                   IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ryan Anthony Wright,                          :
                Petitioner                    :
                                              :
              v.                              :
                                              :
Pennsylvania Board of Probation               :
and Parole,                                   :   No. 877 C.D. 2015
                 Respondent                   :   Submitted: October 9, 2015

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

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McGINLEY                                 FILED: November 5, 2015
              Ryan Anthony Wright (Wright) petitions for review from a final
determination of the Pennsylvania Board of Probation and Parole (Board) that
established his maximum date as June 18, 2017.1


              On June 6, 2008, Wright was effectively sentenced to a term of three
to seven years for robbery. He was concurrently sentenced to a term of three to
seven years for criminal conspiracy.




       1
               This Court’s review is limited to determining whether the Board’s findings are
supported by substantial evidence, are in accordance with the law, and whether constitutional
rights have been violated. Krantz v. Pennsylvania Board of Probation and Parole, 483 A.2d 1044
(Pa. Cmwlth. 1984). This Court will interfere with the Board’s exercise of administrative
discretion only where it has been abused or exercised in an arbitrary or capricious manner.
Green v. Pennsylvania Board of Probation and Parole, 664 A.2d 677 (Pa. Cmwlth. 1995).
            Wright was released on parole on June 9, 2011. On August 15, 2011,
the Board declared Wright delinquent effective August 13, 2011. On May 2, 2012,
the Norristown Police Department arrested Wright and charged him as a person not
to possess, use, manufacture, control, sell, or transfer firearms.    He was also
charged with possession of firearms not to be carried without a license. Also, on
May 2, 2012, the Board issued a warrant to commit and detain Wright. Wright
was confined in the Montgomery County Prison from June 20, 2012, until July 11,
2012, for failure to post bail. On July 11, 2012, Wright was released on his own
recognizance on the firearms charges. He remained incarcerated on the Board’s
warrant. On April 3, 2013, following a bench trial, Wright was convicted as a
person not to possess, use, manufacture, control, sell, or transfer firearms and
sentenced to a term of five to ten years. The other charge was nolle prossed.


            In the interval, on May 12, 2012, Wright was charged with the
technical parole violation of condition #1 for failure to report and leaving the
district without permission. Wright originally had a revocation hearing scheduled
for May 15, 2012. Wright requested a continuance pending the disposition of
criminal charges. On July 9, 2012, the Board entered an order to detain Wright
pending the disposition of criminal charges. On June 20, 2013, Wright requested a
continuance of his hearing so that he could secure private counsel. On July 24,
2014, Wright requested that his panel revocation/violation be continued until
September or October 2014, so that he could secure representation.


            The Board held a panel violation/revocation hearing on November 20,
2014. Wright waived his right to an attorney. Parole Agent Brian Norvick (Agent



                                         2
Norvick) submitted into evidence the proof of the firearms conviction of April 3,
2013. Wright acknowledged the conviction. Notes of Testimony, November 20,
2014, (N.T.) at 14; Certified Record (C.R.) at 76. With respect to the technical
violation, Agent Norvick testified that Wright was arrested on May 2, 2012, in
Norristown even though he was not given permission to be outside of the
Philadelphia district. N.T. at 16; C.R. at 78. Wright stated that he was not arrested
by the Norristown Police Department but by Parole Agent Henry Gabb (Agent
Gabb).2 As a result of that arrest he was subsequently charged with the firearms
violations by the Norristown Police Department. N.T. at 17; C.R. at 79.


              In a decision recorded November 24, 2014, and mailed December 8,
2014, the Board recommitted Wright to serve twenty-four months backtime as a
convicted parole violator and established his maximum date as August 27, 2017.
The Board did not recommit Wright on the alleged technical violation. In a
decision recorded January 26, 2015, and mailed January 27, 2015, the Board
modified the maximum date to June 18, 2017.


              On January 12, 2015, Wright requested administrative relief and
alleged that he was not credited for 1,125 days that he spent in custody under a
Board detainer. By letter dated February 2, 2015, the Board informed Wright that
his request for administrative relief was moot and would not be addressed because
the Board modified his maximum date to June 18, 2017.



       2
                In the record Agent Gabb’s name is spelled both “Gabb” and “Gaab.” This Court
will refer to him as Agent Gabb.



                                             3
            On February 23, 2015, Wright again requested administrative relief
and alleged that he was entitled to 932 days credit for time spent under a Board
detainer:
             Wright was under a detainer of the board from May, 02,
            2012 until his parole revocation hearing on November
            20, 2014, with a total confinement of 932-days in
            custody.
            ....
            1. On May 02, 2012, Wright was arrested by State
            Parole Agent Mr. Gaab [Agent Gabb], in Norristown,
            Pennsylvania. Wright was in possession of a gun and
            was transferred to Montgomery County Correctional
            Facility pursuant to a board detainer until he was
            transferred to SCI-Graterford on May 14, 2012 – 12-days
            later.

            [2.] On June 20, 2012, Wright satisfied bail requirements
            for the above charge. However, Wright remained
            incarcerated at SCI-Graterford, due to a boards [sic]
            detainer. . . .

            3. On November 20, 2014, after several continues [sic]
            by Wright, a Parole Revocation Hearing was held.

            4. On December 08, 2014, the Board issued a decision
            and ordered Wright to serve twenty-four (24) months
            back time and extended Wright’s maximum release date
            until August 27, 2017.
            ....
            5. . . . [T]ime spent in custody under a board detainer
            shall be credited to a convicted parole violaters [sic]
            original term. Only when the parolee was eligible for
            and had satisfied bail requirements for the new detainer
            lodged against him.
            ....
            6. Wright satisfied the bail requirements for the new
            offense and remained incarcerated at SCI-Graterford and
            SCI-Mahanoy due solely on [sic] the detainer lodged
            against him by the board.



                                       4
            7. On May 02, 2012, up until November 20, 2014, (932-
            days) had passed and Wright remained incarcerated.
            Moreover, Wright’s new maximum release date should
            only have been extended (84-days), Making, -- August
            28, 2015 his maximum sentence date. (citation omitted).
Request for Administrative Relief, February 23, 2015, Paragraph Nos. 1-7 at 1-2;
C.R. at 105-106.


            The Board affirmed the January 27, 2015, decision:

            When the Board paroled you on June 9, 2011, your max
            date was June 6, 2015. This means you had a total of
            1458 days remaining on your sentence at the time of
            parole. In light of your recommitment as a convicted
            parole violator, the Board was authorized to recalculate
            your sentence to reflect that you received no credit for
            the period you were at liberty on parole. . . . This means
            you still had 1458 days remaining on your sentence based
            on your recommitment.

            On May 2, 2012, the Board lodged its detainer against
            you. On June 20, 2012, authorities detained you for new
            criminal charges that were docketed in the Court of
            Common Pleas of Montgomery County at CP# 5191-
            2012. You were released on bail effective June 20, 2012,
            but you remained confined on the Board detainer at that
            time. On April 3, 2013, you were found guilty of the
            new criminal charges, and the court sentenced you to a
            new term of imprisonment to be served in a state
            correctional institution that same date. The Board voted
            to recommit you as a convicted parole violator on
            November 20, 2014.

            Based on these facts, the Board gave you 336 days credit
            for the period you were incarcerated from May 2, 2012 to
            April 3, 2013 because you were being held solely on the
            Board detainer during that period. . . . Additionally, the
            Board gave you 181 days credit for a prior period of
            confinement where you were incarcerated from August
            16, 2011 to February 13, 2012 but not recommitted.


                                        5
            Furthermore, the Board did not give you credit on your
            original sentence for the period you were incarcerated
            from April 3, 2013 to November 20, 2014 because the
            Board had not yet recommitted you as a convicted parole
            violator. The credit for this time frame will be calculated
            and credited by the Department of Corrections toward
            your new sentence. Subtracting the credit the Board gave
            you from the time you had remaining means you still had
            941 days remaining on your sentence.

            The Prisons and Parole Code provides that convicted
            parole violators who are paroled from a state correctional
            institution and then receive another sentence to be served
            in a state correctional institution must serve the original
            sentence first. 61 Pa.C.S. §6138(a)(5). However, that
            provision does not take effect until the parolee is
            recommitted as a convicted parole violator. Thus, you
            did not become available to commence service of your
            original sentence until November 20, 2014 because that
            is when the Board voted to recommit you as a parole
            violator. . . . Adding 941 days to that date yields a new
            maximum sentence date of June 18, 2017. (citation
            omitted).
Board Decision, May 7, 2015, at 1-2; C.R. at 112-113.


            Wright contends that the Board failed to give him credit for all time
served solely pursuant to its warrant from May 2, 2012, to November 20, 2014,
and incorrectly recomputed his maximum sentence date.


            Wright argues that because he was required to serve his backtime first,
his custody for return date was determined as the date he was taken into custody.
Wright asserts that the court commitment to the state correctional institution was
filed April 26, 2013. If 1,011 days, the amount of time Wright claims remained on
his sentence, were added to April 26, 2013, his new maximum date would be
March 15, 2016.

                                        6
             Section 6138 of the Prisons and Parole Code (Code), 61 Pa.C.S.
§6138, provides in pertinent part:

             (a) Convicted violators.—

             (1) A parolee under the jurisdiction of the board released
             from a correctional facility who, during the period of
             parole … commits a crime punishable by imprisonment,
             for which the … parolee pleads guilty … at any time
             thereafter in a court of record, may at the discretion of
             the board 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
             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 board 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 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 section 6143
             (relating to early parole of inmates subject to Federal
             removal order).
             ....
             (4) The period of time for which the parole violator is
             required to serve shall be computed from and begin on
             the date that the parole violator is taken into custody to
             be returned to the institution as a parole violator.




                                         7
              (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….


              At first glance, it might appear that Wright makes a bona fide
argument as the Code requires that the service of the balance of the original term
by a parolee shall precede the beginning of the term on the new sentence if the
parolee was paroled from a State Correctional Institution and the new sentence
imposed is to be served in a State Correctional Institution.3


              However, this Court has long held that a convicted parole violator’s
custody for return date is determined by the date of the revocation of parole. For
instance, in Hill v. Pennsylvania Board of Probation and Parole, 683 A.2d 699 (Pa.
Cmwlth. 1996), Theodore Hill (Hill), while on parole, was convicted on May 5,
1994, of criminal trespass, criminal mischief, possession of the instruments of a
crime, retail theft, and escape. He was sentenced to a term of forty-two to eighty-
four months on the escape charge. The next day he was sentenced concurrently to
an aggregate term of three years six months to twelve years on the theft related
charges. On October 20, 1994, the Board issued a revocation and recalculation
order which recommitted Hill to serve twenty-four months backtime as a convicted
parole violator and recalculated his maximum date as October 10, 2003. The

       3
                Wright does not argue that the Board had the discretion to award him credit for
time spent at liberty on parole pursuant to 61 Pa.C.S. §6138(a)(2.1). Wright does not challenge
the Board’s decision to recommit him for the remainder of his term and not award credit.



                                              8
Board later issued a revised decision which stated that the revocation of Hill’s
parole was recorded on September 19, 1994. Hill, 683 A.2d at 700.


              Hill petitioned for administrative relief and asserted that the Board
erred when it failed to apply credit to his original sentence for the time he spent in
prison from the date of his conviction on the new charges, May 5, 1994, until the
revocation of parole on September 19, 1994. The Board denied the petition. Hill
petitioned for review with this Court. Hill, 683 A.2d at 700.


              With respect to the calculation of the maximum date, this Court
determined:
              Hill contends that the date for service of his 24 months
              backtime on his original sentence should begin to run on
              May 5, 1994, the day he was convicted for crimes he
              committed while on parole. Hill claims that the Board
              erred in calculating the 24 months backtime from
              September 19, 1994, the date the Board entered its
              revocation decision. To support his position Hill cites
              Section 21.1(a) of the Act commonly known as the
              Parole Act[4] . . . 61 P.S. § 331.21a(a), relating to the
              commission of crimes during parole. Section 21.1(a)
              provides in part that ‘[t]he period of time for which the
              parole violator is required to serve shall be computed
              from and begin on the date that he is taken into custody
              to be returned to the institution as a parole violator.’

              This Court, however, in Campbell v. Pennsylvania Board
              of Probation and Parole . . . 409 A.2d 980 ([Pa. Cmwlth.]
              1980), held that where the Board pursuant to Section
              21.1(a) recommits a convicted parole violator to serve the

       4
              Act of August 6, 1941, P.L. 861, as amended. This section was added by the Act
of August 24, 1951, P.L. 1401, formerly 61 P.S. §331.21a(a). The Parole Act was repealed by
the Act of August 11, 2009, P.L. 147. It was replaced by the Code, 61 Pa.C.S. §§101-6309.



                                             9
              balance of an original sentence before beginning service
              of a new term, the prisoner’s service of backtime on the
              original sentence must be computed from the date the
              Board revokes the prisoner’s parole. The Court further
              noted in Campbell that the time served by the prisoner
              prior to the date parole is revoked must be applied to the
              new sentence.

              This Court concludes that Campbell is controlling in the
              present case.        Accordingly, the Board properly
              recalculated the beginning date of service of the 24
              months backtime on Hill’s original sentence to be
              September 19, 1994, the date his parole was revoked.
              Hill is entitled to credit on his new sentence for the time
              he served from May 5, 1994 to September 19, 1994, the
              period preceding the date of revocation of Hill’s parole.
Hill, 683 A.2d at 701-702.


              Here, following Hill, Wright could not begin to serve his backtime
until the revocation of his parole on November 20, 2014. The time between his
sentencing date of April 3, 2013, and November 20, 2014, was correctly credited to
the new sentence. The Board did not err when it recalculated Wright’s maximum
date as June 18, 2017.5


              Accordingly, this Court affirms.
                                            _______________________________
                                            BERNARD L. McGINLEY, Judge


       5
               This Court notes that Hill addresses the predecessor statute of the current Code,
Section 21.1(a) of the law known as the Parole Act. However, recently this Court applied Hill to
the current Code in Wilson v. Pennsylvania Board of Probation and Parole, No. 329 C.D. 2015
(Pa. Cmwlth. Filed August 11, 2015). While Wilson is not a published opinion, an unpublished
opinion of this Court may be cited for persuasive value. See Section 414(a) of this Court’s
Internal Operating Procedures, 210 Pa.Code §69.414(a).



                                              10
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ryan Anthony Wright,                :
                Petitioner          :
                                    :
             v.                     :
                                    :
Pennsylvania Board of Probation     :
and Parole,                         :   No. 877 C.D. 2015
                 Respondent         :

                                  ORDER

             AND NOW, this 5th day of November, 2015, the order of the
Pennsylvania Board of Probation and Parole in the above-captioned matter is
affirmed.




                                    ____________________________
                                    BERNARD L. McGINLEY, Judge
