IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alfonso Caldwell, :

Petitioner :

: No. 882 C.D. 2022

v. :

: Submitted: May 12, 2023

Pennsylvania Parole Board, :

Respondent :

OPINION NOT REPORTED

MEMORANDUM OPINION 

PER CURIAM FILED: November 30, 2023

Alfonso Caldwell (Petitioner), pro se, petitions for review of the July 27, 

2022 order of the Pennsylvania Parole Board (Board), which denied his request for 

administrative review and affirmed its February 23, 2022 decision to recommit him as 

a convicted parole violator (CPV) to serve 24 months’ backtime. Upon careful review, 

we affirm.

I. FACTS AND PROCEDURAL HISTORY

Petitioner is an inmate currently incarcerated at the State Correctional 

Institution (SCI) at Frackville (SCI-Frackville). On September 6, 1990, Petitioner was 

arrested and convicted of third-degree murder.1 (Certified Record (C.R.) at 1-2.) 

Petitioner was paroled on September 13, 2000. (C.R. at 6-9.)

On July 26, 2004, the Board mailed a decision recommitting Petitioner as 

a technical parole violator to serve six months’ backtime. (C.R. at 11-12.) On March 

24, 2005, Petitioner was released on parole with a maximum sentence date of 

September 6, 2010. (C.R. at 19.) On August 6, 2008, Petitioner was indicted for 

1

18 Pa. C.S. § 2502(c). 
2

federal crimes2 based on his conduct while at liberty on parole. (C.R. at 52-65.) On 

August 26, 2008, the federal court issued an order of detention in the new criminal 

case. (C.R. at 44.) On March 4, 2013, Petitioner was sentenced to 180 months’ 

incarceration in federal prison. (C.R. at 28, 33, 36.) On October 5, 2021, Petitioner 

was released from federal prison and on October 15, 2021 returned to state custody at 

SCI-Frackville. (C.R. at 93, 102.)

3

 On January 3, 2022, the Board notified Petitioner 

via a “Notice of Charges and Hearings” form that his revocation hearing would occur 

on January 25, 2022, at 9:00 a.m. at SCI-Frackville. (C.R. at 28.) At the revocation 

hearing, Petitioner was represented by Attorney Anthony List, who argued that the 

Board should credit the time Petitioner spent in federal custody to his state sentence 

due to Petitioner’s poor health. (C.R. at 84.) Petitioner did not contest his violations. 

(C.R. at 86.) 

On February 23, 2022, the Board recorded a decision (mailed March 1, 

2022) that recommitted Petitioner as a CPV and recalculated his maximum sentence

date as March 20, 2027. (C.R. at 105-06.) On March 28, 2022, the Board received 

Petitioner’s Administrative Remedies Form. (C.R. at 107-13.) On April 1, 2022, the 

Board received an additional Administrative Remedies Form on Petitioner’s behalf 

from Attorney Kent D. Watkins challenging the timeliness of the revocation hearing. 

2 Petitioner was indicted for: (1) Conspiracy to Distribute 5 or more kilograms of cocaine, in 

violation of 21 U.S.C. § 846; (2) money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i); (3) 

distribution of 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1)(b)(1)(B); (4) 

possession of firearms as a convicted felon, in violation of 18 U.S.C. § 922(g)(1); and (5) possession 

of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). (C.R. at 

35.)

3 The record does not provide any explanation to the lapse between the date of Petitioner’s 

release from federal prison and the date he was returned to state custody.
3

(C.R. at 114-16.) On July 27, 2022, the Board affirmed its February 23, 2022 decision. 

(C.R. at 117-20.) Subsequently, Petitioner appealed to this Court. 

II. ISSUES

On appeal,

4

from what the Court can glean from Petitioner’s brief, he 

raises several issues: (1) whether the Board erred by not considering his individual 

circumstances in denying his request for administrative review; (2) whether the Board 

erred by not treating him the same as his similarly situated co-defendant; (3) whether 

the Board erred when it failed to conduct a timely revocation hearing; (4) whether the 

Board erred in recalculating his maximum sentence by denying him credit for time 

spent in federal custody awaiting sentencing; and (5) whether the Board erred in its 

calculation of the imposed recommitment period of 24 months.

III. DISCUSSION

A. Waiver

Initially, we must address Petitioner’s first two issues, namely whether the 

Board erred by not considering Petitioner’s individual circumstances in denying his 

request for administrative review and whether the Board erred by not treating Petitioner 

the same as his similarly situated co-defendant. 

It is well settled that a party may not assert an issue on appeal from a 

governmental agency unless he raised it in the first instance at the administrative level. 

2 Pa. C.S. § 703(a); Pa. R.A.P. 1551; McCaskill v. Pennsylvania Board of Probation 

and Parole, 631 A.2d 1092, 1094-95 (Pa. Cmwlth. 1993) (“It has been the holding of 

this Court that the issues not raised by a CPV before the Board in an administrative 

4

In reviewing a recommitment decision, this Court’s review is limited to determining whether 

the necessary findings of fact are supported by substantial evidence, whether the decision is in 

accordance with the law, and whether the Board violated any of the parolee’s constitutional rights. 

Smith v. Pennsylvania Board of Probation and Parole, 81 A.3d 1091, 1093 n.1 (Pa. Cmwlth. 2013).
4

appeal are waived for purposes of appellate review by this Court.”). Here, Petitioner 

did not raise either of these issues before the Board in either his pro se or his counseled 

administrative remedies form. (C.R. at 107-16.) Because these issues were not raised 

before the Board, we conclude they are waived and cannot be considered for the first 

time on appeal. 

B. Timeliness of the Revocation Hearing

Next, Petitioner argues, relying on Fumea v. Pennsylvania Board of 

Probation and Parole, 147 A.3d 610 (Pa. Cmwlth. 2016), that, pursuant to Section 

6138(a)(5.1) of the Prisons and Parole Code (Code),

5 61 Pa. C.S. § 6138(a)(5.1), he 

was to serve the remaining balance of his original state term before serving the new 

federal sentence imposed on March 4, 2013. Petitioner asserts he was available to the 

Board when he was convicted of the federal charges on March 4, 2013, and, as in 

Fumea, the Board did not ensure that he served the balance of his original state sentence 

in accordance with Section 6138(a)(5.1), which resulted in an unreasonable delay in 

the holding of his revocation hearing. Petitioner argues that, between August 25, 2008, 

when he was detained by the federal agents, and March 4, 2013, the day of his 

sentencing, the Board had ample time to assert its jurisdiction and have Petitioner serve 

the balance of his original state term. 

The Board responds that the timeliness of a revocation hearing is governed 

by Section 71.4 of its regulations, 37 Pa. Code § 71.4, which provides that if a parolee 

is confined to a federal prison, the revocation hearing does not have to be held until 

120 days from when the Board received official verification of the parolee’s return to 

5 Section 6138(a)(5.1) states: “If the offender is sentenced to serve a new term of total 

confinement by a [f]ederal court or by a court of another jurisdiction because of a verdict or plea 

under paragraph (1), the offender shall serve the balance of the original term before serving the new 

term.” 61 Pa. C.S. § 6138(a)(5.1).
5

an SCI. According to the Board, because Petitioner was not confined at an SCI until 

October 15, 2021, his revocation hearing, held within 120 days of his return, was 

timely. The Board further maintains that Petitioner’s reliance on Section 6138(a)(5.1) 

disregards the facts that he was in federal custody until October 5, 2021, and that the 

Board had no ability to take him from the federal authorities to conduct a revocation 

hearing and recommit him as a CPV. Finally, the Board argues, Fumea is 

distinguishable because, unlike in that case, there was no opportunity for the Board to 

obtain custody of Petitioner after his sentencing and prior to his entering federal 

custody. Therefore, the Board asserts that Petitioner was not entitled to a revocation 

hearing prior to his return to an SCI. We agree with the Board.

When a parolee challenges the timeliness of a revocation hearing, the 

Board has the burden of proving by a preponderance of the evidence that the hearing 

was, in fact, timely. Ramos v. Pennsylvania Board of Probation and Parole, 954 A.2d 

107, 109 (Pa. Cmwlth. 2008) (quotations omitted). If the Board does not present 

substantial evidence to establish the timeliness of a revocation hearing, the parole 

violation charges are dismissed with prejudice. Id. 

To meet its burden, the Board relies on its regulations addressing the 

timing of, and procedures related to, revocation hearings to assert that Petitioner’s

revocation hearing was timely. Section 71.4(1)(i) of the Board’s regulations states, in 

relevant part, that:

The following procedures shall be followed before a parolee 

is recommitted as a [CPV]:

(1) A revocation hearing shall be held within 120 days 

from the date the Board received official verification of 

the pleas of guilty or nolo contendere or of the guilty 

verdict at the highest trial court level except as follows:
6

(i) If a parolee is confined outside the 

jurisdiction of the Department of Corrections, 

such as confinement out-of-state, confinement in a 

Federal correctional institution or confinement in 

a county correctional institution where the parolee 

has not waived the right to a revocation hearing by a 

panel in accordance with [Commonwealth ex rel. 

Rambeau v. Rundle, 314 A.2d 842 (Pa. 1973)], the 

revocation hearing shall be held within 120 days 

of the official verification of the return of the 

parolee to [an SCI].

37 Pa. Code § 71.4(1)(i) (emphasis added). Section 71.5(a), (c)(1) offers additional

guidance, providing, in relevant part:

(a) If the parolee is in . . . Federal custody, the Board 

may lodge its detainer but other matters may be deferred 

until the parolee has been returned to [an SCI] in this 

Commonwealth.

. . . .

(c) In determining the period of conducting hearings 

under this chapter, there shall be excluded from the period, 

a delay in any state of the proceedings which is directly or 

indirectly attributable to one of the following:

(1) The unavailability of a parolee or counsel.

37 Pa. Code § 71.5(a), (c)(1) (emphasis added). Thus, under this regulation, when a 

parolee is in federal custody, confined in a federal facility, or is otherwise unavailable, 

the Board’s duty to hold a revocation hearing, or take other action beyond issuing a 

detainer, is deferred until the parolee is returned to an SCI regardless of when the Board 

received official verification of a parolee’s new conviction. See Brown v. Pennsylvania 

Board of Probation and Parole, 184 A.3d 1021, 1025 (Pa. Cmwlth. 2017) (quotations 

omitted).
7

Petitioner asserts these regulations are inapplicable due to the General 

Assembly’s October 2010 addition of Section 6138(a)(5.1) to the Code,

6 which 

provides “[i]f the offender 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 please 

under paragraph (1), the offender shall serve the balance of the original term before 

serving the new term.” 61 Pa. C.S. § 6138(a)(5.1) (emphasis added). 

This Court recently addressed the interplay between the revocation 

hearing provisions of Section 74.4(1)(i) of the regulations and the new order-ofsentences requirements of Section 6138(a)(5.1). In Fumea, federal authorities arrested 

the parolee while on parole from a state sentence, and, after his release on bond on the 

federal charges, the Board detained him pending the disposition of those 

charges. Fumea, 147 A.3d at 611. He remained in an SCI on the Board’s detainer until 

his original maximum sentence expired, at which time the Board lifted its warrant and 

he was released. Because he was no longer being held on the Board’s detainer and was 

6 The General Assembly also amended Section 6138(a)(5) of the Code as follows, with the 

added language emphasized:

(5) If a new sentence is imposed on the offender, 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 [an SCI] and the new sentence 

imposed on the person is to be served in the [SCI].

(ii) If a person is paroled from a county prison and the 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) (emphasis added).
8

out on bail on the federal charges, the parolee was at liberty while awaiting his federal 

trial. Id. After a federal jury found him guilty on July 8, 2011, the parolee remained 

on bail until his sentencing on November 21, 2011. The parolee’s parole agent

attended the sentencing hearing, and the Board issued a warrant to commit and

detain him on that day. However, the agent did not take the parolee into custody, and 

the parolee was remanded into the custody of the United States Marshal. The parolee 

was not released from federal custody until December 24, 2014, and he was returned 

to an SCI. The Board held a revocation hearing after his return, the timeliness of which 

the parolee challenged. The parolee asserted that he had been available to the Board at 

the time of his sentencing and the Board had not taken custody of him, thereby making 

him serve his federal sentence first in contravention of Section 6138(a)(5.1). The 

Board concluded the revocation hearing was timely under Section 71.4(1)(i) of the 

regulations, and the parolee petitioned this Court for review.

We framed the issue in Fumea as “whether Section 6138(a)(5.1) imposes 

[a] duty upon the Board to assert its jurisdiction over a parolee who, upon his conviction 

in federal court, becomes a [CPV] but who is not yet in federal custody under these 

circumstances.” Fumea, 147 A.3d at 615. The Court held that, despite the expiration of 

the parolee’s maximum date, the Board retained jurisdiction to recommit him as a CPV 

pursuant to Section 6138(a)(1),

7

and he became available to the Board upon his 

7 Specifically, Section 6138(a)(1.1) 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

or of any misdemeanor of the third degree or of any of the following offenses 

where graded as a summary offense, may at the discretion of the board be 

recommitted as a parole violator[.] . . .

61 Pa. C.S. § 6138(a)(1.1).
9

conviction in federal court. Id. at 616. Further, noting that the Court has interpreted 

Section 71.4 of the regulations to “attempt[ ] to strike a balance, adhering to the letter 

of the regulations while remaining cognizant of the due process concerns that drove 

[its] . . . promulgation” to ensure timely revocation hearings, we rejected the Board’s 

argument that the parolee could not rely on the date of his sentencing to begin the 120-

day period because that date was not the date the Board received official verification 

of the parolee’s new conviction. Id. at 617. Because the Board’s actual knowledge of 

the conviction, as evidenced by the agent’s presence at the sentencing hearing, 

effectuated the purpose of official verification, this Court held that the revocation 

hearing, held more than 120 days after the Board had notice of the conviction and could 

have, but did not, take custody of the parolee, was untimely. Id. at 619-20. 

Importantly, we added that the General Assembly clearly intended to change the order 

of service of sentences through its enactment of Section 6138(a)(5.1), and that “the 

Board’s delay in acquiring ‘official verification’ or its inaction at a parolee’s 

sentencing, as occurred here, can render [that Section] a nullity, thus defeating the 

legislative intent.” Id. at 615, 619.

Petitioner argues that, pursuant to this new section, there was an undue 

delay in conducting a revocation hearing, like the parolee in Fumea, he became 

available to the Board at the time of his federal conviction, and, therefore, a revocation 

hearing should have been held within 120 days of the Board’s receipt of the official 

verification of that conviction. However, the parolee in Fumea was not in federal

custody when he became available to the Board because he was on bail from the 

federal charges. It was only at the sentencing hearing after the parole agent did not

take the parolee into custody, that he was remanded into federal custody and thus

became unavailable to the Board.
10

Here, it is undisputed that Petitioner was in federal custody both before 

and after his federal sentencing and when the Board received official verification of his 

conviction. His argument presumes that the Board had the ability to obtain him from

federal custody in order to hold a revocation hearing and recommit him as a CPV to 

serve the remainder of his original sentence in accordance with Section 6138(a)(5.1). 

However, the Board asserts that it does not have the ability to acquire a Pennsylvania 

parolee from the custody of another jurisdiction in order to recommit the parolee to 

serve the remainder of the original sentence. Petitioner has not provided any legal 

authority that grants the Board this authority. Thus, unlike the parolee in Fumea over 

whom the Board’s agent could have immediately taken custody, but did not, thereby 

allowing the parolee to be placed into federal custody, Petitioner was already

unavailable to the Board when he pled guilty and was sentenced, as well as when the 

Board received official verification of his conviction. The Board could not have 

acquired Petitioner until after his release from federal custody in October 2021. Under 

these circumstances, we are not persuaded by Petitioner’s argument that Section 

71.4(1)(i) of the regulations is inapplicable based on Section 6138(a)(5.1) and Fumea.

Applying the general revocation hearing provisions of the regulations 

because Petitioner was confined outside the jurisdiction of the DOC, the revocation 

hearing had to be held within 120 days of the date he was returned to an SCI to be 

timely. 37 Pa. Code § 71.4(1)(i). Petitioner’s January 25, 2022 revocation hearing was 

held 112 days after his October 5, 2021 release from federal custody. Thus, there was 

no error in the Board’s conclusion that Petitioner’s revocation hearing was timely. 

C. Credit for Time Spent Incarcerated/Recalculation of Maximum Date

Petitioner argues that the Board erred in recalculating his maximum 

sentence by denying him credit for the period he spent in federal custody awaiting 
11

sentencing on his federal convictions from August 26, 2008, to March 4, 2013. 

Petitioner relies on Baasit v. Pennsylvania Board of Probation and Parole, 90 A.3d 74

(Pa. Cmwlth. 2014), and Smith v. Pennsylvania Board of Probation and Parole, 133 

A.3d 820 (Pa. Cmwlth. 2016), reversed, 171 A.3d 759 (Pa. 2017). 

As this Court has stated:

“The general rule governing the allocation of credit for time 

served awaiting disposition of new criminal charge was 

established by our Supreme Court in Gaito v. Pennsylvania 

Board of Probation [and] Parole, . . . , 412 A.2d 568 ([Pa.] 

1980).” Armbruster v. Pennsylvania Board of Probation & 

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

Gaito, “this Court consistently held that once a parolee is 

sentenced on a new criminal offense, the period of time 

between arrest and sentencing, when bail is not satisfied [on 

the new criminal charge], must be applied toward the new 

sentence, and not to the original sentence.” Armbruster, 919 

A.2d at 352. 

Stroud v. Pennsylvania Board of Probation and Parole, 196 A.3d 667, 674 (Pa. 

Cmwlth. 2018) (footnote omitted). Moreover, Section 6138(a)(5.1) of the Code does 

not require or authorize the Board to retrieve a parole violator from federal custody 

to serve a state sentence. 

Here, the Board’s decision to recommit Petitioner authorized the 

recalculation of Petitioner’s maximum sentence date to reflect that he received no credit 

for the time spent at liberty on parole because his federal convictions involved 

possession of a weapon. (C.R. at 118.) Because the Board denied credit for time spent 

at liberty on parole, Petitioner owed 1,992 days on his original sentence. There is no 

indication in the record that Petitioner posted bail on his federal charges. He, therefore, 

was never detained solely on the Board’s warrant, as there was a federal detainer in 

place. See Gaito; see also Stroud, 196 A.3d at 673-74 (holding that the Board did not 
12

have the authority under the Code to retrieve a parolee from federal custody following 

his arrest on federal charges to conduct a revocation hearing and to allow him to serve 

backtime on his original sentence while he was still in federal custody). 

Regarding the calculation of Petitioner’s maximum sentence date, the 

Board based its calculation on his initial March 24, 2005 release date and his original 

maximum sentence date of September 6, 2010. At the time he was originally paroled, 

Petitioner had 1,992 days on his original sentence. Federal authorities detained 

Petitioner on August 26, 2008. Petitioner was sentenced on his federal charges on 

March 4, 2013, and was released from federal custody on October 5, 2021, after 

completing his federal sentence. At this point, Petitioner became available to serve the 

balance of his original sentence. Therefore, adding 1,992 days to his release from 

federal custody date of October 5, 2021, yielded a recalculated maximum sentence date 

of March 20, 2027. 

Accordingly, the Board did not err by denying Petitioner credit for time 

he spent incarcerated on his federal conviction and thereby recalculating his maximum 

sentence date. 

D. Presumptive Ranges for CPV

Petitioner argues that the Board erred by recommitting him for 24 months. 

This argument is unavailing. 

The Board’s regulations provide a set of presumptive ranges of 

recommitment terms for CPVs. 37 Pa. Code § 75.2. Because the General Assembly 

has given the Board broad authority to craft regulations of this kind, see Chapman v. 

Pennsylvania Board of Probation and Parole, 474 A.2d 413, 417-18 (Pa. Cmwlth. 

1984), we will not entertain a challenge to a term of recommitment that falls within the 

appliable range for the crimes at hand. Barnes v. Pennsylvania Board of Probation 
13

and Parole, 203 A.3d 382, 388 (Pa. Cmwlth. 2019). When a parole violator is 

convicted of multiple crimes, the Board may create an aggregate presumptive range by 

adding together the ranges of each applicable crime. Ward v. Pennsylvania Board of 

Probation and Parole, 538 A.2d 971, 975 (Pa. Cmwlth. 1988). 

Here, Petitioner was convicted of conspiracy to distribute 5 or more 

kilograms of cocaine, money laundering, distribution of 500 grams or more of cocaine, 

convicted felon in possession of a firearm, and possession of firearm in furtherance of 

drug trafficking crime. (C.R. at 35.) Section 75.2 of the Board’s regulations provides 

for the following presumptive ranges: 18 to 24 months for conspiracy to distribute 5 or 

more kilograms of cocaine; 24 to 40 months for money laundering; 18 to 24 months 

for distribution of 500 grams or more of cocaine; and 18 to 24 months for possession 

of a firearm in furtherance of a drug trafficking crime. 37 Pa. Code § 75.2. The Board 

added the maximum presumptive ranges for each of the offenses, which provided the 

Board with aggregate range of 136 months.

8

 The 24-month term imposed by the Board 

falls well within that range. Because Petitioner’s backtime does not exceed the 

aggregate range, his claim lacks merit. 

IV. CONCLUSION

Based on the foregoing, we conclude that Petitioner’s arguments 

regarding the Board’s failure to consider his individual circumstances and to treat him 

8 The Board’s order mailed July 27, 2022 stated:

The presumptive range for those offenses, as outlined in Pa. Code §§ 75.1-75.2. are as follows:

Conspiracy to distribute 5 or more kilos of cocaine = 18 to 24 months

Money laundering = 24 to 40 months

Distribution of 500 grams or more of cocaine = 18 to 24 months

Convicted felon in possession of a firearm = 18 to 24 months

Possession of a firearm in furtherance of a drug trafficking crime = 18 

to 24 months

(C.R. at 118.)
14

similarly to his co-defendant are waived as he failed to raise them before the Board. 

We also conclude that Petitioner’s argument that the Board failed to hold a timely 

revocation hearing is unpersuasive because it was performed within 120 days after he 

returned to the SCI. Furthermore, we conclude that Petitioner’s argument regarding 

credit time and the miscalculation of his maximum date is not persuasive as he was not 

available for the Board’s detention, and the maximum date accurately reflected the 

absence of time credit. Finally, we conclude that Petitioner’s challenge to the Board’s 

imposition of backtime lacks merit. Accordingly, we affirm the Board’s order.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alfonso Caldwell, :

Petitioner :

: No. 882 C.D. 2022

v. :

:

Pennsylvania Parole Board, :

Respondent :

PER CURIAM

ORDER

AND NOW, this 30th day of November, 2023, the July 27, 2022 order 

of the Pennsylvania Parole Board is AFFIRMED.