IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Derek Smith, :

Petitioner :

:

v. : No. 1007 C .D. 20 1 5 : Submitted: Febr uary 5 , 20 1 6 Pennsylvania Board of Probation : and Parole, :

Respondent :

BEFORE: HONORABLE P . KEVIN BROBSON, Judge

H ONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE DAN PELLEGRINI, Senior Judge

OPINION BY SENIOR JUDGE PELLEGRINI FILED: February 23, 2016

Derek Smith ( 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 recalculating his maximum sentence

following his recommitment as a convicted parole violator in which he sought credit

for pre

- sentence confinement under Sections 6138(a)(5) and (5 .1) of the Prisons and

Parole Code (Code), 61 Pa. C.S. § § 6138(a)(5)

 (5.1)

. 1 For the reasons that follow, we

vacate and remand

.

1 Section 6138(a) of the Code provide s :

(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 fo llowing

cases:

(Footnote continued on next page...)2 I.

On November 4, 1998, Parolee was found guilty of robbery pursuant to

18 Pa. C.S. § 3701(a) and sentenced to 10 to 20 years of imprisonment, with a

minimum release date of December 31, 2010

, and a maximum release date of

December 31, 2020. Parolee was release d on parole on October 27, 2011. On

January 28, 2013, Parolee was arrested in Cary, North Carolina

, for multiple jewelry

store robberies. On January 29, 2013, the Board lodged a detainer against Parolee,

who is also known as Rodger Kent Williams.

On April 23, 2013, federal authorities indicted Parolee , under the name

Rodger Kent Williams, for : (1) interference with comme rce by threat, violence or
robbery in violation of 18 U.S.C. §1951 ; (2) use of a firearm during a crime of

(continued...)

(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 impo sed 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.

(5.1) If the parolee is sentenced to serve a new term of total confinement by a Federal court or by a court of another jurisdiction because of a verdict or plea under paragraph (1), the parolee shall serve the balance of the original term before serving the new term.

61 Pa. C.S. §§ 6138(a)(5)

 (5.1).3

violence in violation of 18 U.S.C. §924(c)(1)(A) ; and (3) p o ssession of a firearm by a

convicted felon in violation of 18 U.S.C. §922(g)

. On May 2, 2013, federal

authorities detained Parolee for the new criminal charg es and o n July 30, 2013,

Parolee was returned to Pennsylvania and placed in Columbia County Prison on a

federal detainer.

On December 10, 2013, Parolee pled guilty to the federal charge s and

was sentenced on June 3, 2014

, to 246 months of imprisonment in a federal

correctional facility consisting of two terms of 162 months each to be served

concurrently, and a term of 84 months to be served consecutively. On September 10,

20 14, Parolee was returned to SCI Rockview to serve the remainder of his state

sentence before being transferred to federal correctional authorities

.

II.

The Board issued Parolee a Notice of Charges and Hearing for a

revocation hearing stemming fr om his new criminal c onviction and, as before,

Parolee signed a Waiver of Revocation Hearing and Counsel/Admission Form

admitting that he committed the federal offenses in violation of his parole. 2

2 As a result of Parolee’s new criminal charges and technical parole violations, the Board previously issued a Notice of Charges and Hearing for a preliminary and detention hearing. Parolee then signed a Waiver of Violation Hearing and Counsel/Admission For m, indicating that he knowingly, intelligently and voluntarily admit ted to violating the terms and conditions of his parole. The Board recommitted Parolee as a technical parole violator to serve six months for leaving the district without permission, but his parole violation maximum date remained December 31, 2020, subject to his conviction on the federal charges.4

By decision mailed on December 29, 2014, the Board recommitted

Parolee as a convicted parole violator and sentenced him to serve 48 months, served

consecutively with his previous sentence of 6 months as a technical parole violator,

for a total of 56 months backtime. In an amended order to recommit , the Board

determined that his m aximum release date was May 7, 2023. In arriving at that date

,
the Board gave him backtime credit of 93 days for the period he was incarcerated

from January 29, 2013

, to May 2, 2013

, solely on the Board ’s detainer. The Board

did not credit him for the 39 7

- day period he was incarcerated f rom May 2, 2013

, to

June 3, 2014 , for the time he spent in pre

- sentence confinement.

Parolee filed a pro se Petition for Administrative Relief objecting to the

recommitment term and challenging the re calculation of hi s p arole violation

maximum date contending

, among other things, that the Board failed to credit him
“from when the [Board] put their [sic] detainer” and “from the time ... of the [parole]

detainer placed on [him ].” ( Certified Record (C.R.) at 98.)

By decisio n mailed on April 16, 2015, t he Board denied Parolee’s

Petition for A dministrative R elief

, explaining that he did not receive credit on his

original sentence for the time he spent in pre

- sentence confinement f rom May 2,

2013

, to June 3, 2014

, because he wa s held on both his new federal charges and the
Board’s detainer during that period and that credit for that time would apply to his

new federal sentence

. 3 This appeal followed.

3 In its denial of Parolee’s request for administrative relief, the Board reasoned:

Based on these facts, the Board gave you 93 days of credit for the period you were incarcerated from January 29, 2013 to May 2, 2013 (Footnote continued on next page...)5 III.

On appeal, 4 Parolee argues that the Board erred in denying him 397 days

of pre

- sentence confinement credit for the period of May 2, 2013

, to June 3, 2014

,
when he was incarcerated on both the Board’s detainer and his federal charges

. Relying on Baasit v. Pennsylvania Board of Probation and Parole

, 90 A.3d 74, 83

(Pa. Cmwlth. 2014), Parolee argues that because he was first arrested by

(continued...)

because you were held solely on the board detainer during this period. Gaito v. Board of Probation and Parole , 412 A.2d 568 ( [ Pa. ] 1980). However, the Board did not give you any c redit on your original sentence for the period you were incarcerated from May 2, 2013 to June 3, 2014 because you were held on both the new criminal charges and the board detainer during that period [sic]

. As such, credit for that time must apply to your new sentence. Id. Subtracting the credit you received from the 3353 days you had remaining left 3260 days remaining on your sentence.

The [Code] provides that convicted parole violators who are paroled
from an SCI and then receive a new sentence to be s erved in an SCI must serve the original sentence first. 61 Pa. C.S. §6138(a)(5). Because the Board had already recommitted you as a technical parole violator, you became available to commence your original sentence when the court sentenced you on June 3, 2014. Adding the 3260 days you had remaining on your sentence to your availability date yields a new maximum sentence date of May 7, 2023.

( C.R. at 100

- 101.)

4 Our scope of review is limited to de termining whether the Board’ s decision is supported by

s ubstantial 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. Cmw lth. 1995).6

Pennsylvania, the Board must apply the pre

- sentence confinement credit to his

original sentence.

In Baasit

, a case with facts very similar to those in the instant one, we
addressed, inter alia

, the assignment of pre

- sentence confin ement credit

. In that case,

the parolee was on parole from his original state sentence when he was arrested on

new state charges and a board detainer was lodged against him. M onths later, the

new state charges were di smissed

. H owever, prior to dismissal of the charges, the

parolee was arrested on federal charges and confined in a federal corrections facility

pending trial on the federal criminal charges. The parolee was eventually convicted

of the new federal charges and sentenced to a new term of imprisonment to be served

in federal custody. After sentencing, the parolee was returned to state custody. The

Board recommitted him as a convicted parole violator for the new convictions and

recalculated his maximum parol e date to reflect that he did not receive credit for the

period he was detained on both the new criminal charges and the board detainer while

in state custody. The parolee sought administrative relief, which the Board denied.

First

, we addressed the Boa rd’s claim that under Gaito v. Pennsylvania

Board of Probation and Parole , 412 A.2d 568 (Pa. 1980)

, where a parolee does not

make bail

, time spent in pre

- sentence confinement always applies to the new charges

without exception

. 5 We found that was no longe r so , given our Supreme Court ’s

5 Generally

, in the past, for cases dealing with the assignment of pre

- sentencing credit where a parolee has been confined due to the Board’s detainer as well as his new charges, our Supreme Court’s holding in Gaito has controlled. In Gaito

, the Pennsylvania Supreme Court held:

[I]f a defendant is being held i n custody solely because of a detainer lodged by the Board and has otherwise met the requirements for bail (Footnote continued on next page...)7

decision in Martin v. Pennsylvania Board of Probation and Parole , 840 A.2d 299

(Pa. 2003)

, afford ing the Board more flexibility and d iscretion to ensure that

considerations relevant to the award of credit ar e just and equita ble in nature. 6

(continued...)

on the new criminal charges, the time which he spent in custody shall
be credit ed against his original sentence. If a defendant, however, remains incarcerated prior to trial because he has failed to satisfy bail requirements on the new criminal charges, then the time spent in custody shall be credited to his new sentence.

Gaito , 41 2 A.2d at 571 (emphasis added).

6 In illustrating that Martin deviates from Gaito with regard to flexibility in credit assignments, we looked directly to our Supreme Court’s reasoning in Martin :

It is now the opinion of this Court that the Board should n ot have been divested of its ability to make a determination concerning credit for time served for pre

- sentence detention in instances where confinement is a result of both the detainer for a parole violation and the failure to meet conditions of bail on t he new offense.
S ignificantly, the General Assembly has sought to foreclose the award of such a credit only as against time spent at liberty on parole, thus suggesting the availability of credit for periods of incarceration. Moreover, as noted by Judge S mith

– Ribner in her dissenting opinion in this case, and Judge Friedman in her dissenting opinion in [Owens v. Pennsylvania Board of Probation and Parole , 7 53 A.2d 919 (Pa. Cmwlth. (2000) ]

, the considerations relevant to the award of credit are just and equ itable in nature. Unique combinations of circumstances will be presented in different cases that tip the balance for or against the particular allocation of credit. Decision making in
this conte x t, is thus, particularly suited to a discretionary framewor k with guidelines to ensure equitable treatment. Indeed, because the
rules devised in Gaito and the underlying cases were incapable of anticipating all possible credit permutations, the decision by the courts to occupy this area has resulted in a denial o f confinement credit to offenders who would have received time credit prior to [ Mitchell v. Pennsylvania Board of Probation and Parole

, 375 A.2d 902 (Pa. Cmwlth. 1997) ]. (Footnote continued on next page...)8

We then went on to address how, when there was both a state and federal

detainer, pre

- sentence time should be applied under the then

- recent enactment of

Section 6138(a)(5.1) of the Code, which required a parolee sentenced to a new term

of incarceration by a federal court to serve the balance of his original state term

before serving the new federal sentence. We noted that Section 6138(a)(5.1)
“constituted a significant change in legislative policy regarding the order of service of

sentence s where the convicted parole violator received a new sentence in a federal
court or a court of another jurisdiction.” Baasit , 90 A.3d at 82. In finding under

Se c tion 6138(a)(5. 1 ) that pre

- sentence time where there was both a state and federal

detainer sh ould be calculated against state time

, we noted that our decision embodied

the princip le that the sovereign which arrests a defendant first has primary

jurisdiction with regard to the allocation of pre

- sentence confinement credit between

the sentences. We also alleviated all concerns that a parolee could receive credit for

pre

- sentence confinement against both his federal and state sentences by observing

that 18 U.S.C. §3585(b) 7 precludes federal authorities from granting a parolee credit

(continued...)

Baasit , 90 A.3d at 81

- 82 (emphasis in original) (citing Martin , 840 A.2d at 308).

7 18 U.S.C. §3585(b) provides:

(b) Credit for prior custody.

-- A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences

—

(1) as a result of the o ffense for which the sentence was imposed; or

(Footnote continued on next page...)9

toward his new fe deral sentence for any time credited toward his original sentence

.
B ecause the Board apparently believed it lacked discretion to award credit for pre

sentence confinement time, under the facts of that case, we remand ed to the Board for

reconsideration of whether the parolee was entitled to credit against his original state

sentence for his confinement before imposition of the new federal sentence.

Even though the Board denied administrative relief approximately one

year after our decision in Baasit , it f ailed to address that decision or the effect of

Section 6138(a)(5.1) of the Code on the calculation of pre

- sentence time. In its brief,

however, the Board argues that Baasit was improperly decided because Section

6138(a)(5)

, the predecessor to Section 613 8(a)(5.1)

, was always interpreted as
“requiring the new and original sentences to be served consecutively and provide [d]

for the post

- sentence order of those sentences.” (Respondent’s Brief at 12.) It argues

that based on this interpretation of Section 6 138(a)(5), Section 6138(a)(5.1) does not

change how pre

- sentence credit should be applied, but rather

, “merely changed the

post

- sentence order of sentences for new federal and out

- of

- state

convictions/sentences.” ( Id. at 13.) The Board concludes that Baa sit incorrectly

interprets Section 6138(a)(5.1) to mean that “where the original SCI sentence had to

be served before the newly imposed SCI sentence, all pre

- sentence credit would have
to be applied to the original sentence regardless of bail.” ( Id. ) We disagree.

(continued...)

(2) as a result of any other charge for which the defendant was

arrested after the commission of the offense for which the sentence was imposed;

that has not been credited against another sentence.10

S ection 6138(a)(5) of the Code provides:

(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.

(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 )

.

Further, Section 6138(a)(5 .1 ) provides:

(5.1) If the parolee is sentenced to serve a new term of total confinement by a Federal court or by a court of another jurisdiction because of a verdict or plea under paragraph (1), the parolee shall serve the balance of the original term befo re serving the new term

.

61 Pa. C.S. § 6138(a)(5 .1) (emphasis added)

.

Before the enactment of subsection 5.1, when only subsection 5 existed

, a parolee who was sentenced to serve a new term by a federal court or a court of11

another jurisdiction was requi red to serve the new sentence before finishing the

original sentence. The enactment of subsection 5.1 changed the order of service of

sentences where the convicted parole violator received a new federal sentence or a

sentence from a different jurisdiction

. Because, as a result of subsection 5.1, a

parolee must serve the entirety of his original term before serving his new federal or

different jurisdiction sentence, the parolee no longer falls under the now

- limited

Gaito rule. As such, any pre

- sentence co nfinement credit earned by the parolee must

be applied to his original sentence. Baasit

.

We find virtually no difference between Baasit and this case. Parolee
was detained solely on the Board’s detainer from January 29, 2013

, to May 2, 2013.

From May 2, 2013

, to June 3, 2014, the date of sentencing for his federal charges, he
was confined on both the federal charges and the Board’s detainer. However, the

Board only awarded him credit for the period of January 29, 2013

, to May 2, 2013

,
because that was the time he was incarcerated solely on the Board’s warrant. In light

of our decision in Baasit , Parolee must be awarded pre

- sentence confinement credit

on his original state sentence for the period from May 2, 2013

, to June 3, 2014.

Accordingly, we vac ate the Board’s recalculation decision and remand

to the Board to recalculate and award Parolee the appropriate pre

- sentence credit on

his original sentence.

________________________________ DAN PELLEGRINI, Senior JudgeI N THE COMMONWEALTH COUR T OF PENNSYLVANIA

Derek Smith, :

Petitioner :

:

v. : No. 1007 C .D. 201 5

: Pennsylvania Board of Probation : and Parole, :

Respondent :

O R D E R

AND NOW, this 23 rd day of February , 201 6 , the order of the

Pennsylvania Board of Probation and Parole bearing a mailing date of May 21,

2015, is vacated and the case is remanded to the Board for further proceedings

consistent with the foregoing opinion

.

Jurisdiction relinquished.

________________________________ DAN PELLEG RINI, Senior Judge