          IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Bernard Banks,                             :
                                           :
                           Petitioner      :
                                           :
             v.                            :   No. 1452 C.D. 2015
                                           :
Pennsylvania Board of Probation            :   Submitted: December 31, 2015
and Parole,                                :
                                           :
                           Respondent      :



BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE MARY HANNAH LEAVITT, Judge1
             HONORABLE ANNE E. COVEY, Judge



OPINION BY
JUDGE COHN JUBELIRER                                    FILED: April 27, 2016

      Bernard Banks petitions for review of the Order of the Pennsylvania Board
of Probation and Parole (Board) denying his request for administrative relief and
affirming the recalculation of Banks’ maximum sentence date (max date) as July
30, 2016. On appeal, Banks argues that the Board erred in calculating his new max
date because it did not give him the correct amount of credit for his pre-sentence
confinement. For the following reasons, we vacate and remand.




      1
          This case was assigned to the opinion writer before January 4, 2016, when Judge
Leavitt became President Judge.
       Banks is serving a variety of sentences, including: (1) one year, four months
to two years, eight months for receiving stolen property; (2) a consecutive six
months to one year sentence for criminal conspiracy and forgery; (3) a consecutive
one to two years for criminal use of a communication facility; and (4) a
consecutive one to two year sentence for escape from detention. His minimum
date was March 24, 2011 and his original max date was January 22, 2015. The
Board paroled Banks on December 7, 2012 to a community corrections residency
(CCR), and he was released on February 25, 2013. When he failed to report to his
assigned CCR, the Board declared Banks delinquent on February 25, 2013. Banks’
whereabouts since his release were unknown until, on July 14, 2013, he was
arrested by the Archibald Police Department in Lackawanna County. Banks was
returned to custody at State Correctional Institution (SCI) Waymart on July 15,
2013. The Board recommitted Banks as a technical parole violator (TPV) to serve
six months with a parole violation max date of June 10, 2015, and provided for his
automatic reparole on January 14, 2014 so long as certain criteria were met.
       On September 10, 2013, federal authorities indicted Banks for new criminal
charges,2 and the Board lodged a new detainer based on those charges against
Banks on September 18, 2013. (Warrant to Commit and Detain, C.R. at 27;
Criminal Arrest and Disposition Report, C.R. at 29.) Banks waived both counsel
and a detention hearing on November 7, 2013. The Board revised its August 19,
2013 action by adding that Banks would be detained pending the disposition of the
new criminal charges.


       2
          Banks was arrested on charges of: (1) conspiracy, (2) “[u]ttering [c]ounterfeit
[o]bligations [a]iding and [a]betting,” and (3) “[d]ealing in [c]ounterfeit [o]bligations [a]iding
and [a]betting.” (Criminal Arrest and Disposition Report, C.R. at 29.)

                                                2
      A Magistrate Judge for the United States District Court for the Middle
District of Pennsylvania (Middle District Court) granted the federal authorities’
request to issue a “Writ of Habeas Corpus ad prosequendum” (Writ/ATA) on
January 14, 2014, for Banks’ attendance at his federal arraignment hearing on
January 27, 2014. (Criminal Docket for Case #: 3:13-cr-00195-RPC-2 (Federal
Criminal Docket) at 3, C.R. at 49.) On January 24, 2014, Banks was transferred
from SCI-Mahanoy to Federal authorities in Harrisburg for his arraignment.
(Moves Report, C.R. at 87.) Following arraignment, at which Banks pleaded not
guilty, he was “ordered detained in federal custody” by the Magistrate Judge.
(Federal Criminal Docket at 3, C.R. at 49.) Banks ultimately withdrew his not
guilty plea and pleaded guilty to conspiracy and uttering counterfeit obligations on
September 3, 2014, which was accepted by a Middle District Court Judge on
September 24, 2014. Banks was sentenced on March 19, 2015 to a term of forty-
one months on each count to be served concurrently in the custody of the federal
Bureau of Prisons (BOP), with three years of supervised release.           (Federal
Criminal Docket at 7-8, C.R. at 53-54.)
      Following the federal conviction, but before sentencing, the Board notified
Banks on October 29, 2014 that a revocation hearing would be held based on his
new criminal conviction. However, Banks waived that revocation hearing, as well
as his right to counsel, and admitted to being convicted of the federal offenses on
October 29, 2014.    By Board Decision mailed on April 13, 2015, the Board
modified its November 26, 2013 Board Action by deleting the automatic reparole
provision, reaffirming the prior action to recommit Banks as a TPV to serve six
months, and recommitting Banks “to a State Correctional Institution as a convicted
parole violator [(CPV)] when available to serve your unexpired term concurrently


                                          3
for a total of your unexpired term pending sentencing on your federal conviction.”
(Notice of Board Decision, April 13, 2015, at 1, C.R. at 74.)
      The Board recalculated Banks’ new max date based on a return to custody
date of March 19, 2015 via Order to Recommit dated June 22, 2015. The Board
determined that Banks had 696 days remaining on his original sentence, gave
Banks credit for 197 days, from July 14, 2013 until January 27, 2014, which left
Banks with 499 days of backtime remaining. (Order to Recommit, C.R. at 89.)
Adding 499 days to March 19, 2015 resulted in a new max date of July 30, 2016.
By Board action of July 14, 2015, the Board recommitted Banks as a TPV “to
serve 6 months, and as a [CPV] to serve [his] unexpired term of 1 year, 10 months,
28 days concurrently, for a total of 1 year, 10 months, 28 days,” with a max date of
July 30, 2016. (Notice of Board Decision, July 14, 2015, C.R. at 91.)
      Banks filed a challenge to the Board’s recalculation of his max date on July
20, 2015, asserting that when he was picked up from the SCI pursuant to the
Writ/ATA, he remained in “state custody” for fourteen months while he fought the
federal charges. (Administrative Remedies Form, C.R. at 95.) Banks argued that,
notwithstanding the Writ/ATA, he had been in state custody continuously since
July 14, 2013 and should have been granted credit for that entire time against his
state sentence.
      The Board denied Banks’ administrative challenge reasoning that, when he
became a CPV he “automatically forfeited credit for all of the time that [he] spent
on parole.” (Board Decision, July 30, 2015, at 1, C.R. at 100 (citing Section
6138(a)(2) of the Prisons and Parole Code (Parole Code), 61 Pa. C.S. §




                                         4
6138(a)(2)).3) It further held that Banks was only entitled to credit for the time he
served solely on the Board’s warrant, and that he was only detained solely on the
Board’s warrant from July 14, 2013 to January 27, 2014, after which he entered
into federal custody. (Board Decision, July 30, 2015, at 1, C.R. at 100 (citing
Gaito v. Pennsylvania Board of Probation and Parole, 412 A.2d 568 (Pa. 1980).)
Making the same calculation as set forth in the June 22, 2015 Order to Recommit,
the Board denied Banks’ petition and affirmed its prior decision. Banks now
petitions this Court for review of the Board’s denial.4
       On appeal, Banks argues that the Board did not give him credit for all of the
time he is owed. According to Banks, even though he was transferred to federal
authorities on the Writ/ATA, he was continuously serving his state sentence and
never left the jurisdiction of the DOC.               Therefore, pursuant to Morgan v.
Pennsylvania Board of Probation and Parole, 814 A.2d 300 (Pa. Cmwlth. 2003),
Montgomery v. Pennsylvania Board of Probation and Parole, 808 A.2d 999 (Pa.
Cmwlth. 2002), and Ruggiano v. Reish, 307 F.3d 121, 125 n.1 (3d Cir. 2002),5
Banks argues that Pennsylvania retained primary jurisdiction, and he is entitled to
credit toward his original state sentence for the entire period he was in pre-sentence
confinement.

       3
          Section 6138(a)(2) provides that a CPV may, at the Board’s discretion, be recommitted
as a parole violator and “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.” 61 Pa. C.S. §
6138(a)(2).
        4
          In reviewing the Board’s Orders, our review “is limited to determining whether the
Board’s findings are supported by substantial evidence, an error of law [was] committed, or
whether any of the parolee’s constitutional rights were violated.” Andrews v. Pennsylvania
Board of Probation and Parole, 516 A.2d 838, 841 n.10 (Pa. Cmwlth. 1986).
        5
          Ruggiano was superseded on other grounds by statute as recognized in Smith v.
McKean, 580 Fed. Appx. 98, 99 (3d Cir. 2014).

                                               5
      The Board responds that Banks is not entitled to credit for the 416 days of
pre-sentence confinement he spent in federal custody because, during that time
period, Banks was not confined solely on the Board’s warrant. The Board argues
that from January 27, 2014 until Banks was sentenced by the Middle District
Court, he was detained on both his new federal charges and the Board’s detainer
and, therefore, pursuant to Gaito, 412 A.2d at 571, Banks was not entitled to credit
against his original sentence for that time period. Rather, that credit, according to
the Board, must be applied to Banks’ new federal sentence and not his prior state
sentence. The Board asserts that Morgan does not support Banks’ position as it is
distinguishable and does not alter Gaito, nor does the exception to Gaito set forth
in Martin v. Pennsylvania Board of Probation and Parole, 840 A.2d 299 (Pa. 2003)
apply here. Finally, the Board observes that although the present matter is similar
to that in Baasit v. Pennsylvania Board of Probation and Parole, 90 A.3d 74 (Pa.
Cmwlth. 2014), a different result is warranted because, in that case, the inmate
remained primarily in an SCI except for multiple transfers to federal custody via
temporary writs. Moreover, the Board argues, Section 6138(a)(5) and (5.1) of the
Parole Code, 61 Pa. C.S. § 6138(a)(5), (5.1), cited in Baasit, involves the order in
which the original Pennsylvania state sentence and new federal or other
jurisdiction sentences should be served and not pre-sentence credit. To apply
Baasit and Section 6138(a)(5.1) as effecting pre-sentence credit would render
Gaito obsolete, which, the Board contends, was not the intention of subsection 5.1.
      The assignment of pre-sentence confinement credit has long been governed
by our Supreme Court’s decision in Gaito. In Gaito, the Court held that:

      if a defendant is being held in custody solely because of a detainer
      lodged by the Board and has otherwise met the requirements for bail
      on the new criminal charges, the time which he spent in custody shall

                                         6
      be credited against his original sentence. If a defendant, however,
      remains incarcerated prior to trial because he has failed to satisfy bail
      requirements on the new criminal charges, then the time spent in
      custody shall be credited to his new sentence.

Gaito, 412 A.2d at 571. Exceptions to Gaito exist, such as that set forth in Martin,
which requires that “where an offender is incarcerated on both a Board detainer
and new criminal charges, all time spent in confinement must be credited to either
the new sentence or the original sentence.” Martin, 840 A.2d at 309. Thus, if no
incarceration is imposed on the new charges, or the charges are nolle prossed, or
the parolee is acquitted, the pre-sentence confinement time should be credited
against the original sentence, even though the parolee was not being held solely on
the Board’s detainer. Id. Similarly, if the parolee is sentenced to a period less than
the time of pre-sentence confinement, the remaining time should be credited
against the original sentence. See Jones v. Pennsylvania Board of Probation and
Parole, 872 A.2d 1283, 1285 (Pa. Cmwlth. 2005) (parolee was entitled to credit
against his original sentence for the four months and seventeen days he was
detained on both the Board’s detainer and on new charges where he was sentenced
on the new charges to forty-eight hours to twelve months and was paroled after
serving forty-eight hours).
      Although Gaito and Martin remain valid, the legislature amended Section
6138(a) of the Parole Code in 2010, adding the following emphasized language to
subsection 5 and a new subsection, 5.1. Those provisions now state:

             (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.
                                          7
                   (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.

             (5.1) If the parolee is sentenced to serve a new term of total
      confinement by a Federal court or by a court of another jurisdiction
      because of a verdict or plea under paragraph (1), the parolee shall
      serve the balance of the original term before serving the new term.

61 Pa. C.S. § 6138(a)(5), (5.1) (emphasis added).
      In Baasit, this Court “re-examine[d] credit issues between federal criminal
sentences and state criminal sentences” based on the newly added Section
6138(a)(5.1) of the Parole Code. Baasit, 90 A.3d at 75, 82. Baasit involved an
inmate who sought credit against his original state sentence for the “four years
[that] he spent in pre-federal sentence confinement.” Id. at 75. As here, the inmate
was arrested on new charges and detained at an SCI pursuant to a Board detainer.
While in DOC custody on the Board’s detainer, the inmate was arrested on federal
charges, and a federal Magistrate Judge issued a detention order committing the
inmate to custody pending trial on the federal charges. This resulted in the inmate
being confined on both the Board and federal detainers.             The inmate was
transferred briefly pursuant to writs for court appearances, but returned to an SCI
after each appearance. Id. at 77. The inmate pleaded guilty to the federal charges,
the Board held a revocation hearing, and it recommitted the inmate as a CPV to
serve backtime, when available, pending the sentencing on the federal charges. In
recalculating the inmate’s maximum date, the Board gave him credit for 277 days,
the period between his initial arrest and detainer and the date the federal Magistrate
Judge issued the detention order on the federal charges. Id. at 76. The inmate

                                          8
challenged the Board’s recalculation arguing that “the Board should have awarded
him credit toward his backtime for the balance of his pre-sentence confinement.”
Id. Citing Gaito, the Board denied relief because the inmate was not confined
solely on the Board’s detainer during the time for which he sought credit and,
therefore, was not entitled to credit against his original sentence for his pre-
sentence confinement. Id.
       On appeal to this Court, the inmate argued that he was entitled to credit
against his original sentence for the full time of his pre-sentence confinement, and
challenged the Board’s contention that he was unavailable to serve his state parole
violation time until he was returned to state custody following his federal
conviction. Id. at 76-77. He asserted, inter alia, that because he remained in
DOC’s custody and control and the Board’s detainer pre-dated the Federal
detention order, the doctrine of primary jurisdiction and the enactment of Section
6138(a)(5.1) required that his pre-sentence confinement credit be applied to his
state parole backtime and not his new federal sentence. Id. at 77-78. We reviewed
Gaito, Martin, and Section 6138(a)(5.1), and held that Martin “represent[ed] some
flexibility in credit assignments from the approach under the 1980 decision in
Gaito,” and Section 6138(a)(5.1) “constituted a significant change in legislative
policy regarding the order of service of sentences where the [CPV] received a new
sentence in a federal court or a court of another jurisdiction.” Baasit, 90 A.3d at
82. This Court explained that the Board’s “continued reliance on . . . Gaito[]
explains the Board’s apparent position that [i]nmate can serve backtime on his
original state sentence after he completes his new federal sentence,” which is
contrary to new subsection 5.1. Baasit, 90 A.3d at 82. Moreover, we explained
that


                                         9
              [o]ur conclusion that credit here should be awarded according
       to new subsection 5.1 of the Parole Code is also supported by the
       primary jurisdiction doctrine. Under that doctrine the sovereign
       which first arrests a defendant is afforded primary jurisdiction. . . .
       Our conclusion is also consistent with the Supreme Court’s more
       flexible approach to credit, as set forth in Martin.

              In addition, 18 U.S.C. § 3585(b)[6] precludes the [Board] from
       granting [i]nmate credit toward his new federal sentence for any time
       credited toward his original state sentence. As such, there is no
       possibility that [i]nmate will receive double credit for his pre-sentence
       confinement.

Baasit, 90 A.3d at 83 (emphasis added). Because the Board apparently believed it
lacked the discretion to award credit for the pre-sentence confinement time at
issue, we vacated the Board’s order and remanded to the Board “for
reconsideration of [i]nmate’s entitlement to credit against his original state
sentence for confinement before the new federal sentence was imposed.” Id.
       The Board argues that Baasit should not apply because Banks was not
confined in an SCI at all between January 27, 2014 and March 19, 2015, while the
inmate in Baasit was primarily confined in an SCI. However, the jurisdiction of
the facility in which the inmate is confined is not determinative. For example, we
have held that, where an inmate is transferred pursuant to a Writ/ATA, he does not

       6
        This provision states that
              [a] defendant shall be given credit toward the service of a term of
       imprisonment for any time he has spent in official detention prior to the date the
       sentence commences--

               (1) as a result of the offense for which the sentence was imposed; or
               (2) as a result of any other charge for which the defendant was arrested
               after the commission of the offense for which the sentence was imposed;

       that has not been credited against another sentence.
18 U.S.C. § 3585(b).

                                               10
leave the Department’s jurisdiction, even though he may be physically held in a
facility outside of its jurisdiction. Morgan, 814 A.2d at 303. The purpose of the
Writ/ATA is to enable the inmate to appear before a federal court to answer to new
charges, not to serve a federal sentence. Id. While the inmate is being presented to
the court on the new charges, he remains “‘in the primary custody of the first
jurisdiction unless and until the first sovereign relinquishes jurisdiction over the
person’” and “‘[t]he receiving sovereign . . . is, therefore, considered simply to be
‘borrowing’ the prisoner.’” Id. (quoting Ruggiano, 307 F.3d at 125 n.1). The
amount of time the inmate is physically in the other facility is not relevant to the
jurisdictional issue. The inmate in Baasit was released on a Writ/ATA for “brief
time periods”7 to attend court appearances, Baasit, 90 A.3d at 77, yet remained in
the Department’s jurisdiction. The Board attempts to distinguish Baasit on the
basis of how much time the inmate was physically held by the other authority,
which does not recognize that Banks remained in the Department’s custody.
Moreover, the Board’s proposed distinction would add unnecessary complexity to
the analysis by requiring an evaluation of the amount of time the inmate is
physically in another facility to determine whether pre-sentence confinement credit
is warranted. There is no reason to create such a distinction where the inmate,
regardless of his physical location, remains in the Department’s jurisdiction,
Morgan, 814 A.2d at 303, and where Section 6138(a)(5.1) directs that a parolee
must complete his original sentence before beginning a new sentence in a different
jurisdiction.8

       7
         He was released in “November 2008, January 2009, August 2010, July 2011 and
February, March and April in 2012.” Baasit, 90 A.3d at 77.
       8
         We note that in this situation another jurisdiction pays for the confinement of an
individual who is actively serving a Pennsylvania parole violation sentence.

                                            11
       Our holding in this matter also is supported by our recent decision in Smith
v. Pennsylvania Board of Probation and Parole, __ A.3d __ (Pa. Cmwlth., No.
1007 C.D. 2015, filed February 23, 2016),9 in which we applied Baasit to direct the
Board to give pre-sentence confinement credit under slightly different
circumstances. In that case, the parolee was arrested in North Carolina on January
28, 2013 while on parole from a Pennsylvania sentence, and the Board lodged a
detainer against him on January 29, 2013. Id. at __, slip op. at 2. He was
subsequently charged by the federal authorities on April 23, 2013, detained on
those new charges on May 2, 2013, returned to Pennsylvania on July 30, 2013, and
placed in a county prison pursuant to the federal detainer pending trial. Id. at 2-3.
Therefore, Smith was incarcerated on both the Board’s detainer and new federal
charges at that time. The Board gave the parolee credit for the time served solely
on the Board’s detainer, from January 29, 2013 to May 2, 2013, even though he
was being physically held in North Carolina. The Board, however, denied pre-
sentence credit for the period beginning May 2, 2013 until June 3, 2014, when he
pleaded guilty to the federal charges. Id. at 4. Smith appealed and argued that,
based on Baasit and Section 6138(a)(5.1), “the Board must apply the pre-sentence
confinement credit to his original sentence.” Smith, __ A.3d at __, slip op. at 4, 6.
We agreed, explaining that our decision in Baasit held that “under Section
6138(a)(5.1) . . . pre-sentence time where there was both a state and federal
detainer should be calculated against state time.” Smith, __ A.3d at __, slip op. at
8. We rejected the Board’s arguments based on Gaito and that the Baasit-court
misinterpreted Section 6138(a)(5.1) by requiring the Board to apply the pre-

       9
        Although the Board did not appeal Baasit, it did file, on March 24, 2016, a petition for
allowance of appeal with the Supreme Court in Smith at docket No. 224 MAL 2016.

                                              12
sentence confinement credit to the original state sentence. Smith, __ A.3d at __,
slip op. at 9. Accordingly, we held that

         as a result of subsection 5.1, a parolee must serve the entirety of his
         original term before serving his new federal or different jurisdiction
         sentence, the parolee no longer falls under the now-limited Gaito rule.
         As such, any pre-sentence confinement credit earned by the parolee
         must be applied to his original sentence. Baasit.

Id. at __, slip op. at 11 (emphasis added). Thus, in Smith, we held that pre-
sentence confinement credit must be applied to the original sentence even though
the parolee was being held on the Board’s detainer in North Carolina and,
subsequently, in a county prison on both the Board’s detainer and the federal
detainer.
         In summary, Section 6138(a)(5.1) mandates that Banks serve his original
sentence before serving his new federal sentence, and both Baasit and Smith held
that this provision mandates that “any pre-sentence confinement credit earned by
[Banks] must be applied to [Banks’] original sentence” even if he is being held on
both a federal and Board detainer. Smith, __ A.3d at __, slip op. at 8, 11; Baasit,
90 A.3d at 82-83. We observe, as the Baasit court did, that there is no concern of
Banks receiving double credit for this time period because “18 U.S.C. § 3585(b)
precludes the [Board] from granting [Banks] credit toward his new federal
sentence for any time credited toward his original state sentence.” Baasit, 90 A.3d
at 83.
         Banks was detained solely on the Board’s detainer from July 14, 2013 until
January 27, 2014, and on both the Board’s detainer and the federal detention order
from January 27, 2014 until his sentencing on March 19, 2015. The Board only
awarded Banks credit for the 197 days, from July 14, 2013 until January 27, 2014,

                                           13
based on Gaito. However, based on Section 6138(a)(5.1) and our decisions in
Baasit and Smith, Banks “must be awarded pre-sentence confinement credit on his
original state sentence for the period from” January 27, 2014 to March 19, 2015.
Smith, __ A.3d at __, slip op. at 11.
      Accordingly, we vacate the Board’s recalculation decision and remand the
matter to the Board to recalculate and award Banks the appropriate pre-sentence
confinement credit to his original state sentence.




                                          ________________________________
                                          RENÉE COHN JUBELIRER, Judge




                                         14
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Bernard Banks,                          :
                                        :
                         Petitioner     :
                                        :
            v.                          :   No. 1452 C.D. 2015
                                        :
Pennsylvania Board of Probation         :
and Parole,                             :
                                        :
                         Respondent     :


                                      ORDER

      NOW, April 27, 2016, the Order of the Pennsylvania Board of Probation
and Parole in the above-captioned matter is hereby VACATED and the case is
REMANDED to the Board for further proceedings consistent with the foregoing
opinion.


      Jurisdiction relinquished.




                                        ________________________________
                                        RENÉE COHN JUBELIRER, Judge
