              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Qaadir Abdul-Aleem,                     :
                 Petitioner             :
                                        :
            v.                          :
                                        :
Pennsylvania Board of                   :
Probation and Parole,                   :   No. 1173 C.D. 2019
                  Respondent            :   Submitted: January 31, 2020


BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                 FILED: April 22, 2020



            Qaadir Abdul-Aleem (Abdul-Aleem) petitions this Court for review of
the Pennsylvania Board of Probation and Parole’s (Board) June 27, 2019 order
denying his request for administrative relief. Abdul-Aleem presents three issues for
this Court’s review: (1) whether the Board improperly extended Abdul-Aleem’s
judicially imposed sentence by recommitting him to serve the balance of his original
sentence; (2) whether the Board failed to properly credit him for the time he served
on his parole detainer for his county sentence and for his time spent at liberty on
parole; and (3) whether the Board abused its discretion by improperly applying the
presumptive range for backtime to be served. After review, we affirm.
            On October 17, 2012, Abdul-Aleem pled guilty to charges of Drug
Manufacture/Sale/Delivery or Possession with Intent to Deliver and was sentenced to
2½ to 5 years of incarceration (Original Sentence). See Certified Record (C.R.) at 1.
On April 15, 2015, Abdul-Aleem was released on parole from his Original Sentence.
See C.R. at 4-8. At that time, his maximum release date was September 10, 2017.
See C.R. at 6. On January 9, 2017, the Board issued a Warrant to Commit and Detain
Abdul-Aleem after he was arrested and charged with criminal offenses. See C.R. at
9. On February 23, 2017, the charges were dismissed. See C.R. at 22.
            On May 10, 2017, Abdul-Aleem was again arrested by police on new
criminal charges, and on May 11, 2017, the Board issued a Warrant to Commit and
Detain him. See C.R. at 25, 27. Abdul-Aleem waived his right to a detention
hearing, and, while in the Philadelphia County Prison, Abdul-Aleem received a Board
decision recorded July 27, 2017 detaining him pending disposition of the criminal
charges. See C.R. at 37. On June 21, 2018, Abdul-Aleem pled guilty to charges of
Manufacture, Delivery or Possession with Intent to Manufacture or Deliver a
Controlled Substance and was sentenced to 6 to 18 months of incarceration from
which he was immediately paroled. See C.R. at 47. In addition, he was sentenced to
two years of probation. See id. On July 5, 2018, the Board issued another Warrant to
Commit and Detain Abdul-Aleem, and he was transferred to State Correctional
Institution (SCI) at Graterford. See C.R. at 38. On August 14, 2018, Abdul-Aleem
waived his rights to counsel and a hearing, and admitted that his new conviction
violated his parole. See C.R. at 39. By decision recorded on October 29, 2018
(mailed November 6, 2018) (November 6, 2018 Decision), the Board formally
recommitted Abdul-Aleem as a convicted parole violator (CPV) to serve his
unexpired term of 2 years, 3 months and 11 days, and recalculated his Original
Sentence maximum release date to October 15, 2020. See C.R. at 78.
            On November 30, 2018, Abdul-Aleem filed a Petition for Administrative
Review (Petition) which the Board denied on June 27, 2019. See C.R. at 83-84, 95-




                                         2
96. In its response to Abdul-Aleem’s Petition, the Board explained:

              [T]he Board recalculated your max[imum sentence release]
              date to October 15, 2020 based on your recommitment as a
              [CPV] . . . .
              . . . the Board properly recalculated your maximum
              sentence. You were paroled from a[n] [SCI] on April 15,
              2015 with a max[imum sentence release] date of September
              10, 2017 leaving you with 879 days remaining on your
              sentence the day you were released. You were arrested
              May 11, 2017 by local authorities in Philadelphia County
              and a [B]oard detainer was lodged the same day; there is no
              indication you posted bail prior to your original max[imum
              sentence release] date of September 10, 2017. On June 21,
              2018, you were sentenced in a Philadelphia County Court of
              Common Pleas to a new term of incarceration to be served
              in the county. Based on these facts, you are not entitled to
              any pre-sentence credit because you were never solely
              incarcerated on the [B]oard detainer from the date of your
              arrest to your sentencing date. You are, however, entitled
              to confinement credit for 46 days from January 9, 2017 to
              February 24, 2017. Subtracting 46 from 879 days leaves
              you with 833 days remaining on your sentence.
              The Prisons and Parole Code [(Parole Code)] provides that
              [CPVs] who are released from a[n] [SCI] and receive a new
              sentence to be served in a county prison must serve the new
              sentence first. The record shows that you were paroled
              from your Philadelphia County sentence the day of
              sentencing, June 21, 2018, and a [B]oard detainer was
              subsequently re-lodged July 5, 2018. Thus, you did not
              become available to begin service of your original sentence
              until July 5, 2018. Adding 833 days you owe as a [CPV] to
              that availability date establishes a recalculated max[imum
              sentence release] date of October 15, 2020.

C.R. at 95-96 (citations omitted). Abdul-Aleem appealed to this Court.1


       1
         “Our scope of review of the Board’s decision denying administrative relief is limited to
determining whether necessary findings of fact are supported by substantial evidence, an error of
law was committed, or constitutional rights have been violated.” Johnson v. Pa. Bd. of Prob. &
Parole, 206 A.3d 88, 91 n.3 (Pa. Cmwlth. 2019) (quoting Fisher v. Pa. Bd. of Prob. & Parole, 62
A.3d 1073, 1075 n.1 (Pa. Cmwlth. 2013)).
                                               3
             Abdul-Aleem first contends that the Board exceeded its authority by
modifying a judicially imposed sentence. Specifically, Abdul-Aleem asserts that “the
[Board] does not have proper jurisdiction to impose the additional backtime and thus
alter his judicially[ ]imposed original maximum release date.” Abdul-Aleem Br. at
11 (emphasis added). He further argues that “[t]he judicial termination date of
September 10, 2017 creates an additional liberty interest for Abdul-Aleem, and any
extension of prison time beyond the judicially[ ]imposed termination date requires
minimum due process in a venue of competent jurisdiction to ensure that said
liberties are not abrogated.” Id. at 14. Thus, Abdul-Aleem appears to assert that
when recalculating his maximum release date, the maximum sentence date rather
than the maximum sentence length controls.
             Initially, Section 6138(a)(1) of the Parole Code provides:

             A parolee under the jurisdiction of the [B]oard 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 [B]oard be
             recommitted as a parole violator.

61 Pa.C.S. § 6138(a)(1). Section 6138(a)(2) of the Parole Code requires that if the
Board orders a parolee to be recommitted, that parolee must serve the remainder of
the term which he would have been compelled to serve had the parole not been
granted and shall not receive credit for the time at liberty on parole unless the Board,
in its discretion, awards such credit. 61 Pa.C.S. § 6138(a)(2); see also 61 Pa.C.S. §
6138(a)(2.1).
             This Court acknowledges that “the Board is not permitted to impose
backtime which exceeds the entire remaining balance of [a] parolee’s unexpired term.
The Board can only require that a parolee serve the remaining balance of his

                                           4
unexpired term since the Board does not have the power to alter a judicially[
]imposed sentence.” Yates v. Pa. Bd. of Prob. & Parole, 48 A.3d 496, 502 (Pa.
Cmwlth. 2012) (quoting Savage v. Pa. Bd. of Prob. & Parole, 761 A.2d 643, 645 (Pa.
Cmwlth. 2000) (citation omitted)). The Pennsylvania Supreme Court has specifically
held that the Board’s authority to extend maximum term expiration dates under such
circumstances does not usurp the courts’ sentencing functions, or violate a parolee’s
due process rights. See Gaito v. Pa. Bd. of Prob. & Parole, 412 A.2d 568 (Pa. 1980).
Accordingly, here, when the Board imposed backtime, it did not modify a judicially
imposed sentence, but instead, required Abdul-Aleem to serve the remainder of the
original judicially imposed sentence. Thus, Abdul-Aleem’s argument fails.
            Abdul-Aleem next argues that the Board failed to properly allocate
credit for time he served on his parole detainer for his county sentence and for his
time spent at liberty on parole. Specifically, Abdul-Aleem contends:

            Abdul-Aleem was in fact paroled on June 21, 2018 for his
            new conviction of Possession with Intent to Deliver . . . and
            then was available to serve the balance of his [O]riginal
            [S]entence. The Board must comply with . . . Martin [v. Pa.
            Bd. of Prob. & Parole, 840 A.2d 299, 309 (Pa. 2003)] . . .
            wherein the Commonwealth Court [sic] indicated that
            [p]etitioner is entitled to time credit for all the time
            incarcerated that is not attributable to the new sentence.
            Abdul-Aleem, therefore asserts that the excess credit
            extending from June 21, 2018 forward should be applied to
            his [O]riginal [S]entence.

Abdul-Aleem Br. at 15. The Board responds:

            Abdul-Aleem’s reliance on [Martin] is misplaced because
            the Martin exception to Gaito only applies where an
            individual is acquitted of the new charges or no new
            sentence is imposed, and in cases where the time spent in
            pre-sentence custody exceeds the length of the new
            sentence.


                                         5
             Because Abdul-Aleem was sentenced to county prison
             for his new crime he was required to serve the new
             sentence before his [O]riginal [S]entence. Further, the
             new sentence must be served consecutively to the [O]riginal
             [S]entence. Thus, Abdul-Aleem could not resume serving
             his [O]riginal [S]entence until he was released from his new
             county sentence, either on parole, or at the expiration of his
             maximum date.

Board Br. at 7-8 (emphasis added; citations and footnotes omitted).
             “Pursuant to Gaito, ‘this Court consistently held that once a parolee is
sentenced on a new criminal offense, the period of time between arrest and
sentencing, when bail is not satisfied [on the new criminal charge], must be applied
toward the new sentence, and not to the original sentence.’” Stroud v. Pa. Bd. of
Prob. & Parole, 196 A.3d 667, 674 (Pa. Cmwlth. 2018) (quoting Armbruster v. Pa.
Bd. of Prob. & Parole, 919 A.2d 348, 352 (Pa. Cmwlth. 2007)). “The sole exception
to Gaito’s general rule, set forth in Martin, allows pre-sentence credit to be applied to
the original sentence ‘when [an] offender is incarcerated both on Board detainer and
for new charges and receives new sentence of imprisonment that is shorter than [the]
term of [the] pre-sentence incarceration[.]’” Stroud, 196 A.3d at 676 n.16 (quoting
Smith v. Pa. Bd. of Prob. & Parole, 171 A.3d 759, 761 n.6 (Pa. 2017)).
             Section 6138(a)(5) of the Parole Code provides:

             If a new sentence is imposed on the parolee, the service of
             the balance of the term originally imposed by a
             Pennsylvania court shall precede the commencement of the
             new term imposed in the following cases:
               (i) If a person is paroled from a[n] [SCI] and the new
               sentence imposed on the person is to be served in the
               [SCI].
               (ii) If a person is paroled from a county prison and the
               new sentence imposed upon him is to be served in the
               same county prison.



                                           6
                  (iii) In all other cases, 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) (emphasis added). Given that Abdul-Aleem was sentenced
to a county prison for his new conviction, Section 6138(a)(5) of the Parole Code
required him to serve the new sentence before his Original Sentence. As the Board
explained in its June 27, 2019 Order:

                [Abdul-Aleem was] paroled from [his] Philadelphia County
                sentence the day of sentencing, June 21, 2018, and a
                [B]oard detainer was subsequently re-lodged July 5, 2018.
                Thus, [he] did not become available to begin service of [his]
                Original Sentence until July 5, 2018. Adding 833 days [he]
                owe[d] as a [CPV] to that availability date establishe[d] a
                recalculated max[imum sentence release] date of October
                15, 2020.

C.R. at 96. This Court agrees and concludes that the Board properly allocated Abdul-
Aleem’s time served in accordance with Section 6138(a)(5) of the Parole Code.
                Further, Abdul-Aleem contends that the Board erred and abused its
discretion by denying him credit for street time and failing to state sufficient reasons
for doing so.
                “[T]he Board must articulate the basis for its decision to grant or deny a
CPV credit for time served at liberty on parole.” Pittman v. Pa. Bd. of Prob. &
Parole, 159 A.3d 466, 474 (Pa. 2017).

                The [Pennsylvania] Supreme Court noted [in Pittman] that
                ‘the reason the Board gives does not have to be extensive
                and a single sentence explanation is likely sufficient in most
                instances.’ Id. at 475 n.12. The [Board] must issue a
                contemporaneous statement of reasons as to why it denied a
                [CPV] credit for time spent at liberty on parole; where the
                Board fails to do so, this Court will remand for the Board to
                set forth its reasons.




                                              7
Smoak v. Talaber, 193 A.3d 1160, 1164 (Pa. Cmwlth. 2018) (emphasis added). Here,
the Board explained in its November 6, 2018 Decision its reason for denying Abdul-
Aleem credit for time spent at liberty on parole, as “NEW CONVICTION
SAME/SIMILAR TO ORIGINAL OFFENSE.”                   C.R. at 65; see also C.R. at 50. The
Board’s explanation adequately supports its denial and is sufficient to explain the
Board’s action. See Barnes v. Pa. Bd. of Prob. & Parole, 203 A.3d 382, 390-91 (Pa.
Cmwlth. 2019) (concluding that the Board’s explanation that the “new conviction
was ‘same/similar to the original offense’” provided “sufficient explanation for the
Board’s decision to deny . . . credit”). Accordingly, the Board properly denied
Abdul-Aleem credit for time at liberty on parole and stated sufficient reasons for
doing so.
               Finally, Abdul-Aleem asserts that the Board abused its discretion by
improperly applying the presumptive range for backtime. Abdul-Aleem pled guilty
to a felony charge of “Manufacture, Delivery, or Possession with Intent to
Manufacture or Deliver” involving heroin, in violation of Section 13 of the
Controlled Substance, Drug, Device and Cosmetic Act (Controlled Substances Act).2
See C.R. at 47. Under section 4(1)(ii) of The Controlled Substances Act, 35 P.S. §
780-104(1)(ii), heroin is classified as a Schedule I drug.                Section 13(f) of the
Controlled Substances Act provides:

               Any person who violates clause . . . (30) of subsection (a)
               with respect to:
                  (1) A controlled substance or counterfeit substance
                  classified in Schedule I or II which is a narcotic drug, is
                  guilty of a felony and upon conviction thereof shall be
                  sentenced to imprisonment not exceeding [15] years, or
                  to pay a fine not exceeding two hundred fifty thousand
                  dollars ($250,000), or both or such larger amount as is


      2
          Act of April 14, 1972, P.L. 233, as amended, 35 P.S. § 780-113(a)(30).
                                                 8
               sufficient to exhaust the assets utilized in and the profits
               obtained from the illegal activity.

35 P.S. § 780-113(f) (emphasis added). Thus, Abdul-Aleem’s crime was punishable
by a maximum 15-year imprisonment penalty.
            Section 75.1 of the Board’s Regulations entitled “Application of
presumptive ranges to [CPVs]” states:

            (a) Presumptive ranges of parole backtime to be served will
            be utilized if a parolee is convicted of a new criminal
            offense while on parole and the Board orders recommitment
            as a convicted parole violator after the appropriate
            revocation hearing.
            (b) The presumptive ranges of parole backtime are
            intended to structure the discretion of the Board while
            allowing for individual circumstances in terms of mitigation
            and aggravation to be considered in the final decision.
            (c) The Board may deviate from the presumptive range or
            determine that recommitment should not occur, provided
            written justification is given.
            (d) The presumptive ranges are intended to directly relate
            to the severity of the crime for which the parolee has been
            convicted.
            (e) The severity ranking of crimes listed in § 75.2 (relating
            to presumptive ranges for convicted parole violations) is not
            intended to be exhaustive, and the most closely related
            crime category in terms of severity and the presumptive
            range will be followed if the specific crime which resulted
            in conviction is not contained within the listing.

37 Pa. Code § 75.1. Section 75.2 of the Board’s Regulations provides that the
presumptive range for felony drug violations with a maximum 15-year imprisonment
penalty is 24 to 36 months. 37 Pa. Code § 75.2. Our Supreme Court has explained
that “[a]s long as the period of recommitment is within the presumptive range for the
violation, the Commonwealth Court will not entertain challenges to the propriety of
the term of recommitment.” Smith v. Commonwealth, 574 A.2d 558, 560 (Pa. 1990).

                                           9
Here, Abdul-Aleem’s 27-month and 11-day recommitment term falls within the 24-
to 36-month presumptive range, and accordingly, this Court “will not entertain [the]
challenge[] to the propriety of the [recommitment term].” Id.
            For all of the above reasons, the Board’s order is affirmed.



                                      ___________________________
                                      ANNE E. COVEY, Judge




                                         10
              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Qaadir Abdul-Aleem,                     :
                 Petitioner             :
                                        :
            v.                          :
                                        :
Pennsylvania Board of                   :
Probation and Parole,                   :   No. 1173 C.D. 2019
                  Respondent            :


                                     ORDER

            AND NOW, this 22nd day of April, 2020, the Pennsylvania Board of
Probation and Parole’s June 27, 2019 order is affirmed.



                                      ___________________________
                                      ANNE E. COVEY, Judge
