        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brian Christian Oliver,                 :
                          Petitioner    :
                                        :
            v.                          :   No. 1335 C.D. 2017
                                        :   Submitted: April 20, 2018
Pennsylvania Board of Probation         :
and Parole,                             :
                        Respondent      :

BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE ROBERT SIMPSON, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                        FILED: May 24, 2018

             Brian Christian Oliver (Oliver) petitions for review from an order of
the Pennsylvania Board of Probation and Parole (Board) that denied his request for
administrative relief. Oliver argues the Board erred by recalculating his maximum
sentence date and denying him credit for time spent at liberty on parole. Upon
review, we affirm the Board’s order.


                                  I. Background
            In March 2014, Oliver received a sentence of one year and nine months
to six years in state prison for possession with intent to deliver a controlled
substance. Certified Record (C.R.) at 1-4. The original maximum date of his
sentence was June 7, 2018. Id. at 1.
             On May 4, 2015, the Board paroled Oliver to a community corrections
center. Id. at 40-43. However, Oliver was arrested 40 days later, on June 13, 2015,
for failing to report to his approved residence. Id. at 46-47, 49. In September 2015,
the Board recommitted Oliver to serve six months of backtime as a technical parole
violator. Id. at 62-64.


             The Board reparoled Oliver to an approved home plan on December
13, 2015. Id. at 67-68. On February 6, 2016, Easton police arrested Oliver and
charged him with several new offenses. Id. at 71-76. The Board lodged its detainer
against Oliver the next day. Id. at 79. Oliver failed to post bail on the new criminal
charges. Id. at 89. Supervision notes of March 7, 2016 stated the charges were
withdrawn. Id. at 97. On March 9, 2016, the Board placed Oliver back on reparole.
Id. at 93. However, on March 12, 2016, Oliver failed to report to his assigned group
home and was declared delinquent. Id. at 97.


             Easton police again arrested Oliver on March 21, 2016, charging him
with driving under the influence (DUI). Id. at 95-98. The Board lodged its detainer
against him the same day. Id. at 95. Oliver waived his right to a violation hearing
and admitted he violated conditions of his parole. Id. at 99-101. In April 2016, the
Board recommitted him to serve nine months of backtime as a technical parole
violator, subject to change, pending disposition of the DUI charge. Id. at 119-21.
The Board recalculated Oliver’s maximum sentence date from June 7, 2018 to June
16, 2018, based on the nine days he was delinquent from March 12, 2016, until his
arrest on March 21, 2016. Id. at 122. Oliver did not appeal that recalculation order.




                                          2
              On April 26, 2016, bail was set for Oliver on the DUI charge.
Petitioner’s Br., App. C at 2. The record does not indicate that Oliver posted bail.
See id. (indicating blank bail posting date). His time in custody from April 26 to
October 29, 20161 was credited against his eventual sentence on the DUI conviction.
Id.


              In January 2017, Oliver was convicted on the DUI charge and received
a sentence of three days to six months on his DUI conviction. Id.; Supplemental
Certified Record (S.C.R.) at 1A-2A. Oliver waived his right to a revocation hearing
before the Board and admitted to DUI while on reparole. S.C.R. at 3A.


              In June 2017, the Board issued a decision recommitting Oliver as a
convicted parole violator (CPV) to serve nine months of backtime. C.R. at 135-36.
The Board gave Oliver no credit for his time spent at liberty on parole. Id. at 129,
134. In addition, the Board recalculated Oliver’s maximum sentence date as March
25, 2019. Id. at 135-36; S.C.R. at 4A.


              Oliver sought administrative review by the Board, asserting several
challenges to the Board’s recalculation of his maximum sentence date. C.R. at 137-
43. In a letter response, the Board affirmed its decision. C.R. at 148.


              The Board’s letter explained that at the time Oliver was paroled on
December 13, 2015, he had 907 days remaining on his original maximum sentence.

       1
         October 29, 2016 was six months from the date bail was set on the DUI charge. As Oliver
did not post bail, the Board apparently counted those six months as time served on the DUI
conviction. See Petitioner’s Br., App. C at 2.


                                               3
Id. His recommitment as a CPV required him to serve the remainder of that sentence.
Id. The Board also indicated that Oliver forfeited 40 days at liberty on parole from
May 4 to June 13, 2015. Id. This brought the total days remaining on his original
sentence to 947 (907 + 40). See id.; S.C.R. at 4A.


                The Board credited 31 days of confinement time for Oliver’s detention
from February 7 to March 9, 2016. C.R. at 148; S.C.R. at 4A. The Board also
recognized that before Oliver received his sentence on the DUI charge on January 6,
2017, he was detained on that charge for more than the six month maximum of his
eventual sentence. C.R. at 148. Accordingly, the Board credited to his original
sentence the 39 days in excess of six months during which Oliver remained in
custody before his conviction and sentencing on the DUI charge. Id.; S.C.R. at 4A.
Thus, the Board credited a total of 70 days (31 + 39) against the remaining time on
Oliver’s original sentence. C.R. at 148. This brought the total days remaining on
his original sentence to 877 (947 – 70). Id.


                Starting October 29, 2016, Oliver began accruing backtime credit.2
S.C.R. at 4A. From that date, the Board added the 877 days remaining to be served.
This brought his new maximum sentence date to March 25, 2019.3 C.R. at 148.



       2
           See note 1 above.

       3
         The Board’s recommitment order dated May 23, 2017 reflected an additional credit of 69
days of backtime served from October 29, 2016 to January 6, 2017, leaving 808 days remaining to
be served. Supplemental Certified Record (S.C.R.) at 4A. The recommitment order then
recalculated the maximum sentence date by adding 808 days starting January 6, 2017. Id. The
resulting recalculated date was the same: March 25, 2019. Id.



                                              4
               Oliver now petitions for review to this Court.


                                           II. Issues
               On appeal,4 Oliver contends the Board impermissibly altered a judicial
sentence by recalculating his maximum sentence date. He further asserts the Board
imposed backtime that exceeded the entire remaining balance of his original
sentence. He argues the Board improperly failed to credit the time he served on his
parole detainers, as well as the time he spent at liberty on parole, against his sentence.


                                       III. Discussion
                    A. Recalculation of the Maximum Sentence Date
               Oliver first argues the Board exceeded its legal authority in
recalculating his maximum sentence date. Oliver’s brief does not make clear
whether he believes the Board erred in performing any recalculation at all, or
whether he believes the Board actually added time to his original sentence. In either
case, his argument lacks merit.


               The General Assembly expressly authorized the Board to recalculate
the maximum date of a sentence beyond the original date, where it is not adding to
the total length of the sentence. Hughes v. Pa. Bd. of Prob. & Parole, 179 A.3d 117
(Pa. Cmwlth. 2018) (maximum length of sentence, not maximum date, is
controlling); Ruffin v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 2038 C.D. 2016,
filed July 13, 2017), 2017 Pa. Commw. Unpub. LEXIS 506 (unreported). Such a

       4
         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. Miskovitch v. Pa. Bd. of Prob. & Parole, 77 A.3d 66 (Pa. Cmwlth. 2013).


                                                5
recalculation accounts for periods during which a prisoner is not actually serving his
sentence. Vann v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 1067 C.D. 2017,
filed April 10, 2018), 2018 Pa. Commw. Unpub. LEXIS 209 (unreported). In
recalculating a maximum sentence date, the Board does not unconstitutionally usurp
judicial sentencing power. Ruffin. Further, the Board’s authority to recalculate the
maximum sentence date does not violate a prisoner’s due process rights. Id. Thus,
to the extent Oliver suggests the Board lacked authority to recalculate his maximum
sentence date, he is incorrect.


             When a parolee violates the terms and conditions of his parole, the
Board may recommit him to serve all or part of the remainder of his sentence. Yates
v. Pa. Bd. of Prob. & Parole, 48 A.3d 496 (Pa. Cmwlth. 2012). The time served on
recommitment is known as backtime. Id. Thus, backtime cannot exceed the time
remaining on the original judicial sentence. Id. By definition, when the Board
imposes backtime, it does not alter a judicially imposed sentence; it simply requires
the prisoner to serve some or all of the time remaining on the original sentence. See
id.; Berrios v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 905 C.D. 2016, filed
November 30, 2017), 2017 Pa. Commw. Unpub. LEXIS 882 (unreported).


             Here, Oliver suggests the Board imposed nine months of backtime in
addition to the time remaining on his original sentence. He is incorrect. The Board’s
recommitment order and its letter decision affirming that order both make clear that
the Board credited all backtime against Oliver’s remaining sentence. See C.R. at
148; S.C.R. at 4A.




                                          6
             The record does not support Oliver’s contention that the Board added
any time to his original sentence. Rather, the recalculated date reflected six months
served on Oliver’s separate DUI sentence, nine days of pre-arrest delinquent time,
time spent in custody on criminal charges because of failure to post bail (discussed
in section B below), and forfeiture of time spent at liberty on parole (discussed in
section C below).


                     B. Time in Custody on Board Detainers
             Oliver next argues the Board erred in failing to award him credit for
time he served in custody on Board detainers. We discern no merit in this argument.


             Where a prisoner is held in custody solely on the Board’s detainer, the
time in custody is credited against his original sentence. Hughes (citing Gaito v. Pa.
Bd. of Prob. & Parole, 412 A.2d 568 (Pa. 1980)). However, where the prisoner is
also held in custody because he failed to post bail on new criminal charges, that time
in custody can be credited only against his sentence, if any, on the new charges. Id.


             Here, in both instances where the Board lodged detainers, Oliver was
already in custody on new criminal charges. In both instances, bail was set, but he
failed to post bail. In the first instance, the criminal charges were ultimately
withdrawn, and the Board gave Oliver credit against his original sentence for his
detention time. C.R. at 71-76, 79, 89, 97, 148; S.C.R. at 4A. In the second instance,
the Board gave Oliver credit against his original sentence for the amount of detention
time that exceeded the sentence he ultimately received on the new criminal charge.
Petitioner’s Br., App. C at 2; S.C.R. at 4A. Under Gaito and Hughes, Oliver was not



                                          7
entitled to any other credit against his original sentence for the portion of his time in
custody, on either Board detainer, during which he was also being held because of
failure to post bail.


                 C. Denial of Credit for Time at Liberty on Parole
              Finally, Oliver argues the Board erred in its refusal to credit his time at
liberty on parole from May 4 to June 13, 2015, in recalculating his maximum
sentence date. Oliver acknowledges the Board’s discretion to deny such credit under
61 Pa. C.S. §6138(a)(2.1).         However, he contends the Board violated the
constitutional requirements articulated in Pittman v. Pennsylvania Board of
Probation and Parole, 159 A.3d 466 (Pa. 2017), because it did not articulate its
reasons for denying credit. This argument is without merit.


                                       1. Waiver
              As a threshold matter, we address the Board’s contention that Oliver
waived the issue of credit for time spent at liberty on parole, by failing to assert it in
his administrative appeal. Contrary to the Board’s argument, Oliver did sufficiently
raise the credit issue.


              On his Administrative Remedies form, Oliver checked boxes
identifying the reasons for his appeal to the Board.           Those reasons included
“Sentence Credit Challenge.” C.R. at 137. In the accompanying Administrative
Appeal form, Oliver more specifically alleged errors of law, including “failure to
credit time-spent in good-standing while on parole ….” C.R. at 140 (emphasis




                                            8
omitted). Citing authority, he asserted he was “entitled to [credit for] street time
served in good-standing ….” Id.


             In his administrative appeal forms, Oliver did not specifically allege
that the Board failed to offer a reason for denying credit for time spent at liberty on
parole. However, that issue is fairly subsumed within the issue of credit for time
spent at liberty on parole as raised in the administrative appeal forms. The averments
in the Administrative Remedies and Administrative Appeal forms gave the Board
sufficient notice that Oliver was questioning the Board’s reasoning for the denial of
credit. See Anderson v. Talaber, 171 A.3d 355 (Pa. Cmwlth. 2017).


                           2. Compliance with Pittman
             Nonetheless, Oliver is incorrect in asserting that the Board failed to
comply with Pittman.


             In Pittman, the Board denied the petitioner credit for time at liberty on
parole. The Board did not explain its decision; it simply checked the “No” box on
the Hearing Report form. Id. at 469. Our Supreme Court held that because the Board
did not explain its exercise of discretion to deny credit, the appellate courts had no
means to understand the basis for the Board’s decision. Therefore, the Board
violated the petitioner’s right under the Article V, Section 9 of the Pennsylvania
Constitution to appeal from an administrative agency decision. Accordingly, our
Supreme Court’s pronouncement in Pittman requires the Board to articulate a reason
when it denies credit for time spent at liberty on parole. Ruffin.




                                          9
              Here, the Board did so. At page 8 of its Hearing Report dated March
30, 2017, the Board panel stated: “Recommend NOT awarding credit for street time
at liberty on parole. Subject’s supervision has been extremely poor. Offender is a
risk to the community due to erratic behaviors displayed when under the influence
of controlled substances/alcohol.” C.R. at 134. This was a sufficient articulation of
the Board’s reasoning as required by Pittman. See Hughes (Board’s notation
denying credit for time at liberty on parole because of continued drug activity
satisfied Pittman); Vann (Board’s statement that it denied credit for time at liberty
on parole because of prior supervision failures and unresolved drug and alcohol
problems was sufficient under Pittman); Ruffin (Board appropriately exercised
discretion to deny credit for time at liberty on parole, where its hearing report stated
it denied credit because of petitioner’s drug use and refusal to cooperate with police
investigation); Seward v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 199 C.D.
2016, filed March 17, 2017), 2017 Pa. Commw. Unpub. LEXIS 178 (unreported)
(Board sufficiently articulated reason for denying credit for time at liberty on parole,
where decision stated petitioner was violent offender, absconded while on parole,
was not amenable to parole supervision, and constituted threat to community).5




       5
          This Court decided Seward v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth.,
No. 199 C.D. 2016, filed March 17, 2017), 2017 Pa. Commw. Unpub. LEXIS 178 (unreported)
while Pittman v. Pennsylvania Board of Probation and Parole, 159 A.3d 466 (Pa. 2017) was
pending on appeal before our Supreme Court. We distinguished Pittman because in Seward, as
here, the Board did articulate a reason for denying credit for time at liberty on parole.


                                              10
                                IV. Conclusion
            Based on the foregoing discussion, we affirm the Board’s order
recalculating Oliver’s maximum sentence date.




                                    ROBERT SIMPSON, Judge




                                      11
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brian Christian Oliver,                  :
                          Petitioner     :
                                         :
            v.                           :   No. 1335 C.D. 2017
                                         :
Pennsylvania Board of Probation          :
and Parole,                              :
                        Respondent       :



                                       ORDER

            AND NOW, this 24th day of May, 2018, the order of the Pennsylvania
Board of Probation and Parole is AFFIRMED.




                                        ROBERT SIMPSON, Judge
