IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph J. Kelly, :

Petitioner :

:

v. : No. 878 C.D. 2015

: Submitted: February 12, 2016

Pennsylvania Board of Probation :

and Parole, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY PRESIDENT JUDGE LEAVITT FILED: May 6, 2016

Appellant Joseph J. Kelly, pro se, petitions for review of an 

adjudication of the Pennsylvania Board of Probation and Parole (Parole Board) 

denying his request for administrative review of the Parole Board’s decision 

recommitting him as a convicted parole violator to serve his unexpired term of 1 

year, 10 months and 1 day. Kelly argues that the Parole Board erred in calculating 

his parole violation maximum date and by not giving him credit for time he spent

at liberty on parole. We affirm the Parole Board’s order.

On November 28, 2011, Kelly was sentenced to an aggregate term of 

incarceration of 9 months and 22 days to 3 years and 11 months. Kelly’s earliest 

release date was April 16, 2012, and his maximum release date was May 25, 2015. 

Kelly was released on parole on August 27, 2012.

On May 5, 2013, the Pennsylvania State Police stopped Kelly for 

erratic driving. He failed a field sobriety test and was taken to the hospital for a 

blood test, which revealed a blood alcohol level of .091%. On May 20, 2013, the 
2

State Police arrested Kelly for Driving Under the Influence of Alcohol or 

Controlled Substance (DUI), Driving on Roadways Laned for Traffic, and Careless 

Driving (Arrest 1). Also, on May 20, 2013, Kelly was stopped by the Maryland 

State Police for speeding and was charged with DUI (Arrest 2). 

On July 18, 2013, the Parole Board was notified of the above arrests 

and the pending criminal charges. On July 23, 2013, the Parole Board declared 

Kelly delinquent effective July 19, 2013. 

While the criminal charges were pending, on July 22, 2013, Kelly was

arrested in Maryland for Negligent Driving, Driving on a Suspended License and 

Privilege, DUI, and Driving While Impaired by Alcohol (Arrest 3). On September 

24, 2013, Kelly pled guilty to DUI and was sentenced to 60 days of imprisonment. 

Despite the Parole Board’s active warrant to detain Kelly, he was released to the 

street. 

On October 1, 2013, Kelly contacted the Parole Board and turned 

himself in. He was arrested and transported to Adams County Prison. On that 

same day, the Parole Board issued a warrant to commit and detain Kelly. 

On October 3, 2013, Kelly waived his right to a parole revocation 

hearing and admitted that he committed and was convicted of DUI (Arrest 3) while 

on parole. Certified Record at 13 (C.R. at __ ). Additionally, Kelly waived his 

right to a parole violation hearing and admitted that he violated the terms and 

conditions of his parole, specifically No. 3A – failure to obey written instructions; 

No. 3B (2 counts) – failure to notify of new charges; and No. 7 (3 counts) – alcohol 

use. C.R. at 14. On November 4, 2013, the Parole Board recommitted Kelly to a 

state correctional institution as a technical parole violator to serve six months 
3

backtime and as a convicted parole violator to serve six months backtime. C.R. at 

15-16.

On December 16, 2013, Kelly pled guilty to DUI (Arrest 1) and was 

sentenced to 5 days to 6 months. Thereafter, on January 23, 2014, Kelly waived 

his right to a parole revocation hearing and admitted that he committed and was 

convicted of DUI (Arrest 1) while on parole. C.R. at 18-26. On February 26, 

2014, the Parole Board recommitted Kelly to a state correctional institution as a 

convicted parole violator to serve six months backtime. C.R. at 55-56. The Parole 

Board calculated his parole violation maximum date as September 12, 2016, but 

noted it was subject to change. C.R. at 55-56.

Finally, on August 28, 2014, Kelly was convicted of DUI (Arrest 2) in 

Maryland and sentenced to one year of imprisonment. Kelly’s sentence 

commenced on August 4, 2014, and was to run concurrent with his Pennsylvania 

sentence. C.R. at 62. On September 24, 2014, Kelly waived his right to a parole 

revocation hearing and admitted that he committed and was convicted of DUI 

(Arrest 2) while on parole. C.R. at 60. On February 12, 2015, the Parole Board 

recommitted Kelly to a state correctional institution as a convicted parole violator 

to serve his unexpired term of 1 year, 10 months and 1 day as a result of his 

conviction for DUI. The Parole Board concluded that Kelly was 

[n]ot amenable to parole supervision. Declared delinquent by 

the Board. Conviction in a Court of Record established. ...

Considered a threat to the safety of the community at this time 

(alcohol related). Aggravating factor: Third DUI conviction 

this parole period. 

C.R. at 88-89. The Parole Board calculated Kelly’s parole violation maximum

date to be June 28, 2016. C.R. at 88-89.
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On March 27, 2015, Kelly filed a petition for administrative review

seeking a recalculation of his maximum sentence date. The Parole Board denied 

Kelly’s petition on April 17, 2015. Kelly now petitions this Court for review.

On appeal,1 Kelly raises two issues: (1) whether the Parole Board 

erred in not giving him credit for his time spent at liberty on parole, and (2) 

whether the Parole Board can extend his maximum sentence. The Parole Board 

contends that it has statutory authority to deny convicted parole violators credit for 

the period they were at liberty on parole, also known as “street time.” 

First, we consider the issue of credit for Kelly’s time spent on parole. 

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

Parole Board’s authority to recommit parolees who have committed new criminal 

offenses while on parole. Section 6138(a)(1) provides:

A parolee under the jurisdiction of the board 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 board be recommitted as a parole 

violator.

61 Pa. C.S. §6138(a)(1). Where the Board recommits a parolee as a convicted

parole violator, 

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, except as provided under 

 

1

This Court’s review is to determine whether the Parole Board’s adjudication is supported by 

substantial evidence, whether an error of law has been 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. Cmwlth. 1995).
5

paragraph (2.1), shall be given no credit for the time at liberty 

on parole.

61 Pa. C.S. §6138(a)(2). Section 6138(a)(2.1) of the Prisons and Parole Code

provides that, “[t]he [Parole] [B]oard may, in its discretion, award credit to a 

parolee recommitted ... for the time spent at liberty on parole,” with three 

enumerated exceptions, none of which are applicable in this case.2 61 Pa. C.S. 

§6138(a)(2.1). 

Kelly does not challenge the Parole Board’s decision to recommit him 

as a convicted parole violator for his DUI conviction on Arrest 2. Under the 

above-cited provisions of the Prisons and Parole Code, the Parole Board acted 

within its discretion by recommitting Kelly to serve the remainder of his term with

no credit for his street time. Pennsylvania law presumes that the Board acted 

lawfully and exercised its discretion in good faith, see Office of the Governor v. 

Donahue, 98 A.3d 1223, 1239 (Pa. 2014), and Kelly does not contend otherwise. 

Accordingly, we reject Kelly’s argument that the Parole Board erred in not giving 

him credit for time spent at liberty on parole.

 

2

In full, Section 6138(a)(2.1) states: 

The board may, in its discretion, award credit to a parolee recommitted under 

paragraph (2) for the time spent at liberty on parole, unless any of the following 

apply:

(i) The crime committed during the period of parole or while 

delinquent on parole is a crime of violence as defined in 42 Pa.

C.S. §9714(g) (relating to sentences for second and subsequent 

offenses) or a crime requiring registration under 42 Pa. C.S. Ch. 97 

Subch. H (relating to registration of sexual offenders); 

(ii) The parolee was recommitted under section 6143 (relating to 

early parole of inmates subject to Federal removal order). 

61 Pa. C.S. §6138(a)(2.1).
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Kelly further argues that the Parole Board violated his right not to be 

placed in double jeopardy by not crediting him for his street time. It is wellestablished that double jeopardy does not apply to parole revocation proceedings. 

McClure v. Pennsylvania Board of Probation and Parole, 461 A.2d 645, 647 (Pa. 

Cmwlth. 1983). Further, the Board’s authority to recalculate the sentence of a 

convicted parole violator “is not an encroachment upon the judicial sentencing 

power.” Young v. Pennsylvania Board of Probation and Parole, 409 A.2d 843, 

848 (Pa. 1979). Accordingly, we reject Kelly’s double jeopardy argument.

We next consider Kelly’s challenge to the Board’s recalculation of his

maximum sentence date. At the outset, we note that the Parole Board has “the 

power to recommit a convicted parole violator to serve the balance of the courtimposed maximum sentence if the new crime was committed by the parolee before 

the expiration of the maximum sentence originally imposed.” Knisley v. 

Pennsylvania Board of Probation and Parole, 362 A.2d 1146, 1148 (Pa. Cmwlth. 

1976). Furthermore, “the constitutional challenges to this procedure [have been] 

rejected by this Court....” Id. Thus, because Kelly committed a new crime before 

the expiration of the maximum sentence originally imposed, the Parole Board did 

not err in recommitting him as a convicted parole violator to serve the balance of 

his sentence.

Further, when computing the time remaining on a convicted parole 

violator’s original sentence, his street time is added to the original maximum 

sentence date to create a new maximum expiry. Armbruster v. Pennsylvania 

Board of Probation and Parole, 919 A.2d 348, 351 (Pa. Cmwlth. 2007). When 

Kelly was paroled on August 27, 2012, his maximum sentence date was May 25, 

2015. C.R. at 95. Therefore, Kelly had 2 years, 8 months, 28 days remaining on 
7

his sentence. He was returned to custody on August 28, 2014. Id. Kelly received 

credit for the 10 months, 27 days he was incarcerated on the Board’s detainer from 

October 1, 2013, to August 28, 2014. Id. Thus, Kelly had 1 year, 10 months, and 

1 day remaining on his sentence, making his parole violation maximum date June 

28, 2016. Thus, the Board did not commit an error of law in recalculating Kelly’s 

maximum sentence date to be June 28, 2016.

For these reasons, we affirm the Parole Board’s adjudication.

 _____________________________________

 MARY HANNAH LEAVITT, President Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph J. Kelly, :

Petitioner :

:

v. : No. 878 C.D. 2015

:

Pennsylvania Board of Probation :

and Parole, :

Respondent :

O R D E R 

AND NOW, this 6th day of May, 2016, the order of the Pennsylvania 

Board of Probation and Parole dated April 17, 2015, in the above-captioned matter 

is hereby AFFIRMED.

 _____________________________________

 MARY HANNAH LEAVITT, President Judge