                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jerome Abdul Kemp,                                :
                               Petitioner         :
                                                  :
                       v.                         :
                                                  :
Pennsylvania Board of                             :
Probation and Parole,                             :   No. 206 C.D. 2016
                               Respondent         :   Submitted: October 28, 2016


BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                           FILED: January 12, 2017

               Jerome Abdul Kemp (Kemp) petitions this Court for review of the
Pennsylvania Board of Probation and Parole’s (Board) February 1, 2016 decision
denying his request for administrative relief. Kemp presents two issues for this
Court’s review: (1) whether the Board improperly modified Kemp’s judicially-
imposed sentence by changing his maximum sentence release date; and (2) whether
the Board abused its discretion by failing to give Kemp credit for the time he spent at
liberty on parole, specifically the 3 months he spent in a treatment facility and the 19
months and 20 days he was incarcerated in the county jail.1 After review, we vacate
the Board’s order and remand this case to the Board.

       1
        In the “Statement of the Question[s] Involved” and “Argument” sections of Kemp’s brief,
he added that the Board should have considered his cooperation with authorities in solving a murder
case. Kemp Br. at 8, 14. However, since there is no mention of the cooperation in Kemp’s request
for administrative relief to the Board, or in his Petition for Review filed with this Court, the issue of
whether the Board abused its discretion by not giving consideration to Kemp’s cooperation is
waived. See Reavis v. Pa. Bd. of Prob. & Parole, 909 A.2d 28 (Pa. Cmwlth. 2006).
              Kemp is currently an inmate incarcerated at the State Correctional
Institution at Graterford. On April 30, 2010, the Board voted to parole Kemp from a
6½ to 13-year sentence for drug offenses (Original Sentence).2 At that time, his
maximum sentence release date was July 27, 2012. Before his May 2, 2010 parole
release, Kemp agreed to conditions governing his parole, including:

              If you are convicted of a crime committed while on parole
              /reparole, the Board has the authority, after an appropriate
              hearing, to recommit you to serve the balance of the
              sentence or sentences which you were serving when
              paroled/reparoled, with no credit for time at liberty on
              parole.

Certified Record (C.R.) at 43.
              On December 7, 2010, the Norristown Police Department arrested Kemp
on firearms, receiving stolen property, recklessly endangering another person and
simple assault charges (New Charges). That same date, the Board lodged a warrant
to commit and detain Kemp based on the New Charges. The Board lifted its detainer
on July 27, 2012, Kemp’s Original Sentence maximum release date. On August 15,
2012, Kemp posted bail on the New Charges.
              On November 26, 2013, Kemp pled guilty to the December 7, 2010
firearms charge and was sentenced to 1 to 12 months’ incarceration in county prison.
On July 7, 2015, the Board re-lodged its warrant to commit and detain Kemp. On
July 9, 2015, the Board provided Kemp with a notice of charges and notice of the
Board’s intent to hold a parole revocation hearing. On July 20, 2015, the Board held
the revocation hearing at the Montgomery County prison. On August 13 and October
4, 2015, the Board members voted to recommit Kemp as a convicted parole violator
(CPV), and to deny him credit for time spent at liberty on parole. By decision


       2
        Although the Board voted on April 30, 2010 to parole Kemp, his actual release date was
May 2, 2010. Thus, May 2, 2010 is the date used for credit calculation purposes.
                                              2
recorded October 16, 2015 (mailed November 3, 2015), the Board recommitted
Kemp as a CPV to serve 18 months’ backtime, and recalculated his maximum
sentence release date to October 1, 2017. 3
              On November 17, 2015, Kemp submitted pro se an administrative appeal
challenging the Board’s decision recorded October 16, 2015 (mailed November 3,
2015) recommitting Kemp as a CPV.               On February 1, 2016, the Board denied
Kemp’s request for administrative relief. Kemp appealed to this Court.4
              Kemp first argues that the Board improperly modified Kemp’s
judicially-imposed sentence by changing his maximum sentence release date.
              This Court recognizes that “[t]he Board can only require that a parolee
serve the remaining balance of his 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)). However, “when a parolee is recommitted due
to criminal conviction, his maximum sentence date may be extended to account for
all street-time,[5] regardless of good or delinquent standing.” Richards v. Pa. Bd. of
Prob. & Parole, 20 A.3d 596, 599 (Pa. Cmwlth. 2011). 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. &

       3
          The Board calculated Kemp’s new maximum sentence release date by subtracting his
parole date (May 2, 2010) from his Original Sentence maximum release date (July 27, 2012), which
left 817 days Kemp owed toward his backtime. Adding 817 days to the Board’s warrant date (July
7, 2015) resulted in Kemp’s October 1, 2017 maximum sentence release date.
        4
          “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.” Fisher v. Pa. Bd. of Prob. &
Parole, 62 A.3d 1073, 1075 n.1 (Pa. Cmwlth. 2013).
        5
          “‘Street time’ is a term for the period of time a parolee spends at liberty on parole.”
Dorsey v. Pa. Bd. of Prob. & Parole, 854 A.2d 994, 996 n.3 (Pa. Cmwlth. 2004).
                                                3
Parole, 412 A.2d 568 (Pa. 1980).6            Thus, the Board’s recalculation of Kemp’s
maximum sentence release date did not improperly alter his judicially-imposed
sentence.
              Kemp next contends that the Board abused its discretion when it failed
to give Kemp credit for the time he spent at liberty on parole, specifically the 3
months he was in a treatment facility and the 19 months and 20 days he spent
incarcerated in county jail.
              Initially, Section 6138(a) of the Parole Code states, in relevant part:

              Convicted violators.--
              (1) 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.
              (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
       6
         The Parole Code was consolidated and became effective on October 13, 2009. Gaito was
based upon Section 21.1 of what was commonly known as the Parole Act, Act of August 6, 1941,
P.L. 861, as amended, added by Section 5 of the Act of August 24, 1951, P.L. 1401, formerly 61
P.S. § 331.21a(a), repealed by the Act of August 11, 2009, P.L. 147. Section 21.1(a) of the Parole
Act similarly stated:

              Any parolee under the jurisdiction of the [Board] released from any
              penal institution of the Commonwealth who, during the period of
              parole or while delinquent on parole, commits any crime punishable
              by imprisonment, for which . . . he pleads guilty . . . in a court of
              record, may, at the discretion of the [B]oard, be recommitted as a
              parole violator. If his recommitment is so ordered, he shall be
              reentered to serve the remainder of the term which said parolee
              would have been compelled to serve had he not been paroled, and
              he shall be given no credit for the time at liberty on parole . . . .
(Emphasis added).
                                                4
            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 [B]oard 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 [Section 9714(g) of the Sentencing
                Code,] 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 [S]ection
                6143 [of the Parole Code] (relating to early parole
                of inmates subject to Federal removal order).

61 Pa.C.S. § 6138(a) (text emphasis added).

            Hence, the Board’s exercise of discretion under [S]ection
            6138(a) of the Parole Code is two-fold. First, the Board
            must determine whether to recommit a parole violator.
            Second, when recommitment is so ordered, the parolee shall
            be reentered to serve the remainder of the term, but the
            Board may, in its discretion, award the parolee credit.

Pittman v. Pa. Bd. of Prob. & Parole, 131 A.3d 604, 609 (Pa. Cmwlth.) (emphasis
added), appeal granted, 137 A.3d 572 (Pa. 2016).
            This Court has held that where the Board has been presented with the
choice to award a parolee street time credit, the Board exercises its discretion by
checking the “no” box on the hearing report. Pittman. This Court explained:

            Based upon its plain language, there are no statutory
            standards in [S]ection 6138(a)(2.1) of the Parole Code that
            define or curtail how, when, or in what manner discretion
            should or must be exercised. It is well-settled that this
            Court cannot supply such guideposts as a matter of judicial
            construction. Commonwealth v. Rieck Inv[.] Corp., . . . 213
                                         5
              A.2d 277, 282 ([Pa.] 1965) (‘[I]t is not for the courts to add,
              by interpretation, to a statute, a requirement which the
              legislature did not see fit to include.’). Ultimately, the
              absence of statutory standards further supports the
              conclusion that the Board’s checking of ‘no’ on the hearing
              report demonstrates that the Board fully exercised the
              discretion that the legislature afforded to it under [S]ection
              6138 of the Parole Code. Therefore, [the] argument that the
              Board failed to exercise discretion is refuted by the record
              and the statutory language and scheme contained in
              [S]ection 6138 of the Parole Code.

Pittman, 131 A.3d at 611.
              Here, because the Board checked the “no” box on Kemp’s hearing
report, it clearly exercised its discretion when it determined that Kemp was not
entitled to credit for his time at liberty on parole. See C.R. at 113. Accordingly, the
Board did not abuse its discretion by failing to credit Kemp for the time he spent at
liberty on parole.
              Kemp also asserts that the Board abused its discretion by failing to
award him credit for the time he spent at the Gaudenzia House West Chester
(Gaudenzia House), a residential drug and alcohol treatment facility.7
              The law is well-settled that a parolee may be entitled to backtime credit
for time spent in a residential facility if the inmate demonstrates that the residential
facility’s characteristics are equivalent to incarceration. Cox v. Pa. Bd. of Prob. &
Parole, 493 A.2d 680 (Pa. 1985); see also Harden v. Pa. Bd. of Prob. & Parole, 980
A.2d 691 (Pa. Cmwlth. 2009) (en banc).              Notwithstanding, the Board failed to
address Kemp’s time spent at Gaudenzia House. Further, since the Board did not
hold a hearing, there is no record evidence on which the Board could or this Court
can consider Gaudenzia House’s custodial nature. “We are therefore left with the


       7
        The Board claims that Kemp has waived this issue by not raising it before the Board. See
Board Br. at 8-9. However, our review of Kemp’s request for administrative relief reveals that
Kemp raised this issue to the Board. See C.R. at 128.
                                               6
need for a factual determination as to the nature of the [Gaudenzia House] program
and whether the restrictions on [Kemp’s] liberty there were the equivalent of
incarceration entitling him to credit for the time spent in the program.” Cox, 493
A.2d at 683.         Under circumstances in which the Board has not provided a
sufficiently-developed record, remand is appropriate. See Cox; see also McNally v.
Pa. Bd. of Prob. & Parole, 940 A.2d 1289 (Pa. Cmwlth. 2008). Thus, we remand
this matter to the Board to conduct an evidentiary hearing to determine whether
Gaudenzia House’s restrictions were equivalent to incarceration.8
                Finally, Kemp argues that the Board abused its discretion when it failed
to credit him for the 19 months and 20 days he spent incarcerated in county jail on the
Board’s detainer.9
                “[W]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 or the original sentence.” Martin v. Pa. Bd. of Prob. & Parole, 840 A.2d
299, 309 (Pa. 2003) (emphasis added). Further,

                [our] Supreme Court held that ‘time spent in custody
                pursuant to a detainer warrant shall be credited to a
                convicted parole violator’s original term . . . only when the
                parolee was eligible for and had satisfied bail

       8
           In Cox, the Pennsylvania Supreme Court emphasized:

                It is appellant’s burden, on remand, to show the specific
                characteristics of the . . . program that constituted restrictions on his
                liberty sufficient to warrant credit on his recomputed backtime, and
                persuade the Board of that fact. . . .

                [T]he Board must help in providing a record which makes effective
                appellate review possible.
Id. at 683.
        9
          The Board agrees that Kemp was not properly credited for his pre-trial custodial time and
thus requests a remand for the Board to properly credit Kemp and recalculate his Original Sentence
maximum release date.


                                                   7
              requirements for the new offense and thus remained
              incarcerated only by reason of the detainer warrant
              lodged against him.’ Gaito, . . . 412 A.2d at 571 (quoting
              Rodriques v. [Pa.] [Bd.] of Prob[.] [&] Parole, . . . 403
              A.2d 184, 185-86 ([Pa. Cmwlth.] 1979)) (emphasis added).

Armbruster v. Pa. Bd. of Prob. & Parole, 919 A.2d 348, 352 (Pa. Cmwlth. 2007)
(bold emphasis added).
              Here, because the Board lodged its detainer on the same day that Kemp
was arrested on the New Charges, and Kemp did not post bail until after the detainer
was lifted, Kemp was never detained solely on the Board’s warrant.                      However,
because Kemp’s new sentence maximum of 1 year, is shorter than the time he spent
in custody awaiting trial on the New Charges, Kemp is entitled to credit toward his
Original Sentence under Martin. Thus, subtracting a year (365 days) from the 19
months and 20 days (598 days) Kemp spent in pre-trial custody, results in 7 months
and 20 days (233 days) for which Kemp is entitled to credit on his Original Sentence.
Accordingly, we remand this matter to the Board to properly credit Kemp for his pre-
trial custodial time and recalculate his Original Sentence maximum release date.
              For all of the above reasons, the Board’s order is vacated, and the matter
is remanded to the Board to conduct an evidentiary hearing to determine whether
Kemp should be awarded credit for his time spent at Gaudenzia House, and for the
Board to recalculate Kemp’s Original Sentence maximum release date based on
credit for Kemp’s time spent at Gaudenzia House, if warranted, and his pre-trial
custodial time.10


                                            ___________________________
                                            ANNE E. COVEY, Judge

       10
           It appears, upon recalculation for the time Kemp spent in pre-trial custody, that Kemp’s
new Original Sentence maximum release date will be near by the time this matter is remanded to the
Board. If the Board determines that such is the case, this Court directs that Kemp’s release date is
not to be delayed by the scheduling and holding of an evidentiary hearing on his Cox issue.
                                                 8
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jerome Abdul Kemp,                          :
                         Petitioner         :
                                            :
                   v.                       :
                                            :
Pennsylvania Board of                       :
Probation and Parole,                       :   No. 206 C.D. 2016
                         Respondent         :



                                      ORDER

            AND NOW, this 12th day of January, 2017, the Pennsylvania Board of
Probation and Parole’s (Board) February 1, 2016 decision is vacated, and the matter
is remanded to the Board for further proceedings consistent with this opinion.
            Jurisdiction is relinquished.


                                       ___________________________
                                       ANNE E. COVEY, Judge
