IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Randell McPhaul

, :

Petitioner :

:

v. :

: Pennsylvania Parole Board, : No. 741 C.D. 2022

Respondent : Submitted: March 10 , 202 3

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE COVEY FILED: May 23, 2023

Randell McPhaul ( McPhaul ) petitions this Court for review of the
Pennsylvania Parole Board’s (Board) June 30 , 2022 order affirming the Board’s

order recorded January 31, 2022 (mailed February 2 , 2022)

. Essentially, there is one

issue before this Court: whether the Board erred by failing to credit McPhaul for the
time he served exclusively under the Board’s warrant. 1 After review, this Court

affirms

.

1 In his Statement of Questions Involved, McPhaul also presents the following issue: “ Did [the Board] hold [ McPhaul’ s ] revocation hearing within 120 days of official verification of his
conviction or return to a [S tate C orrectional I nstitution (SCI) ] ?” McP haul Br. at 4. McPhaul’s “Suggested Answer” is “Yes.” Id

. Further, i n his Argument, McPhaul cites Section 71.4(1) (i) of the Board’s Regulations, 37 Pa. Code § 71.4(1) (i) (the 120

- day rule only applies when a parolee has not waived his right to a panel r evocation hearing) , and confirms:

[McPhaul] was returned to a[n SCI] on November 18, 2021 ([ see ] Certified Record [(C.R.) at] 54) [,] and waived his revocation hearing on January 18, 2022. ([ S ee C.R. at] 39

- 40). The waiver is within 120 days from [McPha ul’s] return to a[n SCI] and[,] therefore[,] there is no ground for appeal of this issue

. McPhaul Br. at 11 (emphasis added)

. Accordingly, this Court need not further address th at issue.2 McPhaul 2 was serving a 11⁄2

- to 5

- year sentence at the State Correctional
Institution (SCI) at Benner Township for drug

- related charges (Original Sentence)

when the Board granted him parole on March 17, 2017. See Certified Record (C.R.)

at 4

- 6

. The Board did not release him on parole until June 26, 20 17. See C.R. at 7.

At that time, McPhaul ’s Original Sentence maximum release date was September 8,

2020

, thus, he had 3 years, 2 months, and 13 days (i.e., 1,170 d ays) remaining on his
Original Sentence

. See C.R. at 6 , 68

.

As a condition of his parole, McPhaul consented to “refrain [ing] from
owning or possessing any firearms . . . [,]” and agreed that if he was convicted of a
crime while on parole, after a hearing, the Board could “recommit [him] to serve the

balance of the sente nce

. . . [he] w [as] serving when paroled/reparoled, with no credit

for time at liberty on parole. ” C.R. at 8; see also C.R. at 11. McPhaul also agreed
that his “[p]arole release [was] subject to detainers.” C.R. at 4.

McPhaul remained at liberty on parole until November 11 , 201 9 , when

the Pennsylvania State Police arrested him in Delaware County for the following

char ges: persons not to possess/use/manufacture, control, sell, or transfer firearms;
firearms not to be carried without a license; prohibited offensive weapon; possession

of marijuana; and possession of drug paraphernalia ( New Charges) , and detained

him in th e Delaware County P rison. See C.R. at 13 , 20

- 25

. The Delaware County

Common Pleas Court set McPhaul’s bail on the New Charges at $100,000.00/10%.

See C.R. at 57. That same day, the Board issued a warrant to commit and detain

McPhaul pending disposition of the New Charges. See C.R. at 12.

On November 25, 2019, the Board issued a notice of charges and
scheduled McPhaul’s detention hearing for December 2, 2019. S ee C.R. at 13. That
same day, McPhaul waived his right to counsel and a detention hearing. See C.R. at

2 McPhaul is currently incarcerated at SCI

- Frackville. See inmatelocator.cor.pa.gov/#/Result (last visited May 22 , 2023).3

15, 26. By December 10, 2019 decision , the Board voted to detain McPhaul pending
disposition of the New Charges. See C.R. at 2 5

- 3 1

. On September 3, 2020, the

Board cancelled its detainer effective September 8, 2020

, because McPhaul’s

Original Sentence expired. See C.R. at 32. On October 22, 2020, McPhaul posted
bail on the New Charges. See C.R. at 57.

On August 30, 2021, McPhaul pled guilty to the New Charge s of
possession of a prohibited firearm for which he was sentenced to 11 1⁄2 months to 3

years of incarceration followed by 7 years of probation, and possessing a firearm

without a license for which he was sentenced to concurrent probation (New

Sentence)

. See C.R. at 45, 57. The Delaware County Common Pleas Court ordered
McPhaul to report to the Delaware C ounty P rison on October 29, 2021. See C.R. at

45.

On November 3, 2021, the Board lodged a warrant to commit and

detain McP haul, declaring: “ Although [McPhaul’s] [O] riginal [Sentence] m aximum

[release date] was [September 8, 2020], the maximum sentence is being ext ended

due to a new conviction. The new maximum sentence [release date] will be
computed upon recording of the Board ’ s final action. [McPhaul] owes approximately 2 years, 4 months and 15 days. ” C.R. at 33. On November 17, 2021,

the Board received verifi cation of McPhaul’s guilty plea. See C.R. at 42. On

November 18, 2021, McPhaul was transferred to SCI

- Smithfield. See C.R. at 56.

On December 17, 2021, McPhaul was transferred to SCI

- Frackville. See C.R. at 56.

On January 18, 2022, the Board issued a notice of charges and
scheduled McPhaul’s parole revocation hearing for January 28, 2022. See C.R. at
37. That same day, McPhaul waived his right to counsel, admitted to the New
Charges, and waived his right to a p anel hearing. See C.R. at 3 8

- 40.

By decision recorded January 31, 2022 ( mailed February 2, 2022 ) , the

Board recommit ted McPhaul to an SCI as a convicted parole violator ( CPV ) to serve4

18 months of backtime

. See C.R. at 51, 72

- 73

. The Board exercised its discretion
to “[d]eny [ McPhaul ] credit for only the current period at liberty on parole” because

his New Charges involved weapons possession. C.R. at 4 9; see also C.R. at 48, 73.
The Board recalculated McPhaul’s Original Sentence maximum release date to April

11, 2025. See C.R. at 72.

On February 11, 2022, McPhaul, pro s e , filed an Administrative
Remedies Form, which the Board received on February 23, 2022 , appealing from

the Board’s decision and seeking administrative review

. See C.R. at 74

- 77.
McPhaul argued that the Board did not timely conduct his revocation hearing within
120 days of his August 30, 2021 guilty plea, and the Board failed to grant him credit

for the time f

rom November 11, 2019 to September 8, 2020

, and from October 29,

2021 to January 27, 2022. See C.R. at 75

- 76.

By March 4, 2022 letter, Kent D. Watkins, Esquire, e ntered his
appearance for McPhaul. See C.R. at 78. By decision mailed June 30, 2022, the

Board affirmed its decision recorded January 31, 2022 (mailed February 2, 2022)

, holding that when McPhaul waived his revocation hearing, he likewise waived his
right to argue that it was not timely held, and the Board properly recalculated
McPhaul’s Original Sentence maximum release date to April 11, 2025

, by adding
1,170 days to January 27, 2022

. See C.R. at 80

- 82. McPhaul appealed to this Court. 3

McPhaul argues that the Board erred by failing to give him credit for
all time served exclusively on the Board’s warrant s

. Specifically, McPhaul claims

that he was eligible to begin serving the backtime on his Original Sentence as of

November 18, 2021, the minimum term of his New Sentence . “A dding 1,170 days

3 “ This Court’s ‘review over actions of the Board is limited to determining whether the decision was supported by substantial evidence , whether an error of law occurred or whether constitutional rights were violated.’ Ramos v. Pa. Bd. of Prob. [ & ] Parole , 954 A.2d 107, 109 n.1 (Pa. Cmwlth. 2008).” Brown v. Pa. Bd. of Prob. & Parole , 184 A.3d 1021, 1023 n.5 (Pa. Cmwlth. 2017).5

to the date [he] was paroled to his backtime sentence results in a maximum sentence
date of January 31, 2025[, thus McPhaul] should be given credit for an additional 70
days toward his backtime sentence.” McPhaul Br. at 11

- 12.

Section 6138(a)(1) [of the Prisons and Parole] Code [(Parole Code)] provides that any parolee who, during the period of parole, commits a crime punishable by imprisonment and is convicted or found guilty of that crime may be recommitted as a [CPV]

. [ See ] 61 Pa.C.S. § 6138(a)(1). If the parolee is recommitted as a CPV, he must serve the remainder of the term that he would have been compelled to serve had parole not been granted (i.e., “backtime”), with no time for liberty on parole, unless the Board, in th e exercise of its sole discretion, chooses to award credit

. [ See ] Section 6138(a)(2), (2.1) of the [Parole] Code, 61 Pa.C.S. § 6138(a)(2), (2.1). If a new state sentence is imposed, the parolee [paroled from an SCI and whose new sentence will be served in an SCI] must serve the balance of the original sentence prior to commencement of the new term. [ See ] Section 6138(a)(5)(i) of the [Parole] Code, 61 Pa.C.S. § 6138(a)(5)(i).

Hughes v. Pa. Bd. of Prob. & Parole , 179 A.3d 117, 120 (Pa. Cmwlth. 2018)

.

Moreover,

the law is settled:

[i] f a defendant is being held in custody solely because of a detainer lodged by the Board and has otherwise met the requirements for bail on the new criminal charges , the time which he spent in custody shall be credited against his new 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 v. P [ a. ] B [ d. ] of Prob [

. ] [ & ] Parole

, . . . 412 A.2d 568, 571 ( [Pa.] 1980) (emphasis in original); Hammonds

v. P [ a. ] B [ d. ] of Prob [

. ] [ & ] Parole , 143 A.3d 994, 997 (Pa. Cmwlth. 2016).6

Hughes

, 179 A.3d at 121. Finally, “ [S]ection 6138(a)(5) [of the Parole Code] does
not apply until the Board has revoked the reentrant.” White v. Pa. Parole Bd.

, 276

A.3d 1247, 1253 (Pa. Cmwlth. 2022); see also Campbell v. Pa. Bd. of Prob. &

Parole

, 409 A.2d 980 (Pa. Cmwlth. 1980).

When the Board paroled McPhaul on June 26, 2017, he had 1,170 days

remaining to be served on his Original Sentence. The Board detained McPhaul on
November 11, 2019, after his arrest on the New Charges. Because McPhaul had not

sati sfied the bail requirements on the New Charges, f rom November 11, 2019 until
September 8, 2020, McPhaul was being held under the Board’s detainer and the
New Charges. Pursuant to Section 6138(a) (5)(i) of the Parole Code and Gaito , that

time had to be credited to McPhaul’s New Sentence rather than his Original

Sentence.
In addition, McPhaul reported to the Delaware County P rison on

October 29, 2021

, and the Board lodged its detainer on November 3, 2021. McPhaul

admitted to the New Charges and waived his right to a panel revocation hearing on

January 18, 2022. However, McPhaul was not available to serve the backtime on

his Original Sentence until the Board revoked his parole on January 27, 2022

. 4 See

White ; see also Campbell

. Adding 1,170 days to McPhaul’s January 27, 2022
availability date

, results in a recalculated Original Sentence maximum release date
of April 11, 2025. Accordingly, the Board properly credited McPhaul’s Original

Sentence and recalculated his new maximum release date to April 11, 2025.

Based on the foregoing

, the Board ’s order is affirmed.

___________________________ ______ ANNE E. COVEY, Judge

4 McPhaul does not provide any support for his claim that he was eligible to begin serving the backtime on his Original Sentence as of November 18, 2021, when he had served the minimum
term of his New Sentence.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Randell McPhaul, :

Petitioner :

:

v. :

: Pennsylvania Parole Board, : No. 741 C.D. 2022

Respondent :

O R D E R

AND NOW, this 23 rd day of May , 20 2 3

, the Pennsylvania Parole

Board’s June 30 , 2022 order is affirmed.

___________________________ ______ ANNE E. COVEY, Judge