              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Eugene Arthur,                          :
                         Petitioner     :
                                        :
                  v.                    :
                                        :
Pennsylvania Board of Probation         :
and Parole,                             :   No. 1835 C.D. 2014
                        Respondent      :   Submitted: July 17, 2015

BEFORE:     HONORABLE DAN PELLEGRINI, President Judge
            HONORABLE MARY HANNAH LEAVITT, Judge
            HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                 FILED: December 23, 2015

            Eugene Arthur (Arthur), pro se, petitions for review of the Pennsylvania
Board of Probation and Parole’s (Board) September 5, 2014 denial of his petition for
administrative review. The sole issue before the Court is whether the Board erred in
calculating his maximum sentence release date. After review, we affirm.
            In 1987, Arthur was sentenced to 9 to 20 years for third-degree murder,
robbery and criminal conspiracy. His maximum sentence release date was January
12, 2007. In 1989, Arthur pled nolo contendere to possessing a weapon or implement
for escape for which he was sentenced to 6 to 24 months, and his maximum sentence
release date was recalculated to January 12, 2009. Arthur was paroled on March 1,
1999. However, due to technical parole violations, he was recommitted to serve 9
months backtime. The Board reparoled Arthur on September 30, 2004.
            Due to Arthur’s conviction for retail theft while on parole, by decision
issued October 11, 2006, the Board recommitted him as a convicted parole violator to
serve 6 months backtime, when available. By decision mailed December 11, 2006,
the Board notified Arthur that his maximum sentence release date was May 25, 2015,
but that he would be placed on the next available docket for reparole review. Arthur
was reparoled on August 7, 2007.
              On July 24, 2013, the Board lodged a detainer against Arthur for using
controlled substances in violation of his parole.            On September 19, 2013, the
Philadelphia police arrested Arthur on charges stemming from allegations that he had
sexually assaulted his 7-year-old niece in 2006. By decision issued January 14, 2014,
the Board recommitted Arthur to serve 6 months for his July 24, 2013 parole
violation, and stated that Arthur’s May 25, 2015 maximum sentence release date was
subject to change based upon his outstanding criminal charges. On January 24, 2014,
Arthur was convicted of involuntary deviate sexual intercourse and corruption of
minors and was sentenced to 3 to 6 years.
              On February 24, 2014, after receiving the Board’s Notice of Charges and
Hearing based on his January 24, 2014 conviction, Arthur signed an admission and
waived his right to a parole revocation hearing and counsel. On March 21, 2014, the
Board recommitted Arthur as a convicted parole violator and denied him credit for
time he spent at liberty on parole. By decision issued April 2, 2014, the Board
recommitted Arthur as a convicted parole violator to serve 24 months backtime and
recalculated his maximum sentence release date to September 15, 2021.
              On April 25, 2014, Arthur appealed from the Board’s decision, stating
that the Board’s extension of his maximum sentence release date beyond his
judicially-imposed sentence violated his due process rights, and that the forfeiture of
his supervision fees constituted cruel and unusual punishment and violated his rights
to due process and equal protection. By decision mailed on September 5, 2014, the
Board denied Arthur’s request for administrative relief. Arthur appealed to this
Court.1

       1
         “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
                                               2
               Arthur argues that the Board erred in recalculating his maximum
sentence release date.         He specifically contends that the Board unlawfully and
erroneously extended his original, judicially-imposed sentence from January 12, 2009
to May 25, 2015 to September 15, 2021, and that the increased punishment violated
his due process rights, and the Cruel and Unusual Punishment and Double Jeopardy
clauses of the United States and Pennsylvania Constitutions. See Arthur Br. at 5.
               Initially, the law is well settled that issues not raised by a convicted
parole violator in an administrative appeal to the Board within thirty days of the
Board’s order are waived for purposes of appellate review. White v. Pa. Bd. of Prob.
& Parole, 833 A.2d 819 (Pa. Cmwlth. 2003); McCaskill v. Pa. Bd. of Prob. & Parole,
631 A.2d 1092 (Pa. Cmwlth. 1993). Because Arthur did not timely appeal from the
Board’s 2006 recalculation of his maximum sentence release date to May 25, 2015,
and since he did not raise his double jeopardy claim to the Board, he has waived
those claims in this appeal and this Court may not now consider them.2
               Accordingly, we review the Board’s April 2, 2014 recalculation of
Arthur’s maximum sentence release date to September 15, 2021. Section 6138(a) of
the Prisons and Parole Code (Parole Code) states, in pertinent part:

               (1) A parolee under the jurisdiction of the board released
               from a correctional facility who, during the period of parole


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).
        2
          Arthur asserted in his petition for review that his maximum sentence release date extension
violated his due process rights, and the Cruel and Unusual Punishment clause, but did not raise a
Double Jeopardy clause issue.
       Further, Arthur argued to the Board and referenced in his petition for review his loss of the
supervision fees he remitted to the Board during his forfeited parole, but failed to raise that issue in
his brief. See Certified Record at 106-107; see also Pet. for Review at 5. “This Court, in
McDonough [v. Unemployment Comp. Bd. of Review, 670 A.2d 749 (Pa. Cmwlth. 1996)] held that
an issue raised in the [p]etition for [r]eview but not addressed in the petitioner’s brief on appeal,
was waived[.]” Jimoh v. Unemployment Comp. Bd. of Review, 902 A.2d 608, 611 (Pa. Cmwlth.
2006).
                                                   3
              or while delinquent on parole, commits a crime punishable
              by imprisonment, for which the parolee is convicted or
              found guilty by a judge or jury or to which the parolee
              pleads guilty or nolo contendere 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 . . . shall be given
              no credit for the time at liberty on parole.[3]
              ....
              (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.
              (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.
61 Pa.C.S. § 6138(a) (emphasis added).
              We recognize “that the Board is not permitted to impose backtime which
exceeds the entire remaining balance of [a] parolee’s unexpired term. The Board can
only require that a parolee serve the remaining balance of his unexpired term since
the Board does not have the power to alter a judicially-imposed sentence.” Yates v.
Pa. Bd. of Prob. & Parole, 48 A.3d 496, 502 (Pa. Cmwlth. 2012) (quoting Savage v.
Pa. Bd. of Prob. & Parole, 761 A.2d 643, 645 (Pa. Cmwlth. 2000) (citation omitted)).


       3
           Effective September 4, 2012, Section 6138(a)(2) of the Parole Code was amended to give
the Board discretion to award credit for time at liberty on parole, but not where, as here, the
underlying criminal conviction requires sexual offender registration. See 61 Pa.C.S. § 6138(a)(2),
(2.1)(i); see also 42 Pa.C.S. § 9799.14(d)(4); 18 Pa.C.S. § 3123.
                                                4
However, “when a parolee is recommitted due to criminal conviction, his maximum
sentence date may be extended to account for all street-time,[4] regardless of good or
delinquent standing.” Richards v. Pa. Bd. of Prob. & Parole, 20 A.3d 596, 599 (Pa.
Cmwlth. 2011). The Pennsylvania Supreme Court has specifically held that the
Board’s authority to extend maximum term expiration dates under such
circumstances does not usurp the courts’ sentencing functions, or violate a parolee’s
due process rights. Gaito v. Pa. Bd. of Prob. & Parole, 412 A.2d 568 (Pa. 1980).5
              In the instant case, the Board concluded, in pertinent part:

              When you were released on parole from your original
              sentence on August 7, 2007, your maximum sentence date
              was May 25, 2015, which left 2,848 days remaining to
              serve on your original sentence. . . . The Board lodged its
              warrant on July 24, 2013, due to violations of your parole.
              You were arrested on . . . case number OTN N8816183, and
              convicted on January 24, 2014. You were released to
              Pennsylvania authorities on January 24, 2014 and placed
              into SCI-Graterford in ‘parole violator pending’ status. The
              Board decision recorded March 25, 2014 recommitted you
              as a convicted parole violator[.]

       4
          “‘Street time’ is a term which means the period of time a parolee spends at liberty on
parole.” Dorsey v. Pa. Bd. of Prob. & Parole, 854 A.2d 994, 996 n.3 (Pa. Cmwlth. 2004).
        5
          Gaito was based upon Section 21.1 of what was commonly known as the Parole Act, Act
of August 6, 1941, P.L. 861, as amended, added by Section 5 of the Act of August 24, 1951, P.L.
1401, formerly 61 P.S. § 331.21a(a), repealed by the Act of August 11, 2009, P.L. 147. Section
21.1(a) of the Parole Act similarly stated:

              Any parolee under the jurisdiction of the [Board] released from any
              penal institution of the Commonwealth who, during the period of
              parole or while delinquent on parole, commits any crime punishable
              by imprisonment, for which . . . he pleads guilty . . . in a court of
              record, may, at the discretion of the [B]oard, be recommitted as a
              parole violator. If his recommitment is so ordered, he shall be
              reentered to serve the remainder of the term which said parolee
              would have been compelled to serve had he not been paroled, and
              he shall be given no credit for the time at liberty on parole . . . .

(Emphasis added).

                                               5
               With the above facts in mind, as a convicted parole violator
               you automatically forfeited credit for all of the time that you
               spent on parole. See 61 P[a.C].S. § 6138(a)(2). You are not
               entitled to a back[]time served credit (i.e.[,] time that you
               were held solely on the Board’s warrant prior to your
               recommitment order) because you were never incarcerated
               solely on the Board’s warrant. See Gaito . . . . You
               received back time credit from July 24, 2013 (date Board’s
               detainer lodged) to September 19, 2013 (date secure bail set
               at new charges) or 57 days. This is because the Board’s
               detainer was the sole source of your incarceration during
               this time period. Applying 57 days to 2,848 days results in
               2,791 days of back[]time owed (or 7 years, 7 months, 22
               days). You became available to Pennsylvania authorities on
               January 24, 2014, when you were convicted at your new
               charges and released by Philadelphia County to
               Pennsylvania authorities. Adding 2,791 days to January 24,
               2014 yields a new parole violation maximum date of
               September 15, 2021. Therefore, your parole violation
               maximum sentence date is correct.

Certified Record at 108-109. Finding no error in the Board’s calculations, we hold
that the Board did not improperly alter Arthur’s judicially-imposed sentence, or
violate his due process rights.6




       6
         In light of this ruling that Arthur was not illegally detained and did not suffer an improper
increase in his punishment, we need not address Arthur’s Cruel and Unusual Punishment claim.
Moreover, this Court has held that Section 21.1 of the former Parole Act which, like Section
6138(a) of the Parole Code,

               provides that parolees convicted of crimes while on parole shall not
               be given credit for street time, has withstood . . . constitutional
               challenges [for cruel and unusual punishment, double jeopardy and
               due process violations] in both federal and state appellate courts. See
               U. S. ex rel. Lawson v. Cavell, 425 F.2d 1350 (3rd Cir.[]1970); Gaito .
               . . ; Jezick v. [Pa.] B[d.] of Prob[. &] Parole, . . . 530 A.2d 1031 ([Pa.
               Cmwlth.] 1987).
Monroe v. Pa. Bd. of Prob. & Parole, 555 A.2d 295, 296 (Pa. Cmwlth. 1989).



                                                   6
For all of the above reasons, the Board’s order is affirmed.


                          ___________________________
                          ANNE E. COVEY, Judge




                              7
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Eugene Arthur,                          :
                         Petitioner     :
                                        :
                  v.                    :
                                        :
Pennsylvania Board of Probation         :
and Parole,                             :   No. 1835 C.D. 2014
                        Respondent      :



                                      ORDER

            AND NOW, this 23rd day of December, 2015, the Pennsylvania Board of
Probation and Parole’s September 5, 2014 order is affirmed.


                                      ___________________________
                                      ANNE E. COVEY, Judge
