                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jorge Berrios,                                  :
                              Petitioner        :
                                                :
               v.                               :
                                                :
Pennsylvania Board of Probation                 :
and Parole,                                     :    No. 905 C.D. 2016
                        Respondent              :    Submitted: September 15, 2017



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


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                          FILED: November 30, 2017

               Jorge Berrios (Berrios) petitions this Court for review of the
Pennsylvania Board of Probation and Parole’s (Board) May 13, 2016 order denying
his request for administrative relief. Berrios presents three issues for this Court’s
review: (1) whether the Board failed to apply credit to Berrios’ original sentence; (2)
whether the Board is authorized to change a judicially-imposed sentence; and (3)
whether the Board abused its discretion by denying him credit for his time spent at
liberty on parole.1 After review, we vacate and remand.
               Berrios is an inmate at the State Correctional Institution (SCI) at
Graterford. On June 14, 2002, the Board paroled Berrios to Kintock Community
Corrections Center from a 7 to 15-year sentence for third-degree murder (Original
Sentence). At that time, his maximum sentence release date was August 27, 2010.
As a condition of his parole, Berrios agreed:

      1
          The order of the issues has been changed for continuity purposes.
             If 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.

Certified Record (C.R.) at 7. Berrios did not object to the above-quoted parole
condition. On May 2, 2009, Berrios was arrested on drug charges. On May 3, 2009,
the trial court set bail in the amount of $8,000.00, which Berrios did not post. On
May 4, 2009, the Board issued a warrant to commit and detain Berrios pending
disposition of the drug charges. On August 20, 2009, the trial court changed Berrios’
bail to release on his own recognizance.
             On April 22, 2010, Berrios was convicted of manufacturing, delivering,
or possessing with intent to manufacture or deliver, a controlled substance and
conspiracy to manufacture, deliver, or possess with intent to manufacture or deliver, a
controlled substance, and the trial court revoked his bail. On June 14, 2010, Berrios
was sentenced to 2 consecutive terms of 2 to 4 years of incarceration, for an
aggregate sentence of 4 to 8 years of incarceration.
             On July 2, 2010, the Board served Berrios with a notice of charges and
notice of the Board’s intent to hold a parole revocation hearing. On July 14, 2010,
the Board held the revocation hearing at SCI-Rockview, at which Berrios was
represented by counsel. The Board Examiner voted on July 20, 2010 and, five
additional Board members voted between August 4 and September 20, 2010, to
recommit Berrios as a convicted parole violator (CPV) and reparole him to a state
detainer sentence. On October 2, 2013, Berrios was reparoled to the Philadelphia
Community Corrections Center. Berrios’ new maximum sentence release date was
October 6, 2017. As a condition of his parole, Berrios agreed:

             If you are convicted of a crime committed while on
             parole/reparole, the Board has the authority, after an

                                           2
             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.

C.R. at 76. Berrios did not raise any objections to the above-quoted parole condition.
On June 20, 2014, Berrios was arrested on new drug charges (New Charges). That
same date, the trial court set bail in the amount of $25,000.00, which Berrios did not
post. Also on June 20, 2014, the Board issued a warrant to commit and detain
Berrios pending disposition of the New Charges. On June 23, 2015, Berrios pled
guilty to manufacturing, delivering, or possessing with intent to manufacture or
deliver, a controlled substance. On September 4, 2015, Berrios was sentenced to 11/2
to 3 years of incarceration followed by 5 years of probation.
             On November 3, 2015, the Board served Berrios with a notice of charges
and notice of the Board’s intent to hold a parole revocation hearing. That day,
Berrios admitted to the parole violation, and waived his right to counsel and a
revocation hearing. On November 19 and December 8, 2015, respectively, Board
members voted to recommit Berrios as a CPV to serve 18 months backtime without
credit for time spent at liberty on parole. By decision recorded on January 29, 2016
(mailed February 10, 2016), the Board formally recommitted Berrios as a CPV to
serve 18 months backtime with a maximum sentence release date of November 29,
2022.
             The Board calculated Berrios’ new maximum sentence release date as
follows: When Berrios was released on parole on October 15, 2010, his Original
Sentence maximum release date was October 6, 2017 and, thus, he owed 2,548 days
of backtime on his Original Sentence. The Board chose not to credit Berrios for his
time spent at liberty on parole and, since the Board lodged its detainer on the same
day the trial court set Berrios’ unposted bail, the Board did not give Berrios credit
toward his Original Sentence for his pre-trial incarceration on the New Charges.

                                           3
Berrios did not become available to serve his Original Sentence until December 8,
2015, the date he was recommitted as a CPV. Adding 2,548 days to December 8,
2015 resulted in Berrios’ new November 29, 2022 Original Sentence maximum
release date.
                 On March 9, 2016, Berrios submitted an Administrative Remedies Form
challenging the Board’s decision recorded on January 29, 2016 (mailed February 10,
2016), which formally recommitted Berrios as a CPV. On May 13, 2016, the Board
denied Berrios’ request for administrative relief. Berrios appealed pro se to this
Court.2 Assistant Public Defender Seth E. Grant, Esquire (Counsel) subsequently
filed an Entry of Appearance on Berrios’ behalf. Thereafter, Counsel filed a Petition
for Leave of Court to Withdraw as Appellate Counsel (Application) and an Anders
brief.3       By February 14, 2017 opinion and order, this Court denied Counsel’s
Application based on Counsel’s failure to properly address Berrios’ issues and
directed Counsel to either file an amended Application and Anders brief that
adequately addressed each of Berrios’ appealed issues, or to submit a brief on the
merits. On June 25, 2017, Assistant Public Defender Raymond D. Roberts, Esquire,
filed a brief on the merits.4
                 Berrios first argues that the Board failed to apply credit to his Original
Sentence because it used the date his parole was revoked, i.e., December 8, 2015, as

          “Our scope of review of the Board’s decision denying administrative relief is limited to
          2

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
          Anders v. State of Cal., 386 U.S. 738, 744 (1967) (“a brief referring to anything in the
record that might arguably support the appeal” to be filed with the Court “if counsel finds his
[client’s] case to be wholly frivolous, after a conscientious examination of it”). Where counsel files
an Anders brief when a no-merit letter would have sufficed, we will accept an Anders brief in lieu
of a no-merit letter if that brief complies with the substantive requirements of a no-merit letter.
Seilhamer v. Pa. Bd. of Prob. & Parole, 996 A.2d 40 (Pa. Cmwlth. 2010).
        4
          Although the Court ordered the brief to be filed within 30 days, a request for a 90-day
extension of time was granted because Counsel had resigned from the Public Defender’s Office.
                                                  4
the starting date to recalculate his Original Sentence maximum release date, rather
than the date he was sentenced (September 4, 2015) or the date he was returned to
SCI-Gratorford (September 10, 2015). We disagree.
            Section 6138 of the Parole Code provides in relevant part:

            (a) Convicted violators.--
            (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, except as provided under
            paragraph (2.1), 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 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.


                                           5
            (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 (text emphasis added). Berrios relies on Section 6138(a)(4) of the
Parole Code to support his position. We acknowledge that

            [CPVs] must serve the backtime on their original state
            sentence before they can begin to serve time on their newly-
            imposed state sentence under Section 6138(a) of the
            [Parole] Code. As this Court has explained:
               [The predecessor statute to Section 6138(a)(4) of the
               Parole Code] provide[d] in part that ‘[t]he period of
               time for which the parole violator is required to serve
               shall be computed from and begin on the date that he
               is taken into custody to be returned to the institution as
               a parole violator.’
               This Court, however, in [Campbell v. Pennsylvania
               Board of Probation and Parole, 409 A.2d 980 (Pa.
               Cmwlth. 1980)], held that where the Board pursuant to
               [the prior statute] recommits a [CPV] to serve the
               balance of an original sentence before beginning
               service of a new term, the prisoner’s service of
               backtime on the original sentence must be
               computed from the date the Board revokes the
               prisoner’s parole. The Court further noted in
               Campbell that the time served by the prisoner prior to
               the date parole is revoked must be applied to the new
               sentence.
            Hill v. [Pa. Bd. of Prob. & Parole], 683 A.2d 699, 701-02
            (Pa. Cmwlth. 1996). As a result, the Board did not err in
            calculating [Berrios’] new maximum date from [December
            8, 2015], the date on which the Board obtained the second
            signature from a panel member that was necessary to
            recommit him as a convicted parole violator.

Wilson v. Pa. Bd. of Prob. & Parole, 124 A.3d 767, 769 (Pa. Cmwlth. 2015)
(footnote omitted; emphasis added). Accordingly, the Board properly used Berrios’
parole revocation date to calculate his Original Sentence maximum release date.


                                           6
            Berrios next argues that the Board is not authorized to change a
judicially-imposed sentence. However, “this Court has stated that ‘[w]hen imposing
backtime, the [B]oard directs a parolee to complete the original judicially-mandated
sentence, and does not impose any additional sentence. . . .’” Yates v. Pa. Bd. of
Prob. & Parole, 48 A.3d 496, 502 (Pa. Cmwlth. 2012) (quoting Epps v. Pa. Bd. of
Prob. & Parole, 565 A.2d 214, 217 (Pa. Cmwlth. 1989)).
            Here, Berrios had 2,548 days remaining on his Original Sentence when
he was paroled. As explained above, service of his backtime began on December 8,
2015. Because the Board did not give Berrios credit for his time served at liberty on
parole, his new Original Sentence maximum release date was calculated by adding
2,548 days to December 8, 2015, resulting in Berrios’ new November 29, 2022
Original Sentence maximum release date. Accordingly, the Board did not change
Berrios’ judicially-imposed sentence.
            Finally, Berrios asserts that the Board abused its discretion by denying
him credit for his time spent at liberty on parole. The Board’s obligation relative to
denying a CPV credit for his time spent at liberty on parole was recently addressed by
our Supreme Court in Pittman v. Pennsylvania Board of Probation and Parole, 159
A.3d 466 (Pa. 2017). The Pittman Court held:

            As an initial matter, we hold that Subsection 6138(a)(2.1)
            [of the Parole Code] clearly and unambiguously grants the
            Board discretion to award credit to a CPV recommitted to
            serve the remainder of his sentence, except when the CPV
            is recommitted for the reasons stated in Subsections
            6138(a)(2.1)(i) and (ii) [of the Parole Code]. In this case,
            [the a]ppellant[, like Berrios] was not recommitted for
            reasons enumerated in Subsections 6138(a)(2.1)(i) and (ii)
            [of the Parole Code]. Thus, . . . the Board unquestionably
            had the discretion to grant [the a]ppellant credit if it so
            desired. . . .
            [W]e recognize that the Board has the broadest of discretion
            over many decisions regarding parolees and that . . . there is

                                          7
             no explicit requirement that the Board must provide a
             contemporaneous statement explaining its decision in
             Subsection 6138(a)(2.1) [of the Parole Code]. However,
             Article V, Section 9 of the Pennsylvania Constitution grants
             all persons the right to appeal from an administrative
             agency to a court of record. . . . This is consistent with
             inherent notions of due process. To the extent [the
             a]ppellant has a right to appeal, an appellate court hearing
             the matter must have [a] method to assess the Board’s
             exercise of discretion. Accordingly, we hold that the
             Board must articulate the basis for its decision to grant
             or deny a CPV credit for time served at liberty on
             parole.

Pittman, 159 A.3d at 474 (emphasis added). Accordingly, although the Board had
the discretion to deny Berrios credit for his time spent at liberty on parole, based on
this record, we cannot determine whether the Board abused that discretion without
remanding the matter for the Board to articulate its reasons for doing so.
             For all of the above reasons, the Board’s order is vacated, and the matter
is remanded to the Board solely to articulate its reasons for denying Berrios credit for
his time served at liberty on parole.

                                        ___________________________
                                        ANNE E. COVEY, Judge




                                           8
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jorge Berrios,                              :
                             Petitioner     :
                                            :
             v.                             :
                                            :
Pennsylvania Board of Probation             :
and Parole,                                 :   No. 905 C.D. 2016
                        Respondent          :



                                          ORDER


             AND NOW, this 30th day of November, 2017, the Pennsylvania Board
of Probation and Parole’s (Board) May 13, 2016 order is vacated and the matter is
remanded to the Board to articulate its reasons for denying Jorge Berrios credit for his
time at liberty on parole.


             Jurisdiction relinquished.

                                          ___________________________
                                          ANNE E. COVEY, Judge
