               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William Lancaster, III,                      :
                            Petitioner       :
                                             :
                     v.                      :
                                             :
Pennsylvania Board of Probation              :
and Parole,                                  :   No. 735 C.D. 2015
                        Respondent           :   Submitted: November 25, 2015


BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE MARY HANNAH LEAVITT, Judge1
              HONORABLE ANNE E. COVEY, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                               FILED: March 7, 2016

              William Lancaster, III (Lancaster) petitions this Court for review of the
Pennsylvania Board of Probation and Parole’s (Board) November 13, 2014 order
denying his petition for administrative review. The sole issue before the Court is
whether the Board unconstitutionally extended Lancaster’s maximum sentence
release date. After review, we affirm.
              On December 17, 2009, Lancaster was sentenced to serve two to four
years’ incarceration after pleading guilty to charges involving the manufacture, sale,
delivery or possession with intent to deliver of a controlled substance. The maximum
release date for this sentence was April 14, 2013. On April 21, 2011, the Board
paroled Lancaster.        On January 31, 2013, the police arrested Lancaster for
committing several new crimes. On that same day, the Board issued a detainer for

       1
        This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt
became President Judge.
Lancaster. On February 1, 2013, Lancaster was detained in lieu of bail and charges
were docketed in the Montgomery County Court of Common Pleas (new charges).
Lancaster was released on the new charges, but he remained confined on the Board’s
detainer which was lifted on April 14, 2013, when Lancaster’s original maximum
sentence release date expired.
              On October 30, 2013, Lancaster pled guilty to the new charges. The
Board re-lodged its detainer against Lancaster on November 8, 2013. Lancaster
waived his right to a parole revocation hearing concerning his new criminal charges.
Accordingly, the Board recommitted Lancaster as a convicted parole violator. On
March 13, 2014, Lancaster was sentenced on the new charges to serve two concurrent
one-to-three-year terms in a state correctional institution, plus two years of probation.
By June 30, 2014 decision, the Board recalculated Lancaster’s maximum sentence
release date from April 14, 2013 to September 18, 2015, denying Lancaster credit for
time at liberty on parole.
              Lancaster petitioned for administrative relief from the Board’s June 30,
2014 decision, objecting to the September 18, 2015 maximum sentence release date.
On November 13, 2014, the Board affirmed its June 30, 2014 decision. On May 4,
2015, Lancaster filed a petition with this Court for leave to file a petition for review
nunc pro tunc (Lancaster’s Petition). In response, on May 20, 2015, the Board filed a
petition to dismiss for lack of jurisdiction (Board’s Petition). On June 15, 2015, this
Court granted Lancaster’s Petition, denied the Board’s Petition and accepted
Lancaster’s Petition for Review.2
              Lancaster argues that the Board acted unconstitutionally when it set a
new maximum sentence release date under Section 6138(a) of the Prisons and Parole

       2
        “Our review in a parole revocation action is limited to determining whether the findings
were supported by substantial evidence, whether constitutional rights were violated, or whether the
Board committed an error of law.” Flowers v. Pa. Bd. of Prob. & Parole, 987 A.2d 1269, 1271 n.3
(Pa. Cmwlth. 2010).
                                                2
Code (Code), 61 Pa.C.S. § 6138(a). Specifically, Lancaster contends that the Board’s
extension of his maximum date beyond his judicially-imposed maximum date
violates the separation of powers doctrine by authorizing the Board to intrude upon
the courts’ discretionary powers to establish a maximum sentence date.

            A basic precept of our form of government is that the
            executive, the legislature and the judiciary are independent,
            co-equal branches of government. . . . Under the principle
            of separation of the powers of government, . . . no branch
            should exercise the functions exclusively committed to
            another branch.

Sweeney v. Tucker, 375 A.2d 698, 705 (Pa. 1977) (citations omitted).
            Section 6138(a) of the Code provides in relevant part:

             (1) A parolee under the jurisdiction of the board released
            from a correctional facility who, during the period of parole
            or while delinquent on parole, commits a crime punishable
            by imprisonment, for which the parolee is convicted or
            found guilty by a judge or jury or to which the parolee
            pleads guilty or nolo contendere at any time thereafter in a
            court of record, may at the discretion of the board be
            recommitted as a parole violator.
            (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.

61 Pa.C.S. § 6138(a) (emphasis added).
            Our Supreme Court has long held that recommitment of a convicted
parole violator does not offend the separation of powers doctrine. In Young v.
Penn[sylvania] Board of Probation and Parole, 409 A.2d 843 (Pa. 1979), the
Supreme Court addressed the same issue raised herein:

            This Court answered this precise question adversely to
            appellant in Commonwealth ex rel. Ohodnicki v.

                                         3
              Pennsylvania Board of Parole, . . . 211 A.2d 433 ([Pa.]
              1965). There we stated:
                     The petitioner argues that the Parole Board, as
                     an [a]dministrative body, is without power to
                     extend expiration date of his original
                     maximum term. It is the Legislature and not
                     the [Board] that has extended the maximum,
                     [expiration] date of his original sentence. . . .
                     It is thus clear that the [Board] has not, as
                     contended by the petitioner, unlawfully
                     extended the term of his maximum sentence,
                     but has merely withdrawn from the petitioner
                     credit for the time he was at liberty on parole, .
                     . . . (Emphasis added).

Young, 409 A.2d at 846 n.5 (quoting Ohodnicki, 211 A.2d at 434-35).                The Young
Court explained:

              [A] denial of credit [for time spent on parole] . . . does not
              effect the sentence in such a manner as would be offensive
              to the doctrine of separation of powers. . . .
                     There is no doubt that the Board can recommit
                     and recompute the sentence of a parolee who
                     commits a crime while on parole but is not
                     convicted until after his original sentence
                     would have expired.         (Citations omitted).
                     [Parolee] desires to profit from the fact that he
                     absconded and was delinquent on the date of
                     expiration of his original sentence, . . . . There
                     is no reason why a delinquent parolee should
                     so profit . . . .
              Kuykendall v. P[a.] Bd. of Prob[. &] Parole, . . . 363 A.2d
              866, 868 ([Pa. Cmwlth.] 1976).
              To allow a delinquent parolee to have the benefit of ‘street
              time’[3] during which he ignored the conditions of his parole
              would render parole impotent as a corrective device and

       3
         “‘Street time’ is a term for the period of time a parolee spends at liberty on parole.”
Dorsey v. Pa. Bd. of Prob. & Parole, 854 A.2d 994, 996 n.3 (Pa. Cmwlth. 2004).


                                               4
             would in fact lessen the judicially mandated period of
             custody. . . .
             ....
             [W]e are satisfied that the [] Board’s power to deny credit
             for ‘street time’ . . . is not an encroachment upon the
             judicial sentencing power.

Young, 409 A.2d at 848. See also Davidson v. Pa. Bd. of Prob. & Parole, 33 A.3d
682 (Pa. Cmwlth. 2011) (wherein this Court, relying on Young, found that the Board
did not violate the separation of powers doctrine by recommitting a convicted parole
violator without credit for time served, pursuant to Section 6138 of the Code).
             Because both our Supreme Court and this Court have definitively
addressed and rejected the very argument Lancaster raised, the Board’s decision is
affirmed.

                                       ___________________________
                                       ANNE E. COVEY, Judge




                                          5
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William Lancaster, III,                 :
                          Petitioner    :
                                        :
                   v.                   :
                                        :
Pennsylvania Board of Probation         :
and Parole,                             :   No. 735 C.D. 2015
                        Respondent      :


                                       ORDER

            AND NOW, this 7th day of March, 2016, the Pennsylvania Board of
Probation and Parole’s November 13, 2014 order is affirmed.


                                       ___________________________
                                       ANNE E. COVEY, Judge
