        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Norman Collins,                          :
                          Petitioner     :
                                         :
                   v.                    :   No. 1648 C.D. 2015
                                         :   Submitted: December 9, 2016
Pennsylvania Board of Probation          :
and Parole,                              :
                        Respondent       :



BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge




OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                      FILED: March 7, 2017


      Norman Collins (Collins) petitions for review of the May 15, 2015 Order of
the Pennsylvania Board of Probation and Parole (Board) that denied Collins’
administrative appeal and petition for administrative review and affirmed its April
9, 2015 Decision that recommitted Collins to serve 30 months backtime as a
convicted parole violator (CPV), recalculated Collins’ reparole eligibility date as
September 1, 2017, and recalculated Collins’ maximum date to May 29, 2020. On
appeal, Collins argues he is entitled to credit against his original sentence for the
period between October 22, 2014, and March 1, 2015, and that the Board should
have used October 22, 2014, as the beginning date to calculate his backtime and
establish his reparole eligibility date. Collins further asserts that he should be
given credit for this period of time against both his original sentence and a new
sentence based on the sentencing order of the Court of Common Pleas of
Montgomery County in a subsequent criminal matter.1
       The relevant facts in this matter are as follows. While on parole from his
original sentence, Collins was arrested and charged in Montgomery County with
Driving Under the Influence of Alcohol (DUI) on July 8, 2014.2                        (Court of
Common Pleas of Montgomery County Criminal Docket No. CP-46-CR-0004980-
2014 at 2, C.R. 64.) Collins posted bail that same day. (Id.) On or about July 10,
2014, Collins was arrested and charged in Philadelphia County with robbery,
burglary, possession of an instrument of crime, receiving stolen property, and other
lesser offenses (Philadelphia Charges). (Court of Common Pleas of Philadelphia
County Criminal Docket Nos. CP-51-CR-0009849-9858 (Phila. Crim. Docket),
C.R. 76-162.) Collins did not post bail on these charges. (Id.) On July 10, 2014,
the Board issued a warrant to detain Collins pending disposition of the
Philadelphia Charges. (C.R. at 54.) On October 9, 2014, Collins pleaded guilty to
the DUI charge and was sentenced to six months of county probation.

       1
           Collins’ appointed counsel initially filed an Application to Withdraw as Counsel
(Application to Withdraw) along with a Turner Letter pursuant to Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988), which this Court denied. Collins v. Pa. Bd. of Prob. and Parole (Pa.
Cmwlth., No. 1648 C.D. 2015, filed July 26, 2016). Counsel was given the opportunity to file a
new Application to Withdraw and a Turner Letter or a brief on the merits of Collins’ petition for
review. Counsel has filed a brief on the merits. However, we note that the brief argues that we
are reviewing a determination of the Department of Corrections to not give Collins credit for this
time period rather than of the Board.
        2
          It appears from the Certified Record that the DUI for which Collins was arrested on July
8, 2014, occurred on March 8, 2014. (Supervision History at 3, C.R. at 57.) Collins’
Supervision History indicates that a “Level Two Conference was held on 4-15-14 and it was
decided to continue [Collins] under supervision, pending [Collins] continuing in outpatient
counseling, weekly reporting schedule[,] and nightly curfew.” (Id.) The Supervision History
then states that Collins was arrested for this charge on July 8, 2014. (Id.)

                                                2
(Trial/Plea/Sentence, C.R. at 72-73.) On October 22, 2014, Collins pleaded guilty
to the Philadelphia Charges and was sentenced to an aggregate 12 ½ to 25 years’
imprisonment in a State Correctional Institution (SCI). (Phila. Crim. Docket at 3-5
C.R. at 88-90; Negotiated Guilty Plea, C.R. at 92.)                   The Norristown Police
Department obtained an arrest warrant for Collins on burglary charges3
(Norristown Charges) on November 13, 2014.                    (Affidavit of Probable Cause
Continuation, C.R. at 197; Notice of Charges and Hearing, C.R. at 198.) Collins
subsequently pleaded guilty to the Norristown Charges and was sentenced on June
9, 2015, to one to three years’ imprisonment in an SCI for two counts of burglary,
with credit for time served from July 9, 2014, through June 9, 2015.
(Trial/Plea/Sentence, C.R. at 191-92.) The sentencing order further indicated that
this time was to be served “concurrent[ly] to all previously imposed sentences.”
(Id. at 192.)
       While the Norristown Charges were pending, Collins waived his right to a
recommitment hearing and admitted to having been convicted of the Philadelphia
Charges. (C.R. at 167.) By Decision mailed April 9, 2015, the Board recommitted
Collins to serve 30 months of backtime (effective March 1, 2015), recalculated his
reparole eligibility date to September 1, 2017, and recalculated his maximum date
to May 29, 2020. (C.R. at 187-88.) Collins filed an administrative appeal and
petition for administrative review, arguing that he was entitled to credit against his
backtime for the period between October 22, 2014, (when he was sentenced on the
Philadelphia Charges) and March 1, 2015, (when the Board voted to recommit
him). (C.R. at 203-08.) He further asserted that his reparole eligibility date should
be calculated from October 22, 2014, and, therefore, he should be eligible for

       3
           These charges are apparently unrelated to the Philadelphia Charges.

                                                 3
reparole on April 23, 2017. (Id.) By Order mailed May 15, 2015, the Board
affirmed its April 9, 2015 Decision. (C.R. at 210-11.) Collins then petitioned this
Court for review of the May 15, 2015 Order.4
       After the Board issued its May 15, 2015 Order, the Board convened another
revocation hearing on September 18, 2015, based on Collins’ conviction of the
Norristown Charges. (C.R. at 198-200; Supplemental Certified Record 15 (Supp.
C.R. 1) at 12A.) Following that hearing, the Board gave Collins credit against his
original sentence for the period from October 22, 2014, to June 9, 2015. (Supp.
C.R. 1 at 22A.) By decision mailed April 19, 2016, the Board recommitted Collins
to serve 24 months backtime, to run concurrently with the previously imposed 30
months backtime, and recalculated his maximum date to January 20, 2020,6 and his
reparole eligibility date to April 21, 2017. (Supp. C.R. 1 at 20A-22A.) There is no
indication in the records certified to this Court that Collins challenged the April 19,
2016 Decision.
       On appeal, Collins first argues he is entitled to credit against his original
sentence for the period between October 22, 2014, and March 1, 2015, and that the


       4
         In reviewing the Board’s orders, our review “is limited to determining whether the
Board’s findings are supported by substantial evidence, [whether] an error of law [was]
committed, or whether any of the parolee’s constitutional rights were violated.” Andrews v. Pa.
Bd. of Prob. and Parole, 516 A.2d 838, 841 n.10 (Pa. Cmwlth. 1986).
       5
         The Board filed two Supplemental Certified Records with this Court on October 20,
2016, and October 28, 2016, respectively. After each supplemental record was filed, this Court
issued an order granting Collins’ counsel the opportunity to file a supplemental brief. No
additional briefs were filed.
       6
         We note that the Board’s April 19, 2016 Decision states that Collins’ new maximum
date would be January 19, 2020, but the Board’s Order to Recommit indicates that this date
should be January 20, 2020. (Supp. C.R. 1 at 20A-22A.) Adding the 1,686 days remaining on
Collins’ original sentence to June 9, 2015, the date he was returned to custody, results in a new
maximum date of January 20, 2020. (Supp. C.R. 1 at 22A.)

                                               4
Board should have used October 22, 2014, as the beginning date to calculate his
backtime and calculate his reparole eligibility.7 However, in its April 19, 2016
Decision, the Board gave Collins credit against his original sentence for the time
between October 22, 2014, and June 9, 2015, which includes the October 22, 2014,
to March 1, 2015, period he asserts he is owed, and recalculated Collins’ new
maximum date to January 20, 2020, to reflect that credit. (Id.) Additionally the
Board changed Collins’ reparole eligibility date from September 1, 2017, to April
21, 2017, which reflects that the Board began running Collins’ 30 months of
backtime from October 22, 2014.8 (Id.) Therefore, because Collins has received
the relief requested, these issues have been rendered moot.
       Collins further asserts that he should be given credit for this period of time
against both his new sentence on the Norristown Charges and his original sentence
because the sentencing order for the Norristown Charges provided that his new
sentence was to run concurrently with any existing sentences citing
Commonwealth ex rel. Powell v. Department of Corrections, 14 A.3d 912 (Pa.
Cmwlth. 2011). Powell does not support Collins’ assertion, particularly in light of
this Court’s recent decision in Kerak v. Pennsylvania Board of Probation and



       7
          Collins also argues that there were two other periods of incarceration, December 13,
2013, to July 16, 2014, and July 16, 2014, to October 3, 2014, for which he is also entitled to
credit. However, these dates, which were referenced in the Board’s May 15, 2015, Order, appear
to be typographical errors as there is no reference in the record to Collins being separately
detained on these dates. (See Board’s Br. at 16 n.1 (describing how this error, and the Board’s
erroneous mention of Collins having 935 days remaining on his original sentence in the May 15,
2015, Order, are typographical errors).) Accordingly, we will not give Collins credit for these
dates.
        8
          April 21, 2017, is 30 months from October 22, 2014, and September 1, 2017, is 30
months from March 1, 2015.

                                              5
Parole, __ A.3d __ (Pa. Cmwlth., No. 406 C.D. 2015, filed November 10, 2016)
(en banc).
       In Powell, an inmate filed a petition for mandamus against the Department
of Corrections (Department) seeking to compel the Department to recalculate his
prison sentence so that, in accordance with the two sentencing courts’
sentencing/resentencing orders, two of his sentences would run concurrently with a
third sentence. Id. at 914-15. We granted the petition and directed the Department
to comply with the orders as written, which were not on their face incompatible
with any law,9 rather than on an after-the-fact “clarification” issued by one of the
sentencing judges in response to a Department inquiry occurring after the
expiration of 30-day period that the sentencing court retained jurisdiction to
modify the sentencing order. Id. at 916-18. This Court recently reaffirmed, in
Kerak, __ A.3d at __, slip op. at 13, that, pursuant to Section 6138(a)(5) of the
Code,10 a new sentence cannot run “concurrently with the service of the backtime



       9
            This Court observed, in Powell, that it was not a situation where requiring the
Department to apply the orders as written would have required the Department to honor an
illegal order in contravention of Fajohn v. Department of Corrections, 692 A.2d 1067 (Pa. 1997).
In Fajohn, the Supreme Court held that the Department could not be required to give a prisoner
credit on a new sentence for time being served on an unrelated charge that the prisoner was
serving when convicted of the new charge, despite a sentencing order directing it to do so,
because the sentencing court was precluded from awarding such credit under the Pennsylvania
Rules of Criminal Procedure. Id. at 1068. The Supreme Court held that mandamus will not lie
to compel the Department to abide by an illegal sentencing order. Id.
         10
            Section 6138(a)(5) provides, in relevant part, that:

              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:

                                                                               (Continued…)
                                               6
owed on his original sentence, notwithstanding [a sentencing court’s] order to the
contrary.” Thus, unlike in Powell where complying with the sentencing orders
would not have violated the law, interpreting the sentencing order on the
Norristown Charges the way Collins requests would be contrary to Section
6138(a)(5) of the Parole Code and Kerak. Therefore, we cannot give Collins
credit for this time period against both his original sentence and his new sentence
on the Norristown Charges.
       Accordingly, to the extent that the April 19, 2016 Decision gives Collins the
credit and reparole eligibility date he has requested in this petition for review, we
affirm.



                                                 ________________________________
                                                 RENÉE COHN JUBELIRER, Judge




                (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)(5).

                                                 7
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Norman Collins,                         :
                         Petitioner     :
                                        :
                  v.                    :   No. 1648 C.D. 2015
                                        :
Pennsylvania Board of Probation         :
and Parole,                             :
                        Respondent      :



                                      ORDER


      NOW, March 7, 2017, the May 15, 2015, Order of the Pennsylvania Board
of Probation and Parole, entered in the above-captioned matter, is hereby affirmed
in accordance with the foregoing opinion.




                                        ________________________________
                                        RENÉE COHN JUBELIRER, Judge
