           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Nathan Burrell,                                  :
                            Petitioner           :
                                                 :
           v.                                    :       No. 308 C.D. 2019
                                                 :       Submitted: August 23, 2019
Pennsylvania Board of                            :
Probation and Parole,                            :
                            Respondent           :


BEFORE:         HONORABLE MARY HANNAH LEAVITT, President Judge
                HONORABLE ROBERT SIMPSON, Judge1
                HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                            FILED: November 13, 2019


                Nathan Burrell (Burrell) petitions for review of an order of the
Pennsylvania Board of Probation and Parole (Board) denying his administrative
appeal from an order that recommitted him as a technical parole violator (TPV) and
as a convicted parole violator (CPV) and recalculated his maximum sentence date.
Burrell argues the Board incorrectly recalculated his maximum sentence date and
denied him a timely recommitment hearing. Upon review, we conclude that Burrell
did not receive credit for all his time in confinement; accordingly, we vacate and
remand.




       1
        This matter was assigned to this panel before September 1, 2019, when Judge Simpson
assumed the status of senior judge.
                                  I. Background
             On May 7, 2015, Burrell was released on re-parole in Pennsylvania. At
that time, 1,102 days remained on his original sentence. While at liberty on parole,
Burrell committed a series of new theft-related offenses in Pennsylvania, Virginia,
and Maryland.


             In August 2015, Virginia police issued a detainer for Burrell’s arrest on
theft-related charges. In September 2015, when Burrell failed to report to his
Pennsylvania parole agent as instructed, he was found delinquent by the Board. This
situation was the basis for a technical parole violation. In October 2015, the Board
issued a warrant for his detention. During this period, when Burrell’s whereabouts
were unknown, new Pennsylvania theft-related charges were filed against Burrell.


             In January 2016, Maryland police arrested Burrell on new charges
there. He remained in Maryland. In May 2016, Burrell pled guilty in a Maryland
court and received a three-year sentence of incarceration. This situation was the
basis for Burrell’s first convicted parole violation. Thereafter, the Board was
notified of Burrell’s Maryland conviction, and it lodged a warrant for his detention,
so he could be extradited to Pennsylvania when available.


             In September 2016, Burrell was transferred from Maryland to
Cumberland County, Pennsylvania, to deal with new charges there. While in the
county prison, he signed Board forms waiving counsel and Board revocation
hearings, and he admitted to a technical parole violation and a convicted parole
violation based on the Maryland conviction. Certified Record (C.R.) at 81-83.



                                          2
             About two weeks thereafter, on October 18, 2016, Burrell pled guilty
in Cumberland County, Pennsylvania, to some of his new Pennsylvania charges, and
he received a 9- to 18-month sentence of incarceration. This situation was the basis
for Burrell’s second convicted parole violation.


             Following the Cumberland County, Pennsylvania, sentencing, Burrell
was returned to Maryland to serve the remainder of his three-year Maryland
sentence. Burrell contends that prior to his return to Maryland the Board should
have exercised its jurisdiction over him.


             On February 6, 2017, while Burrell was still serving his Maryland
sentence, the Board formally recommitted Burrell as a CPV on the Maryland
conviction, based on his prior waivers and admissions (first recommitment). Burrell
was recommitted to serve a total of 12 months’ backtime, when available. Burrell
contends he should have been available to serve backtime on his original sentence
at the culmination of the recommitment process.


             In August 2017, the Maryland Department of Corrections notified the
Board of its intention to release Burrell to Virginia. The Maryland agency explained
the August 2015 Virginia detainer preceded the Board’s October 2015 detainer, and
thus took priority. On September 25, 2017, upon the completion of his Maryland
sentence, Burrell was transferred to Virginia. Burrell contends he should have been
available to the Board, and available to serve backtime, once released from the
Maryland sentence.




                                            3
              The Board subsequently notified Virginia of its existing warrant. In
November 2017, Burrell pled guilty in a Virginia court and received a 12-month
suspended sentence. On November 25, 2017, Burrell was transferred to State
Correctional Institution-Benner (SCI) in Pennsylvania.


              Again in Pennsylvania, Burrell waived his right to a panel revocation
hearing based on the Cumberland County, Pennsylvania, conviction.2 However, he
elected to have a recommitment hearing before the Board, which occurred on March
16, 2018. At that time, his counsel objected to the timeliness of the recommitment
hearing based on the Cumberland County, Pennsylvania, conviction.


              On April 17, 2018, the Board revoked his parole and recommitted
Burrell as a CPV to serve 12 months’ backtime for his Cumberland County,
Pennsylvania, conviction concurrent with the 12 months it had previously imposed
for a technical parole violation and the Maryland convicted parole violation (second
recommitment). The Board acknowledged Burrell’s conviction in Virginia, but it
directed that no further action be taken on that suspended sentence. The Board
recalculated Burrell’s maximum sentence date on his original sentence as December
1, 2020.


              Burrell filed an administrative appeal, arguing he should be credited
with backtime on his original sentence starting at the time of his first recommitment.
According to Burrell, the Board violated the Prisons and Parole Code (Parole Code),

       2
         Burrell initially waived his right to a panel revocation hearing based on the new
Cumberland County, Pennsylvania, conviction on February 28, 2018. However, the hearing was
rescheduled, and Burrell signed a second waiver as to the panel revocation hearing on March 8,
2018. C.R. at 233.

                                              4
61 Pa. C.S. §6138(a)(5.1), by returning him to Maryland to complete his sentence
there before serving backtime on his original Pennsylvania sentence. Also, Burrell
again objected to the timeliness of the second recommitment hearing.


               The Board denied Burrell’s appeal, affirming its decision. The Board
maintained Burrell was not available to begin serving his original Pennsylvania
sentence until November 25, 2017, when he returned to Pennsylvania from Virginia.
The Board determined Burrell’s second recommitment hearing based on the
Cumberland County, Pennsylvania, conviction was timely held within 120 days of
the date Burrell became available. Burrell now petitions for review to this Court.3


                                        II. Discussion
               Burrell argues the Board miscalculated his maximum sentence date on
his original sentence and failed to afford him a timely second recommitment hearing.
Although these are distinct issues, they are predicated on the same factual premise:
Burrell contends he was available to the Board at a date earlier than November 25,
2017, when he was transferred from Virginia and arrived at SCI.


                                A. Maximum Sentence Date
                                                    1.
               Burrell contends that his backtime on his original sentence should have
started to run on January 3, 2017 (during his first recommitment), rather than on
November 25, 2017. January 3, 2017 is the date the second panel member approved
       3
         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. Harmer v. Pa. Bd. of Prob. & Parole, 83 A.3d 293 (Pa. Cmwlth. 2014).



                                                5
recommitment of Burrell as a CPV as a result of his Maryland conviction.4 Burrell
objects to the accuracy of his availability date because Section 6138(a)(5.1) of the
Parole Code, 61 Pa. C.S. §6138(a)(5.1),5 “clearly requires that state parole backtime
be served prior to an out[-]of[-]state sentence.” Pet’r’s Br. at 12. Adding 1,102
unserved days onto his original sentence, he contends his maximum date should have
been calculated to be January 10, 2020, rather than December 1, 2020. Id. at 20-21.


               Alternatively, Burrell contends his backtime should have started to run
on September 25, 2017, when he was released from his Maryland sentence. He was
sent to Virginia to face new charges there, he pled guilty to the Virginia charges on
November 15, 2017, and he was given a suspended sentence. Burrell was made
available on the Board’s detainer on that date, and he was physically returned to SCI
on November 25, 2017. Burrell asserts the Virginia charges were resolved by
November 15; thereafter, he was held for the next 10 days solely on the Board’s
warrant. Further, because his Virginia charges did not result in a sentence of
incarceration, failure to credit his time in Virginia custody results in a “dead time




       4
         The requirement that a convicted parole violator serve the balance of his original sentence
before beginning service of a newly imposed sentence is only operative when “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).

       5
          Section 6138(a)(5.1) of the Parole Code, 61 Pa. C.S. §6138(a)(5.1), in relevant part,
provides, “[i]f the parolee is sentenced to serve a new term of total confinement … by a court of
another jurisdiction because of a verdict or plea under paragraph (1), the parolee shall serve the
balance of the original term before serving the new term.” Paragraph (1) relates to the Board’s
discretion in recommitting parole violators. Id.

                                                 6
situation prohibited by our Supreme Court in [Martin v. Pennsylvania Board of
Probation and Parole, 840 A.2d 299 (Pa. 2003)].” Pet’r’s Br. at 22.


               The Board concedes that Burrell’s backtime should be computed from
November 15, 2017, the date he was made available in Virginia on the Board’s
warrant. However, the Board argues that Burrell did not suffer a “dead time
situation” in violation of Martin because he was given credit in Virginia against his
suspended sentence. C.R. at 140.


                                                 2.
               As to the January 3, 2017 date of computation, we reject this assertion.
Burrell was in Maryland at the time, serving his Maryland sentence. At that time,
Burrell was not available to the Board. See Brown v. Pa. Bd. of Prob. & Parole, 184
A.3d 1021 (Pa. Cmwlth. 2017) (holding the Board has no authority to remove a
parolee that is confined outside of its jurisdiction).


               Although 61 Pa. C.S. §6138(a)(5.1) requires a state sentence to be
served before a subsequently imposed new sentence in another jurisdiction, this rule
is “contingent upon the Board’s ability to place [the parolee] into state custody.”
Byrd v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 347 C.D. 2018, filed Nov. 9,
2018), slip op. at 3, 2018 WL 5851789, at *2 (unreported) (emphasis added).6 The
Board is authorized to lodge a detainer in order to seek a parolee’s return to serve
backtime; however, the Board must wait until the parolee is returned to its
jurisdiction, after having completed the sentence in the other jurisdiction. Brown

       6
         This case is cited for its persuasive value in accordance with Section 414(a) of this Court’s
Internal Operating Procedures, 210 Pa. Code §69.414(a).

                                                  7
(noting the Board’s duty to take action beyond issuing a detainer is deferred until the
parolee is returned to the SCI).


              Further, for reasons more fully explained below pertaining to primary
jurisdiction, we reject Burrell’s related contention that the Board should have
exercised its jurisdiction over him in October and November 2016 while he was
temporarily housed in the county prison, and it should have declined to return him
to Maryland until it dealt with his new Cumberland County, Pennsylvania,
conviction.


                                          3.
              As to Burrell’s alternative onset of backtime, September 25, 2017, both
the Board and this Court discern some merit. The Board concedes that during some
of this time Burrell was detained solely on the Board’s warrant. As to the rest of the
time, Martin compels the result Burrell seeks.


              In Martin, our Supreme Court established that where, as here, a parole
violator is confined on both new criminal charges and the Board’s warrant, and it is
not possible to award all of the credit on the new sentence because the period of
presentence incarceration exceeds the maximum term of the new sentence, the credit
must be applied to the offender’s original sentence. The Court in Martin considered
situations similar to that before us now, where new charges result in a sentence that
does not include an initial period of incarceration, such as a sentence of probation.
See, e.g., 840 A.2d at 305-06. The Court also disapproved of the concept of a “penal




                                          8
checking account,” where presentence confinement credits are deposited for possible
future offset. Id. at 308-09.


             Our review of Virginia criminal laws convinces us that a suspended
sentence is not a sentence of initial incarceration. Moreover, it is akin to a sentence
of probation in Pennsylvania, in that it may result in the future imposition of any
sentence that could have been imposed originally upon a showing of misconduct
within the period of suspension. See Code of Va. §19.2-306 (2016). Under these
circumstances, whether Burrell was given credit in Virginia for presentence
confinement there, it was not of immediate use to him, and it may never be of use to
him. Under the rule of Martin, therefore, Burrell’s presentence confinement in
Virginia should be credited to his original sentence. Applying all the time Burrell
served in Virginia prior to his suspended sentence against his original sentence in
Pennsylvania results in a maximum sentence date of October 1, 2020 (September
25, 2017 + 1,102 days).


             For these reasons, we conclude that the Board erred in recalculating
Burrell’s maximum sentence date; accordingly, we must vacate the recalculation
portion of the Board’s order and remand for recalculation of the maximum sentence
date.


                       B. Timeliness of Revocation Hearing
             Burrell also maintains the Board did not afford him a timely
revocation/recommitment hearing on the Cumberland County, Pennsylvania,
conviction (second recommitment). The Board’s regulations, which govern the



                                          9
calculation period, require hearings to be held within 120 days from receipt of a
guilty plea, pending a two-pronged exception:

                   (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)(i) and (ii) (emphasis added); see Major v. Pa. Bd. of Prob. &
Parole, 647 A.2d 284, 287 (Pa. Cmwlth. 1994) (Section 71.4(1) creates one
exception with two parts).


             Burrell contends he was not confined outside the Board’s jurisdiction
and that he was generally available to the Board in October and November 2016;
therefore, his second recommitment hearing on March 16, 2018, more than 120 days
later, was untimely.




                                          10
             Before October 2016, Burrell was serving his sentence in Maryland.
He was transferred from Maryland to Cumberland County, Pennsylvania, to answer
new charges there. During his time in Pennsylvania, Burrell remained in a county
facility, not in a state correctional institution. While confined in the county facility,
he signed Board forms by which he waived counsel and revocation hearings, and he
admitted to a technical parole violation and a convicted parole violation (based on
the Maryland conviction). C.R. at 81-83.


             After pleading guilty to the new Cumberland County, Pennsylvania,
charges, he was sentenced and returned to Maryland to complete his Maryland
sentence. As discussed previously, based on Burrell’s waivers and admissions as to
a technical parole violation and convicted parole violation (arising from the
Maryland conviction), the Board acted on recommitment thereafter (first
recommitment).


             Relying on Fumea v. Pennsylvania Board of Probation and Parole, 147
A.3d 610 (Pa. Cmwlth. 2016), Burrell urges the application of Section 6138(a)(5.1),
and maintains the Board erred in returning him to Maryland before dealing with his
new Cumberland County, Pennsylvania, conviction.


             First, we reject the argument based on Fumea that the Board should
have done more to exercise jurisdiction over Burrell while he was in Cumberland
County, Pennsylvania. Unlike Fumea, where the Board could have immediately
taken the parolee into custody before he started serving a new sentence, here Burrell




                                           11
was already unavailable to the Board and subject to Maryland’s primary jurisdiction
when he was temporarily returned to Cumberland County, Pennsylvania.


             When a parolee is transferred on new charges to another jurisdiction by
judicial writ, he remains “in the primary custody of the first jurisdiction unless and
until the first sovereign relinquishes jurisdiction over the person.” Foley v. Pa. Bd.
of Prob. & Parole, 195 A.3d 630, 632 (Pa. Cmwlth. 2018) (citation omitted). “[T]he
receiving sovereign … is, therefore, considered simply to be “borrowing” the
prisoner from the sending sovereign for the purposes of indicting, arraigning, trying,
and sentencing him.” Id. (emphasis added).


             This is what happened here, with Maryland retaining primary
jurisdiction, and Cumberland County, Pennsylvania, “borrowing” Burrell for the
limited purpose of resolving the outstanding charges. Accordingly, Burrell was
effectively confined outside the jurisdiction of the Department of Corrections during
October and November 2016, even though he was temporarily housed in a
Cumberland County, Pennsylvania, facility for a limited purpose during that time.


             Second, this Court construes Section 71.41 to mean that where, as here,
the CPV waives his right to a panel revocation hearing on the new conviction, the
120-day period does not begin to run until the date of official verification of the new
conviction, or the date of the waiver of a revocation hearing, “whichever is later.”
Major, 647 A.2d at 287 (emphasis added); see also Taylor v. Pa. Bd. of Prob. &
Parole (Pa. Cmwlth., No. 405 C.D. 2018, filed August 28, 2018), 2018 WL 4089400
(unreported) (applying Major).



                                          12
            On March 8, 2018, Burrell executed (his final) waiver of his right to a
panel revocation hearing on the Cumberland County, Pennsylvania, conviction. At
the time he signed the waiver, Burrell was confined at SCI. Pursuant to Section
71.4(1)(ii), the Board acquired jurisdiction over Burrell on March 8, 2018, and “the
120-day period within which the Board was required to hold a hearing began to run
when [Burrell] came within its jurisdiction on that date.” D’Nicuola v. Pa. Bd. of
Prob. & Parole, 467 A.2d 1383, 1385-6 (Pa. Cmwlth. 1983).


            Under these circumstances, the March 16, 2018 hearing was timely.

                                 III. Conclusion
            For the foregoing reasons, we vacate the recalculation portion of the
Board’s order and remand for recalculation of Burrell’s maximum sentence date.




                                      __________________________________
                                      ROBERT SIMPSON, Judge




                                        13
              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Nathan Burrell,                             :
                         Petitioner         :
                                            :
         v.                                 :      No. 308 C.D. 2019
Pennsylvania Board of                       :
Probation and Parole,                       :
                         Respondent         :


                                      ORDER

            AND NOW, this 13th day of November 2019, the order of the
Pennsylvania Board of Probation and Parole is VACATED, and the matter is
remanded for further proceedings consistent with the foregoing opinion.


            Jurisdiction is relinquished.



                                            ______________________________
                                            ROBERT SIMPSON, Judge
