            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Mark Richardson,                        :
                         Petitioner     :
                                        :
                   v.                   :   No. 1807 C.D. 2015
                                        :   SUBMITTED: June 24, 2016
Pennsylvania Board of                   :
Probation and Parole,                   :
                         Respondent     :


BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE ANNE E. COVEY, Judge
             HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                                   FILED: October 4, 2016


             Mark Richardson petitions pro se for review of an order of the
Pennsylvania Board of Probation and Parole (Board) denying his administrative
appeal from an order recommitting him as a convicted parole violator. We affirm.
             The pertinent facts are as follows. In March 2005, Richardson was
found guilty of criminal conspiracy, robbery, and burglary in the Court of
Common Pleas of Philadelphia County. Certified Record (C.R.), Item No. 1 at 1.
Pursuant to a six to twelve year sentence, he was incarcerated with an original
parole maximum date of January 15, 2017, and a minimum date of January 15,
2011. In October 2010, the Board granted him conditional parole. Id., Item No. 3
at 10-12.    One of the conditions, which Richardson acknowledged via his
signature, provided:    “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.” Id. at
15.
                  In March 2013, the Philadelphia Police Department arrested
Richardson and charged him with murder, criminal conspiracy, robbery, and
several violations of the Pennsylvania Uniform Firearm Act of 1995.1 Id., Item
No. 4 at 20 and 30. Richardson pled guilty to third-degree murder, conspiracy-
murder of the third degree, and robbery-infliction of serious bodily injury in
February 2014, and the remaining charges were nolle prossed. Id., Item No. 6 at
42, 43, and 48.           In March 2014, Richardson admitted to the aforementioned
convictions and waived his right to a parole revocation hearing and counsel. Id.,
Item No. 8 at 54. In a decision mailed May 16, 2014, the Board recommitted him
to a State Correctional Institution (SCI) as a convicted parole violator to serve his
unexpired term, when available, pending sentencing on his new Philadelphia
County case and his return to an SCI. Id. at 63. In January 2015, the trial court
sentenced Richardson to (1) a fifteen to thirty-year term of confinement in an SCI;
and (2) two underlapping and concurrent five to ten-year terms of confinement in
an SCI. Id., Item No. 9 at 64. Thereafter, Richardson was transferred to SCI-
Graterford in January 2015. Accordingly, in a decision mailed May 6, 2015, the
Board recommitted him as a convicted parole violator to serve his unexpired term
of five years, ten months, and twenty-nine days and recalculated his parole
maximum date as December 14, 2020. Id. at 65.


      1
          18 Pa. C.S. §§ 6101 - 6127.



                                            2
             Subsequently, Richardson filed a petition for administrative review
nunc pro tunc, which the Board received on July 16, 2015. Therein, he maintained
that he had sought the assistance of the Defender Association of Philadelphia, but
that it did not respond to his letter. In addition, Richardson provided a copy of a
May 10, 2015, letter that he wrote to the association and its June 29, 2015,
response to him indicating that it had lost his appeal paperwork. Id., Item No. 10
at 72-73. Initially, the Board denied his petition as untimely in a decision mailed
August 19, 2015. Id. at 75. Upon its subsequent review of the certified record and
Richardson’s claims regarding his attempts to seek an administrative remedy,
however, the Board waived the untimeliness due to a breakdown in the office of
the Defender Association of Philadelphia. Board’s Brief at 7 n.1. Richardson’s
petition for review to this Court followed.
             On appeal, Richardson argues that the Board lacked jurisdiction to
recalculate and extend his original parole maximum date of January 15, 2017, and
unlawfully modified his existing sentence and/or imposed a new one. Asserting,
inter alia, deprivations of due process, he requests that this Court reverse the
Board’s decision and reinstate his original parole maximum date. Richardson’s
position is without merit.
             By way of background, parole is a penological device designed to
help prisoners reintegrate into society. Young v. Pa. Bd. of Prob. & Parole, 409
A.2d 843, 847 (Pa. 1979). Parole is a matter of administrative discretion and not a
right of the prisoner. Cunningham v. Pa. Bd. of Prob. & Parole, 410 A.2d 963,
965 (Pa. Cmwlth. 1980). In this regard, “[a] grant of parole does not eliminate a
prisoner’s sentence, but instead, the prisoner continues to serve his sentence during
which time he or she is the subject of society’s rehabilitation efforts under



                                          3
supervision.” Weaver v. Pa. Bd. of Prob. & Parole, 688 A.2d 766, 769 (Pa.
Cmwlth. 1997).      Consequently, “[u]pon recommitment as a convicted parole
violator, the parolee must serve the remainder of the term which he would have
been compelled to serve had he not been paroled . . . .” Armbruster v. Pa. Bd. of
Prob. & Parole, 919 A.2d 348, 351 (Pa. Cmwlth. 2007). In addition, although the
Board has the power in certain cases to award a parolee credit for the time at
liberty on parole, it may choose not to do so. See Section 6138(a)(2) of the Prisons
and Parole Code, as amended, 61 Pa. C.S. § 6138(a)(2). Notwithstanding the
Board’s discretion in this regard, the statutory norm is that such credit shall not be
provided to a convicted parole violator. Pittman v. Pa. Bd. of Prob. & Parole, 131
A.3d 604, 615 (Pa. Cmwlth.), appeal granted, 137 A.3d 572 (Pa. 2016). In any
event, it remains true that requiring convicted parole violators to forego credit for
street time “does not offend the constitutional guarantees to the citizens of the state
and this nation[,]” but instead, “represents a reasonable exercise of the [state’s]
penological responsibility . . . .” Young, 409 A.2d at 847.
             Furthermore, the Board has both the authority and responsibility to
administer the state parole system. In this capacity, the Board, inter alia, is
charged with directing the recommitment of convicted parole violators and
recalculating maximum sentence and reparole review dates. Martin v. Pa. Bd. of
Prob. & Parole, 840 A.2d 299, 302 (Pa. 2003). Additionally, it has long been
established that the Board’s authority to extend a maximum term expiration date
does not usurp a court’s sentencing function or constitute a violation of a parolee’s
due process rights. See Gaito v. Pa. Bd. of Prob. & Parole, 392 A.2d 343, 570 (Pa.




                                          4
1978).2 In this regard, courts have rejected inmates’ arguments that the denial of
credit for time at liberty on parole amounts to an extension of the maximum date
imposed by the sentencing judge. Young, 409 A.2d at 847-48. Accordingly, upon
Richardson’s new convictions in the present case, the Board had the authority to
recalculate and extend his original parole maximum date.
              Specifically regarding the Board’s computation of Richardson’s new
maximum expiry, we note that the recalculation reflects the time yet to be served
on his original sentence, 2,159 days of backtime, with no credit for his street time.
Armbruster, 919 A.2d at 351. Accordingly, adding 2,159 days to the original
parole maximum date of January 16, 2015, results in a new parole maximum date
of December 14, 2020.3
              For the above reasons, therefore, we affirm.




                                           _____________________________________
                                           BONNIE BRIGANCE LEADBETTER,
                                           Senior Judge




    2
       As this Court noted in Smith v. Pennsylvania Board of Probation and Parole, 133 A.3d
820 (Pa. Cmwlth. 2016), Gaito was limited by Martin v. Pennsylvania Board of Probation and
Parole, 840 A.2d 299, 308 (Pa. 2003). That limitation does not apply here.
     3
       In any event, we note that by electing not to pursue the parole revocation hearing and,
consequently, that portion dealing with the amount of backtime owed in the event that he was
recommitted as a convicted parole violator, Richardson waived the right to advance a claim of
error that he could have raised at the hearing. Fisher v. Pa. Bd. of Prob. & Parole, 62 A.3d
1073, 1075-76 (Pa. Cmwlth. 2013). In addition, where the recommitment period is within the
presumptive range, courts will not review the Board’s imposition of backtime. Id. at 1077.



                                              5
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Mark Richardson,                        :
                        Petitioner      :
                                        :
                   v.                   :   No. 1807 C.D. 2015
                                        :
Pennsylvania Board of                   :
Probation and Parole,                   :
                        Respondent      :



                                     ORDER


           AND NOW, this 4th day of October, 2016, the order of the
Pennsylvania Board of Probation and Parole is hereby AFFIRMED.



                                      _____________________________________
                                      BONNIE BRIGANCE LEADBETTER,
                                      Senior Judge
