IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jason Lang, :

Petitioner :

:

v. :

:

Pennsylvania Board of :

Probation and Parole, : No. 927 C.D. 2017

Respondent : Submitted: December 1, 2017

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY 

JUDGE COVEY FILED: March 12, 2018

Jason Lang (Lang) petitions this Court for review of the Pennsylvania 

Board of Probation and Parole’s (Board) June 6, 2017 decision denying his request 

for administrative relief. The sole issue before this Court is whether the Board erred 

in its recalculation of Lang’s maximum sentence release date. 

Lang is an inmate currently incarcerated at the State Correctional 

Institution (SCI) at Waymart. On August 5, 2014, Lang was paroled from a two to 

four-year sentence for the manufacture, sale, delivery or possession with the intent to 

deliver a controlled substance, and a probation violation (Original Sentence). Lang’s 

original maximum release date was March 6, 2017. As a condition of his parole, 

Lang agreed, inter alia, to “report[] regularly as instructed and follow[] any written 

instructions of the Board or the parole supervision staff” (Condition 3a). Certified 

Record (C.R.) at 72. In addition, Lang acceded that “[i]f [he] [wa]s arrested on new 

criminal charges, the Board ha[d] the authority to lodge a detainer against [him] 
2

which w[ould] prevent [his] release from custody, pending disposition of th[e]

charges, even though [he] may have posted bail or been released on [his] own 

recognizance from those charges.” C.R. at 72. Lang further agreed that “[i]f [he] 

[wa]s convicted of a crime committed while on parole[], the Board ha[d] the

authority, after an appropriate hearing, to recommit [him] to serve the balance of the

sentence . . . which [he] was serving when paroled[], with no credit for time at liberty 

on parole.” C.R. at 72. Lang did not raise any objections to the above-quoted parole 

conditions.

By October 26, 2015 decision, the Board declared Lang delinquent after 

parole staff was unable to locate him and he refused to report as instructed. See C.R. 

at 75, 87, 92. On December 15, 2015, Lang was arrested based on new criminal 

charges (New Charges), see C.R. at 108, and his parole delinquency. The Board 

lodged its warrant to commit and detain Lang that same day. Lang was detained in 

Montgomery County prison. See C.R. at 75-91. Lang was formally charged on 

December 18, 2015, and bail was set at $10,000.00, which he was unable to post. See

C.R. at 81-82, 84. 

On December 22, 2015, the Board served Lang with a notice of charges 

and notice of the Board’s intent to hold a detention hearing. See C.R. at 92. That 

day, Lang admitted to his arrest for the New Charges, and waived his right to counsel 

and a detention hearing. See C.R. at 92-96. On December 31, 2015, the hearing 

examiner recommended and, on January 11, 2016, a second Board panel member 

provided the second signature needed to recommit Lang to a state correctional 

institution as a technical parole violator. See C.R. at 97-105. 

On January 6, 2016, Lang was transferred from Montgomery County 

prison to SCI-Graterford, his bail was modified to “unsecured,” and he posted bail 

that day. See C.R. at 81-82, 107-108, 111, 157-160. By January 28, 2016 decision

(issued February 3, 2016), the Board formally recommitted Lang as a technical parole 
3

violator to serve his “UNEXPIRED TERM[:] 4 MONTHS, 12 DAYS,” and recalculated his 

maximum sentence release date as April 28, 2016, “SUBJECT TO CHANGE IF [LANG IS]

CONVICTED OF [THE NEW] CHARGES.” C.R. at 105; see also C.R. at 105-106. The 

Board’s decision reflected that Lang was being detained pending disposition of the 

New Charges. See C.R. at 105. 

On July 8, 2016, the Board issued a decision stating: “REFER TO BOARD

ACTION OF 01/28/2016 TO DETAIN PENDING DISPOSITION OF CRIMINAL CHARGES, AND 

TO RECOMMIT AS A TECHNICAL PAROLE VIOLATOR TO SERVE [HIS] UNEXPIRED TERM OF 

4 MONTHS 12 DAYS, AND NOW; DECLARE DELINQUENT FOR CONTROL PURPOSES 

EFFECTIVE 12/15/2015.”

1

 C.R. at 122; see also C.R. at 120-122. The Board lifted its 

detainer when Lang’s sentence expired on April 28, 2016. 

On August 23, 2016, Lang pled guilty to intentional possession of a 

controlled substance, and was sentenced to 250 days to 23 months incarceration in a 

county prison. See C.R. at 107-119, 161-162. On October 25, 2016, the Board 

served Lang with a notice of charges and notice of the Board’s intent to hold a parole 

revocation hearing. See C.R. at 123. That day, Lang admitted to his new conviction,

and waived his right to counsel and a revocation hearing. See C.R. at 124-127. On 

January 5, 2017, a second Board panel member accepted the hearing examiner’s

December 5, 2016 recommendation and provided the second signature needed to 

recommit Lang as a convicted parole violator to serve 9 months in a state correctional 

institution, without credit for time spent at liberty on parole due to Lang’s repeat 

offenses. See C.R. at 131; see also C.R. at 128-136. 

By January 11, 2017 decision (issued January 23, 2017), the Board 

formally recommitted Lang to serve 4 months and 12 days as a technical parole 

 

1 The Board clarified in its brief to this Court: “Delinquent for control purposes is an action 

by the Board expressing its intention to proceed with a revocation proceeding in the event the 

offender is convicted after the expiration of the maximum sentence for a criminal offense that 

occurred before the maximum sentence expired.” Board Br. at 5 n.1.
4

violator, plus 9 months as a convicted parole violator. See C.R. at 137-140. The 

Board recalculated Lang’s maximum sentence release date from April 28, 2016 to 

March 19, 2018, and added that Lang is “NOT ELIGIBLE FOR REPAROLE UNTIL 

05/16/2017.” C.R. at 137; see also C.R. at 139.

On March 6, 2017, Lang filed a pro se administrative appeal challenging 

the Board’s sentence calculation, specifically arguing that the Board erred by not 

crediting him for his time served from December 18, 2015 to January 5, 2016 on the 

Board’s detainer, and from January 6, 2016 to August 23, 2016 while in the Board’s 

custody in the county prison. See C.R. at 142-146. On April 13 and 24, and May 8,

2017, Lang supplied the Board with additional information to support his position. 

See C.R. at 147-165. On June 6, 2017, the Board denied Lang’s request for 

administrative relief, and affirmed the Board’s January 11, 2017 decision (issued 

January 23, 2017). See C.R. at 166-168. Lang appealed from the Board’s decision to 

this Court.2

Lang argues that the Board erred by denying him credit for the time he 

served on the Board’s detainer between December 18, 2015 and January 5, 2016, and 

when he was in county prison under the Board’s custody between January 6 to 

August 23, 2016, and that, since his only street time3 was from August 5, 2014 to 

October 23, 2016, his maximum sentence release date should have been July 16, 

2017. Notably, “the Board agrees that Lang’s sentence was not properly recalculated, 

but disagrees as to the amount of credit Lang should receive.” Board Br. at 8. The 

Board contends that Lang’s maximum sentence release date “should be January 25, 

 

2

“Our review of the Board’s decision is limited to determining whether constitutional rights 

were violated, whether the adjudication was in accordance with law, and whether necessary findings 

were supported by substantial evidence.” Lawrence v. Pa. Bd. of Prob. & Parole, 145 A.3d 799, 

803 n.2 (Pa. Cmwlth. 2016).

Lang is represented by counsel on appeal.

3

“‘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). 
5

2018.” Board Br. at 8. In support of its position, the Board submitted a supplemental 

certified record (S.C.R.) which contained the Board’s October 19, 2016 detainer 

warrant, and its January 28, 2016 and October 25, 2017 parole violation date 

calculation sheets. See S.C.R. at 1A-5A.

Initially, Section 6138(a) of the Prisons and Parole Code (Parole Code) 

provides, in relevant 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 

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 [s]tate correctional 

institution and the new sentence imposed on the person is to 

be served in the [s]tate correctional institution.

61 Pa. C.S. § 6138(a) (emphasis added). Accordingly, “[u]pon recommitment as a 

convicted parole violator, the parolee must serve the remainder of the term which he 
6

would have been compelled to serve had he not been paroled with no credit given for 

street time.” Armbruster v. Pa. Bd. of Prob. & Parole, 919 A.2d 348, 351 (Pa.

Cmwlth. 2007). 

Moreover, 

[t]he general rule governing the allocation of credit for time 

served awaiting disposition of [a] new criminal charge was 

established by our Supreme Court in Gaito v. Pennsylvania 

Board of Probation and Parole, . . . 412 A.2d 568 

([Pa.]1980). The Supreme Court held that ‘time spent in 

custody pursuant to a detainer warrant shall be credited to a 

convicted parole violator’s original term . . . only when the 

parolee was eligible for and had satisfied bail requirements 

for the new offense and thus remained incarcerated only by 

reason of the detainer warrant lodged against him.’ [Id.] at 

571 (quoting Rodriques v. P[a.] B[d.] of Prob[.] [&] Parole,

. . . 403 A.2d 184, 185-86 ([Pa. Cmwlth.] 1979)) (emphasis 

added).[4]

Armbruster, 919 A.2d at 352.

Here, the Board admits in its brief:

[T]he Board mistakenly did not provide Lang with the 

correct amount of backtime credit when his sentence was 

recalculated (i.e.[,] time that the parolee was held solely on 

the Board’s warrant prior to the recommitment order). 

Lang should have received backtime credit for the period of 

December 15, 2015 (arrest date) to December 18, 2015 

([New Charges] filed), and from January 6, 2016 (bail 

conditions modified to unsecured) to April 28, 2016 

(maximum sentence date reached, [B]oard warrant lifted). 

 

4 The sole exception to Gaito’s general rule, established in Martin v. Pennsylvania Board of 

Probation and Parole, 840 A.2d 299 (Pa. 2003), provides:

[W]here a parole violator is confined on both the Board’s warrant and 

the new criminal charges and 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, the 

credit must be applied to the offender’s original sentence.

Armbruster v. Pa. Bd. of Prob. & Parole, 919 A.2d 348, 355 (Pa. Cmwlth. 2007).
7

(C.R. [at] 85, 108, 122; S.C.R. [at] 4A-5A). This is a total 

of 116 days. (S.C.R. [at] 4A). Conversely, to the extent 

that Lang claims he is entitled to credit from April 28, 2016 

to October 19, 2016, Lang is not entitled to credit for that 

period because he was not being detained by the Board. 

Upon the Board lifting its warrant, Philadelphia County 

should have released Lang from custody. To the extent that 

Lang remained incarcerated, his credit claim should be 

addressed with Philadelphia County. The case law is clear 

that the Board is only required to provide credit for presentence incarceration where the parolee is solely confined 

on the Board’s warrant. Gaito . . . . The Board’s warrant

was lifted on April 28, 2016 and not re-lodged until October 

16, 2016. (C.R. [at] 120-122; S.C.R. [at] 3A). Therefore, 

Lang is not entitled to credit from the Board for a period of 

time when the Board did not have a detainer on him. 

Furthermore, the exception provided in Martin [v. Pa. Bd. 

of Prob. & Parole, 840 A.2d 299 (Pa. 2003),] does not 

apply to the instant case. The record reflects that Lang was 

sentenced to time served [(250 days)] to 23 months of 

confinement. (C.R. [at] 109, 161-162). See also [Lang]

Brief [at] 9. Lang was not incarcerated in excess of 23 

months (i.e.[,] from December 18, 2015 [charges filed] to 

August 23, 2016 [sentence date] = 249). Thus, Lang’s 

period of pre-sentence incarceration does not exceed the 

maximum term of the new sentence of 23 months.

‘The period of time for which a 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.’ 61 Pa. C.S. § 6138(a)(4). 

Lang became available to begin serving his Original 

Sentence backtime on October 19, 2016, when the Board 

relodged its warrant. (C.R. [at] 139; S.C.R. [at] 3A-4A).

Adding 463 days (579 days remaining at the time of parole 

- 116 days of backtime credit = 463 days remaining) to 

October 19, 2016 results in Lang’s suggested new Original 

Sentence maximum date of January 25, 2018. (S.C.R. [at]

4A).

Board Br. at 10-12.

Finding no error in the Board’s recalculation and correction on appeal,

we vacate the Board’s June 6, 2017 order denying Lang’s administrative appeal, and 
8

remand this matter for the Board to change Lang’s maximum sentence release date to

January 25, 2018. 

___________________________

ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jason Lang, :

Petitioner :

:

v. :

:

Pennsylvania Board of :

Probation and Parole, : No. 927 C.D. 2017

Respondent :

O R D E R

AND NOW, this 12th day of March, 2018, the Pennsylvania Board of 

Probation and Parole’s (Board) June 6, 2017 decision denying Jason Lang’s (Lang) 

administrative appeal is vacated, and this matter is remanded for the Board to change 

Lang’s maximum sentence release date to January 25, 2018.

Jurisdiction is relinquished. 

___________________________

ANNE E. COVEY, Judge