IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mark Richardson, : Petitioner :

: v. : No. 1807 C.D. 2015

: SUBMITTED: June 24, 2016 Pennsylvania Board of : Probation and Parole, : Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE ANNE E. COVEY, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY SENIOR JUDGE LEADBETTER FILED: October 4, 2016

Mark Richardson petitions pro se for review of an order of the Pennsylvania Board of Probation and Parole (Board) denying his administrative appeal from an order recommitting him as a convicted parole violator. We affirm.

The pertinent facts are as follo ws . In March 2005 , Richardson was found guilty of criminal conspiracy, robbery , and burglary in the Court of Common Pleas of Philadelphia County

. Certified Record (C.R.), Item No. 1 at 1.
Pursuant to a six to twelve year sentence, he was incarcerated wi th an original parole maximum date of January 15, 2017, and a minimum date of January 15,
2011. In October 2010, the Board granted him condition al parole. Id ., Item No. 3
at 10

- 12. O ne of the conditions , which Richardson acknowledged via his signature , provided: “If you are convicted of a crime committed while on2

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.” Id . at 15.
I n March 2013, the Philadelphia Police Department arrested Richardson and charged him with murder, criminal conspiracy, robbery , and
several violations of the Pennsylvania Uniform Firearm Act of 1995

. 1 Id ., Item
No. 4 at 20 and 30. Richardson pled guilty to third

- degree murder , conspiracy

murder of the third degree, and robbery

- infliction of serious bodily injury in February 201 4 , and t he remaining charges were nolle prossed

. Id ., Item No. 6 at
42 , 43 , and 48

. In March 2014, Richardson admitted to the aforementioned

c onviction s and waived his right to a parole revocation hearing and counsel

. Id ., Item No. 8 at 54. I n a decision mailed May 1 6, 201 4 , the Board recommitted him
to a State Correctional Institution (SCI) as a convicted parole violator to serve his unexpired term, when available , pending sentencing on his new Philadelphia County case and his return to a n SCI. Id . at 63. I n January 2015, the trial court
sentenced Richardson to (1) a fifteen to thirty

- year term of confinement in a n SCI; and (2) two underlapping and concurrent five to ten

- year terms of confinement in

a n SCI. Id ., Item No. 9 at 64. Thereafter , Richardson was transferred to SCI

Graterford in January 2015. Accordingly, in a decision mailed May 6, 2015, the Board recommitted him as a convicted parole violator to serve his unexpired term
of five years, ten months, and twenty

- nine days and recalculated his parole
maximum date as December 14, 2020

. Id . at 65.

1 18 Pa. C.S. §§ 6101

- 6127.3 Subsequently, Richardson filed a petition for administrative review
nunc pro tunc , which the Board received on July 16, 2015 . Therein, he maintained that he had sought the assistance of the Defender Association of Philadelphia, but
that it did not respond to his lette r. In addition, Richardson provided a copy of a May 10, 2015, letter that he wrote to the association and its June 29, 2015, response to him indicating that it had lost his appeal paperwork. Id

. , Item No. 10
at 72

- 73. Initially, the Board denied his petition as untimely in a decision mailed August 19, 2015. Id . at 75. Upon its subsequent review of the certified record and Richardson’s claims regarding his attempts to seek an administrative remedy , however, the Board waived the untimeliness due t o a breakdown in the office of the Defender Association of Philadelphia. Board’s Brief at 7 n.1. Richardson’s petition for review to this Court followed.

On appeal, Richardson argu es that the Board lacked jurisdiction to
recalculate and extend his origi nal parole maximum date of January 15, 2017 , and unlawfully modified his existing sentence and/or impos ed a new one

. Asserting , inter alia , deprivations of due process, h e requests that this Court reverse the Board’s decision and reinstate his original pa role maximum date. Richardson’s position is without merit.

By way of background, p arole is a penological device designed to help prisoners reintegrate into society. Young v. Pa. Bd. of Prob. & Parole , 409 A.2d 843, 847 (Pa. 1979). P arole is a matter of administrative discretion and not a right of the prisoner

. Cunningham v. Pa. Bd. of Prob. & Parole , 410 A.2d 963, 965 (Pa. Cmwlth. 1980). In this regard, “[a] grant of parole does not eliminate a prisoner’s sentence, but instead, the prisoner continues to serve his sentence during which time he or she is the subject of society’s rehabilitation efforts under4

supervision.” Weaver v. Pa. Bd. of Prob. & Parole , 688 A.2d 766, 769 (Pa. Cmwlth. 1997). Consequently, “[u]pon recommitment as a convicted parole violator, the parolee must serve the remainder of the term which he would have been compelled to serve had he not been paroled . . . .” Armbruster v. Pa. Bd. of
P rob. & Parole , 919 A.2d 348, 351 (Pa. Cmwlth. 2007). In addition, although the Board has the power in certain cases to award a parolee credit for the time at liberty on parole , it may cho o se not to do so. See Section 6138(a)(2) of the Prisons
and Parole Code, as amended , 61 Pa. C.S. § 6138(a)(2). Notwithstanding the Board’s discretion i n th is regard, the statutory norm is that such credit shall not be provided to a convicted parole violator. Pittman v. Pa. Bd. of Prob. & Parole , 131 A.3d 604, 61 5 (Pa. C mwlth.) , appeal granted , 137 A.3d 572 (Pa. 2016)

. I n any event, it remains true that requiring convicted parole violators to forego credit for
street time “does not offend the constitutional guarantees to the citizens of the state and this nation[,]” but instead, “represents a reasonable exercise of the [state’s] penological responsibility . . .

. ” Young , 409 A.2d at 847

.

Furthermore , t he Board has both the authority and re sp onsib i l i ty to administer the state parole system. In this capacity , the Bo ard, inter alia , is charged with directing the recommitment of convicted parole violators and recalculating maximum sentence and reparole review dates. Martin v. Pa. Bd. of
Prob. & Parole , 840 A.2d 299, 302 (Pa. 2003). Additionally, i t has long been

esta blished that the Board’s authority to extend a maximum term expiration date does not usurp a court’s sentencing function or constitute a violation of a parolee’s due process rights. See Gaito v. Pa. Bd. of Prob. & Parole , 392 A.2d 343, 570 (Pa.5

1978). 2 I n this regard, courts have rejected inmates’ argument s that the denial of credit for time at liberty o n parole amounts to an extension of the maximum date imposed by the sentencing judge. Young , 409 A.2d at 847

- 48 . Accordingly, upon Richardson’s new conv ictions in the present case , the Board had the authority to recalculate and extend his original parole maximum date

.

Specifically r egarding the Board’s computation of Richardson’s new maximum expiry, we note that the recalculation reflect s the time yet to be served on his original sentence , 2,159 days of backtime, with no credit for his street time

. Armbruster , 919 A.2d at 351. Accordingly, adding 2,159 days to the original parole maximum date of January 16, 2015, result s in a new parole maximum date of December 14, 20 2 0. 3

For the above reasons, therefore, we affirm.

_____________________________________ BONNIE BRIGANCE LEADBETTER, Senior J udge

2 As this Court noted in Smith v. Pennsylvania Board of Probation and Parole , 133 A.3d 820 (Pa. Cmwlth. 2016), Gaito was limited by Martin v. Pennsylvania Board of Probation and Parole , 840 A.2d 299, 308 (Pa. 2003). That limitation does not apply here. 3 In any event, we note that by electing not to pursue the parole revocation hearing and, consequently, that portion dealing with the amount of backtime owed in the event that he was recommitt ed as a convicted parole violator, Richardson waived the right to advance a claim of error that he could have raised at the hearing. Fisher v. Pa. Bd. of Prob. & Parole , 62 A.3d 1073, 1075

- 76 (Pa. Cmwlth. 2013). In addition, where the recommitment period is within the presumptive range, courts will not review the Board’s imposition of backtime. Id . at 1077.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mark Richardson, : Petitioner :

: v. : No. 1807 C.D. 2015

: Pennsylvania Board of : Probation and Parole, : Respondent :

O R D E R

AND NOW, this 4 th day of October, 201 6 , the order of the Pennsylvania Board of Probation and Parole is hereby AFFIRMED.

_____________________________________ BONNIE BRIGANCE LEADBETTER, Senior J udge