               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jason Lang,                              :
                          Petitioner     :
                                         :
                    v.                   :
                                         :
Pennsylvania Board of                    :
Probation and Parole,                    :   No. 927 C.D. 2017
                          Respondent     :   Submitted: December 1, 2017


BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                  FILED: March 12, 2018

              Jason Lang (Lang) petitions this Court for review of the Pennsylvania
Board of Probation and Parole’s (Board) June 6, 2017 decision denying his request
for administrative relief. The sole issue before this Court is whether the Board erred
in its recalculation of Lang’s maximum sentence release date.
              Lang is an inmate currently incarcerated at the State Correctional
Institution (SCI) at Waymart. On August 5, 2014, Lang was paroled from a two to
four-year sentence for the manufacture, sale, delivery or possession with the intent to
deliver a controlled substance, and a probation violation (Original Sentence). Lang’s
original maximum release date was March 6, 2017. As a condition of his parole,
Lang agreed, inter alia, to “report[] regularly as instructed and follow[] any written
instructions of the Board or the parole supervision staff” (Condition 3a). Certified
Record (C.R.) at 72. In addition, Lang acceded that “[i]f [he] [wa]s arrested on new
criminal charges, the Board ha[d] the authority to lodge a detainer against [him]
which w[ould] prevent [his] release from custody, pending disposition of th[e]
charges, even though [he] may have posted bail or been released on [his] own
recognizance from those charges.” C.R. at 72. Lang further agreed that “[i]f [he]
[wa]s convicted of a crime committed while on parole[], the Board ha[d] the
authority, after an appropriate hearing, to recommit [him] to serve the balance of the
sentence . . . which [he] was serving when paroled[], with no credit for time at liberty
on parole.” C.R. at 72. Lang did not raise any objections to the above-quoted parole
conditions.
              By October 26, 2015 decision, the Board declared Lang delinquent after
parole staff was unable to locate him and he refused to report as instructed. See C.R.
at 75, 87, 92. On December 15, 2015, Lang was arrested based on new criminal
charges (New Charges), see C.R. at 108, and his parole delinquency. The Board
lodged its warrant to commit and detain Lang that same day. Lang was detained in
Montgomery County prison. See C.R. at 75-91. Lang was formally charged on
December 18, 2015, and bail was set at $10,000.00, which he was unable to post. See
C.R. at 81-82, 84.
              On December 22, 2015, the Board served Lang with a notice of charges
and notice of the Board’s intent to hold a detention hearing. See C.R. at 92. That
day, Lang admitted to his arrest for the New Charges, and waived his right to counsel
and a detention hearing. See C.R. at 92-96. On December 31, 2015, the hearing
examiner recommended and, on January 11, 2016, a second Board panel member
provided the second signature needed to recommit Lang to a state correctional
institution as a technical parole violator. See C.R. at 97-105.
              On January 6, 2016, Lang was transferred from Montgomery County
prison to SCI-Graterford, his bail was modified to “unsecured,” and he posted bail
that day. See C.R. at 81-82, 107-108, 111, 157-160. By January 28, 2016 decision
(issued February 3, 2016), the Board formally recommitted Lang as a technical parole
                                           2
violator to serve his “UNEXPIRED TERM[:] 4 MONTHS, 12               DAYS,”   and recalculated his
maximum sentence release date as April 28, 2016, “SUBJECT TO CHANGE IF [LANG IS]
CONVICTED OF [THE NEW] CHARGES.”               C.R. at 105; see also C.R. at 105-106. The
Board’s decision reflected that Lang was being detained pending disposition of the
New Charges. See C.R. at 105.
               On July 8, 2016, the Board issued a decision stating: “REFER TO BOARD
ACTION OF    01/28/2016     TO DETAIN PENDING DISPOSITION OF CRIMINAL CHARGES, AND

TO RECOMMIT AS A TECHNICAL PAROLE VIOLATOR TO SERVE [HIS] UNEXPIRED TERM OF

4   MONTHS    12   DAYS, AND NOW; DECLARE DELINQUENT FOR CONTROL PURPOSES

EFFECTIVE 12/15/2015.”1        C.R. at 122; see also C.R. at 120-122. The Board lifted its
detainer when Lang’s sentence expired on April 28, 2016.
               On August 23, 2016, Lang pled guilty to intentional possession of a
controlled substance, and was sentenced to 250 days to 23 months incarceration in a
county prison. See C.R. at 107-119, 161-162. On October 25, 2016, the Board
served Lang with a notice of charges and notice of the Board’s intent to hold a parole
revocation hearing. See C.R. at 123. That day, Lang admitted to his new conviction,
and waived his right to counsel and a revocation hearing. See C.R. at 124-127. On
January 5, 2017, a second Board panel member accepted the hearing examiner’s
December 5, 2016 recommendation and provided the second signature needed to
recommit Lang as a convicted parole violator to serve 9 months in a state correctional
institution, without credit for time spent at liberty on parole due to Lang’s repeat
offenses. See C.R. at 131; see also C.R. at 128-136.
               By January 11, 2017 decision (issued January 23, 2017), the Board
formally recommitted Lang to serve 4 months and 12 days as a technical parole

       1
         The Board clarified in its brief to this Court: “Delinquent for control purposes is an action
by the Board expressing its intention to proceed with a revocation proceeding in the event the
offender is convicted after the expiration of the maximum sentence for a criminal offense that
occurred before the maximum sentence expired.” Board Br. at 5 n.1.
                                                  3
violator, plus 9 months as a convicted parole violator. See C.R. at 137-140. The
Board recalculated Lang’s maximum sentence release date from April 28, 2016 to
March 19, 2018, and added that Lang is “NOT                   ELIGIBLE FOR REPAROLE UNTIL

05/16/2017.” C.R. at 137; see also C.R. at 139.
               On March 6, 2017, Lang filed a pro se administrative appeal challenging
the Board’s sentence calculation, specifically arguing that the Board erred by not
crediting him for his time served from December 18, 2015 to January 5, 2016 on the
Board’s detainer, and from January 6, 2016 to August 23, 2016 while in the Board’s
custody in the county prison. See C.R. at 142-146. On April 13 and 24, and May 8,
2017, Lang supplied the Board with additional information to support his position.
See C.R. at 147-165.         On June 6, 2017, the Board denied Lang’s request for
administrative relief, and affirmed the Board’s January 11, 2017 decision (issued
January 23, 2017). See C.R. at 166-168. Lang appealed from the Board’s decision to
this Court.2
               Lang argues that the Board erred by denying him credit for the time he
served on the Board’s detainer between December 18, 2015 and January 5, 2016, and
when he was in county prison under the Board’s custody between January 6 to
August 23, 2016, and that, since his only street time 3 was from August 5, 2014 to
October 23, 2016, his maximum sentence release date should have been July 16,
2017. Notably, “the Board agrees that Lang’s sentence was not properly recalculated,
but disagrees as to the amount of credit Lang should receive.” Board Br. at 8. The
Board contends that Lang’s maximum sentence release date “should be January 25,

       2
         “Our review of the Board’s decision 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.” Lawrence v. Pa. Bd. of Prob. & Parole, 145 A.3d 799,
803 n.2 (Pa. Cmwlth. 2016).
       Lang is represented by counsel on appeal.
       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
2018.” Board Br. at 8. In support of its position, the Board submitted a supplemental
certified record (S.C.R.) which contained the Board’s October 19, 2016 detainer
warrant, and its January 28, 2016 and October 25, 2017 parole violation date
calculation sheets. See S.C.R. at 1A-5A.
             Initially, Section 6138(a) of the Prisons and Parole Code (Parole Code)
provides, in relevant part:

             (1) A parolee under the jurisdiction of the [B]oard 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 [B]oard 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 . . . , shall be given no credit
             for the time at liberty on parole.
             ....
             (4) 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 custody to be
             returned to the institution as a parole violator.
             (5) If a new sentence is imposed on the parolee, the service
             of the balance of the term originally imposed by a
             Pennsylvania court shall precede the commencement of
             the new term imposed in the following cases:
             (i) If a person is paroled from a [s]tate correctional
             institution and the new sentence imposed on the person is to
             be served in the [s]tate correctional institution.

61 Pa. C.S. § 6138(a) (emphasis added). Accordingly, “[u]pon recommitment as a
convicted parole violator, the parolee must serve the remainder of the term which he


                                           5
would have been compelled to serve had he not been paroled with no credit given for
street time.” Armbruster v. Pa. Bd. of Prob. & Parole, 919 A.2d 348, 351 (Pa.
Cmwlth. 2007).
              Moreover,

              [t]he general rule governing the allocation of credit for time
              served awaiting disposition of [a] new criminal charge was
              established by our Supreme Court in Gaito v. Pennsylvania
              Board of Probation and Parole, . . . 412 A.2d 568
              ([Pa.]1980). The Supreme Court held that ‘time spent in
              custody pursuant to a detainer warrant shall be credited to a
              convicted parole violator’s original term . . . only when the
              parolee was eligible for and had satisfied bail requirements
              for the new offense and thus remained incarcerated only by
              reason of the detainer warrant lodged against him.’ [Id.] at
              571 (quoting Rodriques v. P[a.] B[d.] of Prob[.] [&] Parole,
              . . . 403 A.2d 184, 185-86 ([Pa. Cmwlth.] 1979)) (emphasis
              added).[4]
Armbruster, 919 A.2d at 352.
              Here, the Board admits in its brief:

              [T]he Board mistakenly did not provide Lang with the
              correct amount of backtime credit when his sentence was
              recalculated (i.e.[,] time that the parolee was held solely on
              the Board’s warrant prior to the recommitment order).
              Lang should have received backtime credit for the period of
              December 15, 2015 (arrest date) to December 18, 2015
              ([New Charges] filed), and from January 6, 2016 (bail
              conditions modified to unsecured) to April 28, 2016
              (maximum sentence date reached, [B]oard warrant lifted).

       4
        The sole exception to Gaito’s general rule, established in Martin v. Pennsylvania Board of
Probation and Parole, 840 A.2d 299 (Pa. 2003), provides:

              [W]here a parole violator is confined on both the Board’s warrant and
              the new criminal charges and it is not possible to award all of the
              credit on the new sentence because the period of pre-sentence
              incarceration exceeds the maximum term of the new sentence, the
              credit must be applied to the offender’s original sentence.
Armbruster v. Pa. Bd. of Prob. & Parole, 919 A.2d 348, 355 (Pa. Cmwlth. 2007).


                                                6
            (C.R. [at] 85, 108, 122; S.C.R. [at] 4A-5A). This is a total
            of 116 days. (S.C.R. [at] 4A). Conversely, to the extent
            that Lang claims he is entitled to credit from April 28, 2016
            to October 19, 2016, Lang is not entitled to credit for that
            period because he was not being detained by the Board.
            Upon the Board lifting its warrant, Philadelphia County
            should have released Lang from custody. To the extent that
            Lang remained incarcerated, his credit claim should be
            addressed with Philadelphia County. The case law is clear
            that the Board is only required to provide credit for pre-
            sentence incarceration where the parolee is solely confined
            on the Board’s warrant. Gaito . . . . The Board’s warrant
            was lifted on April 28, 2016 and not re-lodged until October
            16, 2016. (C.R. [at] 120-122; S.C.R. [at] 3A). Therefore,
            Lang is not entitled to credit from the Board for a period of
            time when the Board did not have a detainer on him.
            Furthermore, the exception provided in Martin [v. Pa. Bd.
            of Prob. & Parole, 840 A.2d 299 (Pa. 2003),] does not
            apply to the instant case. The record reflects that Lang was
            sentenced to time served [(250 days)] to 23 months of
            confinement. (C.R. [at] 109, 161-162). See also [Lang]
            Brief [at] 9. Lang was not incarcerated in excess of 23
            months (i.e.[,] from December 18, 2015 [charges filed] to
            August 23, 2016 [sentence date] = 249). Thus, Lang’s
            period of pre-sentence incarceration does not exceed the
            maximum term of the new sentence of 23 months.
            ‘The period of time for which a parole violator is required
            to serve shall be computed from and begin on the date that
            the parole violator is taken into custody to be returned to the
            institution as a parole violator.’ 61 Pa. C.S. § 6138(a)(4).
            Lang became available to begin serving his Original
            Sentence backtime on October 19, 2016, when the Board
            relodged its warrant. (C.R. [at] 139; S.C.R. [at] 3A-4A).
            Adding 463 days (579 days remaining at the time of parole
            - 116 days of backtime credit = 463 days remaining) to
            October 19, 2016 results in Lang’s suggested new Original
            Sentence maximum date of January 25, 2018. (S.C.R. [at]
            4A).

Board Br. at 10-12.
            Finding no error in the Board’s recalculation and correction on appeal,
we vacate the Board’s June 6, 2017 order denying Lang’s administrative appeal, and

                                          7
remand this matter for the Board to change Lang’s maximum sentence release date to
January 25, 2018.



                                    ___________________________
                                    ANNE E. COVEY, Judge




                                        8
              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jason Lang,                                   :
                           Petitioner         :
                                              :
                    v.                        :
                                              :
Pennsylvania Board of                         :
Probation and Parole,                         :   No. 927 C.D. 2017
                           Respondent         :



                                        ORDER

              AND NOW, this 12th day of March, 2018, the Pennsylvania Board of
Probation and Parole’s (Board) June 6, 2017 decision denying Jason Lang’s (Lang)
administrative appeal is vacated, and this matter is remanded for the Board to change
Lang’s maximum sentence release date to January 25, 2018.
              Jurisdiction is relinquished.


                                         ___________________________
                                         ANNE E. COVEY, Judge
