IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Kerak, :

: No. 406 C.D. 2015

Petitioner : Argued: June 8, 2016

:

v. :

:

Pennsylvania Board of Probation :

and Parole, :

:

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: November 10, 2016

Michael Kerak petitions for review of the decision of the 

Pennsylvania Board of Probation and Parole (Board) denying his request for 

administrative relief in which he alleged that the Board erred in calculating his 

parole violation maximum date under the Prisons and Parole Code.

1

 We affirm.

In 2001, Kerak pleaded nolo contendere and was convicted of 

aggravated assault in the Lehigh County Court of Common Pleas (Lehigh County 

 

1

61 Pa. C.S. §§101-3316.
2

Court) and sentenced to a 5- to 10-year term of imprisonment (original sentence). 

The sentence resulted in a minimum release date of December 25, 2005, and a 

maximum release date of December 25, 2010. On February 13, 2006, Kerak was 

released on parole.

However, in April 2008, the Board revoked Kerak’s parole and he 

was recommitted as a convicted parole violator based on his conviction for driving 

under the influence (first DUI conviction). The Board recalculated Kerak’s parole 

violation maximum date to be October 10, 2012, because he owed 1,388 days of 

“backtime”2on his original sentence. On December 22, 2008, Kerak was released 

on reparole.

On December 11, 2011, Kerak was arrested by the Pennsylvania State 

Police (PSP) for DUI in Lehigh County after he was observed driving in an erratic 

manner. Certified Record (C.R.) at 26-31. On March 1, 2012, Kerak was again 

arrested by the PSP and charged with DUI in Berks County after his vehicle 

impacted an embankment and hit a tree. Id. at 40. Both offenses were graded as 

first degree misdemeanors because Kerak had the highest rate of impairment at the 

time of the offenses, and he had 2 prior DUI offenses within 10 years and 5 prior 

DUI offenses within his lifetime. Id. at 23-24, 36, 41, 46, 72, 87.

3

 

2

“Backtime” is defined as “the unserved part of a prison sentence which a convict would 

have been compelled to serve if the convict had not been paroled.” Section 61.1 of the Board’s 

regulations, 37 Pa. Code §61.1.

3

See Section 3803(b)(4) of the Vehicle Code, 75 Pa. C.S. §3803(b)(4) (“An individual 

. . . who violates section 3802(c) [(relating to driving with a blood alcohol content of greater than 

0.16%)] . . . and who has one or more prior offenses commits a misdemeanor of the first 

degree.”).
3

On May 14, 2012, Kerak pleaded guilty in the Lehigh County Court to 

his new DUI charge (second DUI conviction) and was sentenced to a 6- to 23-

month term of imprisonment and a consecutive 3-year probationary term. C.R. at 

68, 72. On October 26, 2012, Kerak pleaded guilty in the Berks County Court of 

Common Pleas (Berks County Court) to his other new DUI charge (third DUI 

conviction) and was sentenced to a 12-month to 5-year term of imprisonment with 

credit for the 194 days that he served from April 16, 2012, to the date of 

sentencing, October 26, 2012. Id. at 82, 87. The Berks County Court’s sentencing 

order also states that the sentence is to run concurrently with Kerak’s original 

sentence for his aggravated assault conviction and the sentence imposed by the 

Lehigh County Court on his second DUI conviction. Id.

On March 15, 2012, the Board lodged a warrant to commit and detain 

Kerak. In November 2012, the Board conducted a parole violation hearing based 

on Kerak’s second and third DUI convictions. C.R. at 53-67. At the hearing, 

Kerak did not dispute his new DUI convictions, but argued that the sentence for his 

third DUI conviction was to run concurrently with his original sentence and the 

sentence for his second DUI conviction per a plea agreement. Id. at 60-61, 64. In 

January 2013, the Board recommitted Kerak as a convicted parole violator and 

recalculated his parole violation maximum date from October 10, 2012, to August 

14, 2016, by adding the 1,388 days of backtime owed on his original sentence to 

October 26, 2014, the date of his conviction and sentencing in the Berks County 

Court for his third DUI conviction. Id. at 110-111.

In May 2014, Kerak entered into an “Agreement and Order” disposing 

of his petition for relief under the Post Conviction Relief Act (PCRA)4that was 

 

4

42 Pa. C.S. §§9541-9546.
4

approved by the Berks County Court. C.R. at 108-109. In the order, the Berks 

County Court modified its prior sentence imposed on Kerak’s third DUI conviction

to a split sentence of an 11 1⁄2- to 23-month term of imprisonment and a 

consecutive 3-year special probationary term to be supervised by the Board. Id. at 

108. The Berks County Court also directed that “all remaining provisions” of the 

prior sentence imposed on Kerak’s third DUI conviction “shall remain in full force 

and effect, including the effective date, credit time, and the concurrent nature of 

the sentence in the instant case with the sentences imposed against [Kerak]” by the 

Lehigh County Court on his original conviction and his second DUI conviction. 

Id. The order states that “[i]t is the intention of the parties to modify the term of 

years in the sentence imposed in the instant case in order to permit the instant 

sentence to be served concurrently with a state probation/parole violation [Kerak] 

is currently serving [on his original aggravated assault conviction] without 

violating the provisions of [Section 6138(a) of the Prisons and Parole Code.

5

]” Id.

 

5

61 Pa. C.S. §6138(a). Specifically, Section 6138(a)(5) of the Prisons and Parole Code 

states:

(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 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.

(Footnote continued on next page...)
5

at 108-109.6 On March 16, 2014, Kerak was released from incarceration on the 

sentence imposed by the Berks County Court on his third DUI conviction. Id. at 

113, 119.

The Board treated the “Agreement and Order” as a new sentencing 

order by the Berks County Court and, by decision mailed September 29, 2014, 

recalculated Kerak’s parole violation maximum date from August 14, 2016, to 

January 2, 2018. C.R. at 114. The Board made this calculation by adding the 

remainder of Kerak’s original sentence, 1,388 days, to March 16, 2014, the date 

that Kerak was released by Berks County and was detained solely on the Board’s 

warrant. In October 2014, Kerak filed a timely petition for administrative review 

with the Board challenging the Board’s calculation of his new parole violation 

maximum date. C.R. at 123.

In January 2015, the Board denied Kerak’s petition, explaining:

 

(continued...)

(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).

6 On September 22, 2015, while the instant appeal was pending, the Berks County Court 

issued an order disposing of Kerak’s subsequent PCRA petition vacating its prior May 21, 2014 

order and issuing another amended sentencing order on his third DUI conviction. However, 

there is no indication or allegation that this amended sentence has been implemented by the 

Department of Corrections or that it has affected the Board’s calculation of Kerak’s maximum 

parole violation date. As a result, the instant appeal is not rendered moot based on the Berks 

County Court’s action in this regard. See, e.g., National Development Corporation v. Planning 

Commission of Township of Harrison, 439 A.2d 1308, 1310 (Pa. Cmwlth. 1982) (“While it is 

well established that a legal question can, after suit has been commenced, become moot as a 

result of changes in the facts of the case or in the law, such changes must finally and 

conclusively dispose of the controversy.”).
6

[A]s a convicted parole violator you automatically 

forfeited credit for all of the time that you spent on 

parole. See [Section 6138(a)(2) of the Prisons and Parole 

Code.7] You are not entitled to a back time served credit 

(i.e. time that you were held solely on the Board’s 

warrant prior to your recommitment order) because you 

were never incarcerated solely on the Board’s warrant. 

See Gaito v. Pa. Board of Probation and Parole, 412 

A.2d 568 (Pa. 1980). In your case, you remained on 

secured bail at your new criminal dockets until your date 

of conviction, so you are not also entitled to the same 

period of credit at this parole number. You became 

available to begin serving your back time on March 16, 

2014 when you were released by Berks County to 

Pennsylvania authorities. Adding 1,388 days (or 3 years, 

9 months, 18 days) to March 16, 2014 yields a new 

parole violation maximum date of January 2, 2018. 

Therefore, your parole violation maximum sentence date 

is correct.

To the extent you believe the Department of 

Corrections [(DOC)] incorrectly calculated your Berks 

County sentence, you must direct your concerns to the 

DOC directly. It is the DOC who calculates sentences 

based on new convictions. The Board then uses that 

calculation to determine your parole violation max date. 

Should the DOC modify its calculation, the Board will 

review your file and make any necessary adjustments to 

your parole violation max date.

C.R. at 129-130 (emphasis in original).

 

7

61 Pa. C.S. §6138(a)(2). Section 6138(a)(2) provides that “[i]f the parolee’s 

recommitment is so ordered, [he] shall be reentered to serve the remainder of the term which [he] 

would have been compelled to serve had the parole not been granted and, except as provided 

under paragraph (2.1), shall be given no credit for the time at liberty on parole.”
7

In this appeal,8, 9 Kerak argues that the Board erred in recalculating his 

parole violation maximum date because the Berks County Court ordered that he 

serve the sentence on this third DUI conviction concurrently with his original 

sentence imposed by the Lehigh County Court. Kerak contends that in calculating 

his parole violation maximum date, the correct date to use is the date of the Berks 

County Court’s original sentencing order on his third DUI conviction, October 26, 

2012, which results in a parole violation maximum date of August 14, 2016. The 

Board counters that it did not err in refusing to run the sentence imposed by the 

Berks County Court on his third DUI conviction concurrently with the original 

sentence imposed by the Lehigh County Court on his aggravated assault conviction 

because it is prohibited by Section 6138(a)(5) of the Prisons and Parole Code from 

allowing his new sentence to run concurrently with his original sentence.

As the Board correctly observes, Section 6138(a)(5) of the Prisons 

and Parole Code provides that once a parolee is recommitted as a convicted parole 

violator, the original sentence and any new sentences must be served consecutively 

 

8 By order dated May 19, 2016, we directed the parties to be prepared to address the 

following issue at oral argument:

Whether the Board, in recalculating a convicted parole violator’s 

parole violation maximum sentence pursuant to the Prisons and 

Parole Code, is bound by the trial judge’s sentencing order that the 

parole violator’s service of the sentence in a county prison will 

also be credited toward the original criminal sentence from which 

he had been paroled when he committed the criminal offense that 

prompted the sentencing order.

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

rights were violated, whether the decision is in accordance with the law, or whether necessary 

findings are supported by substantial evidence. Palmer v. Pennsylvania Board of Probation and 

Parole, 134 A.2d 160, 164 n.2 (Pa. Cmwlth. 2016).
8

rather than concurrently. 61 Pa. C.S. §6138(a)(5). A “sentencing judge has no 

authority to order” otherwise. Commonwealth v. Draper, 293 A.2d 614, 615 (Pa. 

Super. 1972).

In Palmer v. Pennsylvania Board of Probation and Parole, 134 A.3d 

160 (Pa. Cmwlth. 2016), the parolee pleaded guilty to drug charges in the 

Cumberland County Court of Common Pleas (trial court) and was sentenced to 

serve a 2 year, 6 month- to 5-year term of imprisonment (original sentence). On 

the expiration of his minimum term, the parolee was released on parole, but was

later recommitted as a convicted parole violator (CPV) based on a new conviction 

for theft by deception. After he was released on reparole, the PSP arrested the 

parolee on new charges and his original sentence expired while he was in custody 

on the new charges.

Ultimately, the parolee pleaded guilty to 1 count of aggravated assault 

and the trial court sentenced him to serve a 15- to 30-month term of imprisonment. 

The trial court directed that “[p]ursuant to an agreement between the parties, it is 

hereby ordered that this [new] sentence run concurrently to any sentence [the 

parolee] serves on his state parole, to the extent permitted by law.” Palmer, 134 

A.3d at 163 (emphasis in original). At the subsequent parole violation hearing, the 

Board’s representative agreed that the Board would not oppose the concurrent 

application of the trial court’s new sentence to run concurrently with his original 

sentence. Nevertheless, the Board did not run the parolee’s new sentence 

concurrently with his original sentence when calculating his maximum parole 

violation date and denied his subsequent petition for administrative relief alleging 

that this calculation was erroneous.
9

On appeal to this Court, the parolee argued that the Board should be 

required to comply with the agreements in the trial court and with the Board that 

his new sentence would run concurrently with his original sentence because the

agreements induced him to enter a guilty plea to the new charges and to waive his 

rights to a trial and a parole revocation hearing, and that there was no other 

practical relief that could be granted to him. As a result, the parolee asked this 

Court to “direct the Board to honor the agreement, award him the appropriate 

credit, and adjust his release time accordingly.” Id. at 164.

In rejecting the parolee’s assertion that his new sentence should run 

concurrently with the backtime owed on his original sentence as directed by the 

trial court, we explained:

In Commonwealth v. Zuber, [353 A.2d 441 (Pa. 

1976)], our Supreme Court recognized that [the] former 

Section 21.1a(a) [of what was commonly referred to as 

the Parole Act10] required that a CPV serve his backtime 

 

10 Act of August 6, 1941, P.L. 861, added by Act of August 24, 1951, P.L. 1401, as 

amended, 61 P.S. §331.21a(a), repealed by the Act of August 11, 2009, P.L. 147. Similar to 

Section 6138(a)(5) of the Prisons and Parole Code, the former Section 21.1a(a) stated, in relevant 

part:

If a new sentence is imposed upon such parolee, the service of the 

balance of said term originally imposed shall precede the 

commencement of the new term imposed in the following cases:

(1) If a person is paroled from any State penal or correctional 

institution under the control and supervision of the Department of 

Justice and the new sentence imposed upon him is to be served in 

any such State penal or correctional institution.

(2) If a person is paroled from a county penal or correctional 

institution and the new sentence imposed upon him is to be served 

in the same county penal or correctional institution.

(Footnote continued on next page...)
10

and then his new state sentence in consecutive order, 

regardless of a guilty plea agreement and sentence 

directing that the parole violator’s backtime on his 

original sentence run concurrently with his new sentence. 

In Commonwealth v. Dorian, [468 A.2d 1091 (Pa. 

1983)], the Supreme Court followed Zuber and again 

held that a trial court may not order that a sentence for a 

new conviction run concurrently with the time remaining 

on the CPV’s original sentence.

Thereafter, in Rivera v. Pennsylvania Board of 

Probation and Parole, [470 A.2d 1088 (Pa. Cmwlth. 

1984)], this Court, citing Zuber, also recognized that 

former Section 21.1a(a) required a CPV to serve the 

remainder of his original sentence and his new sentence 

consecutively. Therefore, Section 21.1a(a) prohibited a 

trial court from sentencing a CPV to serve his new 

sentence concurrently with his backtime on the older 

sentence. In Rivera, we rejected the argument that 

Section 9761(a) of the Sentencing Code,[11]a more recent 

statute governing concurrent sentences in criminal cases, 

permitted a sentencing court to order that a new sentence 

run concurrently with Board backtime. We reasoned that 

Section 21.1a(a), a specific statute addressing the 

sentencing of convicted parole violators, prevailed.

 

(continued...)

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.

11 42 Pa. C.S. §9761(a). Section 9761(a) states, in relevant part:

If a minimum sentence imposed by the court which is to run 

concurrently with one which has been previously imposed would 

expire later than the minimum of such a previously imposed 

sentence, or if the previously imposed sentence is terminated 

before the expiration of the minimum sentence of the last imposed 

sentence, the defendant shall be imprisoned at least until the last 

imposed minimum sentence has been served.
11

In Walker v. Pennsylvania Board of Probation and 

Parole, 729 A.2d 634 (Pa. Cmwlth. 1999), we again 

recognized that former Section 21.1a(a) mandated that 

sentences for crimes committed on parole be served 

consecutively with time remaining on original sentences 

and that neither the courts nor the Board may impose 

concurrent sentences. Further, a CPV must serve his 

backtime prior to serving his new sentence. Hall v. Pa. 

Bd. of Prob. & Parole, 733 A.2d 19 (Pa. Cmwlth.[), 

appeal denied, 794 A.2d 364 (Pa. 1999)].

Recently, we recognized that Section 6138(a)(5) of 

the [Prisons and Parole] Code, the successor to former 

Section 21.1a(a), likewise requires that CPVs serve the 

backtime on their original state sentence before they can 

begin to serve time on a newly imposed state sentence. 

Wilson v. Pa. Bd. of Prob. & Parole, 124 A.3d 767 (Pa.

Cmwlth. 2015). Therefore, the Board may not impose 

backtime to run concurrently with a new sentence for an 

offense committed while on parole. Walker; Harris v. 

Pa. Bd. of Prob. & Parole, [393 A.2d 510 (Pa. Cmwlth. 

1978)] (Board may not impose backtime to run 

concurrently with the new sentence for the crime 

committed while on parole, regardless of a court order 

that the sentences run concurrently).

Consequently, in light of Section 6138(a)(5)(i) of 

the [Prisons and Parole] Code, Zuber and the other cases 

cited above, we discern no error in the Board’s decision 

to require [the parolee] to serve the backtime on his 

original sentence consecutive with, and prior to, his new 

15-30 month sentence for aggravated assault. Hall; 

Walker; Harris. In short, any agreement with [the 

parolee] indicating that his new criminal sentence would 

run concurrently with his backtime was invalid. Dorian; 

Zuber.

Id. at 165.12, 13

 

12 However, that did not leave the parolee in Palmer without a remedy. As we also

explained:

(Footnote continued on next page...)
12

 

(continued...)

Nonetheless, [the parolee]’s proper remedy is to seek to 

vacate the plea agreement in the trial court. Zuber. Because 

neither the trial court nor the Board could order [the parolee]’s 

backtime and new sentence to run concurrently, any agreement 

indicating that the Board would even consider doing that would 

render [the parolee]’s plea agreement void. Id.

Id. at 166.

13 See also Cooper v. Pennsylvania Board of Probation and Parole, (Pa. Cmwlth. No. 

778 C.D. 2015, filed August 16, 2016), slip op. at 5 (“This Court has recognized that Section 

6138(a)(5) of the Code requires that convicted parole violators serve the backtime on their 

original state sentence before they can begin to serve time on a newly imposed sentence. 

[Palmer]; [Wilson]. Section 21.1a(a) of the former Parole Act, precursor of Section 6138(a)(5) 

of the Code, prohibited the imposition by the trial court or by the Board of concurrent sentences. 

[Dorian]; [Zuber]; [Walker]. In Palmer, we noted that Section 6138(a)(5) was essentially 

identical to Section 21.1a(a), and therefore likewise prohibits trial courts from ordering that a 

sentence with a new conviction run concurrently with the time remaining on a convicted parole 

violator’s original sentence. Palmer, 134 A.3d at 164. Accordingly, we discern no error in the 

Board’s decision to require Petitioner to serve the backtime on his original sentence consecutive 

with, and prior to, his new 12-24 month sentence for Retail Theft.”) (footnote omitted); Morales 

v. Pennsylvania Board of Probation and Parole, (Pa. Cmwlth. No. 1697 C.D. 2015, filed May 

11, 2016), slip op. at 8-9 (“Morales argues that the sentence he received for his new convictions 

should run concurrently with his parole violations, that he already served two years, and that four 

years is excessive for two misdemeanors. Our Supreme Court has held that ‘the law . . . is quite 

clear that a parole violator convicted and sentenced to prison for another offense must serve his 

or her back time and the new sentence in consecutive order.’ [Dorian, 468 A.2d at 1092] 

(holding that a new sentence for a new conviction cannot run concurrently with the time 

remaining on the convicted parole violator’s original sentence) (citations omitted) (emphasis 

added). Section 6138 of the Prisons and Parole Code ‘specifies the order in which a parolee who 

is sentenced on new criminal charges and is recommitted to serve backtime on his original 

sentence must be served.’ Serrano v. Pennsylvania Board of Probation and Parole, 672 A.2d 

425, 427-28 (Pa. Cmwlth. 1996) (discussing the 1941 Parole Act). Our precedent is clear that 

‘the Board may not impose backtime to run concurrently with a new sentence for an offense 

committed while on parole.’ [Palmer, 134 A.3d at 165] (citations omitted).” (footnotes omitted); 

Commonwealth Court Internal Operating Procedure 414, 210 Pa. Code §69.414 (an unreported 

panel decision of this Court issued after January 15, 2008, may be cited for its persuasive value).
13

As we subsequently explained regarding the service of a sentence 

imposing county time, as in the instant case:

[The parolee] was paroled from a state correctional 

institution. The subsequent Philadelphia County 

Sentence was to be served in county prison. Pursuant to 

Section 6138(a)(5)(iii) of the [Prisons and] Parole Code, 

service of the Philadelphia County Sentence was required 

to precede commencement of the balance of [the 

parolee]’s original sentence. The Board properly 

concluded that the time of [the parolee]’s confinement on 

both the Board detainer and Philadelphia County Charges 

. . . was to be credited against the Philadelphia County 

Charges, and not his backtime. Further, the Board 

correctly determined that [the parolee] did not become 

available to serve his original sentence until he was 

paroled from the Philadelphia County Sentence. There is 

no support for [the parolee]’s argument that the 

Philadelphia County Sentence should have run 

concurrently with his backtime. Therefore, his argument 

fails.

Serrano v. Pennsylvania Board of Probation and Parole, (Pa. Cmwlth. No. 2102 

C.D. 2015, filed July 13, 2016), slip op. at 9.

Based on the foregoing, it is clear that the Board did not err in 

complying with the mandate of Section 6138(a)(5) of the Prisons and Parole Code 

and did not run the service of Kerak’s new sentence concurrently with the service 

of the backtime owed on his original sentence, notwithstanding the Berks County 

Court’s order to the contrary. In fact, Kerak does not dispute that, generally, a trial 

court cannot order a new sentence to run concurrently with the service of a 

parolee’s original sentence, citing former Section 21.1a(a) of the Parole Act. See

Brief for Petitioner at 14. Nevertheless, Kerak argues that an exception to this 

general rule has been applied when the sentencing order has been issued by a 

foreign court, citing Walker and Santiago v. Pennsylvania Board of Probation and 
14

Parole, 937 A.2d 610 (Pa. Cmwlth. 2007), appeal denied, 956 A.2d 437 (Pa.

2008).

However, Walker and Santiago are distinguishable from the instant 

matter. Both of those cases involved sentencing orders from Maryland courts 

which directed that the parolees’ new sentences were to run concurrently with their 

original Pennsylvania sentences. Section 9761(b) of the Pennsylvania Sentencing 

Code specifically addresses these circumstances, providing that “[i]f the defendant 

is at the time of sentencing subject to imprisonment under the authority of any 

other sovereign, the court may indicate that imprisonment under such authority 

shall satisfy or be credited against both the minimum and maximum time imposed 

under the court’s sentence.” 42 Pa. C.S. §9761(b).

Herein, the concurrent sentencing order was issued by the Berks 

County Court with regard to the original sentence imposed by the Lehigh County 

Court. These courts are not “strangers” to one another as the courts in Walker and 

Santiago, and the orders of these Pennsylvania courts must be enforced in 

accordance with Pennsylvania law. See Santiago, 937 A.2d at 615 (“Pennsylvania 

was a stranger to the Maryland court order and had no duty or right to enforce it 

because that duty was solely vested in Maryland officials charged with that 

responsibility. All that the Board had the power to enforce was the time imposed 

on a Pennsylvania sentencing order, not time imposed by another jurisdiction.”). 

Because Kerak’s circumstances do not fall within this Court’s narrowly drawn 

exception in Walker and Santiago, it is not applicable to the service of his 

Pennsylvania sentences and Section 6138(a)(5) of the Prisons and Parole Code bars 

his requested relief in this case.
15

Finally, we consider whether the Board correctly computed Kerak’s 

maximum parole violation date. When Kerak was released on parole on December 

22, 2008, he owed 1,388 days of backtime on his original sentence. C.R. at 127, 

129. The Board is required to give convicted parole violators credit on their 

original sentence for any pre-sentence confinement that a parolee is incarcerated 

solely on the Board’s detainer. Gaito. However, Kerak is not entitled to credit for 

his pre-sentence confinement between December 22, 2008, and March 16, 2014, 

because he was never solely confined on the Board’s warrant. Rather, Kerak was 

released from his Berks County incarceration on March 16, 2014. C.R. at 113, 

119. Because Kerak still owed 1,388 days of backtime at the time he was released 

from his Berks County incarceration, those days must be added to March 16, 2014, 

his date of release, and results in a maximum sentence of January 2, 2018, as 

determined by the Board.

Accordingly, the Board’s decision is affirmed.

MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Kerak, :

: No. 406 C.D. 2015

Petitioner : 

:

v. :

:

Pennsylvania Board of Probation :

and Parole, :

:

Respondent :

O R D E R

AND NOW, this 10th day of November, 2016, the decision of the 

Pennsylvania Board of Probation and Parole dated January 8, 2015, at No. EV2160, is AFFIRMED.

__________________________________

MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Kerak, :

Petitioner :

:

v. : No. 406 C.D. 2015

: Argued: June 8, 2016

Pennsylvania Board of Probation :

and Parole, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

DISSENTING OPINION

BY JUDGE COHN JUBELIRER FILED: November 10, 2016

I respectfully dissent, although not because I disagree with the Majority’s 

understanding of Section 6138(a)(5) of the Prisons and Parole Code (Code), 61 Pa. 

C.S. § 6138(a)(5). The Majority correctly states that “once a parolee is 

recommitted as a convicted parole violator, the original sentence and any new 

sentences must be served consecutively rather than concurrently.” Kerak v. Pa. 

Bd. of Prob. and Parole, (Pa. Cmwlth., No. 406 C.D. 2015, filed November 10,

2016), slip op. at 7-8. Nor is my dissent based on a disagreement with the Majority 
RCJ-2

over whether permitting Michael Kerak (Kerak) to serve his sentences 

concurrently with the 2001 sentence, for which he was on parole, violated the 

Code. Instead, I dissent because I disagree with the Majority’s approval of an 

executive branch agency’s authority, here, the Pennsylvania Board of Probation 

and Parole (Board), to ignore key provisions of an unappealed final order issued by 

a court. Under our constitutional system, executive branch agencies must comply 

with final orders of a court until a court corrects or amends that order, even if

agency officials believe the order does not comply with the law. 

The Majority appears to conclude that, notwithstanding a court order 

directing a particular sentence based on a plea agreement, the Board must follow 

the Code and disregard the court’s order. Kerak, according to the Majority, bears 

the burden to ensure that he receives the benefit of his plea agreement made with 

the Commonwealth by filing an action in the Court of Common Pleas of Berks 

County (common pleas) seeking to vacate his plea agreement and obtain a new 

order that reduces the length of his May 21, 2014 sentence. Id., slip op. at 11-12 

n.12. This remedy is consistent with prior cases. E.g., Palmer v. Pa. Bd. of Prob. 

and Parole, 134 A.3d 160, 166 (Pa. Cmwlth. 2016) (concluding that the proper 

remedy is to vacate the plea agreement that resulted in the concurrent sentences); 

see also Lawrence v. Pa. Dep’t of Corr., 941 A.2d 70, 73 (Pa. Cmwlth. 2007) 

(holding that the petitioner lacks a clear right to have the Department of 

Corrections provide credit when a sentencing order for a new sentence was ordered 

to run concurrently with Board imposed backtime).

While consistent with precedent, the Majority’s approach does injury to the 

separation of powers and the principle of an independent judiciary. If this 

Commonwealth is to maintain an independent judiciary, courts must “jealously 
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guard[]” their independence. N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 

458 U.S. 50, 60 (1982). The Board, as an executive branch agency, lacks the 

authority to amend a judicial order, including the adjustment of a judiciallyimposed sentence. See McCray v. Pa. Dep’t of Corr., 872 A.2d 1127, 1133 (Pa. 

2005) (holding that “[a]s part of the executive branch, the Department [of 

Corrections] lacks the power to adjudicate the legality of a sentence or to add or 

delete sentencing conditions”). It is only appellate courts – not administrative 

officials – that may reverse or modify sentencing orders. Oakman v. Dep’t of 

Corr., 903 A.2d 106, 109 (Pa. Cmwlth. 2006). As Judge Pellegrini once wrote:

To allow an executive branch agency to change orders that extend or 

shorten the term of the sentencing order is beyond its powers. More 

importantly, to allow agencies not to enforce orders as written because 

they believe an order did not follow the law violates the litigant’s due 

process and lessens the effect of judicial orders by allowing agencies 

to play “catch me if you can” with litigants and courts. 

Sturgis v. Doe, 26 A.3d 1221, 1229 (Pa. Cmwlth. 2011) (Pellegrini, J., concurring). 

Common pleas imposed a sentence which was not intended to violate Section 

6138(a)(5) of the Code. Although the sentence does violate the Code, the Board 

has no authority to calculate Kerak’s maximum date using any other measurement 

than the sentence imposed. 

This Court should follow the Pennsylvania Supreme Court’s approach to 

plea agreements and focus our inquiry in these cases, not on whether the executive 

branch agency complies with the Code, but on whether the convicted person

receives the benefit of his or her bargain made with the Commonwealth. 

Kerak’s May 21, 2014 sentence is based on an underlying plea agreement. 

“Our courts have demanded strict compliance with [plea agreements] in order to 
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avoid any possible perversion of the plea bargaining system.” Com. v. Zuber, 353 

A.2d 441, 444 (Pa. 1976). In Zuber, the Supreme Court considered an appeal of a 

sentencing order entered as a result of a plea agreement. Id. at 443. The plea 

agreement at issue contained a promise by the Commonwealth to “join with 

defense counsel in a request to the [Board] that the new sentence run 

[c]oncurrently with” the appellant’s backtime imposed by the Board for violating 

parole. Id. at 443. On appeal, the appellant argued that he did not knowingly enter 

into his plea agreement because the Commonwealth’s promise was an empty one 

since the Code requires that a parole violator serve backtime prior to the new 

sentence. Id. In response, the Commonwealth conceded that neither the 

sentencing court nor the Board had the power to order the new sentence to be 

served concurrently with backtime. Id. In analyzing the question presented, the 

Supreme Court focused its inquiry not on the obligations of the Board to comply 

with the law, but on the obligations of the Commonwealth to strictly comply with 

the plea agreement. Id. at 444. Because the matter reached the Supreme Court by 

way of an appeal of a sentence, the Court reduced the appellant’s new sentence 

itself so that the appellant would “serve a prison sentence commensurate with the 

term contemplated by all of the parties to the plea proceedings.” Id. at 446. 

Recently, the Supreme Court relied on Zuber in Commonwealth v. Martinez, 

___ A.3d ___, ___ (Pa., No. 30 MAP 2015, filed September 28, 2016), slip op. at 

23. There, 2 petitioners pleaded guilty to sexual offenses that, pursuant to the 

iteration of Megan’s Law1in effect at that time, required the petitioners to register 

with the Pennsylvania State Police as sexual offenders for 10 years. Id. at ___, slip 

 

1

42 Pa. C.S. § 9795.1(a)(1) (expired December 20, 2012, pursuant to 42 Pa. C.S. § 

9799.41).
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op. at 6. These petitioners entered into plea agreements based on the 

understanding that they would be required to register as sexual offenders for no 

more than 10 years. Id. at ___, slip op. at 24-25. A third petitioner in Martinez

pleaded guilty to a crime that did not carry a registration period under the version 

of Megan’s Law in effect at the time of the plea agreement. Id. at ___, slip op. at 

4. That petitioner’s plea agreement contained a term which contemplated that he 

would not be required to register as a sexual offender. Id. at ___, slip op. at 24. 

Years later, the relevant version of Megan’s Law was replaced by the Sex Offender 

Registration and Notification Act (SORNA).

2

 SORNA requires the 2 petitioners to 

register for life and the third petitioner to register for 25 years. 42 Pa. C.S. §§

9799.14(c)(1.3), (d)(8) and 9799.15(a)(2)-(3). All three petitioners argued that 

they were entitled to the bargain contained in their plea agreements and sought 

specific enforcement thereof. 

The Supreme Court, relying on Zuber and other relevant precedent, held that 

all three petitioners were entitled to the bargains struck in their plea agreements. 

Martinez, ___ A.3d at ___, slip op. at 24-25. According to the Supreme Court:

[w]hen a question arises as to whether a convicted criminal is entitled 

to specific performance of a term of his plea agreement, the focus is 

not on the nature of the term . . . [but on] whether an alleged term is 

part of the parties’ plea agreement. If the answer to that inquiry is 

affirmative, then the convicted criminal is entitled to specific 

performance of the term. 

Id. at ___, slip op. at 23-24 (footnote omitted). In so holding, the Supreme Court 

rejected the Commonwealth’s argument that the courts should consider whether 

 

2

Sections 9799.10-9799.41 of the Sentencing Code, 42 Pa. C.S. §§ 9799.10-9799.41. 

Courts have also referred to SORNA as the Adam Walsh Act. 
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the term in the plea agreement is related to a collateral consequence of a 

conviction. Id. at ___, slip op. at 24. The Supreme Court noted that in Zuber, the 

Court “did not simply conclude that [the appellant] was not entitled to the 

bargained-for sentence because the sentence was unenforceable. Instead, the Court 

examined the parties’ agreement, found that the agreement included the 

unenforceable sentence, and held that [the appellant] was entitled to that 

sentence.” Id. at ___ n.19, slip op. at 23 n.19 (emphasis added).

Zuber and Martinez instruct that notwithstanding statutory text, a convicted 

person is entitled to the bargain struck in a plea agreement once that agreement is 

approved by a court. I appreciate the difficult position in which this case puts the 

Board and the Department of Corrections. These agencies are required to both 

implement the Code and to faithfully comply with court orders. In Zuber, the 

Supreme Court was cognizant of the dilemma and avoided the conflict by 

modifying the sentences in such a manner so as to allow the Department of 

Corrections to comply with Code while at the same time, giving the appellant the 

benefit of his bargain. A similar approach is not possible here. This Court has no 

authority to adjust Kerak’s sentence and our procedural posture does not allow us 

to transfer the case to common pleas. 

Like here, the Supreme Court in Martinez was also unable to adjust the 

petitioners’ sentences so that the sentences would comply with the law. Yet the 

Supreme Court resolved the case in a manner that put the Pennsylvania State 

Police in the position of not complying with SORNA rather than in a manner that 

would put the convicted persons in the position of not receiving the benefits of 

their bargains. The Pennsylvania Constitution demands nothing less. By entering 

into a plea agreement, a defendant waives his or her constitutional right to a jury 
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trial. “No other right of the individual has been so zealously guarded over the 

years and so deeply embedded in our system of jurisprudence.” Martinez, ___ 

A.3d at ___, (Saylor, C.J., concurring), slip op. at 3-4 (quotation marks and citation 

omitted). Thus, when confronted with the Board’s duty to implement the Code, 

and a convicted person’s right to have a plea agreement enforced, the Board’s duty 

must give way. Courts of common pleas maintain their inherent power “to correct 

patent errors” in sentencing agreements. Com. v. Holmes, 933 A.2d 57, 66 (Pa. 

2007). If the government agency is aggrieved by the illegal sentence, it is the 

agency’s responsibility to seek the appropriate form of relief. Unless and until a 

court grants relief and modifies the sentence, the Board must comply with the 

sentencing order. Accordingly, I would reverse.

________________________________

RENÉE COHN JUBELIRER, Judge

Judge McCullough joins in this dissenting opinion.