          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David Hayes,                           :
                   Petitioner          :
                                       :
             v.                        :   No. 275 C.D. 2016
                                       :   Submitted: August 19, 2016
Pennsylvania Board of Probation        :
and Parole,                            :
                 Respondent            :

BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                FILED: October 18, 2016

             David Hayes petitions for review, pro se, of an adjudication of the
Pennsylvania Board of Probation and Parole (Parole Board) denying his request for
administrative review of the Parole Board’s decision recommitting him as a
convicted parole violator to serve 555 days backtime. Hayes argues that the Parole
Board erred in not crediting his original sentence with the time he was in custody
from May 2, 2015, to July 30, 2015. Accordingly, Hayes challenges the Parole
Board’s recalculation of his maximum sentence date to be February 4, 2017. For
the reasons that follow, we affirm the Parole Board’s order.
             Hayes is currently incarcerated in the State Correctional Institution
(SCI) at Graterford. His original conviction for drug and theft charges resulted in a
one and one half to four year sentence. His minimum release date was August 3,
2013, and his maximum release date was February 3, 2016. Hayes was paroled on
July 28, 2014, from SCI-Pittsburgh.        The conditions of parole, which Hayes
signed, stated: “If you are convicted of a crime committed while on
parole/reparole, the [Parole] Board has the authority, after an appropriate
hearing(s), 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 at 14 (C.R. __).
             On May 1, 2015, Hayes was arrested on new drug charges and
confined in the Delaware County Prison. On May 2, 2015, the trial court set bail in
the amount of $50,000, which Hayes was unable to post. On that same day, the
Parole Board issued a warrant to commit and detain Hayes.
             On May 4, 2015, the Parole Board provided Hayes a notice of charges
and detention hearing; he waived his right to the hearing. By decision of July 14,
2015, the Parole Board detained Hayes pending disposition of criminal charges.
             On July 30, 2015, Hayes pled guilty to two counts of manufacture,
sale, delivery or possession with intent to deliver a controlled substance and the
Delaware County Court of Common Pleas sentenced him to three to 23 months in
county prison, with a consecutive sentence of two years probation. Hayes received
credit on his new sentence for his confinement from May 2, 2015, to July 30, 2015.
C.R. 38.
             On August 5, 2015, Hayes waived his right to a parole revocation
hearing and acknowledged his drug conviction in Delaware County while he was
on parole.   On October 19, 2015, the Parole Board recommitted Hayes as a




                                        2
convicted parole violator to serve 555 days backtime.1 C.R. 72-73. Accordingly,
the Parole Board calculated Hayes’ parole violation maximum date to be February
4, 2017.
              On November 5, 2015, Hayes filed an administrative appeal,
challenging the Parole Board’s authority to recalculate his maximum original
sentence and the recalculation itself. The Parole Board, finding no grounds to
grant relief, affirmed its October 19, 2015, decision. Hayes now petitions this
Court for review.
              On appeal,2 Hayes raises two issues. First, Hayes argues that the
Parole Board, in calculating his recommitment sentence, erred in not awarding him
credit for the time he was confined on the Parole Board’s warrant from May 2,
2015, to July 30, 2015. Second, Hayes claims that the Parole Board erred because
it lacks authority to impose backtime that exceeds the remaining balance of his
original unexpired sentence. The Parole Board responds that it acted in accordance
with the relevant statute and case law in recalculating his maximum sentence date.
              We address, first, Hayes’ argument that his original sentence should
be credited for the time spent in custody from May 2, 2015, through July 30, 2015,
on the Parole Board’s detainer.         In support, Hayes directs us to Davidson v.
Pennsylvania Board of Probation and Parole, 722 A.2d 232 (Pa. Cmwlth. 1998).

1
  Hayes was released on parole from his original sentence on July 28, 2014. At that time, his
maximum sentence date was February 3, 2016, leaving 555 days remaining to serve. C.R. 74.
2
  Our scope of review is to determine whether the Parole Board’s decision is supported by
substantial evidence, whether an error of law was committed, or whether constitutional rights
have been violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Moroz v.
Pennsylvania Board of Probation and Parole, 660 A.2d 131, 132 (Pa. Cmwlth. 1995).


                                             3
In Davidson, this Court ordered the Board to credit the petitioner’s original
sentence for the period of time that he was in custody solely on the Board’s
detainer. In doing so, we reiterated that

             [i]f a parolee is being held solely by virtue of a Board’s detainer
             order and has met the bail requirements on the new criminal
             charges, then the time he spends in custody is credited toward
             his original sentence, conversely, if the parolee is in custody
             prior to trial on the new criminal charges by virtue of the fact
             that he has failed to meet the bail requirements on the new
             criminal charges, then the time spent in custody shall be
             credited toward his new sentence.

Davidson, 722 A.2d at 234-35 (emphasis in original) (citing Gaito v. Pennsylvania
Board of Probation and Parole, 412 A.2d 568, 571 (Pa. 1980)).
             Hayes’ reliance on Davidson is misplaced because it actually supports
the Parole Board’s determination not to credit Hayes’ original sentence for the time
period at issue. Hayes was not incarcerated solely on the Parole Board’s detainer.
His incarceration from May 2, 2015, through July 30, 2015, in the Delaware
County Prison was a result of the Parole Board’s detainer and his inability to post
bail. C.R. 49. Where confinement is not based solely on the Parole Board’s
detainer, but rather for both reasons, this Court has held that “time incarcerated on
both the new criminal charges and the Board’s detainer must apply to the new
sentence.” Hammonds v. Pennsylvania Board of Probation and Parole, 143 A.3d
994 (Pa. Cmwlth. 2016). That is what occurred here. The Delaware County trial
court’s sentencing order credited Hayes’ new sentence for the time he was
incarcerated from May 2, 2015, through July 30, 2015. C.R. 38. Accordingly, the



                                            4
Parole Board did not err in not awarding him credit for the same time period when
it calculated his backtime owed upon recommitment.
             Second, Hayes contends that the Parole Board erred in recalculating
his maximum sentence date. He argues that the Parole Board may only require a
parolee to serve the remaining balance of his unexpired term, but may not impose
backtime that would exceed that period. Initially, we note that the Parole Board
has “the power to recommit a convicted parole violator to serve the balance of the
court-imposed maximum sentence if the new crime was committed by the parolee
before the expiration of the maximum sentence originally imposed.” Knisley v.
Pennsylvania Board of Probation and Parole, 362 A.2d 1146, 1148 (Pa. Cmwlth.
1976).   Further, “the constitutional challenges to this procedure [have been]
rejected by this Court.…” Id. Because Hayes was recommitted as a convicted
parole violator before his original sentence expired, the Parole Board’s
recalculation of his original sentence was proper.
             Additionally, when computing the time to be served on a convicted
parole violator’s original sentence, the parolee’s street time is added to the original
maximum sentence expiration date to create a new maximum sentence date.
Armbruster v. Pennsylvania Board of Probation and Parole, 919 A.2d 348, 351
(Pa. Cmwlth. 2007). When Hayes was paroled on July 28, 2014, his maximum
sentence date was February 3, 2016. C.R. 1. Therefore, Hayes had one year, six
months, and six days, or 555 days, remaining on his sentence. Hayes became
available to begin serving backtime on July 30, 2015, when he was paroled on his
new conviction. Adding 555 days to July 30, 2015, results in a parole violation


                                          5
maximum date of February 4, 2017. C.R. 74. Thus, the Parole Board did not err in
calculating Hayes’ maximum sentence date to be February 4, 2017.
               For these reasons, we affirm the Parole Board’s adjudication.3

                                         ______________________________________
                                         MARY HANNAH LEAVITT, President Judge



3
  Hayes’ brief cites to 42 Pa. C.S. §9714(g) (relating to crimes of violence), and states his
conviction while on parole, for manufacture, sale, delivery or possession with intent to deliver a
controlled substance, is not considered a violent crime. Hayes’ Brief at 13. Hayes fails to
further develop this argument in violation of Pa. R.A.P. 2119(a). However, we can surmise that
Hayes’ issue is related to the language in Section 6138 of the Prisons and Parole Code, which
states, in pertinent part:
         (2) If the parolee’s recommitment is so ordered, the parolee shall be reentered to
         serve the remainder of the term which the parolee would have been compelled to
         serve had the parole not been granted and, except as provided under paragraph
         2.1, shall be given no credit for the time at liberty on parole.
         (2.1) The board may, in its discretion, award credit to a parolee recommitted
         under paragraph (2) for the time spent at liberty on parole, unless any of the
         following apply:
                 (i) The crime committed during the period of parole or while
                 delinquent on parole is a crime of violence as defined in 42 Pa.
                 C.S. §9714(g) (relating to sentences for second and subsequent
                 offenses) or a crime requiring registration under 42 Pa. C.S. Ch. 97
                 Subch. H (relating to registration of sexual offenders).
61 Pa. C.S. §6138. While committing a crime listed in Section 9714(g) of the Sentencing Code,
42 Pa. C.S. §9714(g), expressly prohibits the Parole Board from awarding a parolee credit for
time spent at liberty on parole, it does not follow that committing a different crime, not listed in
Section 9714(g), automatically results in a parolee receiving credit for the same. Hayes’ crime is
not expressly excluded from credit consideration by subsection 2.1; however, the decision
regarding whether to award a parolee credit remains discretionary with the Parole Board.
Pittman v. Pennsylvania Board of Probation and Parole, 131 A.3d 604, 609 (Pa. Cmwlth. 2016),
appeal granted, 137 A.3d 572 (Pa. 2016). What is more, Hayes’ conditions of parole, which he
signed on September 12, 2013, expressly state that if he is convicted of a crime while on parole
and recommitted, he will not be credited for the time spent at liberty on parole. C.R. 14.
Accordingly, the fact that Hayes was convicted of a nonviolent crime is irrelevant.


                                                 6
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David Hayes,                        :
                  Petitioner        :
                                    :
            v.                      :   No. 275 C.D. 2016
                                    :
Pennsylvania Board of Probation     :
and Parole,                         :
                 Respondent         :

                                  ORDER

            AND NOW, this 18th day of October, 2016, the order of the
Pennsylvania Board of Probation and Parole dated January 21, 2016, in the above-
captioned matter is AFFIRMED.

                                  ______________________________________
                                  MARY HANNAH LEAVITT, President Judge
