              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Michael M. Allah,                         :
                    Petitioner            :
                                          :   No. 1429 C.D. 2018
             v.                           :
                                          :   Submitted: April 5, 2019
Pennsylvania Board of                     :
Probation and Parole,                     :
                  Respondent              :


BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge



OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                            FILED: May 15, 2019


             Michael M. Allah (Petitioner) petitions for review of the October 29, 2018
order of the Pennsylvania Board of Probation and Parole (Board) denying his request
for administrative relief and affirming its previous orders dated July 26, 2018, and
September 24, 2018, which recommitted Petitioner as a convicted parole violator to
serve six months’ backtime, when available, and recalculated his parole violation
maximum sentence date.
             The underlying facts are not in dispute and have been established by the
record herein. On January 21, 2014, Petitioner pleaded guilty to a charge of retail theft
and was sentenced to a term of incarceration of one year, six months to five years. At
that time, Petitioner’s parole violation maximum sentence date was calculated to be
October 10, 2018. Petitioner was released on parole on May 31, 2016, with a special
condition that Petitioner enroll in an outpatient drug/alcohol treatment program. After
reporting to his parole agent, Petitioner submitted to urinalysis testing which returned
a positive result for cocaine. The parole agent directed Petitioner to report to an
intensive outpatient program. Petitioner complied and entered a program provided by
NHS Services on June 21, 2016.
             On August 1, 2016, Petitioner again tested positive for cocaine. The
parole agent directed Petitioner to report to Gaudenzia DRC, a drug addiction treatment
center. While at Gaudenzia DRC, Petitioner was uncooperative and twice tested
positive for illegal substances, including cocaine. As a result of his lack of progress,
Petitioner was unsuccessfully discharged from Gaudenzia DRC on November 8, 2016.
Petitioner transitioned to Kintock Erie, another substance abuse treatment center, and
was successfully discharged from this program on January 9, 2017. However, two days
later, Petitioner reported to the Board’s Chester District Office and again tested positive
for cocaine and opiates. The Chester District Office increased Petitioner’s reporting
requirements and subsequent urinalysis testing on January 30, 2017, and February 7,
2017, reported negative results.
             Nevertheless, during a visit to the Chester District Office on March 23,
2017, he once again tested positive for cocaine. The Chester District Office thereafter
directed Petitioner to report to the Community Education Center (CEC)-Luzerne, a pre-
release correctional facility.     Petitioner was successfully discharged from CEC-
Luzerne on June 1, 2017. He reported to the Chester District Office the following day
and tested negative for any controlled substances.
             Three weeks later, on June 22, 2017, Petitioner was arrested by the
Folcroft Police Department and charged with retail theft, receiving stolen property,
theft by unlawful taking or disposition, and use/possession of drug paraphernalia. The



                                            2
last charge resulted from a search of Petitioner’s person following his arrest, during
which officers discovered a glass pipe with burnt ends and a burnt brillo pad, which
are commonly associated with smoking crack cocaine. That same day, the Board
issued a warrant to commit and detain Petitioner. On July 3, 2017, the Board provided
Petitioner with a notice of charges and a hearing scheduled for July 17, 2017, relating
to his detention pending resolution of the new criminal charges. However, this hearing
was continued multiple times at the request of Petitioner in order to secure
representation by counsel.
             In the meantime, Petitioner pleaded nolo contendere to the retail theft
charge on May 8, 2018, in the Court of Common Pleas of Delaware County (Common
Pleas Court). Pursuant to an agreement with prosecutors, the remaining three charges
were dismissed.     The Common Pleas Court sentenced Petitioner to a term of
incarceration of 6 to 23 months. In its certification of imposition of judgment of
sentence, the Common Pleas Court specified that Petitioner was “good time credit
eligible & re-entry plan eligible credit from 6-22-17. Prison to calculate good time
credit.” (Certified Record (C.R.) at 63.)
             Petitioner was returned to Board custody on May 22, 2018, and confined
to the State Correctional Institution at Graterford (SCI-Graterford). The Board had
scheduled a parole revocation hearing at SCI-Graterford on June 20, 2018. However,
Petitioner, now represented by counsel from the Montgomery County Public
Defender’s Office, requested a continuance and a panel revocation hearing. The Board
granted the continuance and scheduled and held a panel revocation hearing on July 10,
2018. At this hearing, Petitioner’s parole agent submitted into evidence, without
objection, a certified sentencing sheet from the Common Pleas Court reflecting
Petitioner’s conviction for retail theft. Petitioner acknowledged this conviction. The



                                            3
panel ultimately recommended that Petitioner be recommitted as a convicted parole
violator to serve six months’ backtime, with partial credit to Petitioner for his time
spent at liberty on parole from November 8, 2016, to January 9, 2017, and March 23,
2017, to June 1, 2017.1
              By order dated July 26, 2018, the Board recommitted Petitioner as a
convicted parole violator to serve six months’ backtime when available pending parole
or completion of the sentence imposed by the Common Pleas Court. The Board also
recalculated Petitioner’s parole violation maximum sentence date to be July 11, 2020,
which included a partial credit of 132 days for his time spent at liberty on parole as
noted by the panel. Petitioner thereafter timely filed an administrative remedies form
challenging the calculation of his sentencing credit and the recalculation of his parole
violation maximum sentence date. More specifically, Petitioner alleged that the Board
should have awarded him credit from November 14, 2017, the purported expiration of
his minimum Common Pleas Court sentence, to August 23, 2018, the date he filed his
administrative remedies form. Petitioner also sought credit for the time he spent at
Gaudenzia DRC, from August 1, 2016, until November 8, 2016.                      Additionally,
Petitioner alleged that the Board misstated his return to custody date as July 12, 2018,
when it should have been May 22, 2018. Finally, Petitioner alleged that the Board
improperly extended his parole violation maximum sentence date.
              While Petitioner’s request for administrative relief was pending, and upon
the motion of Petitioner, the Common Pleas Court issued a sentencing clarification
stipulation and order dated September 17, 2018, explaining that Petitioner’s “time
served credit for his six (6) to twenty-three (23) month county sentence include[d] the
period from June 22, 2017[,] to November 16, 2017, his good time calculation date.”

       These time periods reflect Petitioner’s successful completion of programs at Kintock Erie
       1

and CEC-Luzerne.


                                               4
(C.R. at 96.) The Common Pleas Court also indicated in this order that the “balance of
[Petitioner’s] incarceration time from November 17, 2017[,] forward [was] available
to be applied to [Petitioner’s] parole back time sentence.” Id.
              The Board issued a second decision dated September 24, 2018, stating that
it awarded Petitioner only partial credit for his time spent at liberty on parole because
of his unresolved drug problems and his new conviction being the same or similar to
his original offense. However, the Board did acknowledge that it incorrectly identified
Petitioner’s return to custody date as July 12, 2018, in its previous order, which resulted
in a new parole violation maximum sentence date calculation of May 7, 2020.
Petitioner thereafter filed another administrative remedies form again challenging the
Board’s failure to credit him for time served as noted in his previous administrative
appeal, as well as the Board’s purported illegal extension of his parole violation
maximum sentence date.
              By response mailed October 29, 2018, the Board affirmed its previous
orders and denied Petitioner his requested administrative relief. The Board explained
that Petitioner was not available to re-start service of his original sentence at the time
it issued its July 26, 2018 decision because it was waiting for information regarding his
parole from, or completion of, his Common Pleas Court sentence. The Board also
stated that Petitioner’s parole violation maximum sentence date was properly
recalculated, without any further explanation. Petitioner then filed a petition for review
with this Court.
              On appeal,2 Petitioner argues that the Board improperly recalculated the
judicially imposed maximum sentence date to May 7, 2020, and failed to properly

       2
        Our scope of review is limited to determining whether constitutional rights were violated,
whether the adjudication was in accordance with the law, and whether necessary findings were



                                                5
allocate credit for his Common Pleas Court sentence and his time spent at liberty on
parole. We disagree with Petitioner’s arguments.
              With respect to the recalculation of his maximum sentence date, Petitioner
argues that the Board does not have the authority to alter a judicially imposed sentence
and that any detention beyond the original maximum sentence date constitutes cruel
and unusual punishment. However, both our Supreme Court and this Court have
previously considered and rejected such arguments. See Gaito v. Pennsylvania Board
of Probation and Parole, 412 A.2d 568 (Pa. 1980); Young v. Pennsylvania Board of
Probation and Parole, 409 A.2d 843 (Pa. 1979); Monroe v. Pennsylvania Board of
Probation and Parole, 555 A.2d 295 (Pa. Cmwlth. 1989); Bellamy v. Pennsylvania
Board of Probation and Parole (Pa. Cmwlth., No. 439 C.D. 2014, filed May 7, 2015).3
              With respect to credit, our Supreme Court has held 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 v. Pennsylvania Board of Probation and Parole, 840 A.2d 299, 309
(Pa. 2003) (emphasis added). Petitioner acknowledges that a convicted parole violator,
such as himself, must serve his new sentence and the balance of his original sentence
consecutively. See Section 6138(a)(5) of the Prisons and Parole Code, 61 Pa.C.S.
§6138(a)(5); Kerak v. Pennsylvania Board of Probation and Parole, 153 A.3d 1134,
1138 (Pa. Cmwlth. 2016).




supported by substantial evidence. 2 Pa.C.S. §704; Adams v. Pennsylvania Board of Probation and
Parole, 885 A.2d 1121, 1122 n.1 (Pa. Cmwlth. 2005).

       3
          Pursuant to this Court’s Internal Operating Procedures, an unreported opinion of the Court
filed after January 15, 2008, may be cited for its persuasive value. 210 Pa. Code §69.414(a).



                                                 6
             In this case, Petitioner seeks credit from November 14, 2017, the
purported expiration of his minimum Common Pleas Court sentence. However,
Petitioner neglects the fact that he remained incarcerated on this sentence in the
Delaware County Prison until May 22, 2018, on which date he was returned to the
custody of the Board. Thus, Petitioner’s period of confinement from his arrest on June
22, 2017, until his return to Board custody on May 22, 2018, did not exceed his total
sentence on the new criminal conviction for retail theft, i.e., 23 months. The Common
Pleas Court’s September 17, 2018 sentencing clarification stipulation and order
attempts to improperly modify its original sentencing order to reflect a sentence of time
served from June 22, 2017, to November 16, 2017, and suggests that Petitioner became
available to serve his original sentence on November 17, 2017. However, again,
Petitioner remained incarcerated as a result of the Common Pleas Court’s sentence until
May 22, 2018, and there is nothing to indicate that the Common Pleas Court paroled
Petitioner on November 16, 2017, or anytime thereafter. As a result, Petitioner was not
available to begin serving the remainder of his original sentence until May 22, 2018,
and any period of incarceration prior thereto must be credited against the Common
Pleas Court’s sentence.
             Moreover, section 6138(a)(2.1) of the Prisons and Parole Code, added by
the Act of July 5, 2012, P.L. 1050, 61 Pa.C.S. §6138(a)(2.1), provides as follows:

             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



                                           7
                   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).
Petitioner appears to argue that unless either of these two exceptions are met, the Board
must award credit. However, Petitioner misconstrues the statute. Section 6138(a)(2.1)
vests the discretion in the Board to award credit. The Board exercised its discretion
and refused to award Petitioner credit for his time spent at Gaudenzia DRC. In its
September 24, 2018 decision, the Board explained that it opted to award partial credit
to Petitioner for the stated reasons of his unresolved drug problems and the fact that
his new conviction was the same or similar to his original offense. Contrary to
Petitioner’s argument, the Board’s decision complied with the “basic notions of due
process” and set forth the reasons for denying full credit to Petitioner as required by
our Supreme Court’s decision in Pittman v. Pennsylvania Board of Probation and
Parole, 159 A.3d 466, 475 (Pa. 2017).
              Accordingly, because the Board did not err in awarding Petitioner only
partial credit or in recalculating his parole violation maximum sentence date, the
Board’s order must be affirmed.




                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge




                                           8
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Michael M. Allah,                       :
                    Petitioner          :
                                        :    No. 1429 C.D. 2018
            v.                          :
                                        :
Pennsylvania Board of                   :
Probation and Parole,                   :
                  Respondent            :


                                    ORDER


            AND NOW, this 15th day of May, 2019, the order of the Pennsylvania
Board of Probation and Parole, mailed October 29, 2018, is hereby affirmed.



                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge
