           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Derrick Williams,                     :
                    Petitioner        :
                                      :
            v.                        : No. 1505 C.D. 2015
                                      : Submitted: March 11, 2016
Pennsylvania Board of Probation       :
and Parole,                           :
                 Respondent           :


BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                             FILED: March 30, 2016


            Derrick Williams (Parolee) petitions pro se for review of the decision of
the Pennsylvania Board of Probation and Parole (Board) denying his request for
administrative relief from the Board’s order recalculating his maximum sentence
following his recommitment as a convicted parole violator and denying him credit for
the period at which he was at liberty on parole. We affirm.


                                          I.
            On June 1, 1989, Parolee was found guilty of two counts of aggravated
assault, one count of criminal conspiracy to commit aggravated assault, and one count
of possession of a controlled substance. His aggregated sentence ranged from 11
years and 10 months to 26 years of imprisonment, with a minimum release date of
March 25, 2001, and a maximum release date of May 25, 2015.


             While serving his state sentence, Parolee was indicted by federal
authorities under the Racketeering and Influenced Corrupt Organization Act, 18
U.S.C. §§1961–1968. Count one of the federal indictment charged Parolee and 25
other individuals who were identified as members of a corrupt organization known as
the “Junior Black Mafia” with using violence and the threat of violence, including
aggravated assault, to maintain and expand control of the drug business in
Philadelphia. Though he served federal time on this charge, the record does not
contain his conviction or the terms of that sentence.


             The Board constructively paroled Parolee from his original sentence on
March 13, 2002, and released him to a federal detainer sentence. On March 7, 2005,
Parolee was released from the federal sentence to active parole supervision with the
Board. On April 5, 2007, Parolee was arrested by the Philadelphia Police Department
for providing false identification during a traffic stop. The Board lodged its detainer
against Parolee on April 6, 2007. The following day, on April 7, 2007, Parolee was
returned to a state correctional facility. The new criminal charges were dismissed on
August 9, 2007, and Parolee was released back on active parole supervision on
August 16, 2007.


             On August 2, 2011, Parolee was arrested on drug-related charges by the
Philadelphia Police Department and was charged with and detained by federal
authorities for violation of his federal probation. The federal criminal charges were



                                           2
dismissed on January 12, 2012. However, due to Parolee’s violation of his federal
probation, his probation was revoked and he was recommitted into federal custody to
serve a period of 30 months of imprisonment. On June 11, 2012, while he was still in
federal custody, the Board lodged a detainer against Parolee for technically violating
his state parole given his drug charges. On October 6, 2013, Parolee was released
from federal custody and was placed into the Coleman Violator Center by the Board.


                                                II.
              By decision mailed on January 8, 2014, the Board recommitted Parolee
as a technical parole violator and sentenced him to serve six months. The Board
recalculated his maximum release date as September 22, 2016, and his automatic
reparole date as April 4, 2014. The Board then recalculated his maximum release
date as September 16, 2016, due to a change in sentence structure.1 In arriving at that
date, the Board determined that Parolee owed 1,078 days, or 2 years, 11 months, and
14 days of backtime. The Board also added 480 days to Parolee’s original maximum
release date of May 25, 2015, to account for the period he was confined in federal
custody from June 11, 2012, to October 4, 2013.


              In February 2014, Parolee filed a pro se petition for administrative
review objecting to the recalculation of his maximum sentence date of September 16,

       1
          In January 2014, Parolee filed a pro se petition for administrative review, objecting to a
previously recalculated maximum release date of September 26, 2016. The Board responded,
explaining that before receiving his request, an error was discovered that changed his parole
violation maximum date to September 22, 2016. The Board added that a change in sentence
structure then changed his parole violation maximum date to September 16, 2016, and it dismissed
Parolee’s petition as moot.




                                                 3
2016, contending that his sentence was extended despite the fact that he was not
convicted of a crime. On April 4, 2014, the Board released Parolee on reparole from
his original state sentence. He was again arrested on June 12, 2014, for threatening a
police officer during a traffic stop. The charges were filed and bail was set, but
Parolee did not post it. That same day, the Board lodged its detainer against Parolee.


             By decision mailed on August 28, 2014, the Board affirmed its
recalculation decision, explaining that when the Board lodged its detainer against
Parolee on June 11, 2012, he was unavailable for 480 days due to service of his
federal sentence, and that the Board has the authority to deny him credit for that time.
The Board further stated that adding the 480 days to his original maximum sentence
of May 25, 2015, yields a new maximum sentence date of September 16, 2016.


             On October 17, 2014, Parolee was found guilty of terroristic threats with
the intent to terrorize another and sentenced to probation for a maximum period of 18
months. In February 2015, the Board conducted a revocation hearing.


             By decision mailed on April 22, 2015, the Board recommitted Parolee as
a convicted parole violator, sentencing him to serve 12 months of backtime and
recalculating his parole maximum date to October 14, 2026. In recalculating the
maximum date, the Board credited him for 259 days of backtime, consisting of 127
days for the period he was incarcerated from April 6, 2007, to August 16, 2007, and
127 days for his incarceration from June 12, 2014, to October 17, 2014, to account
for the time he was incarcerated solely on the Board’s detainer. The Board did not
credit him for time spent at liberty on parole from April 4, 2014, to June 12, 2014,



                                           4
and determined that he forfeited credit for the previous 3,743 days he was on parole
from his original sentence from March 11, 2002, to June 11, 2012.


              Parolee filed seven pro se petitions for administrative review, objecting
to the Board’s recalculation of his parole violation maximum date of October 14,
2026. The Board subsequently denied Parolee’s petitions, reasoning that he did not
receive credit for the period he was at liberty on parole, including any prior time he
was on parole, and any time he was on parole from his state sentence but confined on
his federal charges.2 Further, the Board explained that given Parolee’s recommitment


       2
          In its denial of Parolee’s requests for administrative relief, the Board explained, in
pertinent part:

                      The Board paroled you from a state correctional institution on
              April 4, 2014 with a max[imum] sentence date of September 16,
              2016. This means you had a total of 896 days remaining on your
              sentence at the time of parole. In light of your recommitment as a
              convicted parole violator, the Board was authorized to recalculate
              your sentence to reflect that you received no credit for the period you
              were at liberty on parole. 61 Pa. C.S. §6138(a)(2). This includes any
              prior time that you were on parole. Houser v. Pennsylvania Board of
              Probation and Parole, 682 A.2d 1365 (Pa. [Cmwlth.] 1996)[, appeal
              denied, 692 A.2d 568 (Pa. 1997)]. In this case, you were previously
              on parole for 3743 days from March 13, 2002 to June 11, 2012.
              Adding the 3743 days of prior parole liberty forfeited means you still
              had 4639 days remaining on your sentence based on your
              recommitment.

                      On June 12, 2014, the Board lodged its detainer against you.
              On that same date, authorities arrested you for new criminal
              offenses…. The record reflects that you did not post bail, nor do you
              allege that you posted bail. On October 17, 2014, you were found
              guilty of the new criminal charges, and the court sentenced you to a
              term of probation that same date.

(Footnote continued on next page…)

                                                5
as a convicted parole violator, it was authorized to recalculate his sentence without
providing him credit for the time spent pursuant to Section 6138(a)(2) of the Prisons
and Parole Code (Code), 61 Pa. C.S. §6138(a)(2). Accordingly, the Board affirmed
its recalculation decision and this appeal followed.




(continued…)

                      Based on these facts, the Board gave you 127 days of credit on
              your original sentence for the period you were incarcerated from June
              12, 2014 to October 17, 2014 because you were confined on the
              Board detainer and there is no other sentence of imprisonment where
              this time can be applied. Martin v. Pennsylvania Board of Probation
              and Parole, 840 A.2d 299 (Pa. 2003). Additionally, the Board gave
              you 132 days of credit on your original sentence for a prior period you
              were incarcerated from April 6, 2007 to August 16, 2007, but not
              recommitted. Subtracting this credit from the time you had remaining
              left 4380 days remaining on your sentence. Also, because you only
              received a sentence of probation for the new conviction, you became
              available to commence service of your original sentence again on
              October 17, 2014, when the court sentenced you on your new charges.
              Adding 4380 days to that date yields a new maximum sentence date
              of October 14, 2026.

                      Based on your subsequent conviction and recommitment as a
              convicted parole violator, the Board had authority to deny you credit
              for the period you were at liberty on parole. 61 Pa. C.S. §6138(a)(2).
              This includes the period you were on parole from your [state]
              sentence…but confined on your federal criminal charges.
              Rosenberger v. Pennsylvania Board of Probation and Parole, 510
              A.2d 866 (Pa. [Cmwlth.] 1986).

(Certified Record at 182-183.)




                                                6
                                               III.
                                                A.
              On appeal,3 Parolee argues that the Board erred in not awarding him
credit on his original sentence for the time he spent at liberty on parole from March
13, 2002, to June 11, 2012.


              Pursuant to Section 6138 of the Code:

              (a) Convicted violators.—

                                               ***

                     (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.

                    (2.1) The board may, in its discretion, award credit to
              a parolee recommitted under paragraph (2) for the time
              spent at liberty on parole, unless any of the following apply:

                            (i) The crime committed during the period of
              parole or while delinquent on parole is a crime of violence
              as defined in 42 Pa. C.S. §9714(g) (relating to sentences for
              second and subsequent offenses) or a crime requiring
              registration under 42 Pa. C.S. Ch. 97 Subch. H (relating to
              registration of sexual offenders).



       3
         Our scope of review is limited to determining whether the Board’s decision is supported by
substantial evidence, whether an error of law was committed, or whether constitutional rights have
been violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Moroz v.
Pennsylvania Board of Probation and Parole, 660 A.2d 131, 132 (Pa. Cmwlth. 1995).



                                                7
                          (ii) The parolee was recommitted under section
             6143 (relating to early parole of inmates subject to Federal
             removal order).

                                           ***

             (c) Technical violators.—

                    (1) A parolee under the jurisdiction of the board who
             violates the terms and conditions of his parole, other than
             by the commission of a new crime of which the parolee is
             convicted or found guilty by a judge or jury or to which the
             parolee pleads guilty or nolo contendere in a court of
             record, may be detained pending a hearing before the board
             or waiver of the hearing or recommitted after a hearing
             before the board or a waiver of the hearing….

                                           ***

                   (2) If the parolee is recommitted under this
             subsection, the parolee shall be given credit for the time
             served on parole in good standing but with no credit for
             delinquent time and may be reentered to serve the
             remainder of the original sentence or sentences.


61 Pa. C.S. §6138 (emphasis added).


             Section 6138 of the Code clearly establishes that while technical parole
violators are entitled to credit for time at liberty on parole in good standing, convicted
parole violators are not. Richards v. Pennsylvania Board of Probation and Parole,
20 A.3d 596, 599 (Pa. Cmwlth.) (en banc), appeal denied, 29 A.3d 374 (Pa. 2011).
Instead, “when a parolee is recommitted due to criminal conviction, his maximum
sentence date may be extended to account for all street-time, regardless of good or
delinquent standing.” Id. Moreover, this Court has held that:




                                            8
             [T]ime spent in good standing prior to recommitment for
             technical violations is not shielded from forfeiture where
             the parolee subsequently commits a new crime and is
             recommitted as a convicted parole violator. Thus, upon
             recommitment as a convicted parole violator, in addition to
             losing all time spent at liberty during the current parole, a
             parolee will also forfeit all credit received for time spent in
             good standing while on parole prior to his previous
             recommitment as a technical parole violator.


Armbruster v. Pennsylvania Board of Probation and Parole, 919 A.2d 348, 351 (Pa.
Cmwlth. 2007) (citations omitted) (emphasis added).


             Parolee was initially paroled from his original sentence on March 13,
2002. He was then detained by the Board for new criminal charges from April 6,
2007, to August 16, 2007, or 132 days. He remained on parole until June 11, 2012,
when the Board lodged a detainer against Parolee for a technical parole violation. As
such, Parolee was at liberty on parole for a total of 3,611 days between March 13,
2002, and June 11, 2012. Because the Board recommitted Parolee as a technical
parole violator, he was entitled to receive credit for time served on parole pursuant to
Section 6138(c)(2) of the Code, which the Board granted. However, because Parolee
was in federal custody and was unable to serve under the Board’s detainer from when
it was lodged on June 11, 2012, to October 4, 2013, the Board added those 480 days
to Parolee’s original maximum release date of May 25, 2015, to arrive at his new date
of September 16, 2016.


             After the Parolee was recommitted as a convicted parole violator due to
his new criminal offense while on parole, he forfeited all credit received for time at
liberty on parole, including the period of time before his recommitment as a technical


                                           9
parole violator. Given this, the Board properly recalculated Parolee’s maximum
release date to reflect the forfeiture of credit for the 3,611 days he was at liberty on
parole from March 13, 2002, to April 5, 2007, and from August 16, 2007, to June 11,
2012, before his technical parole violation. As such, Parolee had 896 days remaining
on his sentence from when he was reparoled by the Board on April 4, 2014, to his
maximum sentence date of September 16, 2016. The addition of 896 to 3,611 results
in 4,507 days left for Parolee to serve. The Board credited Parolee 127 days from his
incarceration solely on the Board’s detainer from June 12, 2014, to October 17, 2014.
Gaito v. Pennsylvania Board of Probation and Parole, 412 A.2d 568 (Pa. 1980).
Subtracting 127 days from 4,507 days left Parolee with 4,380 days to serve on his
sentence. Adding 4,380 to the October 17, 2014 availability date, the Board properly
calculated the new maximum date of October 14, 2026.


                                               B.
             Parolee also contends that he was not at liberty on parole from March
13, 2002, to March 7, 2005, because he was in custody on his federal sentence and,
thus, is entitled to credit for time served.


             A prisoner on constructive parole is paroled from his original sentence to
immediately begin serving a new sentence. See Merritt v. Pennsylvania Board of
Probation and Parole, 574 A.2d 597, 598 (Pa. 1990); Hines v. Pennsylvania Board of
Probation and Parole, 420 A.2d 381, 383 (Pa. 1980).             Constructive parole is
considered “time at liberty” for purposes of determining the credit a parolee is due
upon recommitment as a parole violator.             Bowman v. Pennsylvania Board of
Probation and Parole, 709 A.2d 945, 948 (Pa. Cmwlth. 1998), appeal denied, 727



                                               10
A.2d 1123; see also Merritt, 574 A.2d at 598. Under 61 Pa. C.S. §6138(a)(2), a
parolee’s time spent on constructive parole is forfeited upon the parolee’s
recommitment as a convicted parole violator. Bowman, 709 A.2d at 948.


              Although Parolee remained incarcerated on his federal sentence from
March 13, 2002, to March 7, 2005, he is not entitled to credit because he was on
constructive parole from his original sentence, meaning he was at liberty on parole
during that time. Moreover, even if Parolee was owed credit for the time he was on
constructive parole, his later recommitment by the Board as a convicted parole
violator led to the forfeiture of this credit.


              Accordingly, we affirm the Board’s decision.



                                          ____________________________________
                                          DAN PELLEGRINI, Senior Judge




                                                 11
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Derrick Williams,                  :
                     Petitioner    :
                                   :
             v.                    : No. 1505 C.D. 2015
                                   :
Pennsylvania Board of Probation    :
and Parole,                        :
                 Respondent        :




                                  ORDER


             AND NOW, this 30th day of March, 2016, the order of the
Pennsylvania Board of Probation and Parole bearing a mailing date of July 17,
2015, is affirmed.



                                   ___________________________________
                                   DAN PELLEGRINI, Senior Judge
