       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Andre M. Palmer,                       :
                        Petitioner     :
                                       :
            v.                         :   No. 987 C.D. 2015
                                       :   Submitted: December 4, 2015
Pennsylvania Board of Probation        :
and Parole,                            :
                        Respondent     :

BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION
BY JUDGE SIMPSON                       FILED: March 8, 2016

            Andre M. Palmer (Palmer) petitions for review of an order of the
Pennsylvania Board of Probation and Parole (Board) that denied his administrative
appeal from a Board order recommitting him as a convicted parole violator (CPV)
to serve 24 months’ backtime and recalculated the maximum date of his original
sentence as May 27, 2017. Palmer contends the Board is required to comply with
an agreement it struck with his criminal defense counsel to allow his 24-month
recommitment to run concurrently with his new criminal sentence. As a result of
this agreement, Palmer asserts he waived his challenge to the parole violation
charge and entered a guilty plea to the pending criminal charge.     Palmer also
argues this agreement is binding on the Board because the sentencing judge in his
criminal case directed his new criminal sentence run concurrently with his
recommitment. For the reasons that follow, we affirm.
                                       I. Background
              In July 2007, Palmer pled guilty to drug charges in the Court of
Common Pleas of Cumberland County (trial court) and received a sentence of 2
years, 6 months, to 5 years in state prison (original sentence), with an initial
maximum date of July 24, 2012.               Palmer served part of his sentence in a
Department of Corrections boot camp. In September 2008, the Board released
Palmer on parole. As part of his parole, Palmer agreed to the following condition:

              If you are convicted of a crime committed while on
              parole, 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, with no credit for time at liberty on parole.

Certified Record (C.R.) at 5. Palmer did not object to this condition.


              Following a 2010 conviction for theft by deception, the Board
recommitted Palmer to state prison as a CPV to serve nine months’ backtime1 on
his original sentence. The Board recalculated the new maximum date of Palmer’s
original sentence as April 10, 2014.


              In March 2011, the Board issued a decision granting Palmer re-parole
subject to conditions. C.R. at 12-13. The general conditions of Palmer’s re-parole
included the following:



       1
         “Backtime” is the portion of a judicially imposed sentence that a parole violator must
serve as a consequence of violating parole before he is eligible for re-parole. Krantz v. Pa. Bd.
of Prob. & Parole, 483 A.2d 1044, 1047 (Pa. Cmwlth. 1984).



                                               2
             If you are convicted of a crime while on parole/reparole,
             the Board has the authority, after an appropriated [sic]
             hearing, to recommit you to serve the balance of your
             sentence or sentences which you were serving when
             paroled/reparoled, with no credit for time at liberty on
             parole.

C.R. at 14. Again, Palmer did not object to this condition.


             On June 13, 2011, the Board released Palmer on re-parole. On June
28, 2013, the Pennsylvania State Police arrested Palmer for aggravated assault,
simple assault, recklessly endangering another person and harassment. On the day
of his arrest, the Board lodged a detainer warrant for Palmer. Thereafter, the trial
court set bail at $250,000. Palmer, however, did not post bail and remained
incarcerated in county prison.


             In March 2014, Palmer pled guilty to one count of aggravated assault
and all remaining charges against him were dropped. C.R. at 31. On April 10,
2014, Palmer reached the maximum date of his original sentence. However, he
remained incarcerated in county prison at that time.


             On June 10, 2014, the Board notified Palmer of its intent to hold a
revocation hearing on June 24 to recommit him as a CPV. Palmer requested and
received a continuance of the recommitment hearing.           On July 1, the Board
presented Palmer with a second notice of charges with a recommitment hearing
scheduled for July 16.




                                         3
             Palmer appeared at the recommitment hearing with counsel. At the
July 16 hearing, Palmer’s parole agent offered into evidence, as State’s Exhibit 1, a
certified order of the common pleas court accepting Palmer’s guilty plea to the
aggravated assault charge. C.R. at 66-67. Palmer did not object. Id.


             At the hearing, Palmer’s counsel stipulated to the guilty plea. C.R. at
67. Palmer’s counsel also explained that he understood, off the record, that the
Board would not oppose the trial court’s sentencing order directing that Palmer’s
sentence on his new criminal conviction run concurrently with his recommitment
as a CPV. C.R. at 69-70. On cross-examination, Palmer’s parole agent had no
objection to counsel’s statement that such an agreement existed. C.R. at 70-71.


             Thereafter, the Board issued a hearing report recognizing Palmer’s
aggravated assault conviction. C.R. at 52. The Board denied Palmer’s request for
credit for his street time. C.R. at 52-53. The Board’s report also stated: “[Palmer]
also asked that there be no objection by the [B]oard if the Judge sentences [him] to
a sentence to run concurrently with his [Board] backtime. Agent Johns did not
object to this request.” C.R. at 52.


             On July 22, 2014, the trial judge in Palmer’s criminal case sentenced
him to 15 to 30 months on the aggravated assault conviction. C.R. at 101. The
sentencing judge’s order further stated (with emphasis added):

                   Pursuant to an agreement between the parties, it is
             hereby ordered that this sentence run concurrently to any
             sentence [Palmer] serves on his state parole, to the extent
             permitted by law.



                                         4
C.R. at 101-02.


               In March 2015, the Board mailed Palmer a decision recommitting him
as a CPV to serve 24 months’ backtime. C.R. at 98. Noting that Palmer became
available to begin serving backtime on July 30, 2014, and that there were 1,032
days from Palmer’s re-parole on June 13, 2011 until the April 10, 2014 maximum
date of his original sentence, the Board recalculated Palmer’s new maximum date
as May 27, 2017. C.R. at 96, 98.


               Palmer filed a timely petition for administrative review. C.R. at 116-
17. Palmer’s appeal alleged in pertinent part:

               3. Prior to the final plea and sentencing, it is the
               recollection of [Palmer’s counsel] that at a parole board
               proceeding it was agreed between [Palmer’s counsel,] the
               government, and the board’s representative that there
               would not be opposition to the County sentence imposed
               by the Court of Common Pleas.

               4. The District Attorney did not oppose, neither did the
               Court, [Palmer’s counsel’s] request that the parole
               violation be ordered to run concurrently with the County
               sentence.

                                        ****

               6. [Palmer] filed this appeal because it does not appear
               clear that the 24 months running concurrently, would be
               completed, June 28, 2015.

               7. To the extent anyone would believe [Palmer] should
               be held beyond June 28, 2015, this is appealed.

C.R. at 117.


                                           5
              In May 2015, the Board issued a decision denying Palmer’s
administrative appeal and confirming the new maximum date of his original
sentence as May 27, 2017. C.R. at 132-33. Palmer petitions for review.2


                                      II. Discussion
                             Compliance with Agreement
              Palmer contends the Board should be required to comply with the
sentencing/recommitment agreement struck between Palmer, the District Attorney
and the Board. Palmer claims the Board’s representative induced him to enter a
guilty plea and give up his hearing and trial rights. Moreover, the trial court not
only honored the agreement, but did everything possible to make it binding.
Nevertheless, Palmer asserts the Board reneged on its consent and refused to keep
the agreement.


              Because he gave up his hearing and trial rights, Palmer argues the
agreement should be enforced, and he should be awarded credit dating from June
28, 2013. Palmer further asserts no other relief is practical and the mere grant of a
new hearing would be unfair after his guilty plea in the criminal case is on record.
Therefore, Palmer requests that we direct the Board to honor the agreement, award
him the appropriate credit, and adjust his release accordingly.




       2
         Our review is limited to determining whether constitutional rights were violated,
whether the adjudication was in accordance with law, and whether necessary findings were
supported by substantial evidence. 2 Pa. C.S. §704; Flowers v. Pa. Bd. of Prob. & Parole, 987
A.2d 1269 (Pa. Cmwlth. 2010).



                                             6
              To begin our analysis, we recognize Section 6138(a)(5) of the Prisons
and Parole Code (Code), 61 Pa. C.S. §6138(a)(5), relating to CPVs, requires that
CPVs who were paroled from a state correctional institution, and receive new
sentences to be served in a state correctional institution, must serve their original
sentences prior to becoming available to serve their new sentences. In particular,
Section 6138(a)(5)(i) provides:

               (5) If a new sentence is imposed on the parolee, the
              service of the balance of the term originally imposed
              shall precede the commencement of the new term 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)(5)(i) (emphasis added).


              We further note that Section 6138(a)(5)(i) of the Code is essentially
identical to its precursor, Section 21.1a(a) of the former Parole Act,3 which
provided:

               If a new sentence is imposed upon such parolee, the
              service of the balance of said term originally imposed
              shall precede the commencement of the new term
              imposed in the following cases:

               (1) If a person is paroled from any State penal or
              correctional institution under the control and supervision
              of the Department of Justice and the new sentence

       3
         Act of August 6, 1941, P.L. 861, added by the Act of August 24, 1951, P.L. 861, as
amended, formerly 61 P.S. §331.21a, repealed by the Act of August 11, 2009, P.L. 147 (Prisons
and Parole Code, 61 Pa. C.S. §§101-6309).



                                             7
             imposed upon him is to be served in any such State penal
             or correctional institution.

             In Commonwealth v. Zuber, 353 A.2d 441 (Pa. 1976), our Supreme
Court recognized that former Section 21.1a(a) required that a CPV serve his
backtime and then his new state sentence in consecutive order, regardless of a
guilty plea agreement and sentence directing that the parole violator’s backtime on
his original sentence run concurrently with his new sentence. In Commonwealth v.
Dorian, 468 A.2d 1091 (Pa. 1983), the Supreme Court followed Zuber and again
held that a trial court may not order that a sentence for a new conviction run
concurrently with the time remaining on the CPV’s original sentence.


             Thereafter, in Rivera v. Pennsylvania Board of Probation and Parole,
470 A.2d 1088 (Pa. Cmwlth. 1984), this Court, citing Zuber, also recognized that
former Section 21.1a(a) required a CPV to serve the remainder of his original
sentence and his new sentence consecutively.           Therefore, Section 21.1a(a)
prohibited a trial court from sentencing a CPV to serve his new sentence
concurrently with his backtime on the older sentence. In Rivera, we rejected the
argument that Section 9761(a) of the Sentencing Code, 42 Pa. C.S. §9761(a), a
more recent statute governing concurrent sentences in criminal cases, permitted a
sentencing court to order that a new sentence run concurrently with Board
backtime. We reasoned that Section 21.1a(a), a specific statute addressing the
sentencing of convicted parole violators, prevailed.


             In Walker v. Pennsylvania Board of Probation and Parole, 729 A.2d
634 (Pa. Cmwlth. 1999), we again recognized that former Section 21.1a(a)
mandated that sentences for crimes committed on parole be served consecutively

                                         8
with time remaining on original sentences and that neither the courts nor the Board
may impose concurrent sentences. Further, a CPV must serve his backtime prior to
serving his new sentence. Hall v. Pa. Bd. of Prob. & Parole, 733 A.2d 19 (Pa.
Cmwlth. 1999).


            Recently, we recognized that Section 6138(a)(5) of the Code, the
successor to former Section 21.1a(a), likewise requires that CPVs serve the
backtime on their original state sentence before they can begin to serve time on a
newly imposed state sentence. Wilson v. Pa. Bd. of Prob. & Parole, 124 A.3d 767
(Pa. Cmwlth. 2015).     Therefore, the Board may not impose backtime to run
concurrently with a new sentence for an offense committed while on parole.
Walker; Harris v. Pa. Bd. of Prob. & Parole, 393 A.2d 510 (Pa. Cmwlth. 1978)
(Board may not impose backtime to run concurrently with the new sentence for the
crime committed while on parole, regardless of a court order that the sentences run
concurrently).


            Consequently, in light of Section 6138(a)(5)(i) of the Code, Zuber and
the other cases cited above, we discern no error in the Board’s decision to require
Palmer to serve the backtime on his original sentence consecutive with, and prior
to, his new 15-30 month sentence for aggravated assault. Hall; Walker; Harris. In
short, any agreement with Palmer indicating that his new criminal sentence would
run concurrently with his backtime was invalid. Dorian; Zuber.


            Nonetheless, Palmer’s proper remedy is to seek to vacate the plea
agreement in the trial court. Zuber. Because neither the trial court nor the Board



                                        9
could order Palmer’s backtime and new sentence to run concurrently, any
agreement indicating that the Board would even consider doing that would render
Palmer’s plea agreement void. Id.


             Finally, we reject Palmer’s contention that he is entitled to credit
toward his original sentenced from June 28, 2013, when the Board lodged a
detainer warrant against him following his arrest on the aggravated assault charges.


             Section 6138(a)(4) of the Code provides: “The period of time for
which a 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.” 61 Pa. C.S. §6138(a)(4). At the time the Board
filed its detainer warrant in June 2013, Palmer was incarcerated in county prison
on the pending aggravated assault charges. Palmer failed to make bail on these
new charges.    Therefore, Palmer was not incarcerated solely on the Board’s
warrant. “[O]nce a parolee is sentenced on a new criminal offense, the period of
time between arrest and sentencing, when bail is not satisfied, must be applied to
the new sentence, and not to the original sentence.” Armbruster v. Pa. Bd. of Prob.
& Parole, 919 A.2d 348, 352 (Pa. Cmwlth. 2007). As a result, Palmer’s claim for
credit from June 28, 2013 fails. Id.


             Rather, a parole violator’s new maximum date is calculated from the
date on which the Board obtained the second signature needed to recommit him as
a CPV. Wilson (citing Campbell v. Pa. Bd. of Prob. & Parole, 409 A.2d 980 (Pa.
Cmwlth. 1980)). Here, the Board’s hearing report indicates the hearing examiner



                                        10
obtained a second signature for Palmer’s recommitment on July 30, 2014. C.R. at
58. As such, Palmer’s new maximum expiry must be calculated from that date.
Wilson; Campbell.


            Adding the 1,032 days between Palmer’s re-parole on June 13, 2011
and his prior April 10, 2014 maximum date, the Board properly recalculated the
new maximum date of Palmer’s prior sentence as May 27, 2017.               Wilson;
Armbruster. Therefore, we discern no error in the Board’s recalculation.


            For the above reasons, we affirm the Board’s order.




                                      ROBERT SIMPSON, Judge




                                        11
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Andre M. Palmer,                       :
                        Petitioner     :
                                       :
            v.                         :   No. 987 C.D. 2015
                                       :
Pennsylvania Board of Probation        :
and Parole,                            :
                        Respondent     :


                                     ORDER

            AND NOW, this 8th day of March, 2016, for the reasons stated in the
foregoing opinion, the order of the Pennsylvania Board of Probation and Parole is
AFFIRMED.




                                      ROBERT SIMPSON, Judge
