           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Patrick Eugene Henry,                  :
                                       :
                            Petitioner :
                                       :
                     v.                : No. 858 C.D. 2018
                                       : Submitted: March 15, 2019
Pennsylvania Board of                  :
Probation and Parole,                  :
                                       :
                            Respondent :

BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE ROBERT SIMPSON, Judge1
              HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                          FILED: September 6, 2019


              Patrick Eugene Henry (Henry) petitions for review from a decision of
the Pennsylvania Board of Probation and Parole (Board) that denied his request for
administrative review challenging the calculation of his parole violation maximum
date. Henry claims that the Board miscalculated his maximum expiration date by
failing to properly credit him for time served exclusively on its warrant. Discerning
no error, we affirm.
              In December 2008, Henry pled guilty to escape, burglary, and criminal
trespass, and he was sentenced to an aggregate term of 4 years and 6 months to 12
years in prison (original sentence). Certified Record (C.R.) at 1-4. In addition, in
July 2009, Henry pled guilty to burglary, and he was sentenced to an underlapping

       1
        This matter was assigned to this panel before September 1, 2019, when Judge Simpson
assumed the status of senior judge.
concurrent term of 1 year to 10 years. Id. Henry’s original sentence carried a
controlling maximum sentence date of May 21, 2021. C.R. at 1, 3.
              On September 14, 2015, the Board released Henry on parole to
Wernersville Community Corrections Center (CCC) subject to conditions, which he
signed. C.R. at 5-15, 35. One of the conditions imposed stated:

              If you are convicted of a crime committed while on
              parole/reparole, the Board has the authority, after an
              appropriate hearing, 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.

C.R. at 10.
              While on parole, the Board declared Henry delinquent after failing to
return to Wernersville CCC. C.R. at 16, 35. On February 2, 2016, authorities
arrested Henry on the Board’s warrant. C.R. at 16, 35. On that same day, the Board
issued a warrant to commit and detain Henry for technical parole violations. C.R. at
17. The Board detained Henry in a parole violator center, pending the completion
of recommended programming. C.R. at 18.
              Upon Henry’s successful discharge from the program and release from
the parole violator center, the Board instructed Henry to report directly to
Wernersville CCC and to the local parole office on May 12, 2016. C.R. at 19-20.
When Henry did not report that day, the Board immediately declared him delinquent.
C.R. at 21. On August 8, 2016, authorities arrested Henry on the Board’s warrant,
and the Board lodged a warrant to commit and detain him for technical parole
violations. C.R. at 22, 23, 35. The Board then charged Henry as a technical parole
violator (TPV) and scheduled a hearing. C.R. at 23, 32. Henry signed a waiver of
violation hearing and counsel/admission form, and he admitted to the violations.
                                         2
C.R. at 31. By action dated October 5, 2016, the Board recommitted Henry as a
TPV to be reparoled upon successful completion of prescribed programs, if no
misconducts, in six months pursuant to Section 6138(d)(3)(i) of the Prisons and
Parole Code (Parole Code), 61 Pa. C.S. §6138(d)(3)(i). C.R. at 37-38.
             While detained by the Board as a TPV, Henry faced new criminal
charges, which were filed against him in Adams County and York County. On
December 1, 2016, York County charged Henry with burglary, conspiracy to commit
burglary, criminal trespass, theft by unlawful taking, and receiving stolen property
(York County Case). C.R. at 41, 43-47, 122-129. On December 28, 2016, the York
County Court of Common Pleas set bail in the amount of $50,000, which Henry did
not post. C.R. at 123.
             On December 15, 2016, Adams County authorities arrested Henry and
charged him with multiple counts of burglary, theft by unlawful taking, receiving
stolen property, theft from a motor vehicle and criminal mischief (Adams County
Case). C.R. at 48-53, 66, 68-79. That same day, the Adams County Court of
Common Pleas set bail in the amount of $10,000, which Henry did not post. C.R. at
68.
             The Board provided Henry with a notice of charges and its intent to
hold a detention hearing based on the new charges. C.R. at 55. Henry signed a
waiver of representation by counsel and a waiver of detention hearing. C.R. at 54.
By Board decision recorded January 25, 2017, the Board detained Henry pending
disposition of the new charges. C.R. at 66.
             With regard to the Adams County Case, on March 23, 2017, Henry pled
guilty to burglary and theft, and he was sentenced to 2 to 7 years of confinement in
a state correctional institution (SCI) to run consecutive to any other sentence. C.R.


                                         3
at 69-70. The Board provided Henry with a notice of charges and its intent to hold
a revocation hearing for the Adams County Case conviction. C.R. at 89. Henry
waived his right to a revocation hearing and to counsel, and he admitted to the
convictions. C.R. at 88, 90. The Board voted to recommit Henry as a convicted
parole violator (CPV) for 15 months. C.R. at 80-87. The Board did not award him
credit for the time he was at liberty on parole noting “delinquency [and] continued
non-compliance” as the reason. C.R. at 87. By Board decision recorded June 23,
2017, the Board modified its prior decisions and recommitted Henry as a CPV to
serve 15 months’ backtime, concurrently with the 6 months previously imposed for
the technical parole violations, when available, pending the resolution of the York
County Case. C.R. at 120-21.
             With regard to the York County Case, on September 22, 2017, Henry
pled guilty to burglary and conspiracy to commit burglary, and he received a
sentence of 2 to 4 years of confinement in an SCI. C.R. at 123-24. The Board
provided Henry with a notice of charges and of its intent to hold a revocation hearing
based on his convictions. C.R. at 139. Henry waived his right to a revocation
hearing and to counsel, and he admitted to the York County Case convictions. C.R.
at 138, 140. The Board voted to recommit Henry as a CPV for 18 months. C.R. at
130-137. By Board decision recorded March 26, 2018, the Board modified its prior
decisions and recommitted Henry to serve 18 months’ backtime concurrently with
the time previously imposed.      C.R. at 159-60.     The Board changed Henry’s
maximum sentence date from May 21, 2021 to October 13, 2022. C.R. at 159;
Supplemental Certified Record (S.C.R.) at 1A.




                                          4
               Henry, representing himself, requested administrative review2 of the
Board’s March 26, 2018 decision on the basis that the Board miscalculated his
maximum sentence date having failed to properly apply credit for time served on the
Board’s detainers. C.R. at 168. Shortly thereafter, Henry’s counsel resubmitted the
same form on Henry’s behalf. C.R. at 170. By decision mailed June 6, 2018, the
Board denied Henry’s request for administrative review upon determining that the
Board did not miscalculate his maximum date and affirmed its March 26, 2018
decision. C.R. at 171. This appeal now follows.3
               Henry, represented by counsel, claims that the Board miscalculated his
new parole violation maximum date by failing to credit his original sentence with all
time spent exclusively under the Board’s warrant. Specifically, he argues that “the
concurrency of his three board actions” should “run from the date of his first
commitment for the technical parole violation,” or alternatively, “from the date he
received the recommitment . . . for the Adams [C]ounty [Case]” conviction.
Petitioner’s Brief at 13.
               Section 6138(a)(1) of the 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). If the parolee is recommitted as a CPV, he must serve the remainder
of the term, which he would have been compelled to serve had parole not been
granted, with no credit for the time at liberty on parole. 61 Pa. C.S. §6138(a)(2).

       2
          Henry filed an “Administrative Remedies Form,” which the Board treated as a request
for administrative review because Henry objected to his recalculated maximum date. C.R. at 171.
        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. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Miskovitch
v. Pennsylvania Board of Probation and Parole, 77 A.3d 66, 70 n.4 (Pa. Cmwlth. 2013), appeal
denied, 87 A.3d 322 (Pa. 2014).
                                                5
The Board “may, in its discretion award credit” to a CPV for time spent at liberty on
parole unless the offender is convicted of certain specified offenses, which are not
applicable here. 61 Pa. C.S. §6138(a)(2.1). Where the Board denies credit for time
spent at liberty on parole, this time is applied to the original maximum expiration
date to create a new maximum date. Armbruster v. Pennsylvania Board of Probation
and Parole, 919 A.2d 348, 351 (Pa. Cmwlth. 2007).
             “[W]here an offender is incarcerated on both a Board detainer and new
criminal charges, all time spent in confinement must be credited to either the new
sentence or the original sentence.” Martin v. Pennsylvania Board of Probation and
Parole, 840 A.2d 299, 309 (Pa. 2003); accord Gaito v. Pennsylvania Board of
Probation and Parole, 412 A.2d 568, 571 n.6 (Pa. 1980); see Smith v. Pennsylvania
Board of Probation and Parole, 171 A.3d 759, 769 (Pa. 2017) (holding Martin and
Gaito remain the rule in this Commonwealth for how credit is applied). As our
Supreme Court held in Gaito:

             [I]f a defendant is being held in custody solely because of
             a detainer lodged by the Board and has otherwise met the
             requirements for bail on the new criminal charges, the time
             which he spent in custody shall be credited against his
             original sentence. If a defendant, however, remains
             incarcerated prior to trial because he has failed to satisfy
             bail requirements on the new criminal charges, then the
             time spent in custody shall be credited to his new
             sentence.”
412 A.2d at 571 (emphasis added). If, on the other hand, “a parolee is not convicted,
or if no new sentence is imposed for that conviction on the new charge, the pre-trial
custody time must be applied to the parolee’s original sentence.” Id. at 571 n.6.
             “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


                                          6
custody   to     be    returned   to   the       institution   as   a   parole   violator.”
61 Pa. C.S. §6138(a)(4).
               Here, when Henry was released on parole on September 14, 2015, his
original sentence maximum date was May 21, 2021. C.R. at 8-9. This resulted in
Henry owing 2,076 days of backtime toward his original sentence. S.C.R. at 1A.
The Board recommitted Henry as a CPV to serve the remainder of his term, without
any credit for time spent at liberty on parole based on Henry’s delinquency and
noncompliance with the terms of parole. C.R. at 87.
               With regard to allocation of time served exclusively on the Board’s
detainers, the record reflects that the Board detained Henry for technical parole
violations from February 2, 2016, until he absconded on May 12, 2016 (100 days).
C.R. at 16, 21, 35; S.C.R. at 1A. The Board properly credited this 100 days to his
original sentence. S.C.R. at 1A. The record also reflects that the Board detained
Henry for technical parole violations from August 8, 2016, until December 15, 2016
(129 days), when new charges were filed against him for which he did not post bail.
C.R. at 22, 68. The Board properly credited this 129 days to his original sentence.
S.C.R. at 1A.
               Contrary to Henry’s assertions, he is not entitled to credit towards his
original sentence for time spent in confinement from December 15, 2016, to
September 22, 2017, the date of sentencing in the York County Case. Once Henry
was arrested on the new charges and did not post bail, he was no longer in custody
solely on the Board’s detainer. Consequently, the period of confinement from
December 15, 2016, to September 22, 2017, is applied towards his new criminal
sentences, not his original sentence. See Gaito.




                                             7
             Henry became available on September 22, 2017 -- the sentencing date
in the York County Case and his return to the SCI as a parole violator -- to serve
time on his original sentence. See 61 Pa. C.S. §6138(a)(4). The Board credited
Henry’s original sentence with a total of 229 days (= 100 + 129) for the time he spent
solely on the Board’s detainer. As a result, Henry owed 1847 days (= 2,076 – 229)
on his original sentence. Adding 1847 days to his September 22, 2017 availability
date resulted in a new maximum expiration date of October 13, 2022. Thus, the
Board did not err in its calculations.
             Accordingly, we affirm.




                                         MICHAEL H. WOJCIK, Judge




                                          8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Patrick Eugene Henry,              :
                                   :
                        Petitioner :
                                   :
                  v.               : No. 858 C.D. 2018
                                   :
Pennsylvania Board of              :
Probation and Parole,              :
                                   :
                        Respondent :



                                  ORDER


            AND NOW, this 6th day of September, 2019, the decision of the
Pennsylvania Board of Probation and Parole, dated June 6, 2018, is AFFIRMED.




                                    __________________________________
                                    MICHAEL H. WOJCIK, Judge
