           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Anthony Harner,                       :
                   Petitioner         :
                                      :
      v.                              : No. 358 C.D. 2019
                                      : SUBMITTED: July 19, 2019
Pennsylvania Board of Probation       :
and Parole,                           :
                  Respondent          :



BEFORE:     HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                    FILED: September 5, 2019

      Anthony Harner (Harner) petitions for review from a March 6, 2019 order of
the Pennsylvania Board of Probation and Parole (Board). The Board affirmed its
August 11, 2017 decision recommitting Harner to serve six months of backtime as a
convicted parole violator (CPV) and recalculating his maximum parole violation
date as September 3, 2019. After thorough consideration, we reverse the Board’s
order in part and remand for proceedings consistent with this opinion.
                                  I. Background
      Harner pleaded guilty to a single count of aggravated assault and was
sentenced on September 30, 2009, in the Court of Common Pleas of Philadelphia
County (Trial Court) to a term of 5 to 10 years in state prison. Certified Record
(C.R.) at 1-3. Harner was paroled on September 12, 2016. At that time the maximum
date on his sentence was March 21, 2019. Id. at 11. Harner was subsequently
declared delinquent by the Board on October 30, 2016 after he did not return to his
designated halfway house in Philadelphia. Id. at 17-20.
      Harner was arrested in Philadelphia County on November 25, 2016 and
charged with several new crimes relating to theft of a motor vehicle. Id. at 22-24.
The Board placed a detainer upon Harner that same day. Id. at 21. On January 26,
2017, the Board ordered him to serve six months of backtime as a technical parole
violator (TPV) and to be detained pending resolution of the new theft charges. Id. at
43-47.
      Harner pleaded guilty to a single count of theft and was sentenced by the Trial
Court on March 1, 2017, to a term of 3 months to 23 months, with a direction that
the new sentence be served concurrently with all other active sentences and that
Harner be “immediately paroled” on June 1, 2017 (i.e., after completing the
minimum of 3 months). Id. at 51. Of particular relevance to this matter, the trial court
directed that Harner serve this sentence in “State Custody.” Id.
      On August 11, 2017, the Board ordered Harner to serve six months of
backtime as a convicted parole violator (CPV), concurrent with the previously
imposed six months of TPV backtime. Id. at 80-81. The Board awarded Harner 96
days of credit for the time period between November 25, 2016, and March 1, 2017,
during which he was held solely on the Board’s detainer. However, the Board denied
any sentence credit for the time Harner spent at liberty on parole. Thus, the Board
calculated that Harner had 824 days remaining on his 2009 sentence. Id. at 94-95.
      The Board determined that Harner did not become available to begin serving
the imposed backtime until June 1, 2017, the Trial Court’s stated minimum parole




                                           2
date on his new sentence. Accordingly, the Board recalculated Harner’s maximum
sentence date on his 2009 conviction as September 3, 2019. Id. at 78.
       On August 18, 2017, Harner mailed an administrative remedies form to the
Board, arguing that the correct maximum date on his 2009 sentence was actually
June 3, 2019, not September 3, 2019, and that his backtime was supposed to run
concurrently with his new sentence. Id. at 92-93.1 The Board denied Harner’s
administrative challenge on March 6, 2019, informing him that backtime and new
sentences could only be served consecutively, not concurrently. The Board also
concluded that his maximum sentence date was correct, as he had not become
available to begin serving the imposed backtime until after completion of his new
sentence, which the Board characterized as county-level in nature. Id. at 94-95. This
Petition for Review followed.
                                           II. Issue
       On appeal,2 Harner maintains that the Board erred by recalculating his
maximum date as September 3, 2019. Petitioner’s Br. at 10-14. Harner claims that
his actual maximum date is June 3, 2019, because the Trial Court had ordered him
to serve his new sentence in state prison, which rendered him available to serve the
imposed backtime immediately after he was sentenced on March 1, 2017.3 Id.

       1
          Harner previously mailed an administrative remedies form to the Board on May 15, 2017,
which the Board dismissed as premature, due to the fact that it had been sent before the Board
issued its August 11, 2017 decision. C.R. at 90-91, 94.

       2
        Our standard of review in the context of Board decisions is limited to determining whether
the Board violated a petitioner’s constitutional rights or committed an error of law, as well as
whether the Board’s findings of fact are supported by substantial evidence. Section 704 of the
Administrative Agency Law, 2 Pa. C.S. § 704.

       3
         Harner does not reassert on appeal his argument that his backtime should have run
concurrently with his new sentence.



                                                3
                                       III. Discussion

      Section 6138(5) of the Prisons and Parole Code4 states:
               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 . . .
                      (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(5). Thus, the salient issue when determining the order in which
a CPV must serve Board-mandated backtime and a new, state court-imposed
sentence is not the length of that sentence, but rather where that sentence is to be
served. See generally 1 Pa. C.S. § 1921(a)-(b) (“The object of all interpretation and
construction of statutes is to ascertain and effectuate the intention of the General
Assembly. . . . When the words of a statute are clear and free from all ambiguity,
the letter of it is not to be disregarded under the pretext of pursuing its spirit.”).
      Here, the Trial Court explicitly ordered Harner to serve his 2017 sentence in
state prison. Therefore, Harner was required by law to serve the backtime imposed
by the Board before starting to serve his new sentence. 61 Pa. C.S. § 6138(5)(i). The
Board’s insistence that Harner serve his new sentence first thus contravened this




      4
          61 Pa. C.S. §§ 101 – 7123.


                                             4
statutory mandate. Accordingly, we agree with Harner that the correct maximum
sentence date on his 2009 sentence was June 3, 2019, rather than September 3, 2019.
                                  IV. Conclusion
      Based on the foregoing discussion, we reverse the portion of the Board’s
March 6, 2019 order that set Harner’s maximum date on his 2009 sentence as
September 3, 2019, and remand this matter to the Board so that it can recalculate the
maximum date on that sentence as June 3, 2019.




                                       __________________________________
                                       ELLEN CEISLER, Judge




                                         5
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Anthony Harner,                      :
                   Petitioner        :
                                     :
      v.                             : No. 358 C.D. 2019
                                     :
Pennsylvania Board of Probation      :
and Parole,                          :
                 Respondent          :

                                   ORDER


      AND NOW, this 5th day of September, 2019, the portion of the March 6, 2019
order of the Pennsylvania Board of Probation and Parole (Board) recalculating the
maximum sentence date of Anthony Harner as September 3, 2019 is hereby
REVERSED. This matter is REMANDED to the Board for a recalculation of
Harner’s maximum date for his 2009 sentence as June 3, 2019.
      Jurisdiction relinquished.




                                     __________________________________
                                     ELLEN CEISLER, Judge
