           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Darla Jean Bailey,                       :
                          Petitioner     :
                                         :
                     v.                  :   No. 852 C.D. 2019
                                         :   Submitted: January 10, 2020
Pennsylvania Board of Probation          :
and Parole,                              :
                        Respondent       :



BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                         FILED: February 28, 2020


      Darla Jean Bailey petitions for review of the Order of the Pennsylvania Board
of Probation and Parole (Board) affirming the Board’s Decision, mailed September
17, 2018, recalculating Bailey’s parole violation maximum date as May 27, 2022,
based on her recommitment as a convicted parole violator (CPV). On appeal, Bailey
argues the Board erred in recalculating her parole violation maximum date because
it did not give her credit toward her original sentence for the time she spent in
presentence confinement that she claims had not been credited to her new sentence.
However, because the maximum on Bailey’s new sentence exceeds the period she
spent in presentence confinement, the Board did not err, and we affirm.
       The relevant facts are as follows. On February 26, 2015, the Board paroled
Bailey from her original sentence,1 which had a maximum date of September 23,
2020, and she was released on April 5, 2015. On December 22, 2016, Bailey was
arrested on charges of retail theft, possessing an instrument of crime, and receipt of
stolen property.2 (Certified Record (C.R.) at 48.) The Board issued a Warrant to
Commit and Detain Bailey on the same day. Bailey did not post bail on the new
charges and remained confined on both the new charges and the Board’s detainer.
Following an initial guilty plea to conspiracy to commit retail theft on January 30,
2017,3 which was vacated on January 5, 2018, Bailey pled nolo contendere to retail
theft on May 14, 2018. (Id. at 134, 137-38.) Bailey was sentenced to 9 months to
36 months of incarceration. (Id. at 137.) The sentencing court held that Bailey was
eligible to participate in the Recidivism Risk Reduction Incentive (RRI) program,4
which made her minimum sentence 6 months, 22 days, and gave her credit for time
served between December 22, 2016, and May 14, 2018. (Id. at 137-38, 143.)
       On June 19, 2018, Bailey executed a waiver of her rights to a revocation
hearing and counsel, and she admitted to pleading no contest to retail theft on May


       1
          Bailey pled guilty to retail theft and access device fraud and was sentenced to a minimum
of three years, seven months to nine years, four months of incarceration. (Certified Record at 1-
2.) Nine months of this time was for her violation of probation. (Id.)
        2
          Bailey violated the conditions of her parole on multiple occasions between her release on
April 5, 2016, and her arrest on December 22, 2016, which resulted in her being declared
delinquent twice.
        3
          This original conviction resulted in Board actions in which the Board recommitted Bailey
and recalculated her parole violation maximum date. However, upon being informed that the
January 30, 2017 order was vacated, the Board rescinded those actions.
        4
          Per Sections 4504 and 4505 of the Prisons and Parole Code, 61 Pa. C.S. §§ 4504-4505,
certain defendants may be eligible to participate in this program, which allows the sentencing court
to impose an RRI minimum sentence, which reduces the minimum sentence required to be served
by a certain percentage depending on the length of the minimum sentence.



                                                 2
14, 2018. The Board issued an Order to Recommit, which gave Bailey credit for her
time at liberty on parole between April 5, 2015, and December 22, 2016. (Id. at
163.) Based on that credit determination, the Board recalculated Bailey’s new parole
violation maximum date as May 27, 2022, the result of adding the 1371 days
between Bailey’s original maximum date, September 23, 2020, and the date she was
arrested on the new charges, December 22, 2016, to her return to custody date,
August 25, 2018. (Id. at 162.) By Notice of Board Decision mailed September 17,
2018,5 the Board recommitted Bailey as a CPV to serve nine months’ backtime.
       Bailey filed a Petition for Administrative Review on October 14, 2018,
asserting a sentence credit challenge. (Id. at 178-80.) Bailey sent additional
correspondence to the Board in January and March 2019. By Order mailed May 2,
2019, the Board affirmed the decision mailed September 17, 2018. (Id. at 207-08.)
Therein, the Board explained that when Bailey was paroled on April 5, 2015, she
had 1998 days remaining on her sentence, but because the Board gave her credit for
her time at liberty on parole between April 5, 2015, and December 22, 2016, she
only had 1371 days remaining on her sentence. Noting that Bailey had been arrested
on the new charges and detained by the Board on December 22, 2016, did not post
bail on the new charges, and was sentenced to state confinement on the new charges
on May 14, 2018, the Board explained it did not award Bailey backtime credit toward
her original sentence. Any confinement time remaining in question, it indicated,
would go toward Bailey’s new conviction once she starts serving that sentence.


       5
          The Board notes there is some discrepancy as to the mailing date of this decision, with
the date stamp on the decision reflecting that it was mailed on September 17, 2018, but its response
referring to the mailing date as October 3, 2018. A review of its electronic files revealed a copy
of the same decision with a mailing date of October 3, 2018. Regardless of which mail date is
used, Bailey’s Petition for Administrative Review was timely filed.



                                                 3
Further, the Board stated, because Bailey could not begin re-serving her original
sentence until she was recommitted as a CPV, which did not occur until August 25,
2018, that was the date the Board used to recalculate her new parole violation
maximum date.6 Bailey now petitions this Court for review.7
       On appeal,8 Bailey argues that an offender must be credited for all time spent
in confinement on either the offender’s new sentence or original sentence.
Armbruster v. Pa. Bd. of Prob. & Parole, 919 A.2d 348, 354 (Pa. Cmwlth. 2007).
Bailey contends that equity must guide the Court’s analysis of her petition for review
and that she was not given sentence credit for all of the time she was confined
between December 22, 2016, and May 14, 2018. According to Bailey, her sentence
on the new charges was approximately 11 months shorter than her incarceration up
until that time, and, therefore, the Board should have given her credit for the
remaining time against her original sentence pursuant to Martin v. Pennsylvania
Board of Probation and Parole, 840 A.2d 299, 305 (Pa. 2003), and Hears v.
Pennsylvania Board of Probation and Parole, 851 A.2d 1003, 1007 (Pa. Cmwlth.
2004).



       6
          Bailey was reparoled on May 30, 2019, at which time she began serving her new sentence.
(C.R. at 210-12.) Per the Department of Corrections, Bailey was given credit against her new
sentence for December 22, 2016, to August 24, 2018. (Id. at 212.)
        7
          Due to a delay in the Board issuing a response to her Petition for Administrative Review,
Bailey filed a mandamus action in this Court’s original jurisdiction. By order dated June 17, 2019,
the Court noted that the Board had filed its response on May 2, 2019, and allowed Bailey to “file
a timely appellate jurisdiction petition for review within 30 days” of that order. Bailey v. Pa. Bd.
of Prob. & Parole (Pa. Cmwlth., No. 254 M.D. 2019, filed June 18, 2019). Bailey filed her
appellate petition for review within that 30-day period.
        8
          Our review in parole revocation cases “is limited to a determination of whether necessary
findings are supported by substantial evidence, [whether] an error of law was committed, or
whether constitutional rights of the parolee were violated.” Johnson v. Pa. Bd. of Prob. & Parole,
706 A.2d 903, 904 (Pa. Cmwlth. 1998).


                                                 4
      The Board responds that its calculation is correct because the maximum on
Bailey’s new sentence, 36 months, exceeds the amount of time Bailey spent in
presentence confinement and, therefore, it is possible to award all of the credit for
this confinement time towards her new sentence. Thus, the Board argues, the
equitable exception established in Martin is inapplicable here. To the extent Bailey
maintains she should receive credit toward her original sentence, the Board points
out that sentence credit cannot be applied to both the original sentence and the new
sentence.   Barndt v. Dep’t of Corr., 902 A.2d 589, 595 (Pa. Cmwlth. 2006)
(precluding the award of double credit). The time Bailey spent incarcerated between
December 22, 2016, and August 25, 2018, the Board notes, was applied to her new
sentence. In support of Bailey’s recalculated parole violation maximum date, the
Board explains that Bailey had 1371 days remaining on her sentence when she was
arrested on December 22, 2016, and her return to custody date is August 25, 2018,
the date when she was recommitted. When the 1371 days are added to August 25,
2018, the new maximum date is May 27, 2022.
      Pursuant to Section 6138(a)(1) of the Prisons and Parole Code, 61 Pa. C.S.
§ 6138(a)(1), a parolee who, during the period of parole, commits and is convicted
or found guilty of a crime punishable by incarceration may be recommitted as a
CPV. If recommitted, the parolee is required to serve the remainder of the term that
the parolee would have been compelled to serve had parole not been granted, with
credit for the time spent at liberty on parole granted only in the Board’s discretion.
61 Pa. C.S. § 6138(a)(2), (2.1). Where a new sentence is imposed, a parolee is
required to serve the balance of the original sentence prior to beginning the new
sentence. 61 Pa. C.S. § 6138(a)(5)(i).




                                          5
      The time a parolee spends confined prior to sentencing is credited toward the
parolee’s original sentence if the parolee satisfies the bail requirements and remains
confined only on the Board’s detainer. Gaito v. Pa. Bd. of Prob. & Parole, 412 A.2d
568, 571 (Pa. 1980). When bail is not posted and the parolee is confined on both the
new charges and the Board’s warrant, the presentence time is applied to the new
sentence unless it is not possible to apply all of that time to the new sentence. Martin,
840 A.2d at 305, 309; Armbruster, 919 A.2d at 353-54. Thus, for example, if the
new charges are withdrawn or the new sentence’s maximum is less than the time
spent in presentence confinement, credit for any excess time should be applied
toward the original sentence. Martin, 840 A.2d at 308-09; Armbruster, 919 A.2d at
353-54; Hears, 851 A.2d at 1007.
      Bailey asserts that not all of her presentence confinement could be attributed
to her new sentence and, therefore, like the parolee in Hears, she is entitled to credit
for some of that time toward her original sentence.               However, Hears is
distinguishable, and Bailey’s assertions are not supported by the record. Hears
involved a parolee who was arrested and confined on new charges and, after one
charge was withdrawn and a second charge was amended to a lesser offense, the
parolee pled guilty and was sentenced to four days in prison, which were the last
four days he spent confined prior to sentencing. 851 A.2d at 1003. We held that the
Board had to credit the parolee’s original sentence with the remaining time the
parolee spent in presentence custody under Martin. Id. at 1007.
      In contrast, Bailey’s new sentence was 9 months to 36 months, although the
minimum was reduced due to her being RRI eligible.                Bailey’s presentence
confinement, the period between December 22, 2016, and May 14, 2018, was for 16
months, 22 days. Because the maximum on Bailey’s new sentence exceeds the



                                           6
period she spent in presentence confinement, the Martin equitable exception does
not apply. Applying the general rule set forth in Gaito, Bailey’s presentence
confinement was applied toward her new sentence because she was confined prior
to her May 14, 2018 sentencing on both the new charges and the Board’s detainer.
412 A.2d at 571. The record bears this out as it shows that, when the Department of
Corrections issued its sentence summary for Bailey’s new sentence, Bailey received
commitment credit toward that new sentence for the period between December 22,
2016, and August 24, 2018. (C.R. at 212.) This period includes both the presentence
confinement period and the time between Bailey’s new sentencing and when the
Board recommitted her as a CPV on August 25, 2018. An order directing that Bailey
receive credit toward her original sentence for this time period would result in double
credit, which is not permitted. Barndt, 902 A.2d at 595. Therefore, we discern no
error in the Board not giving Bailey credit toward her original sentence for the time
she spent in presentence confinement.
      Accordingly, the Board’s Order is affirmed.


                                        _____________________________________
                                        RENÉE COHN JUBELIRER, Judge




                                          7
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Darla Jean Bailey,                        :
                          Petitioner      :
                                          :
                     v.                   :   No. 852 C.D. 2019
                                          :
Pennsylvania Board of Probation           :
and Parole,                               :
                        Respondent        :


                                       ORDER


      NOW, February 28, 2020, the Order of the Pennsylvania Board of Probation
and Parole, entered in the above-captioned matter, is AFFIRMED.



                                        _____________________________________
                                        RENÉE COHN JUBELIRER, Judge
