           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Charles Cooper,                               :
                                              : No. 45 C.D. 2016
                             Petitioner       : Submitted: June 3, 2016
                                              :
                     v.                       :
                                              :
Pennsylvania Board of                         :
Probation and Parole,                         :
                                              :
                             Respondent       :


BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                            FILED: September 9, 2016

              Charles Cooper (Cooper) petitions pro se for review of the October
26, 2015 order of the Pennsylvania Board of Probation and Parole (Board),
denying his request for administrative relief from the August 10, 2015 decision
revoking his parole and recalculating his maximum parole expiration date.1
Cooper contends that the Board erred by not crediting time served on the Board’s
detainer to his original sentence. We affirm.
              In November 2011, following a conviction for aggravated assault,
Cooper was sentenced to a term of 1 year, 2 months to 4 years. The original

       1
        By order dated January 14, 2016, this Court appointed the Public Defender of Schuylkill
County to represent Cooper. Subsequently, however, on February 9, 2016, in accordance with
Cooper’s documented request, we granted appointed counsel’s motion to withdraw his
appearance.
minimum and maximum dates for this sentence were February 18, 2013 and
August 18, 2015, respectively. The Board paroled Cooper from this sentence on
February 18, 2013. Certified Record (C.R.) at 14, 21.
            On May 3, 2013, Philadelphia Police arrested Cooper on new criminal
charges.   On May 4, 2013, Philadelphia County detained Cooper in lieu of
monetary bail and the Board lodged a detainer on the same date. C.R. at 22.
            On July 9, 2014, the Court of Common Pleas of Philadelphia County
(trial court) found Cooper guilty of the new criminal charges. Cooper waived his
right to a parole revocation hearing and admitted to being convicted of the criminal
offenses in violation of his parole. C.R. at 62. By decision mailed January 23,
2015, the Board recommitted Cooper as a convicted parole violator (CPV), when
available, for the new convictions. The Board’s action did not provide Cooper
with a recalculated maximum date. C.R. at 61-70.
            On February 6, 2015, the trial court sentenced Cooper to serve 3
months to 23 months in the county prison with credit for time served on the new
convictions, followed by 5 years of probation. C.R. at 49. The trial court granted
him immediate parole from the new sentence, and Cooper was returned to a State
Correctional Institution on February 18, 2015.
            By decision mailed August 10, 2015, the Board recalculated Cooper’s
maximum date from August 18, 2015 to August 5, 2017. C.R. at 74. The Board
determined that Cooper owed 911 days in backtime upon his release on parole
from the original sentence. C.R. at 58, 72. The Board did not grant Cooper credit
for time at liberty on parole, and it did not give him credit against his original
sentence for the time he was incarcerated from the date of his arrest on May 3,
2013, to his sentencing on February 6, 2015. The Board found that Cooper became


                                         2
available again to serve his original sentence on February 6, 2015, and added the
911 days he had remaining to this date to arrive at the new maximum parole date
of August 5, 2017. C.R. at 72.
              On August 31, 2015, Cooper filed a request for administrative relief
objecting to the Board’s calculation. On October 26, 2015, the Board mailed its
final adjudication dismissing Cooper’s appeal and affirming the August 10, 2015
action. Cooper then filed a petition seeking this Court’s review.
              On appeal,2 Cooper asserts that his new sentence was 3 months
incarceration, immediate county parole, followed by 23 months and 5 years’
probation. Based on this characterization of the sentence, and relying on Martin v.
Pennsylvania Board of Probation and Parole, 840 A.2d 299, 309 (Pa. 2003),
Cooper argues that the Board should have credited the time he was incarcerated on
both the Board’s detainer and the new criminal charges to his original sentence.
              The Prisons and Parole Code (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 at liberty on parole, unless the Board 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
commencement of the new sentence. 61 Pa. C.S. §6138(a)(5)(i).

       2
          Our scope of review is limited to determining whether necessary findings of fact are
supported by substantial evidence, whether an error of law was committed, or whether
constitutional rights were violated. McCloud v. Pennsylvania Board of Probation and Parole,
834 A.2d 1210 (Pa. Cmwlth. 2003).


                                              3
             When a parole violator satisfies bail requirements prior to sentencing
and is incarcerated solely by reason of the Board’s detainer, the period of
incarceration prior to sentencing is credited to a convicted parole violator’s original
sentence. Gaito v. Pennsylvania Board of Probation and Parole, 412 A.2d 568
(Pa. 1980). However, when bail is not posted, time incarcerated on both the new
criminal charges and the Board’s detainer must apply to the new sentence. Id.
             Our Supreme Court recognized an exception to this rule in Martin.
The parolee in Martin was incarcerated on both new criminal charges and the
Board’s detainer for 19 days. The parolee was sentenced on the new charges to a
term of 2 days followed by a period of probation. In recalculating the maximum
parole date on his original sentence, the Board did not award the parolee any credit
for his pre-sentence confinement, because he was not confined solely on the
Board’s detainer. The parolee appealed, asserting that the excess 17 days of
incarceration must be credited toward his original sentence.
             Reasoning that pre-sentencing credit must be applied equitably, the
court agreed. Accordingly, the court held that where an offender is incarcerated on
both a Board detainer and new criminal charges, all time spent in confinement
must be credited, either to the new sentence, or to the original sentence. Martin,
840 A.2d at 309. Put another way, when it is not possible to award all of the pre-
sentencing credit to the new sentence because the period of pre-sentence
incarceration exceeds the maximum term of the new sentence, credit must be
applied to the parolee’s original sentence. Id. See also Jones v. Pennsylvania
Board of Probation and Parole, 872 A.2d 1283, 1285 (Pa. Cmwlth. 2005)
(parolee’s new sentence of 2 days was less than the pre-sentence custody time of 4
months, 17 days); Hears v. Pennsylvania Board of Probation and Parole, 851


                                          4
A.2d 1003, 1007 (Pa. Cmwlth. 2004) (parolee’s new sentence of 4 days was less
than the pre-sentence custody time of 4 months, 20 days).
             However, the rationale in Martin does not apply in this instance, and
Cooper is not entitled to pre-sentence credit for the period from May 4, 2013, to
February 6, 2015, against his original sentence, because the maximum term of the
new criminal sentence exceeded his pre-sentence confinement.
             The trial court sentenced Cooper to a term of 3 to 23 months, that is, a
minimum of 3 months and a maximum of 23 months incarceration, followed by a
maximum of 5 years’ probation.         C.R. at 49.     The period of pre-sentence
confinement from May 4, 2013, to February 6, 2015, 1 year, 9 months and 3 days,
is less than the maximum sentence of 23 months. Cooper erroneously states that
the trial court sentenced him to “3 months, immediate county parole, followed by
23 months and 5 years probation,” (Cooper’s brief at 11), but that is simply not the
case.
             Cooper had not completed the maximum term of the new sentence at
the time the trial court granted him parole and, consequently, he was not entitled to
any further credit on his original sentence.      Thus, the Board did not err in
recalculating Cooper’s maximum parole date.
             Accordingly, we affirm.




                                       __________________________________
                                       MICHAEL H. WOJCIK, Judge




                                         5
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Charles Cooper,                          :
                                         : No. 45 C.D. 2016
                         Petitioner      :
                                         :
                  v.                     :
                                         :
Pennsylvania Board of                    :
Probation and Parole,                    :
                                         :
                         Respondent      :


                                      ORDER


            AND NOW, this 9th day of September, 2016, the order of the
Pennsylvania Board of Probation and Parole, dated October 26, 2015, is affirmed.




                                       __________________________________
                                       MICHAEL H. WOJCIK, Judge
