              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Adam Matarese,                           :
                         Petitioner      :
                                         :
                   v.                    :
                                         :
Pennsylvania Board of                    :
Probation and Parole,                    :   No. 572 C.D. 2016
                         Respondent      :   Submitted: October 7, 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

            Adam Matarese (Matarese) petitions this Court for review of the
Pennsylvania Board of Probation and Parole’s (Board) March 29, 2016 order denying
his request for administrative relief. The sole issue before this Court is whether the
Board properly calculated Matarese’s new maximum sentence release date as March
29, 2017. After review, we affirm.
            Matarese is currently an inmate at State Correctional Institution-
Mahanoy. On April 28, 2014, the Board paroled Matarese from an 11 month, 8-day
to 3-year sentence for manufacturing/sale/delivery or possession with intent to deliver
a controlled substance (Original Sentence). At that time, his maximum sentence
release date was June 13, 2016. Before his June 30, 2014 release on parole, Matarese
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 7-9.
               On August 2, 2014, the Board lodged a warrant to commit and detain
Matarese for technical parole violations and arrested him. On November 3, 2014, the
Berks County Police Department arrested Matarese for Intentional Possession of a
Controlled Substance by a Person not Registered and the Berks County Common
Pleas Court (trial court) set bail for $25,000.00, which Matarese was unable to post.
On January 13, 2015, Matarese pled guilty to the Berks County charge, and the trial
court sentenced him to 6 to 23 months incarceration with a 7-day credit for January 7
to January 13, 2015.1 See C.R. at 69.
               On April 8, 2015, the Board provided Matarese with a notice of charges
and notice of the Board’s intent to hold a parole revocation hearing. On April 16,
2015, the Board held the revocation hearing, at which Matarese was represented by
counsel, and admitted to his Berks County conviction. That same date, the Board
panel voted to recommit Matarese as a convicted parole violator (CPV), and to grant
him credit for time he spent at liberty on parole.2 By decision recorded April 23,
2015 (mailed May 4, 2015), the Board formally recommitted Matarese as a CPV,
when available, pending completion of, or parole from, his Berks County sentence.
On August 19, 2015, Matarese was paroled from his Berks County sentence. By
October 19, 2015 recommitment order, based on his August 19, 2015 parole, the
Board recalculated Matarese’s Original Sentence maximum release date to March 29,
2017. By decision recorded on October 13, 2015 (mailed October 26, 2015), the

       1
        There is no explanation for the 7-day credit in the record.
       2
         Section 6138(a)(2.1) of the Parole Code provides: “The [B]oard may, in its discretion,
award credit to a parolee recommitted under paragraph (2) for the time spent at liberty on parole[.]”
61 Pa.C.S. § 6138(a)(2.1).


                                                 2
Board formally recommitted Matarese to serve 6 months backtime as a CPV with a
maximum sentence release date of March 29, 2017.
              The Board calculated Matarese’s new maximum sentence release date as
follows. When Matarese was released on parole on June 30, 2014, his Original
Sentence maximum release date was June 13, 2016 and, thus, he owed 714 days of
backtime towards his Original Sentence. The Board awarded Matarese 33 days credit
for his time spent at liberty on parole, leaving him with 681 days of backtime to serve
on his Original Sentence. Matarese received 93 days of credit for the period of
August 2, 2014 (when the Board lodged its warrant) to November 3, 2014 (when bail
was set on his Berks County charge but not posted). Crediting 93 days against 681
days of backtime resulted in Matarese owing 588 days of backtime toward his
Original Sentence. Matarese became available to begin serving the backtime on his
Original Sentence when he was released on parole from his Berks County sentence
on August 19, 2015. Adding 588 days to August 19, 2015 resulted in Matarese’s new
March 29, 2017 Original Sentence maximum release date.
              On November 16, 2015, Matarese submitted an Administrative
Remedies Form challenging the Board’s decision recorded on October 13, 2015
(mailed October 26, 2015), which formally recommitted Matarese as a CPV. On
March 29, 2016, the Board denied Matarese’s request for administrative relief.
Matarese appealed to this Court.3
              Matarese argues that the Board miscalculated his new maximum
sentence release date as March 29, 2017. Specifically, Matarese contends that the



       3
         “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).


                                               3
Board failed to give him credit for all time spent incarcerated solely on the Board’s
warrant. We disagree.
            Matarese was arrested on the Board’s warrant on August 2, 2014. He
was thereafter arrested in Berks County on November 3, 2014 at which time the trial
court set bail which Matarese did not post. “[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
            requirements for the new offense and thus remained
            incarcerated only by reason of the detainer warrant
            lodged against him.’ Gaito [v. Pa. Bd. of Prob. & Parole],
            . . . 412 A.2d [568,] 571 [(Pa. 1980)] (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). Thus, because Matarese did not post bail, the time he spent
incarcerated between November 3, 2014 (the date bail was set), until January 13,
2015 (the day he pled guilty and was sentenced on the Berks County charge), must be
credited to Matarese’s Berks County sentence.       Moreover, Section 9760 of the
Sentencing Code provides, in pertinent part:

            After reviewing the information submitted under [S]ection
            9737 [of the Sentencing Code] (relating to report of
            outstanding charges and sentences) the court shall give
            credit as follows:
            (1) Credit against the maximum term and any minimum
            term shall be given to the defendant for all time spent in
            custody as a result of the criminal charge for which a prison
                                          4
                 sentence is imposed or as a result of the conduct on which
                 such a charge is based. Credit shall include credit for
                 time spent in custody prior to trial, during trial, pending
                 sentence, and pending the resolution of an appeal.

42 Pa.C.S. § 9760 (emphasis added).
                 Because Matarese never posted bail on his Berks County charge, the
only time spent solely on the Board’s warrant was from August 2, 2014 to November
3, 2014. Since Matarese was properly credited for those 93 days, the Board did not
err in calculating his new Original Sentence maximum release date.4
                 For all of the above reasons, the Board’s order is affirmed.


                                               ___________________________
                                               ANNE E. COVEY, Judge




       4
           It appears that

                 [Matarese’s] sole basis for requesting credit from the Board is that he
                 was not given credit on his new sentence. Pursuant to Melhorn [v.
                 Pa. Board of Probation and Parole, 883 A.2d 1123 (Pa. Cmwlth.
                 2005)], and McCray [v. Department of Corrections, 872 A.2d 1127
                 (Pa. 2005)], where a sentencing court does not give an inmate full
                 credit for time served, the inmate’s remedy is in the trial court
                 and through the direct appeal process, not through the Board.

                 Under the facts presented here, we conclude that the Board properly
                 refused to apply [Matarese’s] pre-sentence confinement time towards
                 his [O]riginal [S]entence.
Armbruster, 919 A.2d at 356 (emphasis added).



                                                   5
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Adam Matarese,                          :
                         Petitioner     :
                                        :
                  v.                    :
                                        :
Pennsylvania Board of                   :
Probation and Parole,                   :   No. 572 C.D. 2016
                         Respondent     :


                                      ORDER


            AND NOW, this 12th day of January, 2017, the Pennsylvania Board of
Probation and Parole’s March 29, 2016 order is affirmed.


                                      ___________________________
                                      ANNE E. COVEY, Judge
