IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Airrick J. Newton
, :

Petitioner :

: v. : : Pennsylvania Board of : Probation and Parole
, : No. 1360 C.D. 2018

Respondent : Submitted: February 8 , 2019

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

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

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE FIZZANO CANNON FILED: May 15, 2019

Airrick J. Newton (Newton) petitions for review of the September 6,
2018 order of the Pennsylvania Board of Probation and Parole (Board) denying his request for administrative relief that challenged the recalculation of his parole
violation maximum sentence date

. Upon review, we affirm.

On November 12, 2013, the Board released Newton on parole after he served three years in a state correctional institution (SCI) on his 3

- to 6

- year sentence resulting from his robbery conviction . Certified Record (C.R.___) at 6. Upon release, Newton had a maximum sent ence date of November 12, 2016. Id . at 2. On June 12, 2015, the police arrested Newton, charged him with new crimes, and the
Board detained him pending dispositio n of his new criminal charges. Id . at 11 & 23

. On Au gust 5, 2016, Newton ple aded guilty to the felonies of aggravated assault and2

c onspiracy to commit aggravated assault and , on that same day, the Court of Common Pleas of Chester County (trial court) imposed a new sentence of
incarceration at an SCI

. 1 Id . at 51. On October 5, 20 16, New ton was returned to an SCI

. Id . at 43. Subsequently, Newton waived his panel hearing, retained counsel,
and participated in his revocation hearing. C.R. at 29

- 31 & 53

- 66.

After the revocation hearing, the Board, on February 21, 2017, voted to revoke Newton’s p arole and to recommit him as a convicted parole violator to serve
24 months’ backtime. 2 I d . at 46 & 50. B y decision mailed Mar ch 21, 2017, the
Board notified Newton of its decision to recommit him to an SCI as a convicted parole violator to serve 24 months’ backtime , indicated that he is not eligible for parole until February 21, 2019, and recalculated his maximum sentence date to February 22, 2020. Id . at 82. On March 29, 2017, Newton filed an administrative
remedies form with the Boar d challenging his recalculated ma ximum sentence date.
C.R. at 85

. The Board, by decision mailed September 6, 2018, den ied Newton’s request for relief
, explaining:

Because you object to your recalculated max date and credit applied, your petition is a request for administrative review of the board decision recorded March 5, 2017 (mailed March 21, 2017). Upon review of your case, it was determi ned there is no indication the Board failed to appropriately recalculate your maximum date, and you r request fo r relief is denied.

1 The trial court gave Newton credit for time served between his arrest and guilty plea, that is, from June 12, 2015 to August 5, 2016. C.R. at 51.

2 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 § 61.1.3

Id . at 114. Newton petitions this Court for review

. 3

Before this Court, Newton contends that the Board erred in recalculating his maximum sentence date and cites three errors for our consideration. First, Newton argues that the Bo ard should have given him credit against his original
sentence for the time he spent i n custody from the date he was convicted and
sentenced on the new criminal charges, August 5, 2016 , through the date he was
returned to an SCI
, October 5, 2016

. Newton’s Brief at 10. Generally, “ t he Board

must credit time a parolee spent in custody between the date of conviction for the new charge and the date the Board reco mmits him as a [convicted parole] violator .

. . to the new sentence .” Plummer v. Pa. B d. of Prob. & Parole , 926 A.2d 561, 563 (Pa . Cmwlth. 2007) ; Campbell v. Pa. Bd. of Prob. & Parole , 409 A.2d 980, 981 (Pa. Cmwlth. 1980). Here, Newton plead ed guilty and received his new sentence on August 5, 2016 but the Board did not recommit him as a co nvicted parole violator until February 21, 2017. C.R. at 50

- 51. Thus, the Board must credi t the time Newton spent in custody from August 5, 2016 to February 21, 2017 to the new sentence rather than the original sentence.

Second, Newton contends that the Board erred because it used an incorrect date to commence calculating the 24 months’ backtime . Newton asserts
that the Board should have c ommenced crediting him with the 24 months ’ backtime
from the date he was returned to an SCI on October 5, 2016

. Newton’s Brief at 8. Section 6138(a)(4) of the Prisons and Parole Code (Code), 61 Pa. C.S. § 6138(a)(4), provides that “[t]he period of time for which the parole violator is required to serve
shall be computed from and begin on the dat e that the parole violator is taken into

3 Our review is limited to determining whether necessary factual findings are supported b y substantial evidence, whether any constitutional rights were violated and whether any errors of law were committed. 2 Pa.C.S. §704; Price v. Pa. Bd. of Prob. & Parole , 117 A.3d 362, 364 n.4 (Pa. Cmwlth. 2015).4

custody to be returned to the institution as a [convicted] parole violator.” A convicted parole violator’s custody for return date is the date that the Board orders the parole revoked; that is, the date the Board o btains the necessary signatures to recommit the parolee as a parole violator. See Palmer v. Pa. Bd. of Prob. & Parole
, 134 A.3d 160, 166 (Pa. Cmwlth. 2016); see also Hill v. Pa. Bd. of Prob. & Parole
, 683 A.2d 699, 702 (Pa. Cmwlth. 1996) (explaining that the parolee’s service of backtime on the original sentence must be computed from the date the Board revokes parole) ; accord Campbell , 409 A.2d at 9 82 (providing that a parolee must serve the balance of his original sentence before beginning service o n the new sentence but

“ this rule only becomes operative when parole has been revoked and the remainder of the original s en tence becomes due and owing”). T he Board ordered Newton’s recommitment as a convicted parole violator on February 21, 2017 , when it obtain ed

t he necessary signatures to do so

. C.R. at 50. As a result, Newton could not commence serving his 24 months’ backtime until February 21, 2017 , the date of the
Board ’s decision to recommit him as a convicted parole violator. See Palmer , 134
A.3d at 16 6.

Third , Newton asserts that the Board can only require Newton “to serve the remaining balance of his unexpired term since the Board does not have the power
to alte r a judicially imposed sentence. ” Newton’s Brief at 7. It is well settled that the Board, when recalculating the sentence of a convicted parole violator, is not encroaching upon judicial powers but merely requiring the parole violator to serve his entire sentence under the authority granted by the General Asse mbly. Young v. Pa. Bd. of Prob. & Parole , 409 A.2d 843, 848 (Pa. 1979) (explaining that the Board’s recalculation of sentence of convicted parole violator is “not an encroachment upon5

the judicial sentencing power”). The Board cannot extend the “duration of the sentence” because fixing the se ntence is a judicial function. Id . at 846.

However, when recalculating a convicted parolee’s maximum sentence date, the Board cannot impose backtime that exceeds the remaining balance of his unexpired term. See 6 1 Pa. C.S. § 6138(a)(2) (directing that when recommitted 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 . . . ”). It is the duration of the maximum sentence that controls, not
the actual maximum sentence date

. Commonwealth ex rel. Banks v. Cain , 28 A.2d 897, 901 (Pa. 1942). Here, Newton had 36 months remaining on his original sentence when the Board paroled him

. C.R. at 80. T he 24 months ’ backtime imposed by the Board when it recommitted him as a convicted parole violator did
not exceed the 36 months Newton owed on his original sentence.

Accordingly, b ecause Newton’s challenges to the Board’s recalculation
of his parole violation maximum sentence date lack merit , we affirm the order of the
Board.

__________________________________ CHRISTINE F IZZANO CANNON, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Airrick J. Newton, :

Petitioner :

: v. : : Pennsylvania Board of : Probation and Parole, : No. 1360 C.D. 2018

Respondent :

O R D E R

AND NOW, this 15th day of May , 201 9 , the September 6, 2018 order
of the Pennsylvania Board of Probation and Parole is AFFIRMED.

__________________________________ CHRISTINE FIZZANO CANNON, Judge