           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Sergio Lopez,                             :
                         Petitioner       :
                                          :
                  v.                      :   No. 768 C.D. 2019
                                          :   Submitted: December 27, 2019
Pennsylvania Board of                     :
Probation and Parole,                     :
                         Respondent       :



BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                          FILED: February 20, 2020


      Sergio Lopez petitions for review of the Order of the Pennsylvania Board of
Probation and Parole (Board) mailed on May 31, 2019, that affirmed the Board’s
Decision mailed December 11, 2017, recommitting Lopez as a convicted parole
violator and recalculating Lopez’s parole violation maximum date as September 8,
2022. On appeal, Lopez argues the Board erred by not giving him credit against his
original sentence for a period of detention during which he was confined solely on
the Board’s warrant.
      On October 27, 2014, the Board released Lopez on parole, at which time his
maximum sentence date was May 8, 2020. Lopez had 2020 days remaining on his
sentence when he was paroled.         On July 16, 2015, the Philadelphia Police
Department arrested Lopez on multiple charges, including drug and firearms
charges. The Board issued a warrant to commit and detain Lopez on that same day.
Lopez’s bail on the new charges was set at 10% of $500,000 on July 17, 2015, but
Lopez did not post bail. The Board issued a Notice of Charges and Hearing for a
detention hearing based on the new charges, and Lopez waived his rights to counsel
and a detention hearing on July 21, 2015. By decision recorded on September 14,
2015, the Board detained Lopez pending the disposition of his new criminal charges.
The new charges were withdrawn on December 10, 2015. The Board cancelled its
warrant to commit and detain on December 11, 2015. (Certified Record (C.R.) at
47.) Lopez’s supervision history reflects a note entered on October 24, 2016,
indicating that the release order was sent, “[Lopez] was released from Philadelphia
County Prison,” reported to his parole agent on December 15, 2015, “and
supervision was resumed.” (Id. at 58, 85.1)
       The Philadelphia Police Department arrested Lopez on various dates in
September and October 2016 on new criminal charges, which resulted in the Board
issuing a warrant to commit and detain on October 14, 2016. Following a detention
hearing, the Board detained Lopez pending the disposition of the new criminal
charges. Lopez eventually pled guilty to those charges on July 24, 2017, and was
sentenced to time served and probation. The Board issued a Notice of Charges and
Hearing for a revocation hearing based on Lopez’s new convictions. Lopez waived
his rights to counsel and a revocation hearing, and he admitted to pleading guilty to
the new charges. By its Decision mailed December 11, 2017, the Board recommitted


       1
          Lopez’s brief indicates this note was recorded on January 24, 2016, (Lopez’s Brief at 7),
but it appears that the date of the note in the supervision report cited by Lopez is cut off. This note
is identical to the one set forth in the supervision report at page 58 of the certified record, which
reflects a date of October 24, 2016.


                                                  2
Lopez to serve 24 months’ backtime and recalculated his parole violation maximum
sentence to September 8, 2022. (Id. at 126-27.) In doing so, the Board gave Lopez
147 days’ credit toward his original sentence for his confinement between July 16,
2015, and December 10, 2015, that related to the withdrawn charges and 1 day of
backtime credit for the period between October 14 and 15, 2016. (Id. at 124.)
      On or about December 16, 2017, Lopez filed an administrative appeal of the
Board’s revocation decision, claiming the Board violated his constitutional rights
against double jeopardy and substantive due process by punishing him twice for the
new charges and usurping the judiciary’s sentencing function. (Id. at 134.) Upon
not receiving a response to his December 2017 administrative appeal, Lopez filed a
second challenge to the Board’s December 11, 2017 Decision on or about August 3,
2018. (Id. at 137.) In this 2018 challenge, Lopez asserted that the Board improperly
modified his judicially imposed sentence, forced him to enter into an illegal contract
when the Board required him to sign the conditions of parole documents in order for
him to be released on parole, and violated double jeopardy principles set forth in the
United States and Pennsylvania Constitutions by punishing him a second time for
his new criminal convictions. (Id. at 139-45.) He requested that his original May 8,
2020 maximum date be reinstated.
      The Board issued its Order responding to Lopez’s challenges. The Board
explained its recommitment by pointing to Lopez’s new criminal convictions and its
calculations of his new parole violation maximum date, which reflect that it gave
him no credit for the time he spent at liberty on parole but did give him 148 days’
credit. Subtracting 148 days from the 2020 days remaining on Lopez’s sentence
when he was paroled, the Board stated, resulted in 1872 days remaining on that
sentence, which when added to July 24, 2017, made his new parole violation



                                          3
maximum date September 8, 2022. Therefore, it affirmed the December 11, 2017
Decision. Lopez now petitions this Court for review.2
       In his Petition for Review and appellate brief, Lopez argues that the Board
failed to credit Lopez’s “original sentence with all the time to which he is entitled.”
(Petition for Review ¶ 6.) Lopez asserts the Board’s credit calculation does not
reflect credit for the entire period he was confined solely on the Board’s warrant.
According to Lopez, the Board only gave him credit for the period between July 16,
2015, and December 10, 2015, but there is no evidence that he was released from
the Board’s detainer on that date. Rather, Lopez asserts, the record indicates that the
Board cancelled its detainer on December 11, 2015, there is nothing in the record
indicating when this was sent to or received by the Philadelphia County Prison, and
Lopez did not report to his parole agent to resume supervision until December 15,
2015. Because the record does not support the Board’s use of the December 10,
2015 date, Lopez argues he should have received credit for that time period.
       The Board responds that Lopez has waived any claim that the Board did not
properly credit him for time spent solely on its warrant following the withdrawal of
his criminal charges in December 2015 because he did not raise it before the Board
in either of his challenges to the December 11, 2017 Decision. The Board points out
that had Lopez raised this issue before it, the Board could have addressed it and
obtained documentation clarifying Lopez’s release from the Philadelphia County
Prison. (Board’s Brief at 7 n.1.) On the merits, the Board asserts the record shows
that the criminal charges at issue were withdrawn on December 10, 2015, that the


       2
         Our review in parole revocation cases “is limited to a determination of whether necessary
findings are supported by substantial evidence, [whether] an error of law was committed, or
whether constitutional rights of the parolee were violated.” Johnson v. Pa. Bd. of Prob. & Parole,
706 A.2d 903, 904 (Pa. Cmwlth. 1998).


                                                4
Board lifted its detainer on December 11, 2015, and the Board sent that notice to the
Philadelphia County Prison. According to the Board, Lopez’s arguments that he was
confined any time past December 11, 2015, are based on speculation, which does
not warrant reversal of its Order.
      Upon reviewing Lopez’s various appeal documents challenging the Board’s
December 11, 2017 Decision, we must agree with the Board that Lopez did not
preserve this issue for appellate review. Section 703(a) of the Administrative
Agency Law provides that, although a party is not precluded from raising a question
about the validity of a statute in an appeal, a “party may not raise upon appeal any
other question not raised before the agency.” 2 Pa. C.S. § 703(a). Rule 1551(a) of
the Pennsylvania Rules of Appellate Procedure similarly provides, with several
exceptions not applicable here, that “[n]o question shall be heard or considered by
the court which was not raised before the government unit.” Pa.R.A.P. 1551(a). The
Board’s regulations require that issues must be “present[ed] with accuracy, brevity,
clearness and specificity.” 37 Pa. Code § 73.1(a)(3), (b)(2). “[I]ssues not raised . . .
before the Board in an administrative appeal are waived for purposes of appellate
review by this [C]ourt.” McCaskill v. Pa. Bd. of Prob. & Parole, 631 A.2d 1092,
1094-95 (Pa. Cmwlth. 1993).
      In his two challenges, Lopez asserted multiple allegations related to the Board
impermissibly extending his judicially imposed sentence, violating double jeopardy
and due process principles, and forcing him to enter into an illegal contract, which
was not enforceable. (C.R. at 134, 139-45.) Lopez did not assert any specific
sentence credit challenges in those documents. Lopez did check the “Sentence
Credit Challenge” box on his August 2018 administrative remedies form, but did not
expressly challenge the Board’s credit determination other than his contention that



                                           5
the Board impermissibly extended his judicially imposed sentence when it
recalculated his maximum date. Lopez does not reference in those documents the
time he spent in the Philadelphia County Prison, nor assert that the credit calculations
were wrong, and does not request that he receive additional credit against his original
sentence for the period until December 15, 2015. Therefore, Lopez’s request for an
additional five days of credit is “waived for purposes of appellate review by this
[C]ourt.” McCaskill, 631 A.2d at 1094-95. See Headley v. Pa. Bd. of Prob.
& Parole (Pa. Cmwlth., No. 2553 C.D. 2015, filed May 2, 2017), slip op. at 6
(holding that issues neither expressly nor impliedly raised in a parolee’s appeal to
the Board were waived).3 Accordingly, we are constrained to affirm the Board’s
Order.4



                                               _____________________________________
                                               RENÉE COHN JUBELIRER, Judge




       3
          Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, an unreported
opinion of this Court may be cited for its persuasive value. 210 Pa. Code § 69.414(a).
        4
          We note that, on this record, it appears clear that the Board did not cancel its warrant until
December 11, 2015, so that is the earliest day Lopez could have been released from confinement,
even though the criminal charges against Lopez were withdrawn on December 10, 2015. It appears
that Lopez was not given confinement credit for that day. Thus, the Board should consider
revisiting its use of the December 10, 2015 date as the last day Lopez remained confined on its
warrant. We question the Board’s refusal to consider a challenge to the crediting of time which
refusal could result in unnecessary incarceration.


                                                   6
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Sergio Lopez,                           :
                        Petitioner      :
                                        :
                  v.                    :   No. 768 C.D. 2019
                                        :
Pennsylvania Board of                   :
Probation and Parole,                   :
                        Respondent      :

                                     ORDER


      NOW, February 20, 2020, the Order of the Pennsylvania Board of Probation
and Parole (Board), entered in the above-captioned matter, is AFFIRMED.



                                      _____________________________________
                                      RENÉE COHN JUBELIRER, Judge
