        IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Angel Luis Colon-Vega,                  :
                                        :
                  Petitioner            :
                                        :
            v.                          : No. 2496 C.D. 2015
                                        : Submitted: June 3, 2016
Pennsylvania Board of                   :
Probation and Parole,                   :
                                        :
                  Respondent            :



BEFORE:     HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                    FILED: August 26, 2016

            Angel Luis Colon-Vega (Petitioner) petitions for review of a
determination of the Pennsylvania Board of Probation and Parole (Board) that
denied his administrative appeal of a Board order recommitting him as a convicted
parole violator to serve 24 months backtime and recalculating his maximum
sentence date to October 26, 2017. For the following reasons, we affirm.
            In 2012, Petitioner was sentenced by the Berks County Court of
Common Pleas to a term of 1 year, 6 months to 4 years of incarceration for
Manufacture, Sale, Deliver, or Possession with Intent to Deliver a Controlled
Substance. (Certified Record (C.R.) at 1, 2012 Sentence Status Summary.) The
original maximum date for this sentence was March 15, 2016. (Id.) Petitioner was
paroled on October 15, 2013, and was transferred to the Wernersville Community
Corrections Center; he remained there until January 17, 2014, when he was
released to his daughter’s residence in Reading, PA. (C.R. at 29, Supervision
History.) On December 5, 2014, Petitioner was detained in county prison for new
drug charges filed, and on March 10, 2015, having been advised that the maximum
permissible sentence for each offense was 30 years imprisonment, Petitioner pled
guilty to three counts of Delivery of a Controlled Substance – Heroin. (C.R. at 45-
46, Statement Accompanying Defendant’s Request to Enter a Guilty Plea.)
Petitioner was sentenced to 18 months to 60 months in a State Correctional
Institution, with 96 days credit for time served. (C.R. at 38, 39, Sentence Order.)
               On April 28, 2015, Petitioner waived his right to a revocation hearing
and to counsel at that hearing and the Board subsequently voted to recommit
Petitioner as a convicted parole violator to serve 24 months backtime,1 denying
him credit for time at liberty on parole and recalculating his new maximum date as
October 26, 2017. (C.R. at 90, Waiver of Revocation Hearing and Counsel; C.R.
at 100, Order to Recommit; C.R. at 102, Notice of Board Decision.) With regard
to the issue of credit for time at liberty on parole, the Board checked “No” on the
line of the Revocation Hearing Report that states “BOARD ONLY – Credit time
spent at liberty on parole: [ ] No [ ] Yes (Excluded offenses on pg. 8)” and further
noted “Writer does not recommend that the inmate be given credit for time under




1
  Backtime is a penalty imposed by the Board for a parole violation; it is “that part of an existing
judicially imposed sentence that a parole violator is required to serve as a result of violating the
terms of conditions of parole prior to being eligible to again apply for parole.” Santiago v.
Pennsylvania Board of Probation and Parole, 937 A.2d 610, 616 n.2 (Pa. Cmwlth. 2007).
                                                 2
supervision. He suffered 2 new convictions for Drug Sales while on parole for
Drug Sales.” (C.R. at 91-98, Hearing Report.)
              Petitioner filed, pro se, a timely administrative appeal, in which he
requested a reduction in the amount of backtime ordered to offset the amount of
time he must remain incarcerated. In so doing, Petitioner acknowledged that he
was prohibited by statute from commencing service of his new sentence until May
28, 2017, his reparole eligibility date, and that 24 months of backtime for the
crimes to which he pled guilty represented a term well within the presumptive
range guidelines. (C.R. at 104-108, Administrative Remedies Form.)
                On November 17, 2015, the Board denied Petitioner’s appeal, noting
that the maximum term it could have imposed within the presumptive range was
108 months, thus the 24 month recommitment term imposed falls within the
presumptive range and is not subject to challenge. (C.R. at 110, Board Response.)
Petitioner has timely appealed the Board’s denial of his appeal to this Court.2
              First, we reject Petitioner’s challenge to the period of backtime
imposed by the Board. Where, as is the case sub judice, the amount of backtime
falls within the presumptive recommitment range, both this Court and our Supreme
Court have ruled that courts will not review the Board’s imposition of backtime. 3
Smith v. Pennsylvania Board of Probation and Parole, 574 A.2d 558, 560 (Pa.

2
 Our review of the Board’s decision is limited to determining whether constitutional rights were
violated, whether the adjudication was in accordance with law, and whether necessary findings
were supported by substantial evidence. Miskovitch v. Pennsylvania Board of Probation and
Parole, 77 A.3d 66, 70 n.4 (Pa. Cmwlth. 2013).
3
 Presumptive ranges for convicted parole violators are set forth in 37 Pa. Code § 75.2. For drug
offenses, the range is based upon the maximum term of imprisonment associated with the
offense; the statutory maximum term of imprisonment for each count of Petitioner’s felony
convictions is fifteen years, and each carries a presumptive recommitment range of 24 months to
36 months. 37 Pa. Code § 75.2.
                                               3
1990); Lotz v. Pennsylvania Board of Probation and Parole, 548 A.2d 1295, 1296
(Pa. Cmwlth. 1988), and we will not do so here.
             Before this Court, Petitioner also argues that the Board lacked
authority to extend his maximum date, and failed to exercise proper discretion in
denying him credit for time at liberty on parole. The Board counters that Petitioner
did not raise these issues in his administrative appeal and has not therefore
preserved such claims and is precluded from raising them before this Court. The
record shows that Petitioner did not raise these issues before the Board, and this
Court has ruled that an issue not raised in an administrative appeal to the Board is
waived. McCaskill v. Pennsylvania Board of Probation and Parole, 631 A.2d
1092, 1094-1095 (Pa. Cmwlth. 1993). However, even if Petitioner had not waived
these claims, he would not be entitled to relief.
              The Pennsylvania Supreme Court has made clear that the Board’s
authority to recalculate the sentence of a convicted parole violator “is not an
encroachment upon the judicial sentencing power.”        Young v. Commonwealth
Board of Probation and Parole, 409 A.2d 428, 437 (Pa. 1979). Further, Section
6138(a)(2.1) of the Prisons and Parole Code provides the Board with discretion to
award credit towards a convicted parole violator’s maximum term expiration date
for time spent at liberty on parole, except where the parolee falls within one of
three disqualifying categories of convicted parole violators. 61 Pa. C.S. § 6138(a)
(2.1). Under the prior version of Section 6138, recommitment without credit for
time at liberty on parole was mandatory; this regime was altered on September 4,
2012, when the Act of July 5, 2012, P.L. 1050, No. 122, went into effect, adding
language to Paragraph 2 and adding Paragraph 2.1 to Section 6138(a) of the



                                           4
Prisons and Parole Code. Section 6138(a) of the Prisons and Parole Code now
provides, in relevant part:

             (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.

             (2.1) 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).




                                         5
61 Pa. C.S. § 6138(a)(1)-(2.1) (emphasis added). The disqualifying categories in
Paragraph 2.1 that continue to require denial of credit do not apply here.
              As noted by the Board, this Court has most recently addressed the
exercise of the Board’s discretion in Pittman v. Pennsylvania Board of Probation
and Parole, 131 A.3d 604 (Pa. Cmwlth. 2016) (en banc). In Pittman, we held that
the checking of the “No” box on the “[c]redit time spent at liberty on parole” line
in its hearing report “demonstrates that the Board exercised discretion in denying
[inmate] credit for time he spent at liberty on parole,” and concluded that “the
Board was not required to issue a statement of reasons for its decision” to deny
credit. 131 A.3d at 609-10, 616.4 Moreover, even if this Court had not held in
Pittman that checking “No” was a sufficient reflection of the Board’s exercise of
discretion, in addition to checking the “No” box, the Board stated in its hearing
report that it did not recommend that Petitioner be given credit for time at liberty
on parole because he suffered two new convictions for drug sales while on parole
for the same offense. (C.R. at 91-98, Hearing Report.) Accordingly, we find no
merit in the argument that the Board abused its discretion by failing to award
Petitioner credit for time at liberty on parole.
              Finally, Petitioner argues the Board did not indicate how it calculated
Petitioner’s new maximum date.              Petitioner did not question the Board’s
calculation of his maximum date in his administrative appeal; in fact, Petitioner
indicated his full understanding of the pertinent dates as calculated by the Board,


4
  On May 23, 2016, the Pennsylvania Supreme Court granted allowance of appeal in Pittman to
address the following question: “Did the Parole Board abuse its discretion by summarily denying
petitioner credit against his maximum sentence for time that he spent at liberty on parole
following his recommitment as a convicted parole violator?” Pittman v. Pennsylvania Board of
Probation and Parole, __ A.3d __ (Pa., No. 90 MAL 2016, filed May 23, 2016).

                                              6
correctly citing his reparole eligibility date and his recomputed maximum date, and
noting that “the Board properly considered and applied the fact that because my
new sentence is a state sentence, I cannot begin service of said sentence prior to
[his reparole eligibility date].” (C.R. at 107, Administrative Appeal.) In his
administrative appeal, Petitioner requests simply that the Board deduct six months
from his backtime and reduce his maximum date by the same amount. (Id.) In any
event, the record clearly reflects that the Board did not err in recalculating
Petitioner’s maximum date. Petitioner had 882 days remaining on his original
sentence at the time he was paroled, and following his arrest, he was confined on
both the new criminal charges and the Board detainer from December 5, 2014 until
March 10, 2015, the date on which he was sentenced, or a period of 96 days; thus
the sentencing court properly awarded Petitioner 96 days credit toward his new
sentence, representing the entire pre-sentence confinement term. (C.R. at 100,
Order to Recommit; C.R. at 38-39, Sentence Order.) Our Supreme Court has
established that pre-sentence confinement wherein a convicted parole violator is
incarcerated on new criminal charges and a Board detainer must apply to the new
sentence. Gaito v. Pennsylvania Board of Probation and Parole, 412 A.2d 568,
571 (Pa. 1980).   The Board thus properly denied Petitioner credit for the period
during which he was detained on both the new criminal charges and the Board’s
detainer.
              For the foregoing reasons, the order of the Board is affirmed.



                                    _________________ ____________________
                                    JAMES GARDNER COLINS, Senior Judge



                                         7
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Angel Luis Colon-Vega,              :
                                    :
                 Petitioner         :
                                    :
           v.                       : No. 2496 C.D. 2015
                                    :
Pennsylvania Board of               :
Probation and Parole,               :
                                    :
                 Respondent         :



                                ORDER


           AND NOW, this 26th day of August, 2016, the order of the
Pennsylvania Board of Probation and Parole in the above-captioned matter is
AFFIRMED.



                                __________ ___________________________
                                JAMES GARDNER COLINS, Senior Judge
