           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


John J. Perry,                          :
                                        : No. 682 C.D. 2015
                         Petitioner     : Submitted: November 6, 2015
                                        :
                   v.                   :
                                        :
Pennsylvania Board of Probation         :
and Parole,                             :
                                        :
                         Respondent     :


BEFORE:      HONORABLE BERNARD L. McGINLEY, Judge
             HONORABLE ROBERT SIMPSON, Judge
             HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY SENIOR JUDGE FRIEDMAN                            FILED: January 28, 2016


             John J. Perry petitions for review of the March 27, 2015, determination
of the Pennsylvania Board of Probation and Parole (Board) denying Perry’s petition
for administrative review of the Board’s February 6, 2015, decision that recalculated
his parole violation maximum date to May 14, 2016. We affirm.


             Between March 5, 1998, and March 19, 1998, Perry was convicted of
criminal attempt – unlawful use of computers, criminal attempt – theft, unlawful use
of computers, and receiving stolen property. (C.R. at 1.) Perry was sentenced to 3 to
12 years’ imprisonment with a parole violation maximum date of August 2, 2009.
(Id.) Following Perry’s initial release on parole, the Board recommitted and paroled
Perry several times, increasing his parole violation maximum date each time.


             On October 19, 2012, while on parole from the state correctional
institution at Dallas (SCI-Dallas), Perry was arrested and detained on new criminal
charges docketed in the Court of Common Pleas of Lackawanna County (trial court).
(Id. at 82.) On November 20, 2013, the Board recommitted Perry as a technical
parole violator. (Id. at 66-68.) That same day, Perry was moved back to SCI-Dallas.
(Id. at 102.) On December 18, 2013, the trial court granted Perry bail, but Perry
remained confined on the Board’s detainer. (Id. at 82, 102.)


             On March 20, 2014, Perry pled guilty to the new criminal charges. (Id.
at 84.) On May 21, 2014, the trial court sentenced Perry to 6 to 12 months in prison.
(Id.) Also on May 21, 2014, Perry returned to SCI-Dallas after his sentencing. (Id. at
102.) On July 14, 2014, the Board recommitted Perry as a convicted parole violator
(CPV) to serve nine months’ backtime for his conviction of crimes in Lackawanna
County, pending completion of and parole from his 6-to-12-month sentence. (Id. at
104-05.) On January 23, 2015, the trial court ordered Perry released and paroled to
the Board’s detainer. (Id. at 87.)


             In a decision mailed February 23, 2015, the Board recalculated Perry’s
parole violation maximum date for his original sentence to May 14, 2016. (Id. at
108.) On March 13, 2015, Perry submitted a petition for administrative review
objecting to the Board’s February 23, 2015, decision recalculating his parole




                                          2
violation maximum date. By response mailed March 27, 2015, the Board denied
Perry’s petition for administrative review. Perry now petitions this court for review.1


              First, Perry argues that he is due credit on his original sentence for the
time he was incarcerated at SCI-Dallas between May 21, 2014, and August 26, 2014,
because he was never transferred to a county prison to serve his new 6-to-12-month
sentence. We disagree.


              Section 9762(a)(3) of the Judicial Code, 42 Pa. C.S. §9762(a)(3),
provides that sentences with maximum terms of less than two years shall be served at
a county prison within the trial court’s jurisdiction. Section 6138(a)(5) of the Prisons
and Parole Code (Parole Code) provides:


              (5) 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 State correctional
                     institution and the new sentence imposed on the
                     person is to be served in the State correctional
                     institution.

                     (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.



       1
         Our review is limited to determining whether constitutional rights were violated, whether
an error of law was committed or whether the necessary findings of fact are supported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.


                                                3
                      (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) (emphases added).


              Here, Perry completed his new 6-to-12-month sentence prior to
resuming his original sentence, as required by section 6138(a)(5)(iii) of the Parole
Code, 61 Pa. C.S. §6138(a)(5)(iii). Although the record does not indicate that Perry
served the new sentence in a county prison, Perry is not entitled to receive credit on
his original sentence for the period from May 21, 2014, to August 26, 2014, because
that time was properly credited to Perry’s new sentence that he was then serving. 2
Under section 6138(a)(5) of the Parole Code, an inmate cannot serve an original
sentence and a new sentence at the same time. Therefore, the Board did not err in not
crediting the time period of May 21, 2014, to August 26, 2014, to Perry’s original
sentence.


              Second, Perry argues that his due process rights were violated because
he was unable to petition for parole from his new sentence after he had served his
minimum term.3        We disagree.       A prisoner has neither a right to parole nor a
“constitutionally protected liberty interest in being released from confinement prior to

       2
         If Perry wished to object to his not being transferred to a county prison to serve his new
sentence, he should have filed a petition for writ of mandamus.

       3
         Perry also argues that he was denied due process because the trial court did not credit the
period from October 19, 2013, to December 18, 2013, to Perry’s new sentence until after he was
paroled from his new sentence. However, we need not address this issue because it is unrelated to
the order at issue.


                                                 4
the expiration of his or her maximum term.” Weaver v. Pennsylvania Board of
Probation and Parole, 688 A.2d 766, 770 (Pa. Cmwlth. 1997) (en banc). Here, Perry
was paroled from his new sentence before the sentence’s maximum 12-month term
expired. Why Perry did not apply for parole after serving the minimum 6-month term
is irrelevant because Perry had no right to parole. Therefore, Perry was not denied
due process.


               Accordingly, we affirm.




                                         ___________________________________
                                         ROCHELLE S. FRIEDMAN, Senior Judge




                                            5
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


John J. Perry,                          :
                                        : No. 682 C.D. 2015
                         Petitioner     :
                                        :
                  v.                    :
                                        :
Pennsylvania Board of Probation         :
and Parole,                             :
                                        :
                         Respondent     :




                                      ORDER


             AND NOW, this 28th day of January, 2016, we hereby affirm the March
27, 2015, determination of the Pennsylvania Board of Probation and Parole.



                                        ___________________________________
                                        ROCHELLE S. FRIEDMAN, Senior Judge
