IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Adam Matarese

, : Petitioner :

:

v. :

: Pennsylvania Board of : Probation and Parole

, : No. 572 C.D. 2016 Respondent : Submitted: October 7 , 2016

BEFORE: HONORABLE MARY HANNAH LEAVI TT

, President Judge

HONORABLE ANNE E. COVEY, Judge
HONORABLE DAN PELLEGRINI

, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY FILED: January 12, 2017

Adam Mata rese (Matarese) petitions this C ourt for revie w of the

Pennsylvan ia Board of Probation and P arole’s (Board) March 29, 2016 order denying

his request for administrative relief. The sole issue before this Court is whether the

Board properly calculated Matarese’s new maximum sentence release date as March

29, 2017. After review, we affirm.

Matarese is currently an inmate at State Correctional Institution

Mahanoy. On April 28 , 2014, the Board paroled Matarese from an 11 month, 8

- day

to 3

- year sentence for manufacturing/sale/delivery or possession with intent to deliver

a controlled substance (Original Sentence) . At that time, his maximum sentence

release date was June 13, 2016. Before his June 30, 2014 release on parole, Matarese

agreed to conditions governing his parole, including:

If you are convicted of a crime commi tted while on parole/reparole, the Board has the authority, after an appropriate hearing, to recommit you to serve the balance of2 the sentence or sentences which you were serving when paroled/reparoled, with no credit for time at liberty on parole.

Certifi ed Record (C.R.) at 7

- 9.

On August 2, 2014, the Board lodged a warrant to commit and detain

Matarese for technical parole violations and arrested him. On November 3, 2014, the

Berks County Police Department arrested Matarese for Intentional Possession of a

Controlled Substance by a Person not Registered and the Berks County Common

Pleas Court (trial court) set bail for $25,000.00

, which Matarese was unable to post.

On January 13, 2015, Matarese pled guilty to the Berks County c harge

, and the trial

court sentenced him to 6 to 23 months incarceration with a 7

- day credit for January 7

to January 13, 2015. 1 See C.R. at 69.

On April 8, 2015, the Board provided Matarese with a notice of charges

and notice of the Board’s intent to hold a parole revocation he aring. On April 16,

201 5 , the Board held the revocation hearing, at which Matarese was represented by

counsel, and admitted to his Berks County conviction. That same date, the Board

panel voted to recommit Matarese as a convicted parole violator (CPV), a nd to grant

him credit for time he spent at liberty on parole. 2 By decision recorded A pril 23,

2015 (mailed May 4, 2015), the Board formally recommitted Matarese as a CPV,

when available, pending completion of, or parole from, his Berks County sentenc e

. On August 19, 2015, Matarese was paroled from his Berks County sentence. By

October 19, 201 5 recommitment order, based on h is August 19, 2015 parole, the

B oard recalculated Matarese’s Original Sentence maximum release date to March 29,

2017. By decision recorded on October 13, 201 5 (mailed October 26, 201 5 ), the

1 There is no explanation for the 7

- day credit in the record.

2 Section 6138(a)(2.1) of the Parole Code provides: “ The [B]oard may, in its discretion, award credit to a parolee recommitted under paragraph (2) for the time spent at liberty on parole[.]” 61 Pa.C.S. § 6138(a)(2.1).3

Board formally recommitted Matarese to serve 6 months backtime as a CPV with a

maximum sentence release date of March 29, 2017.

The B oard calculated Mat arese’s new maximum sentence release date as

follows. When Matarese was released o n parole on June 30, 2014, his Original

S entence maximum release date was June 13, 2016 and, thus, he owed 714 days of

backtime towards his Original Sentence. The Board awarded Matarese 33 days credit

for his time spent at liberty on parole, leaving him with 681 days of backtime to serve

on his Original Sentence. Matarese received 93 days of credit for the period of

August 2, 2014 (when the Board lodged its warrant ) to November 3, 2014 (when bail

was set on his Be rks County charge but not posted). Crediting 93 days against 681

days of backtime resulted in Matarese owing 588 days of backtime toward his

Original Sentence. Matarese became available to begin serving the backtime on his

Original Sentence when he was r eleased on parole from his Berks County sentence

on August 19, 2015. Adding 588 days to August 19, 2015 resulted in Matarese’s new

Mar ch 29, 2017 Original S entence maximum release date.

On November 16 , 2015, Matarese submitted an Administrative

Remedies F orm challenging the Board’s decision recorded on October 13, 201 5

(mailed October 26, 201 5 ), which formally recommitted Matarese as a CPV. On

March 29, 2016, the B oard denied Matarese’s request for administrative relief.

Matarese appealed to this Court. 3

Matarese argues that the Board miscalculated his new maximum

sentence release date as March 29, 2017. Specifically, M atarese contends that the

3 “Our scope of review of the Board’s decision denying administrative relief is limited to determining whether necessary find ings 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).4

Board failed to give him credit for all time spent incarcerated solely on the Board’s

warrant. We disagree.

Matarese was arrested on the Board’s warrant on August 2, 2014. He

was thereafter arrested in Berks County on November 3, 2014 at which time the trial

court set bail which Matarese did not post. “[W] here an offender is incarcerated on

both a Board detain er and new criminal charges, all time spent in confinement must

be credited to either the new sentence or the original sentence

. ” Martin v. Pa. Bd.

of Prob. & Parole, 840 A.2d 299 , 309 (Pa. 2003) (emphasis added)

.

Further,

[our] Supreme Court held th at ‘ 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 on ly by reason of the detainer warrant lodged against him

. ’ Gaito [ v. Pa. Bd. of Prob. & Parole ]

,

. . . 412 A.2d [568,] 571 [(Pa. 1980)] (quoting Rodriques v. [ Pa. ] [ Bd. ] of Prob [

. ] [ & ] Parole,

. . . 403 A.2d 184, 185

- 86 ( [Pa. Cmwlth.] 1979)) (emphasis adde d).

Armbruster v. Pa. Bd. of Prob. & Parole

, 919 A.2d 348, 352 (Pa. Cmwlth. 2007)

(bold emphasis added). Thus, because Matarese did not post bail, the time he spent

incarcerated between November 3, 2014 (the date bail was set), until January 13,

2015 ( the day he pled guilty and was sentenced on the Berks County c harge), must be

credited to Matarese’s Berks County sentence. Moreover, Section 9760 of the

Sentencing Code provides, in pertinent part:

After reviewing the information submitted under [S] ectio n 9737 [of the Sentencing Code] (relating to report of outstanding charges and sentences) the court shall give
credit as follows:

(1) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody as a re sult of the criminal charge for which a prison5 sentence is imposed or as a result of the conduct on which such a charge is based. Credit shall include credit for time spent in custody prior to trial, during trial, pending sentence, and pending the resolut ion of an appeal

.
42 Pa.C.S. § 9760 (emphasis added).

Because Matarese never posted bail on his Berks County charge

, the

only time spent solely on the Board’s warrant was from August 2, 2014 to November

3, 2014. Since Matarese was properly credited for those 9 3 days, the Board did not

err in calculating his new Original Sentence maximum release date. 4

For all of the above reasons, the Board’s order is affirmed.

___________________________ ANNE E. COVEY, Judge

4 It appears that

[ Matarese’s ] sole basis fo r requesting credit from the Board is that he was not given credit on his new sentence. Pursuant to Melhorn [ v.
Pa

. B oard of Prob ation and Parole, 883 A.2d 1123 (Pa. Cmwlth. 2005) ] , and McCray [ v. Dep artment of Corr ections

, 872 A.2d 1127 ( Pa. 2005) ], wher e a sentencing court does not give an inmate full

credit for time served, the inmate ’ s remedy is in the trial court and through the direct appeal process, not through the Board

.

Under the facts presented here, we conclude that the Board properly

refused to apply [ Matarese’s ] pre

- sentence confinement time towards

his [O] riginal [S] entence

.

Armbruster

, 919 A.2d at 356 (emphasis added)

.IN THE COMMONWEALTH COURT OF PE NNSYLVANIA

Adam Matarese, : Petitioner :

:

v. :

: Pennsylvania Board of : Probation and Parole, : No. 572 C.D. 2016 Respondent :

O R D E R

AND NOW, this 12 th day of January , 201 7

, the Pennsylvania Board of

Probation a nd Parole’s March 29, 2016 order is affirmed.

___________________________ ANNE E. COVEY, Judge