           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Antowyne Dominique Charles,               :
                     Petitioner           :
                                          :
             v.                           :   No. 1813 C.D. 2015
                                          :   Submitted: February 12, 2016
Pennsylvania Board                        :
of Probation and Parole,                  :
                           Respondent     :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE PATRICIA A. McCULLOUGH, Judge
        HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                              FILED: April 8, 2016

             Petitioner Antowyne Dominique Charles (Charles) petitions for
review of an order of the Pennsylvania Board of Probation and Parole (Board).
The Board denied Charles’ administrative appeal of its June 29, 2015 decision, in
which he sought to challenge the Board’s recalculation of his maximum release
date. We affirm the Board’s order.
             Charles was sentenced on December 13, 2005, to serve a term of
imprisonment of three-to-ten years, following his conviction on a burglary charge.1
In 2012, after the Board had released Charles a second time on parole, he violated
the conditions of his parole and was charged with committing a new crime (retail


      1
       For this conviction, the Board assigned Charles the institutional identification
“GM3074.”
theft), ultimately resulting in his recommitment as a technical parole violator
(TPV) and a convicted parole violator (CPV). Based upon his status as a CPV, the
Board issued an order in April 2013, recalculating his maximum release date to be
July 15, 2016.
              The Board reparoled Charles on November 8, 2013, to a state detainer
sentence.2    On June 9, 2014, the Board released Charles on parole from the
detainer sentence (LG2054) to a Community Corrections Center. (C.R. at 50.) On
June 14, 2014, Charles absconded from the Community Corrections Center. The
Board declared him delinquent on that date. On June 27, 2014, police arrested
Charles and charged him with new crimes. That same day, Charles was detained
in lieu of bail on the new criminal charges, and the Board lodged a detainer for
Charles at Institution No. GM3074 (his original burglary conviction).
              On August 22, 2014, the Board recommitted Charles as a TPV and
recalculated his maximum date from July 15, 2016 to July 28, 2016.3 This change

       2
          It appears that this detainer sentence was the result of Charles’ conviction in
February 2013 for retail theft and his sentence of one month to twenty-four months in a state
correctional institution. The Board assigned to this conviction the identification “LG2054.”
Thus, it appears that Charles served the backtime that was imposed for his technical parole
violations and that afterwards he was paroled from his original sentence on November 8, 2013,
to serve his sentence on the LG2054 conviction. He served on that new sentence until he was
released to a Community Corrections Center on June 9, 2014. (C.R. at 110.)
       3
           This recalculation (which Charles never challenged) altered the Board’s
2013 calculation of his maximum release date by reflecting only the thirteen-day period Charles
absconded and the technical parole violation arising therefrom. A day after the Board issued its
August 22, 2014 decision, by petition dated August 23, 2014, Charles submitted a document to
the Board captioned as “Administrative Relief.” (C.R. at 139-42.) In that document, Charles,
proceeding pro se, suggested that the Board’s August 22, 2014 recalculation was erroneous,
because it failed to provide a credit for periods of parole during which he allegedly had some
degree of restrictions on his liberty, for example, in Community Corrections Centers. We have
reviewed the “Moves Report” in the certified record. (C.R. at 130.) There are two notations
(Footnote continued on next page…)

                                               2
reflected the thirteen-day period during which Charles had absconded—
June 14, 2014 through June 27, 2014. The Board apparently arrived at the new
maximum date by determining that Charles had 762 days remaining on his
sentence when he absconded (from the date of his release on parole from the
detainer sentence on June 14, 2014 through the maximum release date of
July 15, 2016), and added that number of days to the date upon which Charles was
arrested and the Board lodged a detainer—June 27, 2014.                          Thereafter, on
September 9, 2014, Charles pleaded guilty to two counts of possession of a
controlled substance (heroin and synthetic marijuana), for which a trial court
sentenced him to a period of three-to-twelve months in county prison. Charles
received county prison time credit for a period of seventy-five days for time he
served from the date of his arrest on June 27, 2014 through September 9, 2014.
The sentence provided for his parole from the county sentence after he served the


(continued…)

indicating periods of time during which Charles was incarcerated in a Community Corrections
Center. The first period was October 18, 2012, through March 12, 2013. (Id.) As we indicate
above, the Board issued a recalculation of Charles’ maximum release date in April 2013, which
reflected the periods of time during which Charles was in the Community Corrections Center.
Charles did not file a challenge to the recalculation at that time. Thus, if his August 23, 2014
administrative relief request included an attempt to challenge the Board’s previous calculation of
credit for the Community Corrections Center time, it would be untimely. See Wright v.
Pennsylvania Bd. of Prob. and Parole, 743 A.2d 1004, 1006 (Pa. Cmwlth. 1999) (holding
recalculation orders are final appealable orders). The only other period of time Charles spent at a
Community Corrections Center while on parole was between June 9, 2014, when the Board last
released him on parole, and June 14, 2014, when he absconded from the Community Corrections
Center to which he had been assigned on parole. Thus, there appears to be a five day period
during which Charles stayed at the Community Corrections Center before the Board made the
recalculation of Charles’ maximum release date that is the issue in this case. We will address
this five-day period below.



                                                3
three-month minimum. Thus, on September 26, 2014, Charles was paroled from
his county sentence.
             On October 22, 2014, the Board issued a notice of charges and
hearing to Charles, to address the impact of his new criminal convictions upon his
parole status.    Charles waived his right to a revocation hearing.            On
December 9, 2014, the Board rendered a decision revoking Charles’ parole and
providing no credit for the period Charles was on parole. On February 13, 2015,
the Board mailed a decision to Charles recommitting him as a CPV.              On
March 5, 2015, Charles submitted to the Board an administrative remedies form, in
which he again sought to challenge the Board’s recalculation of his maximum
release date, based upon his claim that he should have received credit for the
periods of time he spent in Community Corrections Centers. The Board responded
by indicating that Charles’ request for administrative relief was premature.
             On June 29, 2015, the Board mailed a decision to Charles,
recalculating his maximum release date from July 15, 2016, to June 2, 2017. The
Board apparently arrived at the new maximum release date by determining that, at
the time the Board released Charles on parole from his original sentence
(GM3074) on November 8, 2013, when he began to serve his state detainer
sentence for retail theft (LG2054), he had 980 days remaining on his sentence (the
difference between the November 8, 2013 date of parole on his original sentence
and the then-maximum release date of July 15, 2016). The Board then added 980
days to the date upon which Charles again became available to serve time on his
state sentence—September 26, 2014—the date he completed the minimum term on
his new criminal convictions.




                                         4
              On July 16, 2015, Charles, then represented by legal counsel, filed an
administrative remedies form, asserting that the “Board failed to give [Charles]
credit for all time served strictly pursuant to the board’s warrant. The . . . Board
erred in determining the parole/reparole/delinquency/board warrant date and
custody for return date.”        (C.R. at 153.)      The Board denied the request for
administrative relief, reasoning that it had provided Charles with all of the credit
for time served to which he was entitled, noting particularly that Charles had been
detained after his most recent new criminal charges based on his failure to post bail
as well as the Board’s detainer.
              Charles filed a petition for review with this Court,4 claiming that the
Board failed to give him credit for all of the time he served pursuant to the Board’s
detainer warrant.      Charles asserts that when the Board recalculated Charles’
maximum release date following its recommitment of Charles for the technical
parole violation of absconding, the Board concluded that Charles had only 762
days remaining upon his original sentence (which included his thirteen days when
he was delinquent) and that the Board should have added that number of days to
the date of his return to Board custody in order to arrive at a new maximum date,
which he calculates to be October 27, 2016.
              As the Board notes, however, that calculation, which followed his
recommitment as a TPV, preceded Charles’ new criminal convictions. When a
parolee is convicted of new criminal charges for conduct committed while on
parole, the Board is empowered to deny credit for time spent at liberty on parole.

       4
         Our review of a Board order recalculating a maximum release date is limited to
considering whether the Board erred as a matter of law or violated any constitutional rights and
whether necessary factual findings are supported by substantial evidence. 2 Pa. C.S. § 704.



                                               5
61 Pa. C.S. § 6138(a)(2). Thus, in calculating his new maximum release date, the
Board counted the days after it released Charles on parole up through the previous
maximum release date (July 15, 2016), which provided the Board with the total
number of days remaining on Charles’s original sentence—980 days. The Board
added this period to the date upon which it regained custody of Charles,
September 26, 2014, to arrive at the new maximum release date of June 2, 2017.
This calculation properly reflects the fact that Charles received credit for his new
criminal sentences, beginning on the date of his arrest on June 27, 2014, up
through September 26, 2014, based on his failure to post bail. See Gaito v.
Pennsylvania Bd. of Prob. and Parole, 412 A.2d 568 (Pa. 1980).
            We return, however, briefly to the question Charles raised in his
August 23, 2014 administrative relief request, that being whether the Board erred
in not providing Charles with credit for the period or periods he spent in
Community Corrections Centers.       On two occasions, the Board deemed this
question to be premature. In any event, we find no merit to Charles’ claim.
Although Charles’ counsel did not raise any issue regarding Charles’ stays at
Community Corrections Centers, the only such period of time that could possibly
be considered time not at liberty on parole would be the five-day period between
June 9, 2014, and June 14, 2014. In Medina v. Pennsylvania Board of Probation
and Parole, 120 A.3d 1116, (Pa. Cmwlth. 2015), appeal denied, ___ A.3d ___
(No. 609 MAL 2015, filed December 31, 2015), this Court held that a parolee
seeking to obtain credit for time spent at a Community Corrections Center bears
the burden to prove that the restrictions on the parolee’s liberties were the
equivalent of incarceration. Medina, 120 A.3d at 1123. In this matter, Charles
waived his right to a hearing where he could have presented evidence pertinent to


                                         6
the question of whether the restraints on his liberty during that five-day period
were similar to incarceration. Thus, there is no evidence from which we could
evaluate whether Charles’ claim is correct.
            Accordingly, we conclude that the Board did not err in its
recalculation of Charles’ new maximum release date, and we affirm the Board’s
order.




                                P. KEVIN BROBSON, Judge




                                         7
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Antowyne Dominique Charles,             :
                     Petitioner         :
                                        :
            v.                          :   No. 1813 C.D. 2015
                                        :
Pennsylvania Board                      :
of Probation and Parole,                :
                           Respondent   :


                                   ORDER


            AND NOW, this 8th day of April, 2016, the order of the Pennsylvania
Board of Probation and Parole is AFFIRMED.




                                P. KEVIN BROBSON, Judge
