              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Alexis Mercado,                          :
                   Petitioner            :
                                         :   No. 407 C.D. 2015
            v.                           :
                                         :   Submitted: September 18, 2015
Pennsylvania Board of                    :
Probation and Parole,                    :
                  Respondent             :


BEFORE:     HONORABLE BERNARD L. McGINLEY, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                  FILED: December 14, 2015


            Alexis Mercado (Petitioner) petitions for review of the March 4, 2015
order of the Pennsylvania Board of Probation and Parole (Board), which denied his
administrative appeal and affirmed its previous decision to recommit him as a
convicted parole violator with a parole violation maximum sentence date of October
10, 2016.
            On July 8, 2004, Petitioner was sentenced to a term of incarceration of
two to six years following his conviction for the offense of manufacture, delivery, or
possession with intent to deliver a controlled substance.        His parole violation
maximum sentence date at that time was June 5, 2010. Following the expiration of
his minimum sentence in 2006, Petitioner was released on parole to a community
corrections center. However, Petitioner failed to abide by the conditions of his parole
and was subsequently convicted for attempted criminal possession of a weapon.
Petitioner was recommitted to a state correctional institution as both a technical and
convicted parole violator, and his parole violation maximum sentence date was
recalculated to May 19, 2014.
             The Board reparoled Petitioner on February 27, 2012, again to a
community corrections center. On October 9, 2013, Petitioner was arrested by the
Montgomery Township Police Department on drug-related charges and was unable to
post bail. At the same time, the Board issued a warrant to commit and detain
Petitioner. While the new criminal charges were pending, the Board, by order dated
December 12, 2013, recommitted Petitioner as a technical parole violator to serve six
months backtime, when available. On July 21, 2014, Petitioner pled guilty to a single
charge of possession with intent to deliver a controlled substance and was sentenced
to a term of incarceration of two to four years.
             The Board subsequently provided Petitioner with a notice of charges and
revocation hearing relating to his new criminal conviction. On September 26, 2014,
Petitioner waived his right to a revocation hearing and counsel and admitted to his
new conviction and sentence.       By order dated December 16, 2014, the Board
recommitted Petitioner as a convicted parole violator and recalculated his parole
violation maximum sentence date to October 10, 2016. The Board did not provide
Petitioner with any credit for the period he was incarcerated from October 9, 2013, to
July 21, 2014. The Board found that Petitioner became available to commence
service of his original sentence again on July 21, 2014, and added the 812 days
remaining on that sentence to this date to arrive at his new parole violation maximum
sentence date.




                                            2
               Petitioner filed a request for administrative relief on December 29, 2014,
challenging the recalculated parole violation maximum sentence date.1                         More
specifically, Petitioner alleged that his maximum term had expired on May 19, 2014,
and that the Board had no authority to extend his parole violation maximum sentence
date beyond that term. Petitioner sent additional correspondence to the Board in
January and February of 2015, raising additional issues of credit and delinquency.
               By decision mailed March 4, 2015, the Board denied Petitioner’s
administrative appeal and affirmed its previous recommitment order and recalculated
parole violation maximum sentence date. The Board first explained that it would
only consider the claims raised by Petitioner in his original December 29, 2014,
appeal, noting that section 73.1(4) of its regulations provides that “[s]econd or
subsequent appeals . . . will not be received.” 37 Pa. Code §73.1(4). With respect to
Petitioner’s parole violation maximum sentence date, the Board explained that when
he was released on parole on February 27, 2012, his maximum sentence date was
May 19, 2014, which left 812 days remaining on his original sentence.                         As a
convicted parole violator, the Board noted that Petitioner forfeited any credit for all of
the time he spent on parole and that the parole time was properly added to his
maximum sentence date.
               Petitioner subsequently filed a petition for review with this Court,
reiterating his allegation that the Board was without authority to extend his parole
violation maximum sentence date beyond May 19, 2014, the expiration date of his
maximum sentence. Petitioner also alleged that the Board committed reversible error

       1
          Petitioner also alluded to section 6138(a)(2.1) of the Prison and Parole Code, added by the
Act of July 5, 2012, P.L. 1050, 61 Pa.C.S. §6138(a)(2.1), which grants the Board discretion to
award a convicted parole violator credit for time spent on parole. However, Petitioner never alleged
that the Board failed to comply with this section.



                                                 3
by failing to exercise the discretion afforded to it by section 6138(a)(2.1) of the
Prison and Parole Code (Parole Code), 61 Pa.C.S. §6138(a)(2.1), to award credit to a
convicted parole violator.2
                 We first address Petitioner’s argument that the Board lacked the
authority to extend his parole violation maximum sentence date (October 10, 2016)
beyond the expiration date of his maximum sentence (May 19, 2014). 3                       More
specifically, in his petition for review, Petitioner alleged that such action by the
Board impermissibly altered/modified a judicially imposed sentence. We disagree.
                 Section 6138 of the Parole Code addresses convicted parole violators,
providing, in pertinent part, as follows:



       2
           This section states that:

                 The board 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 (relating to registration of sexual offenders).

                         (ii) The parolee was recommitted under section 6143
                         (relating to early parole of inmates subject to Federal
                         removal order).

61 Pa.C.S. §6138(a)(2.1)(i)-(ii).

       3
        Our scope of review is limited to determining whether constitutional rights were violated,
an error of law was committed, or whether necessary findings are supported by substantial
evidence. Prebella v. Pennsylvania Board of Probation and Parole, 942 A.2d 257, 259 (Pa.
Cmwlth. 2008).


                                                   4
              (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 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 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 under
              paragraph (2.1), shall be given no credit for the time at
              liberty on parole.
61 Pa.C.S. §6138(a)(1)-(2). This Court has previously held that, in calculating the
duration of a parolee’s recommitment under section 6138(a)(2), the clear statutory
language “mandates that [p]etitioner’s time at liberty be added to his maximum
expiration date of sentence since he was recommitted as a convicted parole violator.”
Jackson v. Pennsylvania Board of Probation and Parole, 781 A.2d 239, 243 (Pa.
Cmwlth. 2001).4
               Moreover, in Gaito v. Pennsylvania Board of Probation and Parole,
412 A.2d 568, 570 (Pa. 1980), our Supreme Court considered and rejected the
argument raised by Petitioner, i.e., that the Board’s extension of his parole violation
maximum sentence date constituted an impermissible alteration/modification of a
judicially imposed sentence. Rather, the court in Gaito held that “when the Board


       4
         In Jackson, this Court considered section 21.1a of what was commonly referred to as the
“Parole Act,” former Act of August 6, 1941, P.L. 861, formerly added by Section 5 of the Act of
August 24, 1951, P.L. 1401, 61 P.S. §331.21a. The Parole Act was repealed by the Act of August
11, 2009, P.L. 147, No. 33. Nearly identical language is currently found in section 6138(a)(2) of
the Parole Code, as set forth above.


                                               5
refuses to credit a convicted parole violator with time spent free on parole there is
neither a usurpation of the judicial function of sentencing nor a denial of the
procedural safeguards to which persons are entitled.” Id.
               In his brief, Petitioner contends, without any explanation, that this
Court needs to reconcile our previous decisions in Yates v. Pennsylvania Board of
Probation and Parole, 48 A.3d 496 (Pa. Cmwlth. 2012), and Richards v.
Pennsylvania Board of Probation and Parole, 20 A.3d 596 (Pa. Cmwlth. 2011), in
order to decide this matter.     However, upon review of these cases, we cannot
conclude that any such reconciliation is necessary.         Instead, each case was
appropriately decided on its unique facts, and we fail to see any conflicting result in
either case.
               In Yates, the parolee was recommitted as a technical parole violator to
serve nine months backtime when he only had four months and twenty-eight days
remaining on his original sentence. We noted our previous holding in Savage v.
Pennsylvania Board of Probation and Parole, 761 A.2d 643, 645 (Pa. Cmwlth.
2000), that the Board “is not permitted to impose backtime which exceeds the entire
remaining balance of parolee’s unexpired term” and that it “can only require that a
parolee serve the remaining balance of his unexpired term since the Board does not
have the power to alter a judicially-imposed sentence.”
               In Richards, the issue to be decided was whether a parolee “continues
to be entitled to credit for time served while at liberty on parole in good standing
prior to technical violations, notwithstanding his subsequent recommitment as a
convicted parole violator.” 20 A.3d at 597. The Board answered in the negative,
concluding that the parolee, as a convicted parole violator, was not entitled to any
credit for time served while at liberty on parole. This Court affirmed, citing section
6138(a)(2) of the Parole Code. We held that “when a parolee is recommitted due to

                                           6
criminal conviction, his maximum sentence date may be extended to account for all
street-time, regardless of good or delinquent standing.” Id. at 599. The result in each
differed due to the type of recommitment, i.e., technical versus convicted parole
violator. Contrary to Petitioner’s argument, we find no inconsistency between these
results. Moreover, we note that our holding in Richards is consistent with the
Board’s action in the present case, i.e., refusing Petitioner credit for any time he spent
at liberty on parole as a result of his new conviction.
               Petitioner next contends that the Board committed reversible error by
failing to exercise the discretion afforded to it by section 6138(a)(2.1) of the Parole
Code.       However, Petitioner never raised this argument in his request for
administrative relief filed with the Board. As noted above, Petitioner merely alluded
to section 6138(a)(2.1) in this request, but never specifically argued that the Board
failed to exercise its discretion thereunder. Hence, this argument is waived.5 See
Pa.R.A.P. 1551(a) (“No question shall be heard or considered by the court which was
not raised before the government unit. . . .”); Joyce v. Pennsylvania Board of
Probation and Parole, 811 A.2d 73, 78 (Pa. Cmwlth. 2002) (issue not preserved in
request for administrative relief is waived).
               Accordingly, the order of the Board is affirmed.



                                                ________________________________
                                                PATRICIA A. McCULLOUGH, Judge


        5
         Even if not waived, Petitioner’s contention would fail. The Board, in response to the
addition of section 6138(a)(2.1) of the Parole Code, revised its “Hearing Report” form to include a
provision which provides the Board with the option of awarding credit for time spent at liberty on
parole. See Record at Item No. 7. In this case, the Board placed a checkmark next to “No,” thereby
exercising the discretion afforded to it by section 6138(a)(2.1).


                                                7
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Alexis Mercado,                     :
                  Petitioner        :
                                    :    No. 407 C.D. 2015
            v.                      :
                                    :
Pennsylvania Board of               :
Probation and Parole,               :
                  Respondent        :


                                 ORDER


            AND NOW, this 14th day of December, 2015, the order of the
Pennsylvania Board of Probation and Parole, dated March 4, 2015, is hereby
affirmed.



                                        ________________________________
                                        PATRICIA A. McCULLOUGH, Judge
