IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Roman P. Zalewski , :

Petitioner :

: v. : : Pennsylvania Board of : Probation and Parole , : No. 836 C

. D. 201 8

Respondent : Submitted: November 22 , 201 9

BEFORE: HONORABLE MARY HANNAH LEAVITT , President Judge

HONORABLE ANNE E. COVEY , Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE FIZZANO CANNON FILED: April 20, 2020

Roman P. Zalewski (Zalewski) petitions for review from the May 24,
2018 order of the Pennsylvania Board of Probation and Parole (Board) denying Zalewski’s request for administrative relief that challenged, in part, the recalculation of his parole violation maximum sentence date. 1 As provided herein , we affirm.

On May 31, 2011, the Board released Zalewski on parole after serving time in a state correctional institution (SCI) on his original sentence of two years, three months to six years for a drug

- related crime with a maximum se ntence date of

1 Our scope of review of the Board’s decision denying administrative relief is limited to determining whether necessary findings of fact are supported by substantial evidence, whether an error of law was committed or whether constitutional rights have been v iolated. Fisher v. Pa. Bd. of Prob. & Parole , 62 A.3d 1073, 1075 n.1 (Pa. Cmwlth. 2013).2

September 23, 2015. Certified Record (C.R.) 1

- 2 & 8. On April 22, 2013, the Board detained Zalewski for technical parole violations, and by order mailed June 20, 2013, the Board recommitted him as a technical parole violator (TPV) to an SC I/contracted county jail to serve six months. Id . at 9

- 14.

On October 22, 2013, the Board reparoled Zalewski. C.R. 17. While on parole, the Spring Township police, located in Berks County , arrested Zalewski and charged him with new crimes includi ng aggravated assault, simple assault, and
harassment. Id . at 21

- 26. Zalewski posted bail on the new charges, i d . at 88, and the Board declared him delinquent effective June 17, 2015. Id

. at 27. On June 22, 2015, the Board detained Zalewski; he subsequ ently admitted to the technical parole
violations and waive d his right to c ounsel and to the violation and detention hearing s

. Id

. at 28

- 40. The Board, by order mailed July 16, 2015, recommitted Zalewski as a TPV pending disposition of his criminal charg es. Id

. at 47

- 49. The Board further ordered Zalewski to serve his unexpired term of 98 days and recalculated his maximum sentence date to September 28, 2015. 2 Id

.

On May 1, 2017, the Court of Common Pleas of Berks County, Criminal Division, sentenced Zalewski to, in relevant part, a term of 30 months to
60 months in an SCI as a r esult of his guilty plea to aggravated assault , with an effective sentence date of May 15, 2017. Id . at 57

- 58. On May 18, 2017, the Board detained Zalewski on the new crime, i d . at 63, and he subsequently waived his right to a revocation hearing and “acknowledged” his new criminal conviction. Id . at 64

- 74. The Board, by order mailed July 14, 2017, recommitted Zalewski to an SCI as a convicted parole violator (CPV) to serve 24 months concurrently (to the previously

2 To arrive at the new maximum date, the Board added 98 days to June 22, 2015, the day the Board de tained Zalewski. C.R. 49.3

imposed 98 days) for a total of 24 months’ backtime on his original sentence. 3 Id

. at 121

- 24. The Board further found Zalewski not eligible for reparole until February 12, 2019 and recalculated his maximum senten ce date to December 3, 2020. 4 Id

.

On August 14, 2017, Zalewski , pro se , filed an administrative remedies form with the Board challenging his reparole eligibi lity date and sentence credit.
C.R. 125. Zalewski argued that the Board “rendered a decision based on inaccurate, incomplete information.” Id

. Additionally, Zalewski provided facts related to the events leading to his arrest and second conviction, and requested “mercy.” Id . at 125

- 26. The Board denied Zalewski’s request for relief and, by lett er mailed May 24, 2018, affirmed its July 14, 2017 decision explaining:

The record in this matter reveals that you were convicted in a court of record, of crimes that are punishable by imprisonment, which you committed while at liberty on parole. The Board’s regulations provide that the scope of review of an administrative appeal is limited to whether the decision is supported by substantial evidence, an error of law has been committed or there has been a violation of constitutional law. 37 Pa. Code § 73.1(a)(2). The record in this matter establishes that the Board’s decision is supported by substantial evidence, does not constitute an error of law, and does not violate your constitutional rights.

3 Backtime is “[t]he unserved part of a prison sentence which a convict would have been compelled to serve if the convict had not been paroled.” 37 Pa. Code § 61.1.

4 To reach the new maximum sentence date, the Board took Zalewski’s original maximum sentence dat e, September 23, 2015, and subtracted from it the days he served before he was reparoled on October 22, 2013 to reach a total of 701 days remaining on his original sentence. C.R. 123. The Board then added the 692 days that Zalewski spent at liberty on pa role, from May 31, 2011 to April 22, 2013, to reach a total of 1 , 393 days still owed. Id . From the 1 , 393 days, the Board subtracted 98 days for backtime served to arrive at 1 , 295 days owed

. Id . The Board next counted 1 , 295 days from May 18, 2017, when Zalewski was taken into custody as a CPV, to reach a new maximum sentence date of December 3, 2020. Id

.4

Id

. at 129. On June 20, 2 018, Zalewski petitioned this Court for review of the Board’s decision.

On October 10, 2018, Zalewski’s counsel, Kent D. Watkins, Esquire (Counsel), filed an application to withdraw and a no

- merit letter with this Court . In
Zalewski v. Pennsylvania Board of Probation and Parol e (Pa. Cmwlth. , No. 836 C.D. 2018, fil ed February 26, 2019), this Court denied Counsel’s request to withdraw and ordered Counsel to fi le a brief addressing the merits and whether our
decision in Penjuke v. Pennsylvania Board of Probation and Parole , 203 A. 3d 401 (Pa. Cmwlth. 2019) , had any bearing on the Board’s calculation of Zalewski’s
maximum sentence date. In Penjuke , this Court held t hat the Board cannot revoke the credit that a parolee has been granted in a previous parole that resulted in a
recommitment as a TPV. Id

. at 420. Counsel filed his brief , and the Board responded with its brief

.

Before this Court, the Board agrees that P enjuke required it to cr edit
Zalewski with 692 days of street time that it awarded him as a TPV in a prior parole
recommitment , from May 31, 2011 to April 22, 2013, see supra note 4 , when it
recalculated his maximum sentence date

. Board’s Brief at 6

- 7. S ee also Ka zickas v. Pa. Bd. of Prob. & Parole , ___ A.3d ___ (Pa. Cmwlth., No . 214 C.D. 2019, filed
Feb. 7, 2020) (explaining that Penjuke does not allow Board to reach back into past periods of parole a nd forfeit street time credited to parolee in prior parole period)

. To remedy this error, the Board asserts that it issued a new decision on September 24, 2019 , modifying its M ay 24, 2018 decision and awarding Zalewski 692 days o f credit. Board’s Brief at 7. Because the Board cr edited Zalewski with the 6 92 days of credit, there is only one argument remaining for this Court to address

.5 Zalewski contends that the Board abused its discretion when it recalculated his maximum sentence date because it failed to give him credit for all time served in good standing on parole. Zalew ski’s Brief at 10. Specifically,
Zal ewski seeks credit for 603 days between his release on October 22, 2013 and June 17, 2015 when th e Board declared him delinquent as a result of being charged with
new crimes. Id

. We agree wit h the Board that Zalewski is not entitled to credit for
this time. Section 6138(a)(1)

- (2) of the Prisons and Parole Code (Parole Code) provides that if th e Board orders recommitment as a CPV , 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.” 61 Pa. C.S . § 6138(a)(1)

- (2). The Board may, however, in its discretion, award credit to a CPV for time spent at liberty on parole,
unless the offender is convict ed of certain offenses. 61 Pa. C.S. § 6138(a)(2.1). These offenses include a crime committed during the period of parole that i s a crime of violence as defined in Section 9714(g) of the Sentencing Code, 42 Pa. C.S. § 9714(g). Id . A crime of violence expressly enumerated is aggravated assault. See
42 Pa. C.S. § 9714(g) ( defining “crime of violence” to include “ aggravated assault a s defined in 18 Pa.C.S. § 2702(a)(1) or (2) ”). Here, Zalewski was convicted o f aggravated assault pursuant to 18 Pa. C.S. § 2702 (a)(1) , which is a crime of violence expressly enumer ated in 42 Pa.C.S. § 9714(g). C.R. 57

- 58. Be cause Zalewski was convicted of a crime of violence, the Board could not grant him credit for the time he spent at liberty on p arol e during this parole period and, therefore, committed no

error.6 Based on the foregoing, w e affirm the order of the Board rec alculating
Zalewski ’s maximum sentence date.

__________________________________ CHRISTINE FIZZANO CANNON, JudgeI N THE COMMONWEALTH COURT OF PENNSYLVANIA

Roman P. Zalewski, :

Petitioner :

: v. : : Pennsylvania Board of : Probation and Parole , : No. 836 C.D. 2018

Respondent :

O R D E R

AND NOW, this 20th day of April , 2020 , the Pennsylvania Board of Probation and Parole’s May 24, 2018 order, as modified by its September 24, 2019 order, is AFFIRMED.

__________________________________ CHRISTINE FIZZANO CANNON, Judge