board

       2
           61 Pa. C.S. §6138(a)(1), (4)-(5).

       3
        Our scope of review is limited to determining whether constitutional rights were violated,
whether the adjudication was in accordance with law, and whether necessary findings were
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§704; Miskovitch v. Pennsylvania Board of Probation and Parole, 77 A.3d 66, 70 n.4 (Pa. Cmwlth.
2013), appeal denied, 87 A.3d 322 (Pa. 2014).
                                                5
exercises its discretion to award credit. 61 Pa. C.S. §6138(a)(2), (2.1). If a new
sentence is imposed, the parolee must serve the balance of the original sentence prior
to the commencement of the new sentence. 61 Pa. C.S. §6138(a)(5)(i).
              “The time served on recommitment is known as backtime.” Marshall
v. Pennsylvania Board of Probation and Parole, 200 A.3d 643, 648 (Pa. Cmwlth.
2018). “Backtime” is the portion (or all) of a parolee’s original sentence that the
Board directs a parolee to serve after a civil administrative hearing. Krantz v.
Pennsylvania Board of Probation and Parole, 483 A.2d 1044, 1047 (Pa. Cmwlth.
1984). The amount of backtime imposed is used to calculate the parolee’s reparole
eligibility date. Id.
              Time incarcerated shall be credited to a CPV’s original term only when
he has satisfied bail requirements for the new offense and, therefore, remains
incarcerated solely on the Board’s detainer.      Gaito v. Pennsylvania Board of
Probation and Parole, 412 A.2d 568, 571 (Pa. 1980). Further, if a parolee is not
convicted, or if no new sentence is imposed for that conviction on a new charge, the
pre-trial custody time must be applied to the parolee’s original sentence. Id.
              In this case, the Board recommitted Morgan as a CPV. At the time of
Morgan’s parole, 2,850 days remained on his original sentence. C.R. at 76. The
Board credited Morgan with a total of 467 days: 17 days of confinement credit and
450 days of backtime. See Gaito, 412 A.2d at 571; C.R. at 76. By subtracting a total
of 467 days from 2,850, the Board correctly calculated a total of 2,383 days remained
on Morgan’s original sentence. Id.
              Morgan did not become available to begin serving backtime until
February 16, 2017, when the Board obtained the second signature recommitting him
as a CPV. 61 Pa. C.S. §6113(b); C.R. at 57. Therefore, the Board correctly


                                          6
calculated Morgan’s new maximum sentence date as August 27, 2023, by adding
2,383 days to February 16, 2017. C.R. at 76. The 467 days Morgan served solely
on the Board’s detainer pending resolution of the charges were properly allocated to
his original sentence. See Gaito, 412 A.2d at 571; 61 Pa. C.S. §6138(a)(2). The
Board declared that Morgan would not be eligible for reparole until November 23,
2018, based on the 24 months of backtime imposed. C.R. at 78. Although the Board
later reduced Morgan’s backtime to 12 months4 and adjusted his parole eligibility
date to November 23, 2017, this did not affect the allocation of time credited between
his original sentence and his new sentence, or otherwise alter the calculation of his
maximum sentence date. See Gaito; 61 Pa. C.S. §6138(a)(5)(i).
              Under Pennsylvania law a prisoner has no right to parole or reparole
upon expiration of a minimum term. Krantz, 483 A.2d at 1047. Rather, parole is a
matter of grace lying solely within the discretion of the Board.                  Eldridge v.
Pennsylvania Board of Probation and Parole, 688 A.2d 273, 274 (Pa. Cmwlth.
1997). Thus, even though Morgan should have been eligible for reparole as early as
November 23, 2017, he was not guaranteed reparole at that time. See Eldridge;
Krantz. In sum, the Board properly allocated credit for the eight months Morgan
served prior to his constructive reparole towards his original sentence. Martin v.
Pennsylvania Board of Probation and Parole, 840 A.2d 299, 309 (Pa. 2003); Gaito,
412 A.2d at 571; Krantz, 483 A.2d at 1047.

       4
         We note that both the original and corrected periods of backtime that were imposed fall
within the presumptive ranges. See 37 Pa. Code §75.2 (aggregate presumptive range for Morgan’s
convictions was between 12 and 24 months). Because both the original and modified backtime
imposed fall within the presumptive range, this Court will not review a challenge to the Board’s
exercise of discretion with respect to the length of the backtime that was imposed. See Smith v.
Pennsylvania Board of Probation and Parole, 574 A.2d 558, 560 (Pa. 1990) (“As long as the
period of recommitment is within the presumptive range for the violation, the Commonwealth
Court will not entertain challenges to the propriety of the term of recommitment.”).
                                               7
            Accordingly, we affirm the order of the Board denying Morgan’s
requests for administrative review.



                                      MICHAEL H. WOJCIK, Judge




                                       8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Braheem Morgan,                      :
                                     :
                          Petitioner :
                                     :
         v.                          : No. 658 C.D. 2019
                                     :
Pennsylvania Board of                :
Probation and Parole,                :
                                     :
                          Respondent :



                                    ORDER


              AND NOW, this 29th day of April, 2020, the order of the Pennsylvania
Board of Probation and Parole is AFFIRMED.




                                      __________________________________
                                      MICHAEL H. WOJCIK, Judge
