               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brandon Cruthers,                       :
                          Petitioner    :
                                        :
                    v.                  :
                                        :
Pennsylvania Board of Probation         :
and Parole,                             :   No. 1950 C.D. 2014
                        Respondent      :   Submitted: April 17, 2015


BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE ROBERT SIMPSON, Judge
              HONORABLE ANNE E. COVEY, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                 FILED: July 30, 2015

              Brandon Cruthers (Cruthers), an inmate at the State Correctional
Institution (SCI) – Somerset, petitions this Court for review of the Pennsylvania
Board of Probation and Parole’s (Board) September 29, 2014 order upholding his
maximum sentence release date recalculation. The sole issue before this Court is
whether the Board erred in its recalculation of Cruthers’ maximum sentence release
date. Upon review, we affirm.
              By August 16, 2010 Board decision, Cruthers was paroled effective
December 6, 2010 from a 2½ to 5-year sentence for the manufacture, sale, delivery or
possession with the intent to manufacture or deliver a controlled substance. At that
time, his maximum sentence release date was April 20, 2013.
              On December 8, 2011, the Board declared Cruthers delinquent effective
December 7, 2011 for failing to report to the Board’s Altoona District Office as
instructed.   On May 5, 2012, Cruthers was arrested for violating his parole
conditions. At the time of his arrest, Cruthers was highly intoxicated, and due to
destructive behavior, was cited for harassment and disorderly conduct. By May 25,
2012 decision, the Board continued action on Cruthers’ case “until further notice to
await outcome of criminal preliminary hearing.” Certified Record (C.R.) at 13. By
decision mailed on October 17, 2012, the Board recommitted Cruthers to SCI as a
technical parole violator (TPV). Based upon his December 7, 2011 to May 5, 2012
delinquency time, Cruthers’ maximum sentence release date was recalculated to
September 17, 2013.         Cruthers was re-paroled to a parole violator Community
Corrections Center (CCC) on November 20, 2012.
               On April 4, 2013, Cruthers returned to the CCC in a visibly intoxicated
condition and mistreated the CCC staff, which resulted in the Board lodging a
detainer against him for again violating his parole conditions. He was arrested and
charged in Cambria County on April 5, 2013 with aggravated assault, resisting arrest,
terroristic threats, assault by a prisoner, disorderly conduct, public drunkenness and
criminal mischief. By decision mailed June 3, 2013, the Board detained Cruthers
pending disposition of his criminal charges.
               On November 15, 2013, Cruthers pled guilty to two counts of aggravated
harassment by a prisoner. On March 18, 2014, Cruthers received a sentence of 15 to
36 months’ county imprisonment. The Board recommitted Cruthers as a convicted
parole violator (CPV) to serve 18 months, when available, pending sentencing for his
criminal conviction and his return to SCI.1 According to the Board’s Hearing Report,
the Board determined that Cruthers was not entitled to credit for time he spent at
liberty on parole. See C.R. at 61. Cruthers was paroled from his county sentence on
July 5, 2014. By decision mailed July 28, 2014, the Board recalculated Cruthers’
maximum sentence release date to May 1, 2016.


      1
          The Board’s decision was mailed January 28, 2014.
                                                2
              Cruthers filed a petition for administrative review with the Board,
challenging the Board’s calculation of the time remaining on his sentence.                     On
September 29, 2014, the Board upheld its calculation. Cruthers appealed to this
Court.2
              Cruthers argues that the Board erred in its calculation of his unexpired
sentence, in that it goes beyond his originally-imposed sentence. Specifically, he
contends that since he served 1,325 days3 of his original 1,825-day sentence, he had
only 500, rather than the 666, days of backtime when the Board recalculated his
maximum sentence release date. We disagree.
              Section 6138 of the Prisons and Parole Code (Parole Code) provides, in
relevant part:

              (a) Convicted violators.--
              (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 pleads guilty . .
              ., 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




       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. Pennsylvania Bd. of Prob. & Parole, 987 A.2d 1269,
1271 n.3 (Pa. Cmwlth. 2010).
        3
          Cruthers’ original 2½ to 5-year sentence consisted of a maximum of 60 months or 1,825
days, from which he subtracted: 959 days he served from April 20, 2008 through December 6,
2010; 200 days from May 5, 2012 to November 20, 2012; and 166 days between April 4, 2013 and
September 17, 2013. Total: 1,325 days.
                                                3
              under paragraph (2.1), shall be given no credit for the
              time at liberty on parole.[4]
              ....
              (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
              pleads guilty . . . , 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.
              (3) The remainder shall be computed by the board from the
              time the parolee’s delinquent conduct occurred for the
              unexpired period of the maximum sentence imposed by the
              court without credit for the period the parolee was
              delinquent on parole. The parolee shall serve the remainder
              so computed from the date the parolee is taken into custody
              on the warrant of the board.

61 Pa.C.S. § 6138 (emphasis added). This Court has held:

              It is clear from a plain reading of the statute, that while
              technical parole violators are entitled to credit for time
              served while on parole in good standing, such that they may
              only be recommitted for the remainder of their original
              sentences, convicted parole violators, on the other hand, are
              not entitled to any credit for street-time. Consequently,
              when a parolee is recommitted due to criminal
              conviction, his maximum sentence date may be extended




       4
         The Board exercised its discretion and determined that Cruthers was not entitled to credit
for time he spent at liberty on parole. See C.R. at 61.
                                                4
              to account for all street[]time,[5] regardless of good or
              delinquent standing.
              Moreover, this Court has held:
                  time 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.

Richards v. Pennsylvania Bd. of Prob. and Parole, 20 A.3d 596, 598-99 (Pa. Cmwlth.
2011) (bold and underline emphasis added) (quoting Armbruster v. Pennsylvania Bd.
of Prob. and Parole, 919 A.2d 348, 351 (Pa. Cmwlth. 2007)); see also Houser v.
Pennsylvania Bd. of Prob. and Parole, 682 A.2d 1365 (Pa. Cmwlth. 1996).
              We acknowledge that Richards and Armbruster were decided before
Section 6138(a) of Parole Code was amended to authorize the Board, in its discretion,
to afford an inmate credit for time on parole.6 However, since the Board specified in
its Hearing Report that Cruthers was not entitled to credit for time he spent at liberty
on parole, Section 6138(a)(2.1) of the Parole Code does not apply in this case. See
C.R. at 61. Thus, where, as here, the Board has determined that an inmate is not
entitled to credit for time at liberty on parole, the Richards and Armbruster holdings
apply, and Cruthers’ “maximum sentence date may be extended to account for all
street[]time, regardless of good or delinquent standing.” Richards, 20 A.3d at 599
(emphasis added).


       5
         “‘Street time’ is a term for the period of time a parolee spends at liberty on parole.”
Dorsey v. Pennsylvania Bd. of Prob. & Parole, 854 A.2d 994, 996 n.3 (Pa. Cmwlth. 2004).
       6
         Section 6138(a)(2.1) was added to the Parole Code by Section 15 of the Act of July 5,
2012, P.L. 1050 (Act 122), effective September 5, 2012.
                                               5
             When Cruthers was paroled effective December 6, 2010, he had 866
days remaining on his sentence. He was on parole for 366 days between December 6,
2010 and December 7, 2011, when he was declared delinquent. He was delinquent
for 150 days between December 7, 2011 and his May 5, 2012 return to custody.
Pursuant to Section 6138(c) of the Parole Code, Cruthers was entitled to and did
receive credit for the 366 days while in good standing on parole, but not for the 150
days he was delinquent on parole. By adding 150 days to Cruthers’ April 20, 2013
maximum, the Board properly recalculated Cruthers’ maximum sentence release date
as September 17, 2013.
             When Cruthers was again paroled on November 20, 2012, there were
301 days remaining until he reached his September 17, 2013 maximum sentence
release date. He remained on parole until the Board lodged its detainer against him
on April 4, 2013 for his new parole violations. He was arrested on April 5, 2013 due
to criminal charges for which he did not post bail.
             This Court has held:

             The 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). In Gaito, 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.’ Gaito, . .
             . 412 A.2d at 571. . . .
             In the cases following Gaito, this Court held that once a
             parolee is sentenced on a new criminal offense, the
             period of time between arrest and sentencing, when bail
             is not posted, must be applied toward the new sentence
             and not to the original sentence.



                                           6
Bowman v. Pennsylvania Bd. of Prob. and Parole, 930 A.2d 599, 601 (Pa. Cmwlth.
2007) (emphasis added). Moreover, Section 6138(a) of the Parole Code states, in
pertinent part:

             (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 State correctional institution
             and the new sentence imposed on the person is to be served
             in the State correctional institution.
             (ii) If a person is paroled from a county prison and the new
             sentence imposed upon him is to be served in the same
             county prison.
             (iii) In all other cases, the service of the new term for the
             latter crime shall precede commencement of the balance
             of the term originally imposed.

61 Pa.C.S. § 6138(a) (emphasis added).
             Cruthers was properly credited one day on his original sentence for the
time served on the Board’s detainer on April 4, 2013. The days Cruthers served on
both the Board detainer and the criminal charges from April 5, 2013 to his March 18,
2014 sentencing were appropriately applied to Cruthers’ new sentence. Because
Cruthers was sentenced to serve a county term for his criminal charges, he served his
county sentence until he was paroled therefrom on July 5, 2014 and was available to
serve his original sentence.
             Having been recommitted as a CPV, Cruthers forfeited all of the 366
days of street time previously credited to him. Richards. Adding 366 days to the 301
days Cruthers had remaining on his sentence before his April 2013 arrest, he had 667

                                            7
days left to serve. After being credited with the April 4, 2013 detainer day, Cruthers
was required to serve 666 days on his original sentence.        By adding 666 days
beginning July 5, 2014, the Board correctly recalculated Cruthers’ maximum
sentence release date as May 1, 2016.
             Cruthers’ claim that he served 1,325 of his original 1,825-day sentence
and, therefore, had only 500 (rather than 666) days remaining to serve beginning July
5, 2014 is erroneous. He included in his calculation 166 days he served between
April 4, 2013 and September 17, 2013 which, under Section 6138(a)(5) of the Parole
Code, were not attributable to his original sentence. By adding those 166 days to the
500 days Cruthers acknowledged he served on his original sentence, Cruthers’
calculation matches the Board’s 666-day calculation, thereby confirming the accuracy
of the Board’s May 1, 2016 maximum sentence release date calculation.
             Because the Board did not err in calculating Cruthers’ unexpired
sentence or by extending his original maximum sentence release date, the Board’s
order is affirmed.

                                        ___________________________
                                        ANNE E. COVEY, Judge




                                           8
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Brandon Cruthers,                       :
                         Petitioner     :
                                        :
                    v.                  :
                                        :
Pennsylvania Board of Probation         :
and Parole,                             :   No. 1950 C.D. 2014
                        Respondent      :


                                      ORDER

            AND NOW, this 30th day of July, 2015, the Pennsylvania Board of
Probation and Parole’s September 29, 2014 order is affirmed.


                                      ___________________________
                                      ANNE E. COVEY, Judge
