IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Millard Mitzel, III , : : Petitioner :

: v. : No. 101 C.D. 201 8 : Submitted: August 10 , 201 8 Pennsylvania Board of : Probation and Parole, : : Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON , Judge

HONORABLE PATRICIA A. McCULLOUGH , Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY SENIOR JUDGE COLINS FILED: October 2 , 201 8

Befor e this Court is the petition of Millard Mitzel, III ( Mitzel ) fo r review of the December 29 , 2017 de terminat ion of the Pennsylvania Board of Probation and Parole (Board) affirm ing it s de cis ion mailed February 7 , 201 7 that
recalculated Mitzel ’ s maximum s entence date to September 29 , 20 3 2

. For the following reasons, we affirm

.

On November 21 , 2013, Mitzel was released on parole from sentences totaling 11 years, 3 months to 28 years’ imprisonment for multiple counts of manufacture, delivery, or possession with intent to manufacture or deliver a controlled substance and for illegal possession of a firearm . (Certified Record (C.R.)

at 10

- 11 .) At that time, h is maximum sentence date on these conviction s was2

October 24 , 20 29 . (C.R. at 10; C.R. at 74 ) Between November 21, 2013 and May 2, 2014 , Mitzel was in a halfway house, Harrisburg Community Corrections Center. (C.R. at 12 ; C.R. at 6 0 .) On April 1, 2016, a criminal complaint was filed in York
Count y charging Mitzel with two counts of possession with intent to deliver
controlled substance s, heroin and cocaine , possession of drug paraphernalia, and illegal possession of a firearm. (C.R. at 15

- 1 7 .) Between April 5, 2016 and June 23, 2016, Mitzel’s wh ereabouts were u nknown and the Board declar ed Mitzel delinquent effective April 5, 2016. (C.R. at 19 ; C.R. at 6 0

. )

On June 23 , 20 16 , Mitzel was arrested on the possession with intent to deliver, drug paraphernalia, and illegal firearm charges , and the Board lodged a detainer against him

. (C.R. at 20 ; C.R. at 6 0

. ) On July 8 , 2016, Mitzel was charged
with two additional count s of possession with intent to deliver a controlled substance based on heroin and cocaine found in his possession at the time of h is June 23, 2016

arrest . ( C.R. at 38; C.R. at 60; C.R. at 61

- 62 .) Mitzel was held both on the Board’s
warrant and on the two sets of new charges because he did not post bail. (C.R. at
41 ; C.R. at 61

- 62; C.R. a t 66

- 67 .) On Octo ber 27 , 20 1 6, Mitzel plead e d guilty to

two counts of possession with intent to deliver a controlled substance and one count of illegal possession of a firearm , and was sentenced to concurrent terms of 4 to 1 0
years ’ incarceration for each of th e se offense s , with credit for 127 days that he had been detained following his June 23, 2016 arrest . (C.R. at 63 ; C.R. at 68

- 69 .)

Mitzel w a ived a parole revocation hearing and admitted that he was convicted of these offenses while on parole . (C.R. at 53 .) Based on that admission,

t he Board ordered Mitzel recommitted to a state correctional institution as a3

convicted p arole violator to serve 24 months ’ backtime

. 1 (C.R. at 45

- 52 ; C.R. at 72 .)
The Board denied Mitzel credit for time at liberty on parole , noting in its revocation hearing report : “ R ecommend not awarding credit for street time spent at liberty on parole. New conviction identical to his instant offenses which includes possession of a firearm.” (C.R. at 47, 52.) Concluding that Mitzel therefore had 5 , 816 days remaining on hi s sentence for his prior convictions, the Board extended his
maximum date to Septem ber 29 , 20 3 2. ( C.R. at 74

- 75 .) The Board , by decision
mailed February 7 , 2017 notified Mitzel of this revocation and that his maximum
sentence date was September 29, 2032

. (C.R. at 72

- 73 .) Mitzel timely challenged the Board’s decision by submission of an Administrative Remedies Form in which
he asserted that he was entitled to credit for all of the time he had been on parole other than the April 5 to June 23, 2016 period that he was delinquent and that the Board’s calculation of the time that he was on parole was incorrect because he was “locked back up on 6

- 23

- 16

. ” ( C.R. at 80 .) B y determination mailed December 29 , 2017 , the Board concluded that Mitzel ’s maximum sentenc e date was properly
calculated and affirmed its decision

. ( C.R. at 82

- 83 .) This appeal followed

.

In this Court, Mitzel argues that the Board erred in its recalculation of his maximum sentence date because it allegedly did not give a contemporaneous

reas on for its denial of credit for time spent at liberty on parole and because it failed to give him credit for the period of time that he was in the Harrisburg Community Corrections Center and the period of time that he was incarcerated between his June

1 “‘Backtime’ is the portion of a judicially imposed sentence that a parole violator must serve as a consequence of violating parole before he is eligible for re

- parole.” Palmer v. Pennsylvania Board of Probation and Parole , 134 A.3d 160, 162 n.1 (Pa. Cmwlth. 2016).4

23, 2016 arrest and October 27, 2016 sentencing on the new convictions

. We
conclude that none of these arguments has merit. 2

Mitzel’s first argument fails on the facts. Under the Prisons and Parole
Code , a recommitted convicted parole violator must generall y serve the remainder
of his sentence that he had not yet served at the time of his parole without credit for the time he has been at liberty on parole

. 61 Pa. C.S. § 6138(a) (1), (2) . In cases such as this, where the crime committed while on parole is a non

- violent , non

- sexual
offense and no parole to federal authorities for deportation is involved , t he Board in
its discretion may award credit against the original sentence for time spent at liberty on parole. 61 Pa. C.S. § 6138(a)(2.1) ; Pittman v. Pennsy lvania Board of Probation
and Parole , 159 A.3d 466, 473 ( Pa. 20 17)

. T he Board has broad discretion to grant or deny such credit, but must consider whether to award credit and provide a

statement articul ating its reason for denying credit for time spent at liberty on parole.
Pittman , 159 A.3d at 474

- 75.

Contrary to Mitzel ’s assertions, the Board did contemporaneously set forth its reason for denying him credit for time spent at liberty on parole. In its revocation hearing report denyin g Mitzel credit for time spent at liberty on parole,
the Board stated that credit should be denied because his new convictions were a recurrence of the same offenses that he had committed before and include d illegal possession of a firearm. (C.R. at 52.) That is a sufficient articulation of the Board’s

reason for denying credit. Pittman , 159 A.3d at 475 n.12 ( “ the reason the Board gives does not have to be extensive and a single sentence explanation is likely
sufficient in most instances ” ); Hughes v. Pen nsylvania Board of Probation and

2 This Court may reverse the Board’s determination only where necessary findings are not supported by substantial evidence, an error of law was committed, or constitutional rights or administrative procedures were violated. Smith v. Pennsylvania Board of Probation and Parole , 171 A.3d 759 , 764 (Pa. 2017).5

Parole , 179 A.3d 117, 121 n.5 (Pa. Cmwlth. 20 1 8 ) (notation “ [r] evoke street time

continued drug activity” on hearing report is sufficient articulation of reason for denying credit)

.

Mitzel’s second argument is barred by waiver. A parolee can be entitled to credit for periods of his parole spent in a residential facility if he shows specific characteristics of the residential facility that make it equivalent to
incarceration. Cox v. Pennsylv ania Board of Pr o bation and Parole , 493 A.2d 680,
683

- 84 ( Pa. 198 5 ) ; Harden v. Pennsylvania Board of Probation and Parole , 9 8 0
A. 2 d 691 , 697

- 701 (Pa. Cmwlth. 2009 ) ( en banc ). I ssues not raised by the inmate in a timely administrative appeal to the Board , however, are waived and cannot be grounds for reversing the Board’s determination. Adams v. Pennsylvania Board of
Probation and Parole , 885 A.2d 1121, 112 5 n.7 (Pa. Cmwlth. 2005) ; White v. Pennsylvania Board of Probation and Parole , 8 33 A. 2 d 819 , 821 (Pa. Cmwlth.
2003 ) ; McCaskill v. Pennsylvania Board of Probation and Parole, 631 A.2d 1092 , 1094

- 95 ( Pa. Cmwlth. 1993)

. Mitzel did not raise any claim in his administrative
remedies form that the Harrisburg Community Corrections Center was equivalent to
i ncarceration or that he was entitled to credit because he was at that facility

. Mitzel ’s
administrative remedies form made no refer ence at all to the Harrisburg Community
Corrections Center , the dates that he was there , November 21, 2013 to May 2, 2014,

o r to any stay at a halfway house

. (C.R. at 80.) To the contrary, it asserted that the period that he was out on parole was the entire period from November 21, 2013 to June 23, 2016. ( Id. )

Final l y, t he Board did not err in denying Mitzel credit for the period from June 23, 2016 until he was sentenced on his new conviction on October 27,
2016

. A lthough he was in custody on the Board’s warrant in that period , he was also6

held during that period on th e new criminal charge s because he did no t post bail. (C.R. at 61

- 62; C.R. at 66

- 67 .) A convicted parole violator is entitled to credit against his original sentence for periods during his parole that he has been in custody solely on the Board’s warrant. Gaito v. Pennsylvania Board of Probatio n and
Parole , 412 A.2d 568 , 571 (Pa. 1980) ; Armbruster v. Pennsylvania Board of
Probation and Parole , 919 A.2d 348, 352 (Pa. Cmwlth. 2007)

. He is not, however,
entitled to credit against his original sentence for periods during which he was held
both on the Board’s warrant and on new criminal charges for which he has not satisfied bail requirements ; instead , that period of detention is credited against the sentence on the new charges and does not constitute service of the original sentence

. Smith v. Penn sylvania Board of Probation and Parole , 171 A.3d 759, 764

- 71 (Pa. 2017) ; Gaito , 412 A.2d at 571; Armbruster , 919 A.2d at 35 2 . A convicted parole
violator receives credit against his original sentence for periods that he was held on
both a Board warrant an d other criminal charges only where he cannot receive credit against a sentence on the new charges because he was not convicted or received a

sentence of imprisonment shorter than the time that he was in custody. Smith , 171
A.3d at 764

- 71; Martin v. Penns ylvania Board of Probation and Parole , 840 A.2d 299, 308

- 09 (Pa. 2003); Armbruster , 919 A.2d at 354

- 56. Be c ause Mitzel was convicted on th e new charge s and his sentence for th ose offense s , 4 to 10 year s ’ imprisonment , exceeds th e less than 5

- month period when he was held on both the Board’s warrant and the new charge s , th e June 23 to Octo ber 27 , 201 6 period is
credited to his new sentence , not his original sentence

.

Mitzel does not dispute that he failed to post bail on the new charges,
but argues that he is nonetheless entitled to credit against his original sentence for the June 23 to October 27, 2016 period because the sentence for his new convictions7

runs concurrently with his original sentence. This latter claim is both factually and legally without merit. The record shows that the three 4

- to

- 10

- year sentences imposed for the new convictions were to run concurrently with respect to each other, not that the sentencing court directed that they were to run concurrently with Mitzel’s original sen tence or any other sentence of any court. (C.R. at 63; C.R. at 68

- 69 .) Indeed, Mitzel concedes that the sentencing court did not direct that the 4

- to

- 10

- year
sentences run concurrently with his original sentence. (Petitioner’s Br. at 15.) Moreover, the Prisons and Parole Code requir es that when a parolee is recommitted as a convicted parole violator, the original sentence and any new sentences imposed by a Pennsylvania court must be served consecutively rather than concurrently. 61 Pa. C.S. § 6138(a) (5) ; Kerak v. Pennsylvania Board of Probation and Parole , 153 A.3d 1134, 1138

- 42 (Pa. Cmwlth. 2016) ( en banc )

.

For the foregoing reasons , we affirm the Board’s December 29 , 2017
determination

.

__________ ___________________________ JAMES GARDNER COLINS, Senior JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Millard Mitzel, III , : : Petitioner :

: v. : No. 101 C.D. 2018
: Pennsylvania Board of : Probation and Parole, : : Respondent :

O R D E R

AND NOW, this 2 nd day of October , 201 8 , the December 29 , 2017
de terminat ion of the Pennsylvania Board of Probation and Parole is hereby
AFFIRMED.

__________ ___________________________ JAMES GARDNER COLINS, Senior Judge