        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Keith Taylor,                           :
                          Petitioner    :
                                        :
             v.                         :   No. 405 C.D. 2018
                                        :   Submitted: August 3, 2018
Pennsylvania Board of Probation         :
and Parole,                             :
                        Respondent      :

BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE CHRISTINE FIZZANO CANNON, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                        FILED: August 28, 2018

             Keith Taylor (Taylor) petitions for review from an order of the
Pennsylvania Board of Probation and Parole (Board) that denied his petition for
administrative review following a Board recommitment order. Taylor argues the
Board erred in determining his custody for return date when it recalculated his
maximum sentence date. Because the Board properly determined Taylor’s custody
for return date, we affirm.


                                  I. Background
             In 2012, the Delaware County Court of Common Pleas (trial court)
sentenced Taylor to 7 months to 1 year and 11 months in prison based on his
convictions for riot and criminal conspiracy, as well as 2 years and 6 months to 5
years in prison based on his two convictions for aggravated assault. The sentences
were to run concurrently. Taylor’s original minimum and maximum sentence dates
were March 5, 2015 and September 5, 2017, respectively.
             In April 2015, the Board released Taylor on parole. In March 2016,
police arrested Taylor on several new charges. Taylor was detained in the Delaware
County Prison; he did not post bail on the new charges. The Board lodged its
detainer to commit and detain Taylor on March 23, 2016. About two months later,
additional criminal charges were filed against Taylor.


             Taylor pled guilty in connection with the first set of new charges to
possession with intent to deliver a controlled substance and prohibited firearm
possession. The trial court sentenced Taylor to 15 to 30 months in prison on the
drug conviction and 5 to 10 years in prison on the firearm conviction to be served
concurrently in a state correctional institution (SCI).


             In addition, Taylor pled guilty to three counts of delivery of a controlled
substance in connection with the second set of new criminal charges. The trial court
sentenced Taylor to 21 to 48 months on each count to be served concurrently in an
SCI.


             Shortly thereafter, the Board provided Taylor with a notice of charges
and hearing in connection with his new convictions. Taylor waived his right to a
revocation hearing and to counsel and admitted to the five new convictions.


             On October 6, 2016, the Board’s hearing examiner voted, and on
October 21, 2016, a second Board member voted, to recommit Taylor as a convicted
parole violator (CPV), with no credit for time spent at liberty on parole. The Board
decision recommitted Taylor as a CPV for his unexpired term of 2 years, 4 months,



                                           2
and 30 days (883 days) based on his new convictions.                      As a result of his
recommitment as a CPV, the Board recalculated Taylor’s maximum sentence date
as March 23, 2019.


                Taylor filed a petition for administrative review, which the Board
denied. He now petitions for review to this Court.


                                       II. Discussion
                                       A. Contentions
                On appeal,1 Taylor argues the Board incorrectly set his custody for
return date as October 21, 2016, rather than the date it officially verified his
convictions or the date he waived his right to a revocation hearing. As a result, he
asserts the Board’s calculation of his new maximum sentence date must be corrected.


                More particularly, Taylor challenges the Board’s determination he was
within its custody, and thus able to begin serving the remainder of his original
sentence, on October 21, 2016. Although this was the date the Board took official
action to order his recommitment, Taylor maintains, it was not the date he was within
the Board’s custody. He argues that jurisdiction over a CPV is governed by 37 Pa.
Code §71.4(1).2 Taylor asserts that, based on this regulation, where a CPV is


       1
         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, 74 (Pa. Cmwlth. 2013).
       2
           Section 71.4(1) of the Board’s regulations states:
                 The following procedures shall be followed before a parolee is
                 recommitted as a convicted violator:




                                                3
confined in county jail, the 120-day period for holding a revocation hearing does not
begin to run until his return to an SCI unless he waives his right to a revocation
hearing, in which case the period begins to run on the date of official verification of
the conviction, or the date of the waiver, whichever is later. Major v. Pa. Bd. of
Prob. & Parole, 647 A.2d 284 (Pa. Cmwlth. 1994).


              As a result, Taylor contends, he was within the Board’s jurisdiction well
before its decision was perfected on October 21, 2016. He maintains that he
executed a waiver of the right to a panel hearing—and, in fact, to any revocation
hearing—on September 16, 2016.                  Based on Section 71.4(1) of the Board’s
regulations, Taylor argues, he was in its custody by that date. D’Nicuola v. Pa. Bd.
of Prob. & Parole, 467 A.2d 1383 (Pa. Cmwlth. 1983). Even before he executed the

                        (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:

                                (i) If a parolee is confined outside the jurisdiction of
                                the Department of Corrections, such as confinement
                                out-of-State, confinement in a Federal correctional
                                institution or confinement in a county correctional
                                institution where the parolee has not waived the right
                                to a revocation hearing by a panel in accordance with
                                Commonwealth ex rel. Rambeau v. Rundle, [314
                                A.2d 842 (Pa. 1973)], the revocation hearing shall be
                                held within 120 days of the official verification of the
                                return of the parolee to a State correctional facility.

                                (ii) A parolee who is confined in a county correctional
                                institution and who has waived the right to a
                                revocation hearing by a panel in accordance with the
                                Rambeau decision shall be deemed to be within the
                                jurisdiction of the Department of Corrections as of the
                                date of the waiver.

37 Pa. Code §71.4(1).

                                                   4
waiver, Taylor asserts, the Board received official verification of his new
convictions on September 9, 2016. Thus, Taylor contends he was within the Board’s
jurisdiction on that date based on Section 71.4(1)(ii) of the Board’s regulations.
McClinton v. Pa. Bd. of Prob. & Parole, 546 A.2d 759 (Pa. Cmwlth. 1988).


            Whether this Court determines Taylor was within the Board’s
jurisdiction as of the date the Board verified his new convictions (September 9,
2016), or the date he waived his right to a revocation hearing (September 16, 2016),
Taylor maintains, he was within the Board’s jurisdiction for over a month prior to
the date the Board set as his custody for return date. Because this date is used to
determine Taylor’s new maximum sentence date, he argues, his maximum sentence
date must be corrected.


            Taylor asserts a parolee recommitted as a CPV must serve backtime on
his original sentence before serving his new sentence when each sentence is to be
served in an SCI. See 61 Pa. C.S. §6138(a)(5)(i). He contends such is the case here.
As such, Taylor argues, he was required to begin serving backtime on his original
sentence as soon as he was in the Board’s custody. As explained above, Taylor
asserts, that date was either September 9 or September 16, 2016.
            Taylor contends that when he was paroled in April 2015, the remainder
of his original sentence was 883 days. He maintains that, if he was within the
Board’s custody on the date the Board verified his new convictions, his maximum
sentence date would be February 8, 2019. Alternatively, if he was in the Board’s
custody on the date he waived his right to a revocation hearing, his maximum
sentence date would be February 15, 2019. Because the Board incorrectly used



                                         5
October 21, 2016, as the date he was in its jurisdiction, Taylor asserts, the Board
calculated his maximum sentence date as March 23, 2019. He contends the date the
Board used is incorrect; as such, he asks that this Court correct his maximum
sentence date to February 8 or February 15, 2019.


            The Board responds that it is uncontested that Taylor was properly
recommitted as a CPV. The Board asserts Taylor’s sole argument is that the Board
did not properly recalculate his maximum sentence date because the Board used an
incorrect custody for return date. The Board contends that this Court consistently
holds that a CPV does not become available to serve backtime on his original
sentence until his parole is revoked, which occurs at his recommitment. The Board
maintains Taylor’s parole was not revoked until October 21, 2016, when the Board
obtained the necessary signatures to recommit him as a CPV. The Board argues it
properly used October 21, 2016 as the custody for return date, and adding the 883
days of backtime Taylor owed toward his original sentence to Taylor’s custody for
return date, the Board correctly determined his new maximum sentence date as
March 23, 2019.




                                   B. Analysis
            Section 6138 of the Prisons and Parole Code governs recommitment of
CPVs. It states, as relevant (with emphasis added):

            (a) Convicted violators.--

                   (1) A parolee under the jurisdiction of the [B]oard
                   released from a correctional facility who, during


                                         6
                   the period of parole or while delinquent on parole,
                   commits a crime punishable by imprisonment, for
                   which the parolee is convicted or found guilty by a
                   judge or jury or to which the parolee pleads guilty
                   or nolo contendere at any time thereafter in a court
                   of record, may at the discretion of the [B]oard be
                   recommitted as a parole violator.

                                       ****

                   (4) The period of time for which the parole violator
                   is required to serve shall be computed from and
                   begin on the date that the parole violator is taken
                   into custody to be returned to the institution as a
                   parole violator.

                   (5) If a new sentence is imposed on the parolee, the
                   service of the balance of the term originally
                   imposed by a Pennsylvania court shall precede the
                   commencement of the new term imposed in the
                   following cases:

                          (i) If a person is paroled from a [SCI] and the
                          new sentence imposed on the person is to be
                          served in the [SCI].

                          (ii) If a person is paroled from a county
                          prison and the new sentence imposed upon
                          him is to be served in the same county
                          prison.

                          (iii) In all other cases, the service of the new
                          term for the latter crime shall precede
                          commencement of the balance of the term
                          originally imposed.

61 Pa. C.S. §6138(a)(1), (4)-(5).


             The requirement that a CPV serve the balance of his original sentence
before beginning service of a newly-imposed sentence is only operative when


                                          7
“parole has been revoked and the remainder of the original sentence becomes due
and owing.” Campbell v. Pa. Bd. of Prob. & Parole, 409 A.2d 980, 982 (Pa. Cmwlth.
1980) (quoting Richmond v. Commonwealth, 402 A.2d 1134, 1135 (Pa. Cmwlth.
1979)) (emphasis added); accord McCaskill v. Pa. Bd. of Prob. & Parole, 631 A.2d
1092 (Pa. Cmwlth. 1993); Oliver v. Pa. Bd. of Prob. & Parole, 570 A.2d 1390 (Pa.
Cmwlth. 1990).


            The remainder of an original sentence becomes due and owing upon
authorized Board action. Section 6113(b) of the Prisons and Parole Code authorizes
the Board to act on revocation decisions in panels consisting of two persons. 61 Pa.
C.S. §6113(b).


            Here, a hearing examiner determined Taylor’s parole should be revoked
based on Taylor’s admission to his five new convictions. Certified Record (C.R.) at
44. A little over two weeks later, a second Board member agreed with the hearing
examiner’s determination, as evidenced by the member’s October 21, 2016 signature
on the revocation hearing report. Id. Once the Board obtained the second required
signature, it was authorized to revoke Taylor’s parole. 61 Pa. C.S. §6113(b). As a
result, the Board properly determined that the remainder of Taylor’s original
sentence became due and owing on October 21, 2016. C.R. at 82; see Wilson v. Pa.
Bd. of Prob. & Parole, 124 A.3d 767 (Pa. Cmwlth. 2015) (no error in calculation of
new maximum date, recommitment date for CPV is date Board obtains second




                                         8
signature); Glushko v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 1127 C.D. 2017,
filed March 6, 2018), 2018 WL 1162606 (unreported) (same).3


               Indeed, “this Court has long held that a [CPV’s] custody for return date
is determined by the date of the revocation of parole.” Wright v. Pa. Bd. of Prob. &
Parole (Pa. Cmwlth., No. 877 C.D. 2015, filed November 5, 2015), slip op. at 8,
2015 WL 6829240, at *4 (unreported). As explained above, the Board revoked
Taylor’s parole on October 21, 2016, when it obtained the required signatures to do
so; thus, the Board properly utilized that date as Taylor’s custody for return date.4
Wilson; Glushko; Wright.


               Further, Taylor’s reliance on Section 71.4(1) of the Board’s regulations
and case law construing that regulation, which relate to the running of the 120-day
period in which the Board is required to hold a revocation hearing, is misplaced in
light of the fact that timeliness of the Board’s revocation hearing is not at issue here.
               Accordingly, we affirm.




                                             ROBERT SIMPSON, Judge

       3
         Pursuant to 210 Pa. Code §69.414(a), an unreported panel decision of this Court, issued
after January 15, 2008, may be cited for its persuasive value, but not as binding precedent.
       4
         Taylor raises no issue regarding the amount of backtime he is required to serve. Indeed,
he does not dispute that he owed 883 days when he was released on parole on April 6, 2015. Pet’r’s
Br. at 10. Rather, he only contests the Board’s determination concerning his custody for return
date, which, as explained above, the Board correctly determined. Using October 21, 2016, the
date the second Board panel member signed the revocation and recommitment hearing report
thereby effectively revoking Taylor’s parole under 61 Pa. C.S. §6113(b), the Board added 883
days to arrive at Taylor’s new maximum date of March 23, 2019. Certified Record at 82.

                                                9
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Keith Taylor,                         :
                       Petitioner     :
                                      :
            v.                        :   No. 405 C.D. 2018
                                      :
Pennsylvania Board of Probation       :
and Parole,                           :
                        Respondent    :


                                    ORDER

            AND NOW, this 28th day of August, 2018, the order of the
Pennsylvania Board of Probation and Parole is AFFIRMED.




                                     ROBERT SIMPSON, Judge
