                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Spencer Brown,                                :
                     Petitioner               :
                                              :    No. 223 C.D. 2015
              v.                              :
                                              :    Submitted: November 20, 2015
Pennsylvania Board of Probation               :
and Parole,                                   :
                 Respondent                   :


BEFORE:       HONORABLE DAN PELLEGRINI, President Judge1
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                              FILED: January 29, 2016


              Spencer Brown (Petitioner) petitions for review of the January 28, 2015
order of the Pennsylvania Board of Probation and Parole (Board) denying his
administrative appeal and recalculating his reparole eligibility and maximum
sentence dates.2 Petitioner contends that the Board erred in failing to grant him credit
for certain periods of time while he was incarcerated on both the Board’s detainer and
for criminal charges that he pled guilty to and received a sentence that exceeded the
length of his pre-trial detention. We affirm.

       1
         This case was assigned to the opinion writer on or before December 31, 2015, when
President Judge Pellegrini assumed the status of senior judge.

       2
         By order dated April 21, 2015, this Court appointed the public defender of Indiana County
to represent Petitioner.
               As Petitioner admits, the Board’s decision correctly sets forth the
pertinent facts. (Petitioner’s brief at 8.) On September 2, 2009, the Board released
Petitioner on parole.      On September 24, 2012, Petitioner was arrested by the
Philadelphia Police Department for alleged violations of the Crimes Code3 and was
immediately incarcerated.      The Board lodged its warrant to commit and detain
Petitioner on September 26, 2012. On October 25, 2012, the trial court released
Petitioner on his own recognizance, but he remained incarcerated solely on the
Board’s detainer until April 30, 2013. (Board’s decision at 1-2; Certified Record
(C.R.) at 16-18, 48.)
               On April 30, 2013, Petitioner pled guilty to aggravated assault,
possession of an instrument of a crime, and driving under the influence of alcohol or
drugs. On that same date, a trial court sentenced Petitioner to an aggregate term of 11
months and 15 days to 23 months’ imprisonment. On July 1, 2014, the trial court
paroled Petitioner, and Petitioner became available to begin serving his original
sentence on that date. (Id.)
               By decision mailed November 11, 2014, the Board recalculated
Petitioner’s original maximum sentence date as being January 30, 2019. Petitioner
then filed a petition for administrative review, asserting that the Board’s calculation
was factually and legally erroneous. (Board’s decision at 1.)
               In an order dated January 28, 2015, the Board affirmed its November 11,
2014 calculation. The Board explained that when it paroled Petitioner on September
2, 2009, his original maximum sentence date was October 7, 2014, which left 1,861
days (approximately 5 years and 1 month) remaining on his original sentence. The
Board provided Petitioner with backtime credit from October 25, 2012, to April 30,

      3
          18 Pa.C.S. §§101—1110.



                                           2
2013 (or 187 days), because, during this time, Petitioner was released on his own
recognizance but remained incarcerated solely on the Board’s detainer. See Gaito v.
Pennsylvania Board of Probation and Parole, 412 A.2d 568, 571 (Pa. 1980).
Subtracting 187 days from 1,861, the Board determined that Petitioner owed a total of
1,674 days or 4 years and 7 months on his original sentence. The Board then added
this amount to July 1, 2014, the day on which Petitioner was paroled by the trial
court, to yield a new maximum original sentence date of January 30, 2019. In
making its calculation, the Board did not award Petitioner any credit for time he spent
at liberty on parole. See Sections 6138(a)(2) and (2.1) of the Prison and Parole Code
(Parole Code), 61 Pa.C.S. §6138(a)(2), (2.1). (Board’s decision at 1-2.)
              On appeal to this Court,4 Petitioner does not contest the technical aspects
of the Board’s arithmetic, but he asserts that the Board erred in failing to grant him
additional credit on his original sentence. Specifically, Petitioner contends that he is
entitled to credit for the time period from September 26, 2012, the date on which the
Board lodged its detainer, to October 25, 2012, the date the trial court ordered that he
may be released on his own recognizance. Petitioner also asserts that he is entitled to
credit for the time period from April 30, 2013, the date on which he pled guilty, to
July 1, 2014, the date that he was paroled by the trial court. According to Petitioner,
he is legally owed credit for his imprisonment during these time-frames because he
was incarcerated on both the Board’s detainer and new criminal charges.                      We
disagree.



       4
        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).



                                                3
             It is now settled that where, as here, “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 [i.e., the trial court’s latest sentence] or the
original sentence [i.e., the sentence from which the Board paroled the parolee].”
Martin v. Pennsylvania Board of Probation and Parole, 840 A.2d 299, 309 (Pa.
2003) (emphasis added). More specifically, our case law has established that if a
parolee’s “period of pre-sentence incarceration exceeds the maximum term of the new
sentence, the credit must be applied to the original sentence.”           Armbruster v.
Pennsylvania Board of Probation and Parole, 919 A.2d 348, 354-56 (Pa. Cmwlth.
2007) (emphasis in original). But in the converse situation, where the length of pre-
sentence incarceration is less than the maximum term of the trial court’s new
sentence, the pre-sentence incarceration time must be credited toward the new
sentence. Id.; accord Koehler v. Pennsylvania Board of Probation and Parole, 935
A.2d 44, 54-55 (Pa. Cmwlth. 2007). Put simply, the time spent during pre-sentence
incarceration will first be applied as a credit to the trial court’s new sentence and the
amount of time, if any, that exceeds the maximum term of the new sentence will be
credited to the original sentence.
             Here, the length of Petitioner’s pre-sentence confinement that the Board
did not credit to his original sentence was from September 26 to October 25, 2012
(the date of the detainer to the date of release on recognizance), or approximately 1
month. However, this amount of time was less than the maximum term of the trial
court’s new sentence of 23 months’ imprisonment. Therefore, pursuant to our case
law, this 1 month period of time was required to be credited to the new sentence that
the trial court imposed on Petitioner, not on Petitioner’s original sentence.




                                            4
             Moreover, section 9760(1) of the Sentencing Code governs the granting
of credit for periods of incarceration following a trial court’s imposition of a new
sentence. This provision declares that credit in such a situation is to be applied to the
new sentence, stating that “[c]redit against the maximum and any minimum term
shall be given to a defendant for all time spent in custody as a result of the criminal
charge for which a prison sentence is imposed. . . .” 42 Pa.C.S. §9760(1) (emphasis
supplied). See Commonwealth v. Kyle, 874 A.2d 12, 17 (Pa. 2005). Similarly,
section 6138(a)(1)(5)(iii) of the Parole Code states that a petitioner must serve the
trial court’s new sentence prior to commencing service on his original sentence:

             [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 . . .
             [and] a new sentence is imposed on the parolee, 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)(5)(iii) (emphasis added).
             Pursuant to these unambiguous statutory sections, Petitioner’s post-
sentence period of incarceration, from April 30, 2013, until the trial court’s grant of
parole on July 1, 2014 (approximately 1 year and 2 months), was the sole result of the
trial court’s new sentence. Because this length of time was less than the maximum
term of the trial court’s new sentence 23 months’ imprisonment, it must be credited
toward Petitioner’s new sentence and not on his original sentence.
             In sum, Petitioner seeks a total of 1 year and 3 months credit on his
original sentence for time he spent incarcerated both pre-sentence and post-sentence.
The maximum term of the trial court’s new sentence was 23 months’ imprisonment.
The difference between these two sets of figures must be credited toward Petitioner’s


                                           5
new sentence, because Petitioner had not completed the maximum term of the new
sentence at the time the trial court granted him parole. Therefore, Petitioner was not
entitled to any further credit on his original sentence and we conclude that the Board
did not commit legal error in its calculation.5
               Accordingly, we affirm.



                                                  ________________________________
                                                  PATRICIA A. McCULLOUGH, Judge




       5
          We note that our Supreme Court has held that issues regarding the proper allocation of
credit on a new sentence for time served are to be addressed by the trial court, or the Superior Court
on appeal. McCray v. Department of Corrections, 872 A.2d 1127, 1132-33 (Pa. 2005); accord
Armbruster, 919 A.2d at 355. In other words, if the trial court erroneously denied – or later denies –
Petitioner credit for time served on his new sentence, Petitioner’s remedy is to appeal to the
Superior Court, not seek additional credit from the Board. McCray, 872 A.2d at 1132-33.



                                                  6
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Spencer Brown,                          :
                   Petitioner           :
                                        :    No. 223 C.D. 2015
            v.                          :
                                        :
Pennsylvania Board of Probation         :
and Parole,                             :
                 Respondent             :


                                     ORDER


            AND NOW, this 29th day of January, 2016, the January 28, 2015
order of the Pennsylvania Board of Probation and Parole is affirmed.



                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge
