         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Alexander Stirling,                   :
                      Petitioner      :
                                      :
            v.                        : No. 1863 C.D. 2015
                                      : Submitted: February 19, 2016
Pennsylvania Board of Probation       :
and Parole,                           :
                 Respondent           :


BEFORE:     HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                      FILED: March 9, 2016


            Alexander Stirling (Parolee) petitions 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. For the reasons that
follow, we affirm.


                                        I.
            On July 2, 2007, Parolee was found guilty of robbery and sentenced to
2 to 4 years of imprisonment.      He was also resentenced to 1 to 2 years of
imprisonment for violating his probation by selling firearms and 1 to 2 years of
imprisonment for violating probation by manufacturing, selling, delivering or
possessing with intent to deliver a controlled substance. The aggregate sentence
was 4 to 8 years, with a minimum release date of July 2, 2011, and a maximum
release date of July 2, 2015. Parolee was released on parole on July 7, 2011.


               On August 25, 2011, Parolee was arrested for using/possessing drug
paraphernalia and for manufacturing, selling, delivering or possessing with intent
to deliver a controlled substance. Failing to make bail, he remained in jail until
March 2012 when he was sentenced to 1 to 2 years of imprisonment followed by 1
year of probation with credit for time served. Initially, the Board recommitted
Parolee as a technical parole violator and sentenced him to serve 9 months of
backtime when available, but later it recommitted him as a convicted parole
violator for use/possession of drug paraphernalia and intentional possession of a
controlled substance, sentencing him to serve 12 months concurrently for a total of
12 months of backtime.          The maximum date on his original sentence was
recalculated to January 27, 2016.


               On February 3, 2013, Parolee was constructively paroled from his
original sentence to serve his March 2012 sentence of 1 to 2 years for intentional
possession of a controlled substance.1 The Board calculated the minimum date
with respect to this sentence as July 24, 2013, and the maximum date as July 24,
2014.       On October 3, 2013, Parolee was paroled from this sentence to a


        1
        Parolee remained at the same State Correctional Institution (SCI) but was given a new
inmate number.




                                             2
Community Corrections Facility and was released from that facility on December
6, 2013.


            On February 19, 2014, Parolee was re-arrested by the Lower
Moreland Township Police at CP# 1976-2014 for various drug-related charges, and
at CP# 2006-2014 for traffic-related charges. The following day, Parolee failed to
make bail for the charges at CP# 1976-2014 but was granted unsecured bail for the
charges at CP# 2006-2014. That day, the Board also lodged a detainer against
Parolee. On July 11, 2014, Parolee was granted unsecured bail for the charges at
CP# 1976-2014 and was returned to state detention on the Board’s detainer.


            On November 21, 2014, Parolee pled guilty in the Montgomery
County Court of Common Pleas to intentional possession of a controlled substance
at CP# 1976-2014 and disorderly conduct and careless driving at CP# 2006-2014.
He was sentenced to time served to 23 months for the conviction at CP# 1976-
2014 and 1 year of probation for the convictions at CP# 2006-2014, effective
November 21, 2014. He was awarded credit from February 19, 2014, to July 11,
2014, on the CP# 1976-2014 sentence and was granted immediate parole on the
November 21, 2014 sentencing date.


                                        II.
            The Board issued Parolee a Notice of Charges and Hearing for a
revocation hearing stemming from his new criminal convictions, and Parolee
signed a Waiver of Panel Hearing. After the revocation hearing, the Board voted
to revoke Parolee’s parole, thereby denying him credit for time spent at liberty on



                                        3
parole and recommitting Parolee as a convicted parole violator.             The Board
sentenced him to serve 6 months of backtime, recalculating his maximum release
date to July 3, 2017.


             In arriving at that date, the Board did not credit Parolee for the time
spent at liberty on parole for the 1,088 days remaining on his state sentence or for
the period he was incarcerated from February 20, 2014, to July 10, 2014. The
Board did, however, credit him 133 days for the time he was incarcerated from
July 11, 2014, to November 21, 2014.


             Parolee filed a Petition for Administrative Review, objecting to the
recommitment term and challenging the credit awarded, the calculation of his
reparole eligibility, and the order of service, alleging that the Board failed to credit
him for his time served solely on the Board’s detainer.


             The Board denied Parolee’s Petition for Administrative Review,
reasoning that he is not entitled to backtime credit. The Board stated that when
Parolee was released on parole from his original sentence on February 3, 2013,
1,088 days remained until the maximum sentence date of January 27, 2016.
However, the Board explained that as a convicted parole violator, he automatically
forfeited credit for the time he spent on parole, including constructive parole.
Furthermore, the Board reasoned that he was “not entitled to a [backtime] served
credit (i.e. time that he was held solely on the Board’s warrant prior to his
recommitment order) because he was never incarcerated solely on the Board’s
warrant.” (Certified Record at 171) (emphasis in original).



                                           4
                                              III.
              On appeal,2 Parolee argues that the Board erred in denying him credit
for the period of February 3, 2013, to February 19, 2014, the time he spent serving
his 2012 sentence for possession while on constructive parole from his original
sentences.


              Section 6138(a)(2) of the Prisons and Parole Code provides:


              (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 shall be given
              no credit for the time at liberty on parole.3


61 Pa. C.S. §6138(a)(2) (footnote added) (emphasis added).




       2
         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
were 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).

       3
          Our Supreme Court has interpreted the words “at liberty on parole” to mean only liberty
from the confinement on the particular sentence for which parole was granted, not liberty from
all confinement. Hines v. Pennsylvania Board of Probation and Parole, 420 A.2d 381, 384 (Pa.
Cmwlth. 1980); see also Hernandez v. Pennsylvania Board of Probation and Parole, 548 A.2d
380, 381 (Pa. Cmwlth. 1988).




                                               5
             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. Cmwlth. 1990); Hines v.
Pennsylvania Board of Probation and Parole, 420 A.2d 381, 383 (Pa. Cmwlth.
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); Merritt, 574 A.2d at 598. Under 61 Pa. C.S. §6138(a)(2), a
parolee’s time in constructive parole is forfeited upon the parolee’s recommitment
as a convicted parole violator. Bowman, 709 A.2d at 948.


             Parolee was on constructive parole from his original sentence when he
began serving his new sentence on February 3, 2013, until October 2, 2013, when
he was paroled from his new sentence.         While paroled from both sentences,
Parolee committed and was convicted of both drug and traffic offenses. As a
result, the Board recommitted him as a convicted parole violator, recalculating his
maximum date for his first sentence without crediting him for the time he was in
prison on constructive parole. Because Parolee was at liberty on parole during the
time he was on constructive parole, he was not entitled to credit for that period
against his first sentence. Accordingly, the Board did not err by declining to award
Parolee credit for his time on constructive parole.


             Parolee also contends that he should have received credit for the
period of October 2, 2013, to February 19, 2014, when he was out of prison and at
liberty on parole. Again, under 61 Pa. C.S. §6138(a)(2), convicted parole violators



                                          6
are not entitled to credit for time spent at liberty on parole, and “when a parolee is
recommitted due to criminal conviction, his maximum sentence date may be
extended to account for all street-time….” 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).4


                From October 2, 2013, to February 19, 2014, the date Parolee was
arrested on new charges, Parolee was at liberty on parole. Based on 61 Pa. C.S.
§6138(a)(2), the Board was under no obligation to credit Parolee for the time he
was at liberty on parole, and acted well within its rights by recalculating his
maximum to reflect that he received no credit for time at liberty on parole from
October 2, 2013, to February 19, 2014.




       4
           We note, though, that under Section 6138(a)(2.1) of the Prisons and Parole Code:

                The [B]oard 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 [42 Pa. C.S. §9791 et seq.] (relating to registration of
                sexual offenders).

                       (ii) The parolee was recommitted under section 6143 [61
                Pa. C.S. §6143] (relating to early parole of inmates subject to
                Federal removal order).

61 Pa. C.S. §6138(a)(2.1).



                                                 7
Accordingly, we affirm the Board’s decision.



                        _______________________________
                        DAN PELLEGRINI, Senior Judge




                           8
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Alexander Stirling,                 :
                      Petitioner    :
                                    :
             v.                     : No. 1863 C.D. 2015
                                    :
Pennsylvania Board of Probation     :
and Parole,                         :
                 Respondent         :




                                   ORDER


             AND NOW, this 9th day of March, 2016, the order of the
Pennsylvania Board of Probation and Parole bearing a mailing date of August 25,
2015, is affirmed.



                                    _______________________________
                                    DAN PELLEGRINI, Senior Judge
