IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Anias Foster, :

Petitioner :

:

v. :

:

Pennsylvania Parole Board, : No. 1022 C.D. 2020

Respondent : Submitted: April 16, 2021

BEFORE: HONORABLE P. KEVIN BROBSON, President Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY 

JUDGE COVEY FILED: May 25, 2021

Anias Foster (Foster) petitions this Court for review of the 

Pennsylvania Parole Board’s (Board) September 11, 2020 order denying his request 

for administrative relief. Foster presents three issues for this Court’s review: (1) 

whether the Board erred by failing to properly credit his time served under the 

Board’s detainer; (2) whether Foster served his sentences in the correct order under 

Pennsylvania law; and (3) whether the Board erred by failing to provide a 

contemporaneous statement explaining the rationale behind its decision to deny 

Foster credit for the time he spent at liberty on parole. After review, this Court 

affirms in part, and vacates and remands in part.

On December 12, 2005, Foster was sentenced to 3 to 8 years of 

incarceration after pleading guilty to drug charges (Original Sentence). See Certified 

Record (C.R.) at 1-3. At that time, his maximum sentence release date was January 

3, 2014. See C.R. at 2. 
2

On January 15, 2009, Foster was paroled from his Original Sentence. 

See C.R. at 4-10. At that time, he had 1,814 days remaining to be served on his 

Original Sentence. See C.R. at 52. As a condition of his parole, Foster signed and, 

therefore agreed to, Conditions of Parole/Reparole (Parole Conditions). Foster did 

not object, inter alia, to the following parole condition:

[i]f you are convicted of a crime committed while on 

parole/reparole, the Board has the authority, after an 

appropriate hearing, to recommit you to serve the balance 

of the sentence or sentences which you were serving when 

paroled/reparoled, with no credit for time at liberty on 

parole.

C.R. at 8. 

On January 19 or 20, 2011,1the United States Marshals Service arrested 

and charged Foster with new drug charges (Federal Charges). See C.R. at 12-13, 

15-19, 29, 32. On January 20, 2011, Foster was placed in the Adams County Prison 

“as a hold for the United States Marshals[.]” C.R. at 81. On January 21, 2011, the 

Board issued a warrant to commit and detain Foster. See C.R. at 11. On January 28, 

2011, the Board served Foster with a Notice of Charges and Hearing based on the 

Federal Charges, and notified him of the Board’s intent to hold a detention hearing. 

See C.R. at 13. That same day, Foster waived his right to counsel and a detention 

hearing. See C.R. at 14. According to Foster’s January 31, 2011 Criminal Arrest 

and Disposition Report, Foster did not post bail on the Federal Charges. See C.R. at 

19, 29. On March 7, 2011, the Board detained Foster pending disposition of his 

Federal Charges. See C.R. at 18-25. 

1 According to the federal Arrest Warrant and the Board’s Notice of Charges, federal 

authorities arrested Foster on January 19, 2011. See C.R. at 12-13, 18. However, the Board’s 

Criminal Arrest and Disposition Report and its Hearing Report represent that federal authorities 

arrested Foster on January 20, 2011. See C.R. at 19, 29, 32. 
3

On March 12, 2012, Foster pled guilty to the Federal Charges. See C.R. 

at 26. On April 3, 2012, the Board received official verification of Foster’s 

conviction. See C.R. at 30, 32. On April 12, 2012, the Board served Foster with a 

Notice of Charges and Hearing based on the Federal Charges, and notified him of 

the Board’s intent to hold a revocation hearing. See C.R. at 28. That same day, 

Foster admitted to his conviction on the Federal Charges and waived his right to 

counsel and a revocation hearing. See C.R. at 27. On May 18, 2012, the Board 

voted to recommit Foster to a State Correctional Institution (SCI) as a convicted 

parole violator (CPV) to serve 18 months of backtime “when available pending 

sentencing on [his] federal conviction.” C.R. at 38. On August 29, 2012, Foster was 

sentenced to, inter alia, an aggregated term of 120 months (Federal Sentence). See

C.R. at 40. Foster remained in the Adams County Prison until September 10, 2012, 

when he was returned to the United States Marshals’ custody and moved to a federal 

correctional institution. See C.R. at 81. On January 10, 2013, the Board issued a 

warrant to retake and return Foster to the Board’s jurisdiction as a CPV. See C.R. at 

45. 

By June 12, 2019 Detainer Action Letter, the United States Department 

of Justice, Federal Bureau of Prisons, notified the Board that Foster was being 

released, and the Board should be prepared to take him into custody on July 26, 

2019. See C.R. at 46-47. The Board took Foster into custody on July 26, 2019. See

C.R. at 48. 

 By decision issued on July 31, 2019,

2

the Board referred to its May 18, 

2012 action recommitting Foster to an SCI as a CPV to serve 18 months’ backtime. 

See C.R. at 54. The Board recalculated Foster’s Original Sentence maximum release 

date as July 13, 2024. See C.R. at 54-55. 

2 Foster received the Board’s July 31, 2019 decision on August 8, 2019. See C.R. at 54.
4

On August 28, 2019, Foster submitted an Administrative Remedies 

Form to the Board challenging its July 31, 2019 decision, claiming that he was 

entitled to credit for the time he was incarcerated from January 20, 2011 to August 

29, 2012, because he was being held solely under the Board’s detainer. See C.R. at 

67-68. Foster also argued that the Board violated Section 6138(a)(5.1) of the Prisons 

and Parole Code (Parole Code), 61 Pa. C.S. § 6138(a)(5.1), which required that he 

serve his Original Sentence before his Federal Sentence, particularly since he was 

being held in Adams County Prison. See id. Lastly, Foster claimed that the Board 

erred by denying him credit for the time he spent at liberty on parole and failing to 

articulate its basis for doing so.

3

 See C.R. at 67, 69. By November 1, 2019 

Confirmation of Incarceration, the Adams County Prison acknowledged that Foster 

was incarcerated there “as a hold for the United States Marshals . . . [from] January 

20, 2011 [to] September 10, 2012[.]” C.R. at 81. 

On September 11, 2020, the Board denied Foster’s request for 

administrative relief, explaining: 

The Board paroled [Foster] from a[n SCI] on January 15, 

2009[,] with a max[imum] date of January 3, 2014[,]

leaving [Foster] 1,814 days remaining on [his] [O]riginal 

[S]entence the day [he was] released. The Board’s 

decision to recommit [Foster] as a [CPV] authorized the 

recalculation of [Foster’s] max[imum] date to reflect that 

[he] received no credit for the time spent at liberty on 

parole. 61 Pa.C.S. § 6138(a)(2). The Board denied 

[Foster] credit for the time spent at liberty on parole in this 

case, thus, [Foster] owed 1,814 days on [his] [O]riginal

[S]entence.

The record shows that [Foster was] arrested by federal 

authorities for [the Federal C]harges on January 20, 

2011[,] and there is no indication that [Foster] posted bail. 

A Board detainer was lodged the following day, January 

3 On October 2, 2019 and February 18, 2020, Foster sent letters to the Board requesting the 

Board’s response to his appeal. See C.R. at 71-82. 
5

21, 2011. On August 29, 2012, [Foster was] sentenced in 

the United States District Court to a new term of federal 

incarceration of 120 months. [Foster was] released from 

[his] new [F]ederal [S]entence on July 26, 2019[,] when 

[Foster] returned to an SCI for the first time since [his] 

release on [] parole. Based on these facts, [Foster is] not 

entitled to any pre-sentence credit because the Board did 

not hold [Foster] solely on its warrant prior to sentencing 

in the United States District Court. Gaito v. Pa. B[d.] of 

Prob[.] [&] Parole, 412 A.2d 568 (Pa. 1980). Thus, 

[Foster] still owed 1,814 days on [his] [O]riginal 

[S]entence. Adding that total to [his] July 26, 2019 

availability date yields a recalculated max[imum] date of 

July 13, 2024.[4]

C.R. at 83. Foster timely appealed to this Court.5

Foster argues that the Board erred by failing to properly credit his time 

served under the Board’s detainer. Specifically, Foster asserts that he is entitled to 

credit toward his Original Sentence for the time he was incarcerated on the Federal 

Charges and the Board’s detainer from January 21, 2011 to August 29, 2012. 

The law is well established:

[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 

original 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, 412 A.2d at 571.

[Foster] failed to make bail on these new charges. 

Therefore, [Foster] was not incarcerated solely on the 

4 Foster is currently “out of [Federal] custody.” 

https://vinelink.com/classic/#/searchResults/1 (last visited May 24, 2021).

5 This Court’s review of a Board decision denying administrative relief “is limited to 

determining whether constitutional rights were violated, whether the adjudication is in accordance 

with the law, and whether necessary findings were supported by substantial evidence.” Plummer 

v. Pa. Bd. of Prob. & Parole, 216 A.3d 1207, 1210 n.4 (Pa. Cmwlth. 2019).
6

Board’s warrant. “[O]nce a parolee is sentenced on a new 

criminal offense, the period of time between arrest and 

sentencing, when bail is not satisfied, must be applied to 

the new sentence, and not to the original sentence.” 

Armbruster v. Pa. Bd. of Prob. & Parole, 919 A.2d 348, 

352 (Pa. Cmwlth. 2007). As a result, [Foster’s] claim for 

credit from [January 21, 2011 to August 29, 2012] fails. 

Palmer v. Pa. Bd. of Prob. & Parole, 134 A.3d 160, 166 (Pa. Cmwlth. 2016).

Foster also contends that he did not serve his sentences in the correct 

order under Section 6138(a)(5.1) of the Parole Code. The Board did not address this 

issue in its September 11, 2020 decision. 

Section 6138(a) of the Parole Code states, in pertinent part:

(1) A parolee under the jurisdiction of the [B]oard 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 

[B]oard be recommitted as a parole violator.

. . . .

(5.1) If the parolee 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 parolee shall serve the balance of the original term 

before serving the new term.

61 Pa.C.S. § 6138(a).

In its brief to this Court, the Board declares:

After receiving his new federal sentence, [Foster], by law, 

was to serve the remainder of his [Original Sentence]

before the commencement of his new [F]ederal 

[S]entence. The federal courts are either unaware of such 

nuances, or simply continue its prosecution unimpeded by 

such state legalistic peccadillos. The question arises, 

what, as a practical matter[,] do [we do] about it. The state 

lacks the authority to direct the federal authorities in the 

furtherance of completing its mission to protect the 
7

citizens of the United States. [Foster] is correct in his[]

legal position, as a practical matter, but [Foster] fails to 

provide an enforceable game plan to force the federal 

authorities to turn over inmates subject to state 

jurisdictional oversight in furtherance of following the 

Pennsylvania statutes on the matter. 

The Court can duly note though, that [Foster] does not 

specify what specific harm he has suffered from the failure 

to have him serve his [F]ederal [S]entence before being 

returned back to the state to finish the completion of his

[O]riginal [S]entence.

Board Br. at 7-8.

This Court has explained:

Section 71.4(1)(i) of the Board’s Regulations specifies 

that “[i]f a parolee is confined outside the jurisdiction of 

the Department of Corrections, such as . . . confinement in 

a [f]ederal correctional institution . . . , a revocation 

hearing shall be held within 120 days of the official 

verification of the return of the parolee to a [s]tate 

correctional facility.” 37 Pa. Code § 71.4(1)(i). In 

addition, Section 71.5(a) of the Board’s Regulations 

states: “If the parolee is . . . in [f]ederal custody, the Board 

may lodge its detainer[,] but other matters may be deferred 

until the parolee has been returned to a [s]tate correctional 

facility in this Commonwealth.” 37 Pa. Code § 71.5(a). 

Section 71.5(c)(1) of the Board’s Regulations further 

provides that parole revocation proceedings may be 

deferred during any period in which a parolee is 

unavailable. See 37 Pa. Code § 71.5(c)(1).

In Brown v. Pennsylvania Board of Probation & Parole, 

184 A.3d 1021 (Pa. Cmwlth. 2017), wherein Brown 

similarly argued that Section 6138(a)(5.1) of the Parole 

Code required the Board to obtain him from federal 

custody to serve his state sentence, this Court declared:

[U]nder [Sections 71.4(1)(i), 71.5(a) and 

71.5(c)(1) of the Board’s R]egulations, when a 

parolee is in federal custody, confined in a federal 

facility, or is otherwise unavailable, the Board’s 

duty to . . . take other action beyond issuing a 

detainer, is deferred until the parolee is returned to 
8

a[n] SCI regardless of when the Board received 

official verification of a parolee’s new conviction.

Id. at 1025.

Stroud v. Pa. Bd. of Prob. & Parole, 196 A.3d 667, 672-73 (Pa. Cmwlth. 2018).

The Stroud Court expounded:

Moreover, when analyzing the interplay between the 

Regulations and Section 6138(a)(5.1) of the Parole Code’s 

sentence order requirements, the Brown Court ruled, based 

on circumstances similar to the instant case:

[Brown’s] 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) 

[of the Parole Code]. 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.

Brown has not provided any legal authority that 

grants the Board this authority. Thus, . . . Brown 

was already unavailable to the Board when he 

pled guilty and was sentenced, as well as when it 

received official verification of his conviction. 

The Board could not have acquired Brown until 

after his release from federal custody . . . . 

Id. at 1027 (emphasis in original); see also Dill v. Pa. Bd. 

of Prob. & Parole, 186 A.3d 1040, 1046 (Pa. Cmwlth. 

2018) (“We rejected the parolee’s claim that Section 

6138(a)(5.1) of the Parole Code made him available to the 

Board prior to his release from the federal prison 

system.”)[.] Id. “Simply, there is no legal authority for 

the notion that the Board could or should ‘pluck’ [the 

parolee] from federal prison to hold a revocation hearing.” 

Id. (quoting Santosusso v. Pa. Bd. of Prob. & Parole . . . 

(Pa. Cmwlth. No. 574 C.D. 2017, filed January 30, 

2018));[6] Santosusso, slip op. at 6 (“As in Brown, we are 

6 This Court acknowledges that its unreported memorandum opinions may only be cited 

“for [their] persuasive value, but not as binding precedent.” Section 414(a) of the Commonwealth 
9

unaware of any authority supporting . . . that the Board has 

the power to pluck a Pennsylvania parolee from a federal 

prison for the purpose of recommitting him as a parole 

violator.”); Steward v. Pa. Bd. of Prob. & Parole, . . . (Pa. 

Cmwlth. No. 684 C.D. 2017, filed March 16, 2018), slip 

op. at 11[] (“We are not persuaded by [parolee’s] 

argument that Section 6138(a)(5.1) of the Parole Code 

made him available to the Board prior to his release from 

Maryland’s Department of Corrections and return to [the] 

SCI.”).

Stroud, 196 A.3d at 673.

Here, as in [Stroud,] Brown[,] and Dill, this Court is not 

aware of any legal authority under which the Board could 

have retrieved [Foster] from federal custody in order to 

conduct his revocation hearing and serve his state sentence 

pursuant to Section 6138(a)(5.1) of the Parole Code. The 

Board issued its [January 21, 2011] warrant to commit and 

detain [Foster], which could not occur until his return from 

federal custody. Federal authorities did not return [Foster]

to the Board’s custody until after he completed his federal 

sentence in [July 2019]. Therefore, he was unavailable to 

the Board until [July 2019]. Thereafter, the Board 

promptly recommitted him to serve his state sentence.

Accordingly, [Foster’s] argument that the Board should 

have obtained him from federal custody to first serve the 

backtime on his Original Sentence has no merit.

Stroud, 196 A.3d at 673-74 (footnote omitted).

Finally, Foster asserts that the Board erred by failing to provide a 

contemporaneous statement explaining the rationale behind its decision to deny 

Foster credit for the time he spent at liberty on parole, in violation of the 

Pennsylvania Supreme Court’s ruling in Pittman v. Pennsylvania Board of 

Probation & Parole, 159 A.3d 466 (Pa. 2017). The Board did not address this issue 

in its September 11, 2020 decision.

Where the [Board] determines to recommit a parolee as a 

[CPV],

Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a). This Court cites to the 

unreported cases herein for their persuasive value.
10

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 

paragraph (2.1),

[7]

shall be given no credit for the 

time at liberty on parole.

61 Pa. C.S. § 6138(a)(2) (emphasis added). Section 

6138(a)(2.1) of the Parole Code provides that, ‘[t]he 

[Board] may, in its discretion, award credit to a parolee 

recommitted . . . for the time spent at liberty on parole,’

with [] enumerated exceptions, none of which are 

applicable in this case. 61 Pa. C.S. § 6138(a)(2.1).

Recently, in Pittman, our Supreme Court explained that, 

when the [Board] exercises its discretion under Section 

6138(a)(2.1) [of the Parole Code], it ‘must articulate the 

basis for its decision to grant or deny a convicted parole 

violator credit for time served at liberty on parole.’ 

[Pittman,] 159 A.3d at 474. 

Smoak v. Talaber, 193 A.3d 1160, 1163-64 (Pa. Cmwlth. 2018) (footnotes omitted). 

Based on this record, at the time of his parole (on January 15, 2009), 

Foster had 1,814 days remaining on his Original Sentence. Because he violated a 

parole condition and committed a crime, the Board had jurisdiction to and did 

recommit Foster to serve 18 months of his Original Sentence. Foster was arrested 

7 Section 6138(a)(2.1) of the Parole Code states, in relevant part:

The [B]oard 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 [Section 9714(g) of the Sentencing Code] . . . (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).

61 Pa.C.S. § 6138(a)(2.1). Because Foster’s charges did not involve a crime of violence as 

specified in Section 9714(g) of the Sentencing Code, the Board had the discretion to award Foster

credit, but did not.
11

by the United States Marshals Service on January 19, 2011. The Board properly 

calculated Foster’s new July 13, 2024 maximum sentence release date by adding 

1,814 days to July 26, 2019. The Board had the discretion to, but denied Foster

credit for the time he spent in good standing at liberty on parole. However, the Board 

admits that it “failed to enunciate the basis for denying [Foster] any credit as required 

by [Pittman] and the matter should be remanded for the Board to reconsider its 

position and rectify this apparent error.” Board Br. at 6.

Accordingly, the Board’s recalculation of Foster’s maximum sentence 

date is vacated, and the matter is remanded for the Board to consider whether to 

credit Foster with the time he spent at liberty on parole and, if such credit is denied, 

for the Board to explain its reasons in accordance with Pittman. See Plummer v. Pa. 

Bd. of Prob. & Parole, 216 A.3d 1207 (Pa. Cmwlth. 2019).

For the above reasons, the portion of the Board’s September 11, 2020

order reaffirming the revocation of Foster’s parole and recommitment as a CPV to 

serve 18 months of backtime after he served his Federal Sentence and without credit 

for the time he served from January 21, 2011 to August 29, 2012 is affirmed. The 

portion of the Board’s order reaffirming Foster’s maximum sentence release date is 

vacated, and this case is remanded for the Board to issue a new decision on whether

to credit Foster for time he spent at liberty on parole and, if such credit is denied, the 

Board shall state its explanation in accordance with Pittman. The Board shall then 

recalculate Foster’s maximum sentence release date accordingly. 

_________________________________

ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Anias Foster, :

Petitioner :

:

v. :

:

Pennsylvania Parole Board, : No. 1022 C.D. 2020

Respondent :

O R D E R

AND NOW, this 25th day of May, 2021, the portion of the Pennsylvania 

Parole Board’s (Board) September 11, 2020 order reaffirming the revocation of 

Anias Foster’s (Foster) parole and recommitment as a convicted parole violator is 

affirmed. The portion of the Board’s order recalculating Foster’s maximum sentence 

release date is vacated, and this matter is remanded to the Board to issue a new 

decision consistent with this opinion.

Jurisdiction relinquished.

_________________________________

ANNE E. COVEY, Judge