        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Anthony Thomas,                           :
                          Petitioner      :
                                          :
             v.                           :   No. 279 C.D. 2015
                                          :   Submitted: December 31, 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 NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                          FILED: March 7, 2016

             Anthony Thomas (Thomas) petitions for review from an order of the
Pennsylvania Board of Probation and Parole (Board) that denied his administrative
appeal. He argues the Board improperly recalculated his maximum sentence date,
and he challenges the order of his sentences. Specifically, Thomas contends the new
maximum sentence date should be vacated because the Board did not comply with
Section 6138(a)(5.1) of the Prisons and Parole Code (Code), 61 Pa. C.S. §6138(a)(5.1).
Upon review, we affirm.


                                   I. Background
             Following his initial arrest for armed robbery in 2002, the Board
paroled and recommitted Thomas multiple times as both a technical parole
violator (TPV) and as a convicted parole violator (CPV). Relevant here, in 2003,
Thomas was convicted and sentenced by the Court of Common Pleas of
Philadelphia County to a term of 5 to 10 years for conspiracy to commit armed
robbery. His original maximum sentence date was May 30, 2011.


            After he was paroled from that offense, Thomas was recommitted to
serve 12 months’ backtime at State Correctional Institution (SCI)-Graterford as a
TPV. The amended maximum sentence date, with delinquency time of 146 days
added, was October 23, 2011. Certified Record (C.R.) at 2.


            On July 18, 2008, Thomas was re-paroled to a Community
Correctional Facility (CCF) in Philadelphia County. At that time he owed 1,707
days backtime on his original sentence. Id. On July 20, 2009, he violated the
conditions of his re-parole by not reporting to the CCF.


            Thomas was subsequently arrested by federal officials and charged
with federal crimes relating to armed bank robbery on November 10, 2009. The
Board lodged a detainer against Thomas the same day. C.R. at 28. From his date
of arrest until sentencing on the federal charges, Thomas was held in a federal
prison on both federal and Board detainers.


            On June 25, 2010, the federal court accepted Thomas’ guilty plea,
and it sentenced him to serve 63 months in federal prison. C.R. at 40-44. While
in federal custody, Thomas requested the Board run his federal sentence
concurrently with his original sentence.




                                           2
              Thomas was released from federal custody on June 24, 2014. When
Pennsylvania authorities did not appear for his scheduled pick-up on that date, he
was held in a West Virginia county facility. Pennsylvania authorities did not take
Thomas into custody for his parole violations until July 24, 2014. C.R. at 46.
Thomas admitted he violated his conditions of parole. He also waived his right to
a parole revocation hearing and his right to counsel. C.R. at 37.


              The Board issued a decision that recommitted Thomas to serve six
months as a TPV and 24 months as a CPV concurrently, for a total of 24 months
backtime. C.R. at 58-59. That decision recalculated his maximum sentence date
as February 13, 2018.


              Thomas appealed the decision, filing an administrative remedies
form. He alleged the Board improperly calculated his maximum sentence date,
and he challenged the order of service of his sentences. He also asserted the
Board did not credit him for time served in two respects: (1) between his date of
arrest and the date of his conviction by federal authorities, which amounts to
seven months and 15 days; and, (2) from the release by federal authorities on
June 24, 2014, to a West Virginia facilty, which held him on Pennsylvania’s
detainer until July 17, 2014,1 which amounts to 23 days. C.R. at 62. The Board
affirmed the decision on February 11, 2015. Thomas filed a petition for review to
this Court.



       1
         According to Thomas, starting on July 17, 2014, West Virginia held him on its detainer
as well pending his pick-up by Pennsylvania authorities on July 24, 2014.



                                              3
             On appeal, the Board recognized it erred in calculating his time
because Thomas was entitled to credit on his original sentence from the date he
was released by federal authorities to the date Pennsylvania authorities took him
into custody. The Board requested a remand to correct the error, which this Court
granted. This credit changed his maximum sentence date to January 14, 2018.


             After remand, only the issue as to the order of his sentences remains.
Thomas asserts the Board’s calculation of his maximum sentence date must be
vacated because it did not comply 61 Pa. C.S. §6138(a)(5.1). Thomas asked this
Court to retain jurisdiction to address this issue. Although permitted to do so,
Thomas did not file another brief post-remand.


                                     II. Discussion
             On appeal,2 Thomas argues the extension of his maximum sentence
date should be vacated because the Board failed to comply with Section
6138(5.1) of the Parole Code, which requires that he serve the original sentence
before his federal sentence. Essentially, Thomas contends he became available to
Pennsylvania authorities when he was sentenced on the federal charges on July
25, 2010. As a result, he claims credit for the time served on his federal sentence.


             The Board counters that Thomas was not available to serve his
original sentence until his release from federal custody on June 24, 2014. His

      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. Miskovitch v. Pa. Bd. of Prob. & Parole, 77 A.3d 66
(Pa. Cmwlth. 2013), appeal denied, 87 A.3d 322 (Pa. 2014).



                                            4
maximum sentence date was properly calculated by adding the remaining time on
his unexpired sentence to that date. However, the Board concedes that “typically,”
Thomas would have become “available” to the Board to serve his backtime on the
date of sentencing on the federal charges. Resp’t’s Br. at 8.


              The Code provides that any parolee who, during the period of parole,
commits a crime punishable by imprisonment and is convicted or found guilty of
that crime may be recommitted as a CPV. See 61 Pa. C.S. §6138(a)(1). If the
parolee is recommitted, he must serve the remainder of the term, which he would
have been compelled to serve had parole not been granted, and shall be given “no
credit for the time at liberty on parole.” 61 Pa. C.S. §6138(a)(2).3 “[T]he Board
retains jurisdiction to recommit an individual as a parole violator after the
expiration of the maximum term, so long as the crimes that lead to the conviction
occurred while the individual is on parole.” Miskovitch v. Pa. Bd. of Prob. &
Parole, 77 A.3d 66, 73 (Pa. Cmwlth. 2013), appeal denied, 87 A.3d 322 (Pa. 2014).


              Critical here is when Thomas became available to serve his backtime.
We also consider whether the order of his federal and state sentences was proper.
Relying on Section 6138(5.1) of the Code, Thomas argues he was required to “serve
the balance of his original term before serving the new term.” Pet’r’s Br. at 9.
Essentially, he contends he is entitled to credit for time in federal custody on both
his original state sentence and on his federal sentence as of his date of federal
sentencing.
       3
           Although the Board may award discretionary credit for time at liberty under subsection
2.1, that does not apply when a parolee commits a crime of violence under 42 Pa. C.S. §9714(g)
(including robbery, or an equivalent crime in another jurisdiction).



                                               5
                              A. Order of Sentences
             Section 6138(a)(5.1) provides, in pertinent part, as to CPVs:

             (5.1) If the parolee is sentenced to serve a new term of total
             confinement by a Federal court or by a court of another
             jurisdiction because of a verdict or a plea under paragraph (1),
             the parolee shall serve the balance of the original term before
             serving the new term.

61 Pa. C.S. §6138(a) (emphasis added). This provision, enacted on October 27,
2010, became immediately effective.


             We recently held “[t]he addition of subsection 5.1 constituted a
significant change in legislative policy regarding the order of service of sentences
where the [CPV] received a new sentence in a federal court or a court of another
jurisdiction.” Baasit v. Pa. Bd. of Prob. & Parole, 90 A.3d 74, 82 (Pa. Cmwlth.
2014). There, we vacated and remanded for a determination of pre-sentence credit
by the Board, explaining subsection 5.1 applied because the federal court entered
judgment in 2012. Under Baasit, Thomas became “available” when he was
convicted on the federal docket. Id. at 76.


             However, this case is distinguishable from Baasit as subsection 5.1
was not yet in effect. Thomas was sentenced on June 25, 2010, four months before
the enactment of subsection 5.1. We thus reject Thomas’ argument that subsection
5.1 constitutes grounds for vacating the Board’s decision.


             Here, the applicable provision of the Code provided, in pertinent part:




                                         6
              If a new sentence is imposed upon such parolee, the service of
              the balance of said term original imposed 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.

              (ii) If a person is paroled from a county prison and the new
              sentence imposed on the person is to be served in the county
              prison.

              (iii) In all other cases, the service of the new term for the
              latter crime shall precede commencement of the balance of the
              term originally imposed.

61 Pa. C.S. §6138(a)(5) (emphasis added). Construing the same language under
the earlier Parole Act,4 we held a parolee was required to serve his new federal
sentence before he could begin serving backtime on his original sentence because
he was directed to serve his time in a federal institution. Griffin v. Dep’t of Corr.,
862 A.2d 152 (Pa. Cmwlth. 2004).


              The Code also provided: “the period of time for which the [CPV] is
required to serve shall be computed from and begin on the date that the [CPV] is
taken into custody to be returned to the institution as a [CPV].” 61 Pa. C.S.
§6138(a)(4). Thomas was confined solely on the Board’s detainer after he served
his federal sentence. The date of his release from federal custody was also the date
Thomas was available to Pennsylvania authorities, and thus was his “custody for
return” date. Rivenbark v. Pa. Bd. of Prob. & Parole, 501 A.2d 1110 (Pa. 1985).

       4
         Act of August 6, 1941, P.L. 861, added by Section 5 of the Act of August 24, 1951, P.L.
1401, as amended, formerly 61 P.S. §331.21a(a), repealed by the Act of August 11, 2009, P.L.
147.



                                               7
                               B. Credit for Federal Custody
                As Thomas did not become “available” to the Board until his release
date, the Board properly calculated his maximum sentence date. When Thomas
was released on parole on July 18, 2008, Thomas owed three years, three months
and five days backtime5 toward his original sentence. C.R. at 58. He also forfeited
his 111 days at liberty, for a total of 1300 days. On remand, the Board credited
Thomas for the 23 days he spent in custody after his release date, as he was held
only on the Board detainer. Gaito v. Pa. Bd. of Prob. & Parole, 412 A.2d 568 (Pa.
1980). By adding 1277 days (1300 days minus the 23 days credit) to Thomas’
release date of June 24, 2014, the maximum sentence date is properly calculated as
January 14, 2018.


                Thomas cites no authority supporting his contention that incarceration
time in federal custody should be credited against his original sentence. There is
no indication on the certified record that the sentencing court ordered the time to
be served concurrent to any other sentence. Contra Griffin (holding credit due for
federal time in custody when sentencing court ordered sentences to run
concurrently). The time for which Thomas seeks credit is that spent serving his
federal sentence. See Pet’r’s Petition to Retain Jurisdiction.


                The Board is not required to credit time spent in federal custody
against an original sentence. Gaito. That sentence corresponded to his federal


       5
           “Service of backtime relates to the original sentence from which an offender is paroled
and is unrelated to any sentence required for a conviction on other criminal charges.” Martin v.
Pa. Bd. of Prob. & Parole, 840 A.2d 299, 303 (Pa. 2003).



                                                 8
convictions which did not arise out of the same incident for which Thomas was
originally sentenced. Thus, there is no danger of violating the Double Jeopardy
clause of the United States Constitution,6 or of the Pennsylvania Constitution,7
prohibiting multiple punishments for the same offense. Requiring Thomas to serve
the remainder of his unexpired term does not constitute a second punishment for
the same offense. Rivenbark; see also Martin v. Pa. Bd. of Prob. & Parole, 840
A.2d 299 (Pa. 2003).


                                    III. Conclusion
                For the foregoing reasons, we affirm the Board’s order as modified on
remand to reflect the proper crediting of time, and a recalculated maximum
sentence date of January 14, 2018.




                                         ROBERT SIMPSON, Judge




      6
          U.S. CONST. amend. V.
      7
          PA. CONST. art. I, §10.



                                           9
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Anthony Thomas,                       :
                       Petitioner     :
                                      :
           v.                         :   No. 279 C.D. 2015
                                      :
Pennsylvania Board of Probation       :
and Parole,                           :
                        Respondent    :

                                    ORDER

           AND NOW, this 7th day of March, 2016, the order of the
Pennsylvania Board of Probation and Parole is AFFIRMED.




                                     ROBERT SIMPSON, Judge
