          IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Cornelius Edward McCray, Jr.,            :
                                         :
                         Petitioner      :
                                         :
            v.                           :   No. 327 C.D. 2015
                                         :
Pennsylvania Board of Probation          :   Submitted: September 11, 2015
and Parole,                              :
                                         :
                         Respondent      :



BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                             FILED: November 4, 2015

      Cornelius Edward McCray, Jr., petitions for review of an Order of the
Pennsylvania Board of Probation and Parole (Board) denying his request for
administrative relief. On appeal, McCray argues that the Board did not credit his
original sentence with all the time to which he is entitled. Discerning no error, we
affirm.


      McCray was convicted of criminal charges in Bucks County on March 23,
2009 and sentenced to four to eight years’ incarceration.        McCray’s original
maximum sentence date was August 7, 2016. He was released on parole on
September 25, 2012. On June 4, 2013, McCray was arrested on new criminal
charges in Montgomery County. These charges were docketed in the Court of
Common Pleas of Montgomery County (Montgomery County) at CP #5311-2013
and McCray was immediately released on unsecured bond; however, he was taken
into custody by his parole agent on June 5, 2013. On June 6, 2013, the Board
issued a Warrant to Commit and Detain McCray as a technical parole violator and
he was detained at SCI-Graterford solely on the Board’s warrant.


      On June 18, 2013, McCray was arrested while confined at SCI-Graterford
and charged with DUI related offenses committed by him in Bucks County on May
24, 2013. These charges were docketed in the Court of Common Pleas of Bucks
County (Bucks County) at CP #5207-2013 and the docket reflects that McCray did
not post bail on these new charges. (Bucks County Docket, C.R. at 81-89.) On
July 18, 2013, McCray appeared in Montgomery County and posted unsecured bail
in the amount of $5,000. Thus, because McCray posted bail, he continued to be
detained solely on the Board’s warrant with respect to the Montgomery County
charges.


      On October 31, 2013, McCray pled guilty to the DUI charges lodged in
Bucks County and was sentenced to serve 30 days to 6 months. In sentencing
McCray, the sentencing judge also ordered that McCray be given credit for time
served from June 6, 2013 to July 6, 2013 and that he “be presumptively paroled
after successfully serving his minimum sentence.” (Bucks County Sentencing
Order, C.R. at 57.)



                                        2
      On November 4, 2013, McCray pled guilty to the criminal charges lodged in
Montgomery County and was sentenced to serve not less than the time already
served and no more than 12 months. The Montgomery County sentencing court
specifically granted McCray 93 days’ credit for time served from August 4, 2013
to November 4, 2013.


      By Notice of Decision mailed April 18, 2014, the Board recommitted
McCray to serve a total of 12 months backtime as both a technical and convicted
parole violator and recalculated his parole violation maximum date as October 19,
2017. Thereafter, the Board issued three more notices modifying its actions and
changing McCray’s parole violation maximum date.        The Notice of Decision
relevant to the instant appeal was mailed January 26, 2015, wherein, due to a
calculation error, the Board modified its prior actions and changed McCray’s
parole violation maximum date to May 13, 2017. (Notice of Decision, January 26,
2015, C.R. at 105.) In changing McCray’s parole violation maximum date to May
13, 2017, the Board determined that McCray had forfeited the time he was at
liberty on parole, credited McCray with 152 days from June 5, 2013 to November
4, 2013, and determined that McCray was available to commence service of his
original sentence on November 30, 2013. (Order to Recommit, January 23, 2015,
C.R. at 103.) The Board did not give McCray any credit toward his original
sentence for the period from November 4, 2013 to November 30, 2013. Thus,
McCray owed 1260 days on his original sentence, and adding 1260 days to
November 30, 2013 resulted in a parole violation maximum date of May 13, 2017.




                                       3
       McCray filed a timely Administrative Remedies Form challenging the
Board’s recalculation of his parole violation maximum date as May 13, 2017.
(Administrative Remedies Form, C.R. at 106-08.) Therein, McCray alleged that
the Board did not properly credit him for all time served between June 5, 2013 and
November 30, 2013. McCray asserted that he was available to begin serving his
original sentence on November 4, 2013 because he was paroled at the time of
sentencing in both Montgomery and Bucks counties; therefore, his parole violation
maximum date is April 17, 2017.


       By Order mailed February 24, 2015, the Board affirmed its January 26, 2015
Notice of Decision. (Board Order, C.R. at 115-16.) The Board explained that
because it did not credit McCray with the time that he spent at liberty on parole, he
had 1412 days remaining on his original sentence at the time he was paroled on
September 25, 2012. The Board further explained that: (1) it credited McCray
with 152 days on his original sentence for the time period that he was detained
solely by the Board from June 5, 2013 through November 4, 2013; (2) subtracting
152 days from 1412 left 1260 days remaining to be served on McCray’s original
sentence; (3) McCray was paroled on November 4, 2013 from the Montgomery
County sentence “based on the time served designation,” but there was no evidence
that McCray was paroled from the Bucks County sentence; and (4) McCray
became available to begin serving his original sentence on November 30, 2013, the
day that he completed his Bucks County sentence. (Board Order at 2, C.R. at 116.)
McCray now petitions this Court for review of the Board’s Order.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
                                                                                (Continued…)
                                               4
       On appeal, McCray concedes that he had 1412 days remaining on his
original sentence when he was released on parole on September 25, 2012 and that
the Board correctly credited his original sentence with 152 days of pre-sentence
confinement because he was detained solely by the Board’s warrant from June 5,
2013 to November 4, 2013. (McCray’s Br. at 11.) McCray asserts that the Board
erred in determining that, on October 31, 2013, he began serving his Bucks County
sentence and, therefore, was unavailable to begin serving his original sentence until
November 30, 2013. McCray contends that the Bucks County sentencing order,
entered October 31, 2013, unmistakably gave him 30 days of pre-sentence
confinement credit from June 6, 2013 through July 6, 2013, which the Board
refused to honor in determining that McCray was not available to begin serving his
original sentence until November 30, 2013. Thus, McCray states that the sole
issue in this appeal is whether he received “the necessary 30 days credit for time
served on his Bucks County sentence at the time it was imposed so as to execute
the presumptive parole provision of the sentencing order at the time of sentencing.”
(McCray’s Br. at 11.)


       In response, the Board asserts that McCray is not entitled to an additional 30
days credit on his original sentence. The Board argues that it is not required to
offset the Bucks County sentencing court’s credit error by giving unwarranted
credit on McCray’s original sentence.




law was committed, or constitutional rights have been violated.” Yates v. Pennsylvania Board of
Probation and Parole, 48 A.3d 496, 498 n.2 (Pa. Cmwlth. 2012).

                                              5
      It is now well-settled that all time spent by a parole violator “in confinement
must be credited to either the” original sentence or the new sentence where the
parole violator “is incarcerated on both a Board detainer warrant and new criminal
charges.” Martin v. Pennsylvania Board of Probation and Parole, 840 A.2d 299,
309 (Pa. 2003). Where a parole violator is incarcerated solely on a Board detainer
warrant because he or she has satisfied bail requirements for a new criminal
offense, the time spent in confinement must be credited to the parole violator’s
original sentence. Gaito v. Pennsylvania Board of Probation and Parole, 412 A.2d
568, 571 (Pa. 1980). If the parole violator does not post bail, the time spent in
confinement must be credited to the new sentence. Id. However, a parole violator
cannot seek credit from the Board on his or her original sentence in order to correct
a sentencing error with regard to new criminal charges.              Armbruster v.
Pennsylvania Board of Probation and Parole, 919 A.2d 348, 355 (Pa. Cmwlth.
2007) (citing McCray v. Pennsylvania Department of Corrections, 872 A.2d 1127,
1132-33 (Pa. 2005)). A parole violator’s “remedy is in the trial court and through
the direct appeal process.” Id.


      Here, the certified record in this matter shows that McCray was sentenced on
October 31, 2013 in Bucks County to serve “not less than 30 days nor more than 6
mos.” (Bucks County Sentencing Order, C.R. at 57.) The sentencing order also
directed that McCray be given credit for time served from June 6, 2013 to July 6,
2013. The sentencing order directed further that McCray “is to be presumptively
paroled after successfully serving his minimum sentence unless otherwise noted.”
(Bucks County Sentencing Order, C.R. at 57.)         However, there is neither an
indication in the sentencing order that, because McCray was awarded credit for


                                         6
time served, the sentencing court determined that McCray had already served his
entire minimum sentence and was, therefore, also paroled effective October 31,
2013, nor is there a separate order in the certified record or reflected on the docket
sheets paroling McCray effective October 31, 2013. As such, it is unclear what the
sentencing court meant when it issued its October 31, 2013 sentencing order and
there is nothing in the record, particularly the docketing sheets, clarifying the
sentencing order.2 Thus, given the absence of a clear directive regarding parole in
the sentencing order, the Board did not err in concluding that McCray was not
paroled from his Bucks County sentence on October 31, 2013. Instead, based on
the language of the sentencing order, it appears that McCray completed his Bucks
County minimum sentence of 30 days on November 30, 2013, and became
presumptively paroled. Any error regarding credit for time served on his new
criminal Bucks County sentence that McCray believes occurred as a result of the
sentencing order must be addressed by the Bucks County sentencing court because
the Board “lacks the power to adjudicate the legality of a sentence or to add or
delete sentencing conditions.” McCray, 872 A.2d at 1132.


       Accordingly, the Board did not err by concluding that McCray became
available to commence service of his original sentence on November 30, 2013.
Therefore, as calculated by the Board, McCray owed 1412 days on his original
sentence for which the Board awarded him 152 days of credit, which left him with

       2
         We note that although the sentencing court awarded McCray credit for time served from
June 6, 2013 to July 6, 2013, it appears from the certified record in this matter that McCray was
not arrested on the Bucks County charges until June 18, 2013. (Magisterial District Judge 07-2-
08 Docket, C.R. at 79-80.) “Thus, like soothsayers scrutinizing the entrails of a goat, we are left
to scour the record for indications of what” this sentencing order might mean. In re Grand Jury
Subpoena, 274 F.3d 563, 569 (1st Cir. 2001).

                                                7
a total of 1260 days remaining to be served. Adding 1260 days to McCray’s
availability date of November 30, 2013 yields a new parole violation maximum
date of May 13, 2017.


      For the foregoing reasons, the Board’s Order denying McCray’s request for
administrative relief is affirmed.



                                      ________________________________
                                      RENÉE COHN JUBELIRER, Judge




                                      8
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA




Cornelius Edward McCray, Jr.,            :
                                         :
                         Petitioner      :
                                         :
            v.                           :   No. 327 C.D. 2015
                                         :
Pennsylvania Board of Probation          :
and Parole,                              :
                                         :
                         Respondent      :


                                      ORDER

      NOW, November 4, 2015, the Order of the Pennsylvania Board of Probation
and Parole, entered in the above-captioned matter, is hereby affirmed.




                                         ________________________________
                                         RENÉE COHN JUBELIRER, Judge
