         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Ramon Ortiz,                         :
                  Petitioner         :
                                     :
            v.                       : No. 2398 C.D. 2015
                                     : Submitted: October 7, 2016
Pennsylvania Board of Probation      :
and Parole,                          :
                 Respondent          :


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


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                           FILED: October 31, 2016


            Ramon Ortiz (Parolee) petitions for review of the decision of the
Pennsylvania Board of Probation and Parole (Board) denying his request for
administrative relief from the Board’s order recommitting him as a convicted
parole violator (CPV) and recalculating his parole violation maximum sentence
date. Because the Board admits that it erred in recalculating Parolee’s maximum
parole date, we vacate and remand.


            Following Parolee’s guilty plea to one count of Manufacture, Delivery
or Possession with Intent to Manufacture a Controlled Substance, Section
13(a)(30) of The Controlled Substance, Drug, Device and Cosmetic Act, Act of
April 14, 1972 P.L. 233, as amended, 35 P.S. § 780–113(a)(30), he was sentenced
to a state correctional institution (SCI) to serve a one-and-one-half to four-year
term of imprisonment, with a minimum release date of February 8, 2013, and a
maximum release date of August 8, 2015. Parolee was released on parole from the
SCI on May 16, 2013. Per special conditions of his parole, Parolee was to report
directly to Kintock Erie, CCF (CCC) immediately upon release and remain there
until discharged.1 (Certified Record (C.R.) at 9.)


               After Parolee pulled a fire alarm and absconded from the CCC on
June 13, 2013, the Board declared him delinquent. On October 19, 2013, Parolee
was arrested and placed in the Philadelphia County Prison for charges of Criminal
Attempt - Causing Catastrophe, Escape and False Alarm to Agency of Public
Safety, 18 Pa. C.S. §§ 901(a), 5121(a), 4905(a). On that same day, the Board
lodged its detainer and the trial court set bail. Parolee was unable to post bail on
those charges. On November 14, 2013, the Philadelphia County Court modified
Parolee’s monetary bail to release on his own recognizance (ROR), but he
remained imprisoned due to the Board’s detainer.


               On November 27, 2013, the Board recommitted Parolee as a technical
parole violator (TPV) and sentenced him to six months for changing his residence
without permission and his unsuccessful discharge from the CCC. The Board

       1
         The parole conditions that the Parolee signed also state, in pertinent part, 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.” (C.R. at
8.)




                                                 2
recalculated his parole violation maximum date to December 14, 2015.2                    On
January 24, 2014, the Philadelphia County Court revoked Petitioner’s ROR bail
and reinstated monetary bail, which Parolee did not post.


                  Because Parolee pled guilty to one count of False Alarm to an Agency
of Public Safety, 18 Pa. C.S. § 4905(a), on December 12, 2014, he was sentenced
to serve an 11-and-one-half-month to 23-month term of imprisonment in the
Philadelphia County Prison with credit for time served, and he was to be
automatically paroled at the minimum sentence date. The Board then held a
revocation hearing and recommitted Parolee as a CPV to serve six months to run
concurrently with backtime imposed for his TPV, with no credit for his time at
liberty on parole. On February 5, 2015, March 12, 2015, and March 17, 2015, the
Board issued orders modifying and, ultimately, excluding any mention of Parolee’s
eligibility for reparole and recalculating his maximum date to December 26, 2016.3
On September 30, 2015, Parolee was paroled from Philadelphia County Prison for
his December 2014 criminal sentence and was sent to an SCI to serve his “state
time.”


                  Soon thereafter, Parolee sent a Petition for Administrative Review to
the Board objecting to the recalculation of his maximum date. On November 12,

         2
         In its decision recommitting Parolee as a TPV, the Board also noted that he would be
reparoled automatically on April 19, 2014, pending resolution of his outstanding criminal
charges, and that his maximum date was subject to change if he were convicted of his
outstanding criminal charges.

         3
             The Board noted that Parolee’s maximum date was subject to change.




                                                 3
2015, the Board recorded a decision modifying his maximum date to November
16, 2017.4 The next day, because the Board already recalculated the maximum
date that Parolee was objecting to, the Board’s Administrative Review Designee
dismissed Parolee’s Petition for Administrative Review as moot. Parolee filed
another Petition for Administrative Review and an Administrative Appeal, but the
Board did not respond. Parolee then filed this petition for review.5


                  On appeal, the Board admits that it erred in recalculating Parolee’s
maximum release date as November 16, 2017. However, the parties disagree as to
what is the proper maximum release date. Parolee contends that he should receive
a backtime credit of 102 days for the period of time spanning from October 14,
2013, to January 24, 2014, and the Board contends that he should only be credited
for 71 days because he was only on ROR bail from November 14, 2013, to January
24, 2014, after which his bail conditions changed to monetary, which he did not
post.6

         4
         The Board’s decision further stated that Parolee was not eligible for reparole until
February 23, 2016.

         5
         Our scope of review is limited to determining whether the Board’s decision is supported
by substantial evidence, whether an error of law was committed, or whether constitutional rights
have been violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704; Moroz v.
Pennsylvania Board of Probation and Parole, 660 A.2d 131, 132 (Pa. Cmwlth. 1995).

         6
             Section 6138(a)(2) of the Prisons and Parole Code provides:

                  (a) Convicted violators.—

                                                 ***

                         (2) If the parolee’s recommitment is so ordered, the parolee
                  shall be reentered to serve the remainder of the term which the
(Footnote continued on next page…)

                                                   4
               This discrepancy appears to be the result of Parolee’s misreading of
the date he was released on ROR bail. The Philadelphia Court of Common Pleas’
criminal docket sheet states that his ROR bail was set on November 14, 2013.
(C.R. at 55.) Moreover, he could not be released on ROR bail on October 14,
2013, because he was not arrested until October 19, 2013.


               Parolee was released on parole on May 15, 2013, with 814 days of
backtime remaining on his sentence.7                After the Philadelphia County Court
modified his bail to ROR on November 14, 2013, he should have received 71 days
of backtime credit – i.e., credit for time that he was held in custody solely on the
basis of the Board’s detainer – because the court reinstated monetary bail on
January 24, 2014, which Parolee failed to post. Subtracting Parolee’s 71 days of


(continued…)

               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.

61 Pa. C.S. § 6138(a)(2). Time incarcerated shall be credited to a convicted parole violator’s
original term only when he remains incarcerated solely by reason of the Board’s detainer. Gaito
v. Pennsylvania Board of Probation and Parole, 412 A.2d 568, 571 (Pa. 1980). When bail is not
posted, the time period during which a parolee is incarcerated on both new criminal charges and
the Board’s detainer must apply to the new sentence. Id. Credit will only be applied to a
parolee’s original sentence when it is not possible to award all of the credit on the new sentence
because the period of pre-sentence incarceration exceeds the maximum term of the new sentence.
Armbruster v. Pennsylvania Board of Probation and Parole, 919 A.2d 348, 355 (Pa. Cmwlth.
2007).

       7
          While Parolee’s brief asserts that he was released on parole on May 15, 2013, as
opposed to May 16, 2013, both the Order to Release on Parole/Reparole and the Pennsylvania
Department of Corrections’ Moves Report state that his actual date of release was May 16, 2013.
(C.R. at 7, 113.)



                                                5
backtime credit from the original 814 days of backtime results in 743 days of
backtime. Because Parolee became available to begin serving his 743 days of
backtime on September 30, 2015, which is when he was paroled from his
December 2014 sentence from the Philadelphia County Prison, the Board should
have set his maximum date to October 12, 2017. 61 Pa. C.S. § 6138.


             Accordingly, we vacate the Board’s denial of Parolee’s request for
administrative relief and this matter is remanded to the Board for proceedings
consistent with this opinion.



                                     _______________________________
                                     DAN PELLEGRINI, Senior Judge




                                       6
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Ramon Ortiz,                             :
                   Petitioner            :
                                         :
            v.                           : No. 2398 C.D. 2015
                                         :
Pennsylvania Board of Probation          :
and Parole,                              :
                 Respondent              :




                                    ORDER


            AND NOW, this 31st day of October, 2016, it is hereby ordered that
the order of the Pennsylvania Board of Probation and Parole (Board) at Parole No.
495-GO, bearing a mailing date of November 13, 2015, is vacated and this matter
is remanded to the Board for further proceedings consistent with this opinion.


            Jurisdiction relinquished.



                                         _______________________________
                                         DAN PELLEGRINI, Senior Judge
