        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Eric J. House,                        :
                         Petitioner   :
                                      :
            v.                        :   No. 548 C.D. 2015
                                      :   Submitted: October 16, 2015
Pennsylvania Board of Probation       :
and Parole,                           :
                        Respondent    :

BEFORE:     HONORABLE BERNARD L. McGINLEY, Judge
            HONORABLE ROBERT SIMPSON, Judge
            HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                      FILED: December 15, 2015

            Eric J. House (House) petitions for review from an order of the
Pennsylvania Board of Probation and Parole (Board) that ordered him to serve 12
months backtime and recalculated his maximum sentence date. House contends the
Board erred in calculating the backtime owed and in extending his sentence date
beyond the court-ordered maximum.      He also argues the Board should have
provided him with an evidentiary hearing as to whether the time he spent in a
community correction center (CCC) was the equivalent of incarceration. Upon
review, we affirm the Board.


                                 I. Background
            The Board paroled and recommitted House multiple times as both a
technical parole violator (TPV) and as a convicted parole violator (CPV).
Relevant here, after the Board paroled House for the fourth time, on September
13, 2007,1 House pled guilty to drug manufacturing, sale, delivery or possession
with intent to distribute (Drug Charges). The Court of Common Pleas of Dauphin
County (trial court) sentenced him to a minimum of five years and a maximum of
10 years (State Sentence). House began serving his State Sentence on September
13, 2007. His minimum sentence date was July 31, 2012, and the maximum
sentence date was July 31, 2017.


              The Board granted House conditional parole on the State Sentence in
November 2012.         House remained in a CCC from November 26, 2012 until
January 2, 2013, when the Board released him on parole to his father’s residence.
House forfeited his credit through the parole process.


              While on parole from the State Sentence, on March 1, 2013, police
arrested House on multiple charges. The Board lodged a warrant to detain House
on March 1, 2013. Certified Record (C.R.) at 44. He was housed in Dauphin
County prison from March 1, 2013 through August 28, 2014. Bail was set at
$525,000, and then reduced to $100,000 on March 25, 2013. Id. at 79. However,
he was not released on bail, nor did he post bail. On June 6, 2014, a jury found
House guilty on four charges: (1) flight to avoid apprehension; (2) resisting arrest;
(3) disorderly conduct; and, (4) false identification to law enforcement officer
(collectively, Misdemeanors).

       1
          House was serving time on an earlier sentence (DOC No. ED-5406), which had a
maximum sentence date of March 3, 2011. He was constructively paroled from that sentence to
his State Sentence on September 13, 2007. Certified Record at 35-36; see Calloway v. Pa. Bd. of
Prob. & Parole, 857 A.2d 218 (Pa. Cmwlth. 2004) (when an inmate is administratively paroled
from one sentence to another sentence rather than released, he has been constructively paroled).




                                               2
              The Board provided House with a notice of charges related to parole
revocation. House waived his right to a parole revocation hearing, and to counsel;
he also admitted his convictions. C.R. at 67.


              The Board recommitted House as a CPV with no credit for time spent
while at liberty on parole. The Board decision of August 28, 2014, recommitted
House “when available,” to serve 12 months backtime pending his sentencing in
the trial court. Id. at 103.


              Also on August 28, 2014, the trial court sentenced House on his
Misdemeanors to an aggregated term of 16-32 months. The trial court credited
House for the 19 months of time served from March 1, 2013 to August 28, 2014.


              Through counsel, House filed an administrative appeal of the Board’s
decision, challenging only the presumptive ranges for parole recommitment. C.R.
at 115-17, 119-27. The Board affirmed its decision.


              Based on House’s sentencing on the Misdemeanors on August 28,
2014, returning him to a state correctional institution, the Board issued another
recommitment order on January 6, 2015. That order set forth the dates for his
confinement, his original maximum sentence date, and a recalculated maximum
date based on the backtime owed.          Id. at 107.   The recommitment order
recalculated House’s maximum sentence date on the State Sentence from July 31,
2017 to March 26, 2019. Id.; see also id. at 111.




                                         3
            House, representing himself, filed a timely petition for administrative
relief. In relevant part, he challenged two calculations: (1) the new maximum
sentence date for his State Sentence; and, (2) the “fail[ure] to credit [one] month
and 28 days towards [his] 12-month backtime that he [was] serving.” C.R. at 119.
Significantly, House did not explain the source of the amount of alleged credit due,
or provide dates of confinement to which the one month and 28 day period
corresponded.


            The Board denied House’s petition for administrative relief. The Board
explained it derived the new maximum sentence date as follows. As of January 2,
2013, (the date House was paroled), House owed 1,671 days of backtime towards
his State Sentence. The Board did not award House pre-sentence credit because he
was never incarcerated solely on the Board’s detainer. House became available to
serve backtime on August 28, 2014, because that was the date when the trial court
issued its sentence and credited House for approximately 19 months of time served
in Dauphin County prison on the Misdemeanors. Adding 1,671 days (4 years, 6
months, 29 days) to August 28, 2014, resulted in a new parole violation maximum
sentence date of March 26, 2019.


            House filed an uncounseled petition for review of the Board’s
decision to this Court. We then appointed a public defender as counsel, who filed
a brief on House’s behalf.




                                         4
                                     II. Discussion
             On appeal,2 House raises two issues. First, he argues the Board erred
in not holding a hearing as to the conditions of confinement in the CCC.
Regardless of the lack of evidence on the issue, House claims he should receive
credit for time served in the CCC.         House also contends the Board erred in
recalculating his maximum sentence date. Specifically, House asserts he was not in
the Board’s control from January 2, 2013 (when he was paroled to his father’s
residence) to September 23, 2014 (when he returned to a state correctional
institution after sentencing on the Misdemeanors). Thus, his maximum sentence
date should have been adjusted to reflect 629 days of backtime owed instead of
1,671 days. He also challenges the Board’s custody for return date of August 28,
2014, as the relevant start date to which backtime is added.


             The Board counters that House waived the issue of whether he was
entitled to credit for time spent in a CCC as he did not assert similar conditions of
confinement. It notes House did not request an evidentiary hearing regarding the
conditions of confinement. Additionally, the Board argues it properly recalculated
House’s maximum sentence date.




      2
         Our 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. Miskovitch v. Pa. Bd. of Prob. & Parole, 77 A.3d 66
(Pa. Cmwlth. 2013), appeal denied, 87 A.3d 322 (Pa. 2014).



                                            5
                                     A. Waiver
             House contends for the first time on appeal that he is entitled to credit
for the time he was confined in a CCC. From our review of his petition for
administrative relief, C.R. at 119-26, House did not raise this issue before the Board.


             In Cox v. Pennsylvania Board of Probation and Parole, 824 A.2d 350
(Pa. 1985), our Supreme Court held a parolee bears the burden of proving
restrictions on liberty were the equivalent of incarceration. While time spent in a
CCC may constitute restrictions on liberty sufficient to warrant credit, a parolee
must raise the issue in his administrative appeal to the Board. Reavis v. Pa. Bd. of
Prob. & Parole, 909 A.2d 28 (Pa. Cmwlth. 2006). Once the issue is adequately
raised, the Board is required to develop a record and make a factual determination
as to the restrictive nature of the program. Cox.


             Here, House did not adequately raise the issue to trigger a Cox hearing
where he could present evidence regarding the restrictions on his liberty at the CCC.
Consequently, the record is silent as to whether House was restrained in a manner
that would constitute incarceration. Because House did not raise the restrictive
nature of the CCC in his request for administrative relief, the issue is waived.
Reavis; Beasley v. Pa. Bd. of Prob. & Parole, 519 A.2d 1069 (Pa. Cmwlth. 1987);
see generally Chesson v. Pa. Bd. of Prob. & Parole, 47 A.3d 875, 878 (Pa. Cmwlth.
2012) (“The law is well settled that issues not raised before the Board either at the
revocation hearing or in the petitioner’s administrative appeal are waived and
cannot be considered for the first time on appeal.”).




                                           6
             To the extent House contends he preserved this issue by claiming
credit of one month and 28 days in his petition for administrative relief, we are
unpersuaded.


             This Court previously rejected a similar claim in White v.
Pennsylvania Board of Probation & Parole, 833 A.2d 819 (Pa. Cmwlth. 2003).
There, the petitioner stated the following in his petition for administrative relief
with the Board: “Petitioner has served Twelve (12) Months and Fourteen (14)
Days of Recommitment Backtime.” Id. at 821. On that basis, he requested a credit
of his backtime against his original sentence. We agreed with the Board that the
statement of a period of time alone “[did] not raise any credit issue for review.” Id.
We noted the remainder of the petition did not reference the timeframe to provide
any context for the claim to put the Board on notice.


             Similarly, here, House did no more than state a timeframe without
context. As in White, House did not explain how the timeframe corresponded to
any basis for credit. Indeed, he referred to the timeframe once in his eight-page
petition for relief. Thus, he did not preserve the credit issue. Id.


             Nevertheless, House asserts he should be afforded an evidentiary
hearing regarding the conditions of confinement at the CCC.            We disagree.
Notably, House draws this Court’s attention to no authority that requires the Board




                                           7
to hold such an evidentiary hearing when a parolee did not raise the conditions of
confinement issue.3


              Because House did not raise the conditions of confinement issue
below, he is precluded from doing so now. Reavis; White. Regardless, without a
hearing establishing the conditions of his confinement in a CCC were equivalent to
incarceration, House is not entitled to credit.4 Cox.


                              B. Maximum Sentence Date
              Next, we address the Board’s recalculation of House’s maximum
sentence date. House contends the Board improperly extended his sentence beyond
the original maximum date. Specifically, he asserts his backtime should reflect a
total of 629 days corresponding to the period between his date of parole, January 1,
2013, and his return to a state correctional institution, September 23, 2014.


              The Prisons and Parole Code (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).       If the parolee is recommitted, he must serve the

       3
         House cites one case, McMillian v. Pennsylvania Board of Probation & Parole, 824
A.2d 350 (Pa. Cmwlth. 2003), to support this argument. However, McMillian does not stand for
the proposition that an inmate is entitled to a hearing on the conditions of confinement when he
did not challenge the lack of credit for time spent in a CCC during the administrative process.
There, the Board held a Cox hearing because the inmate asserted the restrictions in the CCC
were tantamount to incarceration.

       4
        We note the one-month and 28-day timeframe does not correspond to the timeframe
House served in the CCC, between November 28, 2012, and January 2, 2013.



                                               8
remainder of the term, which 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 chooses to award credit. 61 Pa. C.S. §6138(a)(2), (2.1). The Board may not
extend a parolee’s backtime beyond a court-imposed sentence. Savage v. Pa. Bd.
of Prob. & Parole, 761 A.2d 643 (Pa. Cmwlth. 2000).


             “[W]here an offender is incarcerated on both a 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). However, the sentence to which the time is credited
depends on the source of the authority for which the defendant is held in custody.
Gaito v. Pa. Bd. of Prob. & Parole, 412 A.2d 568 (Pa. 1980).      For the period of
time a defendant is held solely on a Board detainer and meets the requirements for
bail on the new criminal charges, a defendant’s time in custody shall be credited
toward his original sentence. Id. However, if the defendant remains incarcerated
prior to trial because he failed to satisfy bail requirements on the new criminal
charges, then time spent in custody shall be credited to his new sentence. Id.


             In this case, House remained incarcerated as of his date of arrest on
the Misdemeanors through the date of sentencing. He also failed to satisfy bail
requirements. Therefore, the time House spent in custody from March 1, 2013,
through August 28, 2014, was properly credited toward his new sentence, not his
original State Sentence.     See C.R. at 113-14 (Sentencing Order).              As a
consequence, the Board did not credit this time against his State Sentence. Gaito;
see, e.g., Koehler v. Pa. Bd. of Prob. & Parole, 935 A.2d 44 (Pa. Cmwlth. 2007)



                                         9
(affirming Board recalculation of maximum sentence date added to date when
inmate was sentenced on the new convictions).


            House is also not entitled to credit for the time he spent at liberty from
the date of his parole, January 2, 2013, to his arrest on March 1, 2013. Pursuant to
Section 6138(a) of the Code, a parolee shall be given “no credit for the time at
liberty on [p]arole” unless the Board decides to award credit within its discretion.
61 Pa. C.S. §6138(a). There is no allegation the Board abused its discretion in not
awarding credit here.


            As a result, House owed 1,671 days of backtime on his State
Sentence. The Board derived this number from the time remaining on his State
Sentence, which had an original maximum sentence date of July 31, 2017, as of the
date of his parole on January 2, 2013. 61 Pa. C.S. §6138(a)(2).


            House argues the Board erred in calculating 1,671 days of backtime.
He asserts the correct number is 629 days because “[House] was not in the control
of the [Board] from January 2, 2013 to September 23, 2014.” Pet’r’s Br. at 11.
This argument is based on House’s misapprehension of the derivation of backtime,
and the date to which backtime is added, House’s custody for return date.


            When paroled on January 2, 2013, House remained within the Board’s
control as a parolee, released subject to meeting certain conditions of parole. He
was not entitled to credit for the time he was at liberty between January 2, 2013,
and March 1, 2013 under 61 Pa. C.S. §6138(a). Upon his arrest on March 1, 2013,



                                        10
House was also in the Board’s control on the Board’s detainer. C.R. at 44. As he
was on the Board detainer, he was not outside the Board’s control while serving
time in Dauphin County prison. Therefore, the custody for return date, which is
the date from which the 1,671 days of backtime owed is calculated, is crucial to
recalculation of the maximum sentence date.


            Here, House was not available to serve his State Sentence until he
served his new sentence for the Misdemeanors. Gaito; Koehler; see also Serrano v.
Pa. Bd. of Prob. & Parole, 672 A.2d 425 (Pa. Cmwlth. 1996) (explaining inmate
became available to serve backtime after serving new sentence). The record is clear
that House became available when resentenced for his new convictions on August
28, 2014. Accordingly, the Board noted his custody for return date as August 28,
2014.


            In sum, the Board properly refused to apply House’s presentence
confinement time toward his State Sentence.      Koehler.     The Board properly
exercised its discretion to deny credit to House for the time he spent at liberty.
Adding the time remaining on House’s State Sentence (1,671 days) to August 28,
2014, yields a new maximum sentence date of March 26, 2019. As such, the
recalculated maximum sentence date is correct, and it does not extend the
judicially-imposed sentence term.




                                        11
                    III. Conclusion
For the foregoing reasons, we affirm the Board’s order.




                         ROBERT SIMPSON, Judge




                           12
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Eric J. House,                        :
                       Petitioner     :
                                      :
            v.                        :   No. 548 C.D. 2015
                                      :
Pennsylvania Board of Probation       :
and Parole,                           :
                        Respondent    :


                                    ORDER

            AND NOW, this 15th day of December, 2015, the order of the
Pennsylvania Board of Probation and Parole is AFFIRMED.




                                     ROBERT SIMPSON, Judge
