              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pedro Serrano,                          :
                           Petitioner   :
                                        :
                   v.                   :
                                        :
Pennsylvania Board of                   :
Probation and Parole,                   :   No. 2102 C.D. 2015
                           Respondent   :   Submitted: March 4, 2016


BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                 FILED: July 13, 2016


            Pedro Serrano (Serrano) petitions this Court for review of the
Pennsylvania Board of Probation and Parole’s (Board) September 4, 2015 order
denying his petition for administrative review (Petition). The sole issue before the
Court is whether the Board erred in calculating his maximum sentence release date.
After review, we affirm.
            Serrano is currently an inmate at State Correctional Institution at Fayette
(SCI-Fayette). On August 14, 2006, the Board paroled Serrano from a 6½ to 13-year
sentence for aggravated assault. At that time, his maximum release sentence date was
February 9, 2013.       On March 15, 2010, the Board revoked Serrano’s parole,
recommitted him as a convicted parole violator, and recalculated his maximum
sentence release date from February 9, 2013 to November 4, 2014.
            On August 6, 2010, the Board reparoled Serrano from his original
sentence to a state detainer sentence. Serrano signed and acknowledged Conditions
Governing Parole/Reparole (Conditions) which notified Serrano that “[i]f you are
arrested on new criminal charges, the Board has the authority to lodge a detainer
against you which will prevent your release from custody, pending disposition of
those charges, even though you may have posted bail or been released on your own
recognizance [ROR] from those charges.”               Certified Record (C.R.) at 21.    The
Conditions also informed Serrano that “[i]f you are convicted of a crime committed
while on parole/reparole, 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/reparoled, with no credit for time at liberty on parole.” Id. On
October 4, 2012, the Board paroled Serrano from his state detainer sentence to an
approved home plan. On December 27, 2012, after Serrano violated parole, instead
of revoking parole, the Board diverted Serrano to the secured parole violator program
where Serrano remained until May 20, 2013, when he was released to normal parole
supervision.
               On September 19, 2013, the Philadelphia Police Department arrested
Serrano on new criminal charges (Philadelphia County Charges) and held him in the
Philadelphia County Prison.            On September 20, 2013, Philadelphia County
Municipal Court detained Serrano in lieu of bail. On that same date, the Board
lodged its detainer against Serrano. On October 31, 2013, Serrano was released on
ROR bail.       However, pursuant to his parole conditions, on November 6, 2013,
Serrano was returned to a state correctional institution on the Board’s detainer. On
March 20, 2014, Serrano pled guilty to the new criminal charges. Serrano was
sentenced to 11½ to 23-months1 in Philadelphia County Prison (Philadelphia County
Sentence).




      1
          Serrano was sentenced to two 11½ to 23-month sentences to run concurrently.
                                                2
              On April 18, 2014, Serrano signed a “Waiver of Revocation Hearing and
Counsel/Admission Form,” waived a revocation hearing and admitted to violating
parole conditions. C.R. at 41. By June 20, 2014 decision, the Board recommitted
Serrano as a convicted parole violator, when available, pending completion of or
parole from the Philadelphia County Sentence.               Serrano was paroled from his
Philadelphia County Sentence on February 5, 2015. By decision mailed April 9,
2015, the Board recalculated Serrano’s maximum sentence release date from
November 4, 2014 to July 26, 2018. On May 12, 2015, Serrano filed his Petition
objecting to the recalculated date. By September 4, 2015 decision, the Board denied
the Petition and affirmed the Board’s decision. Serrano appealed to this Court.2
              Serrano argues that the Board erred in calculating his maximum sentence
release date. In support, Serrano makes several general assertions but does not
develop them, or clearly explain how they apply to his circumstances.
              Serrano first contends that his “Constitutional Rights were violated
pursuant to Due Process protection since he was detained by the Board while his new
charge was disposed.” Serrano Br. at 10. That statement is the entirety of Serrano’s
argument. Serrano does not provide any further explanation. “A party’s failure to
develop an issue in the argument section of its brief constitutes waiver of the issue.”
In re: Condemnation by the Dep’t of Transp., 76 A.3d 101, 106-07 n.8 (Pa. Cmwlth.
2013). Thus, absent further explanation or legal authority in support of his assertion,
Serrano’s due process argument is waived.
              Serrano next asserts that “it is clearly established law that a revocation
hearing must be held within 120 days of the Board’s receipt of the official notice of
the guilty verdict or plea.” Serrano Br. at 10. This statement is the entirety of

       2
         “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
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).
                                               3
Serrano’s argument. Thus, because he fails to develop this argument,3 it is waived.
See In re: Condemnation.
              Serrano also argues, without further explanation, that the

              Board cannot use [the Prisons and Parole Code (Parole
              Code)4] requirement that new sentence be served prior to
              and consecutive to state parole backtime to preclude another
              Judge from directing[5] that its sentence be served
              concurrent with the parole time and crediting its sentence
              with time parolee spent on the Board’s warrant. [Serrano]
              is entitled to credit against his backtime with all time served
              as the Board would not attribute that period of confinement
              [sic] another sentence.

Serrano Br. at 10.
              Section 6138(a) of the Parole Code provides, in pertinent part:

              (1) A parolee under the jurisdiction of the [B]oard released
              from a correctional facility who, during the period of parole
              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 [B]oard 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.
              ....
              (4) The period of time for which the parole violator is
              required to serve shall be computed from and begin on the

       3
          Serrano does not explain how the 120-day period is relevant to his case where he pled
guilty to the Philadelphia County Charges and waived his right to a revocation hearing. C.R. at
41.
        4
          61 Pa.C.S. §§ 101-6309.
        5
          Notably, there is nothing in the Philadelphia County Sentence order indicating that the
sentence was to run concurrently with Serrano’s original sentence. See C.R. at 37-38.
                                               4
              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.
              (ii) If a person is paroled from a county prison and the new
              sentence imposed upon him is to be served in the same
              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) (emphasis added).
              “[W]hen a parolee is recommitted due to criminal conviction, his
maximum sentence date may be extended to account for all street-time,[6] 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).7
Importantly, the Gaito Court explained:

       6
          “‘Street time’ is a term for 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).
        7
          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
                                               5
             if a defendant is being held in custody solely because of a
             detainer lodged by the Board and has otherwise met the
             requirements for bail on the new criminal charges, the time
             which he spent in custody shall be credited against his
             original sentence. If a defendant, however, remains
             incarcerated prior to trial because he has failed to satisfy
             bail requirements on the new criminal charges, then the
             time spent in custody shall be credited to his new sentence.

Id. at 571. This Court recently explained:

             In Commonwealth v. Zuber, . . . 353 A.2d 441 (Pa. 1976),
             our Supreme Court recognized that former Section 21.1a(a)
             [of what was commonly referred to as the Parole Act]
             required that a [convicted parole violator (]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

             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).

                                              6
            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 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
            [Parole] 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).

Palmer v. Pa. Bd. of Prob. & Parole, 134 A.3d 160, 165 (Pa. Cmwlth. 2016).
            In the Board’s September 4, 2015 denial, it informed Serrano:

            The Board paroled you from a state correctional institution .
            . . on August 6, 2010 with a maximum sentence date of
            November 4, 2014. This left you with 1551 days remaining
            on your sentence (from 08/06/2010 to 11/04/2014 = 1551
            days). As previously stated, the Board chose to deny you
            credit for time at liberty on parole based on your
            recommitment as a convicted parole violator. This includes
            the period you were on parole from your sentence at inmate
            number ED-6564 but confined on the detainer sentence at
            inmate number JR-3447. This means you still had 1551
            days remaining on your sentence.


                                         7
Following your parole from the detainer sentence at inmate
number JR-3447, supervision staff arrested you for parole
violations on December 27, 2012. The Board chose not to
recommit you for those violation[s] and instead placed you
in the parole violator program. You remained in that
program until May 20, 2013 at which time you were
released.
On September 20, 2013, authorities detained you for new
criminal charges that were docketed in the Court of
Common Pleas of Philadelphia County at CP# 12584-2013.
The Board lodged its detainer against you that same day.
The court granted you [release on your own recognizance]
bail on October 31, 2013, but you remained confined on the
[B]oard detainer. On March 20, 2014, you pled guilty to
the new criminal charges and the court sentenced you to a
new term of imprisonment to be served in the county prison
that same day. The court paroled you from the new county
prison sentence February 5, 2015.
Based on these facts, the Board gave you 144 days of credit
on your original sentence for the period you were confined
and/or in the parole violators program from December 27,
2012 to May 20, 2013. The Board also gave you 140 days
of credit for the period you [were] incarcerated solely on the
[B]oard detainer from October 31, 2013 to March 20, 2014.
Added together, this gave you a total of 284 days of credit
on your original sentence. The Board did not give you
credit for the period that you were incarcerated from
September 20, 2013 to October 31, 2013 because you were
held on both the new criminal charges and the [B]oard
detainer or solely on the new criminal charges during this
time. As such, credit for this time must apply to the new
sentence. Subtracting the 284 days of credit you received
from the 1551 days you had remaining left 1267 days to
serve on your sentence.
The [Parole Code] provides that convicted parole violators
who are paroled from [a state correctional institution] and
then receive a new sentence to be served in a county prison
must serve the new sentence first. 61 Pa.C.S. § 6138(a)(5).
This means you did not become available to serve your
original sentence until the court paroled you from the new
county prison sentence on February 5, 2015. Adding the
1267 days you had remaining on the sentence to this

                              8
            availability date yields a new maximum sentence date of
            July 26, 2018.

C.R. at 108-109.
            Serrano was paroled from a state correctional institution.          The
subsequent Philadelphia County Sentence was to be served in county prison.
Pursuant to Section 6138(a)(5)(iii) of the Parole Code, service of the Philadelphia
County Sentence was required to precede commencement of the balance of Serrano’s
original sentence.   The Board properly concluded that the time of Serrano’s
confinement on both the Board detainer and Philadelphia County Charges – between
September 20, 2013 to October 31, 2013 – was to be credited against the Philadelphia
County Charges, and not his backtime. Further, the Board correctly determined that
Serrano did not become available to serve his original sentence until he was paroled
from the Philadelphia County Sentence. There is no support for Serrano’s argument
that his Philadelphia County Sentence should have run concurrently with his
backtime. Therefore, his argument fails. Further, reviewing the Board’s rationale,
and applying the aforementioned authority, we discern no error in the Board’s
recalculation of Serrano’s maximum sentence release date to July 26, 2018.
            For all of the above reasons, the Board’s order is affirmed.




                                      ___________________________
                                      ANNE E. COVEY, Judge




                                          9
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Pedro Serrano,                          :
                         Petitioner     :
                                        :
                  v.                    :
                                        :
Pennsylvania Board of                   :
Probation and Parole,                   :   No. 2102 C.D. 2015
                         Respondent     :

                                      ORDER

            AND NOW, this 13th day of July, 2016, the Pennsylvania Board of
Probation and Parole’s September 4, 2015 order is affirmed.



                                      ___________________________
                                      ANNE E. COVEY, Judge
