            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joseph R. Spruill,                         :
                     Petitioner            :
                                           :
              v.                           : No. 1478 C.D. 2016
                                           : Submitted: March 17, 2017
Pennsylvania Board of Probation            :
and Parole,                                :
                 Respondent                :


BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE JULIA K. HEARTHWAY, Judge
              HONORABLE DAN PELLEGRINI, Senior Judge


OPINION BY
SENIOR JUDGE PELLEGRINI                                    FILED: April 7, 2017


              Joseph R. Spruill (Parolee) petitions for review of the decision of the
Pennsylvania Board of Probation and Parole (Board) denying his request for
administrative relief from the Board’s order recalculating his maximum sentence
following his recommitment as a convicted parole violator (CPV). We affirm.


                                               I.
              Parolee is an inmate currently incarcerated at the State Correctional
Institution at Huntingdon (SCI-Huntingdon). On August 11, 2009,1 following his
guilty plea to carrying a firearm without a license, possession of a controlled


       1
         On May 1, 2009, Parolee was originally sentenced by the trial court to a minimum term of
42 months and a maximum term of 84 months. This sentence was vacated after his pro se motion
for reconsideration was granted.
substance and possession of an instrument of crime with intent, Parolee was
resentenced by the Court of Common Pleas of Philadelphia County (trial court) to a
term of two to four years.            Because he previously pled guilty to one count of
possession of a firearm by a convicted felon in the United States District Court
(district court) involving the same incident,2 the trial court’s sentence ran concurrent
to a federal sentence3 of 42 months imprisonment followed by 36 months supervised
release.4 The credited start date for both sentences was March 4, 2008, and Parolee
was sent to a state correctional facility to serve his state sentence.5


       2
           18 U.S.C. § 922(g)(1).

       3
          42 Pa.C.S. § 9761(b) provides, in relevant part, that “[i]f the defendant is at the time of
sentencing subject to imprisonment under the authority of any other sovereign, the court may
indicate that imprisonment under such other authority shall satisfy or be credited against both the
minimum and maximum time imposed under the court’s sentence.”

       4
          The Sentencing Reform Act of 1984 (SRA), as amended, 18 U.S.C. §§ 3551–3742 and 28
U.S.C. §§ 991–998, created the federal sentencing guidelines system, eliminated most forms of
parole and established supervised release. Supervised release is a type of post-confinement
monitoring that is overseen by federal district courts with the assistance of federal probation officers
rather than by the United States Parole Commission. Gozlon-Peretz v. United States, 498 U.S. 395
(1991). While on supervised release, an offender is required to abide by certain conditions, some
mandated by statute and others imposed at the court’s discretion. If an offender violates a
condition, a court is authorized (and, in some cases, required) to “revoke a term of supervised
release, and require the defendant to serve in prison all or part of the term of supervised release . . .
without credit for time previously served on post[-]release supervision. . . .” 18 U.S.C. §
3583(e)(3).

       5
          State authorities retain primary jurisdiction over the prisoner and federal custody does not
commence until the state authorities relinquish the prisoner on satisfaction of the state obligation.
The sovereign which first arrested the offender has primary jurisdiction over the offender unless
that sovereign relinquishes it to another sovereign by, for example, bail release, dismissal of the
state charges, parole release or expiration of the state sentence. See United States v. Cole, 416 F.3d
894 (8th Cir. 2005); Rios v. Wiley, 201 F.3d 257, 274 (3d Cir. 2000); Taylor v. Reno, 164 F.3d 440
(9th Cir. 1998); United States v. Warren, 610 F.2d 680 (9th Cir. 1980).



                                                   2
                 On May 20, 2010, Parolee was constructively paroled from SCI-
Huntingdon to the federal detainer sentence to which his state conviction ran
concurrent. Parolee remained under this federal detainer and then in a “Community
Corrections Center [(CCC)] in Philadelphia under his federal sentence”6 until April
20, 2011, when he began his federally-supervised release.


                 On November 4, 2011, the Board was notified that Parolee had been
arrested in New Jersey for possession with intent to deliver drugs, possession of a
firearm, resisting arrest and aggravated assault. He did not post bail on these charges.
On June 14, 2012, Parolee was sentenced by the Superior Court of New Jersey to a
term of five years, consecutive to his federal sentence, with 235 days credit for time
served – i.e., his arrest date on October 23, 2011, through June 14, 2012. The Board
then issued a detainer for Parolee.7 On November 13, 2015, New Jersey notified
Pennsylvania that Parolee was going to be released on parole at the end of the month
and provided a waiver of extradition. On the same day of his release, November 30,
2015, he was returned to Pennsylvania custody.


                 On February 10, 2016, the Board recommitted Parolee as a CPV with 12
months backtime and a maximum sentence date of September 14, 2017. Parolee



       6
           (Board’s Brief at 2.)

       7
         Following the issuance of an Amended Petition for Warrant or Summons for Offender
under Supervision and Parolee’s admission to committing another crime in violation of the terms of
the federal supervised release, on June 7, 2012, the district court entered judgment against Parolee
committing him to the custody of the United States Bureau of Prisons to be imprisoned for a term of
24 months.



                                                 3
timely filed a pro se administrative appeal with the Board challenging the
recalculation of his new maximum sentence date. As pertinent, Parolee contended:

                    I am appealing my green sheet due to miscalculated
              max date. . . . I was paroled [from the state conviction] on
              [May 20, 2010] to the concurrent federal sentence. . . .
              Then I returned back to PA Jurisdiction on March 22, 2011
              to go to Liberty Management halfway house. . . . Then I
              was released from custody on April 20, 2011 to start
              [federal] supervised release and I started my [New Jersey]
              parole on [April 26, 2011].


(Certified Record (C.R.) at 101.) His administrative appeal was denied because
Parolee automatically forfeited credit for the time while constructively paroled and,
as a result, 654 days remained on his original sentence. This appeal followed.8


                                                II.
              On appeal, Parolee only contends that the Board erred by not counting
against his state sentence the approximately 11 months’ time he served under his
federal sentence that the trial court stated was to run concurrently with his state
sentence, instead treating that time as backtime because he was a convicted parole
violator. The issue then is whether a person at liberty on constructive parole from an
original sentence receives credit against that sentence by time served on his
concurrent sentence, notwithstanding the fact that he was a convicted parole violator
for his original sentence.

       8
         Our scope of review is limited to determining whether the Board’s decision is supported by
substantial evidence, whether an error of law was committed, or whether constitutional rights have
been violated. Section 704 of the Administrative Agency Law, 42 Pa.C.S. § 704; Moroz v.
Pennsylvania Board of Probation and Parole, 660 A.2d 131, 132 (Pa. Cmwlth. 1995).



                                                4
               A prisoner on constructive parole is paroled from his original sentence to
immediately begin serving a new sentence. See Merritt v. Pennsylvania Board of
Probation and Parole, 574 A.2d 597, 598 (Pa. 1990); Hines v. Pennsylvania Board of
Probation and Parole, 420 A.2d 381, 383 (Pa. 1980). Where an individual has been
constructively paroled, “he is nonetheless ‘at liberty’ from the original sentence from
the time he begins to serve the new sentence.” Bowman v. Pennsylvania Board of
Probation and Parole, 709 A.2d 945, 948 (Pa. Cmwlth. 1998). Under 61 Pa.C.S. §
6138(a)(2),9 a parolee’s time under constructive parole is forfeited upon his
recommitment as a convicted parole violator. Bowman, 709 A.2d at 948.


               In Merritt v. Pennsylvania Board of Probation and Parole, 539 A.2d 511
(Pa. Cmwlth. 1988), aff’d, 574 A.2d 597 (Pa. 1990), we addressed whether a parolee
is entitled to credit for time served for a concurrent sentence while constructively
paroled from an original sentence. In that case, a parolee was serving an original
sentence and two subsequent sentences that were all concurrent.                         After being
constructively paroled from his original sentence, parolee began serving the
minimum terms for the remaining sentences from which he was also later paroled.
While paroled, however, he was subsequently recommitted as a convicted parole
violator based upon a new criminal conviction. The Board denied parolee credit for
the period of time that he was constructively paroled from his first sentence and
serving the concurrent sentences.




       9
           Section 6138(a)(2) of the Prisons and Parole Code (Code) provides, in pertinent part, that a
parolee who is recommitted as a convicted parole violator “shall be reentered to serve the remainder
of the term which the parolee would have been compelled to serve had the parole not been granted
and . . . shall be given no credit for the time at liberty on parole.” 61 Pa.C.S. § 6138(a)(2).


                                                  5
             On appeal, we held that the Board properly denied parolee credit against
his original sentence for the period in which he was constructively paroled from that
sentence. We noted that notwithstanding that our case law was limited to instances
where we upheld “the denial of credit for constructive parole time in consecutive
sentence situations,” we concluded that “[t]he fact that [parolee’s] sentences were
concurrent does not alter our conclusion.”         Id. at 512 (emphasis in original).
Affirming, our Supreme Court adopted our reasoning, stating that we “properly
affirmed the Board’s determination that [parolee] was not entitled to a credit for time
served while on constructive parole.” Merritt, 574 A.2d at 598. As our Supreme
Court explained, “one who is on constructive parole is at liberty on parole on that
particular sentence, and is not entitled to credit against his original sentence for time
spent on constructive parole.” Id.


             What Merritt teaches us is that when calculating a sentence under this
provision, only time spent in custody serving that sentence is considered time served.
One cannot “equate time served on parole with time served in an institution. Mere
lapse of time without imprisonment . . . does not constitute service of sentence. . . . It
does not set aside or affect the sentence.” Young v. Pennsylvania Board of Probation
and Parole, 409 A.2d 843, 846-47 (Pa. 1979) (internal quotations and citations
omitted). As a result, a convicted parole violator is not entitled to credit for time
spent on constructive parole from his sentence while continuing to serve another
concurrent sentence because he is not serving the time on his sentence from which he
was paroled.       Because Parolee could not serve his state sentence while
simultaneously being at liberty from it, his time served under the federal detainer
cannot be credited toward that state sentence.



                                            6
Accordingly, we affirm the Board’s decision.



                        ___________________________________
                        DAN PELLEGRINI, Senior Judge




                            7
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Joseph R. Spruill,                   :
                     Petitioner      :
                                     :
             v.                      : No. 1478 C.D. 2016
                                     :
Pennsylvania Board of Probation      :
and Parole,                          :
                 Respondent          :




                                    ORDER


             AND NOW, this 7th day of April, 2017, the order of the Pennsylvania
Board of Probation and Parole dated August 4, 2016, is affirmed.



                                     ___________________________________
                                     DAN PELLEGRINI, Senior Judge
