IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kelly B. Donahue, :

Petitioner :

: No. 239 C.D. 2022

v. :

: Submitted: March 8, 2024

Pennsylvania Parole Board, :

Respondent :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE LORI A. DUMAS, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE McCULLOUGH FILED: April 16, 2024

Kelly B. Donahue (Petitioner), pro se, petitions for review of the March 

3, 2022 order of the Pennsylvania Parole Board (Board), which affirmed its November 

3, 2021 determination recommitting Petitioner as a convicted parole violator (CPV) 

and recalculating his parole violation maximum date. Upon careful review, we affirm.

I. Facts and Procedural History

Petitioner was released on parole from multiple sentences on February 9,

2016, upon successful completion of the sex offender program, to a county detainer 

and to a specialized community corrections center when a bed date was available. 

(Certified Record (C.R.) at 13.) Petitioner’s maximum date was May 3, 2028. Id. On 

October 19, 2016, Petitioner pled guilty to providing false identification to law 

enforcement and was sentenced to 12 months’ probation with immediate release to his 
2

parole detainer. Id. at 62. On January 26, 2017, the Board issued a decision 

recommitting Petitioner to a state correctional institution (SCI) as a CPV. Id. at 17-19. 

Petitioner’s original maximum date was recalculated to September 19, 2028. Id. at 20.1

On December 23, 2019, Petitioner absconded from parole supervision and 

was declared delinquent by the Board effective that date. Id. at 60. On January 15, 

2020, Petitioner was arrested by the Harrisburg Police Department for providing false 

information and failing to register as a sex offender. Id. at 60. That same day, the 

Board lodged its detainer. Id. at 56. On January 28, 2020, Petitioner was confined to 

the Dauphin County Prison after he was unable to post bail. Id. at 123. The Board 

issued a Notice of Charges and Hearing based on Petitioner’s conviction on the new 

charges. Id. at 57. The same day, Petitioner waived his right to a revocation hearing 

and counsel and admitted to the conviction. Id. at 58-59. On February 18, 2020, the 

Board issued a decision to detain Petitioner, pending disposition of criminal charges. 

Id. at 85. 

On August 12, 2021, Petitioner entered a guilty plea to failure to register 

with the Pennsylvania State Police (PSP) and failure to verify address/be photographed

in violation of 18 Pa. C.S. § 4915.2(a)(1)-(2)

2

and was sentenced to one and one half 

1 Petitioner’s custody for return date was October 19, 2016, he was given 114 days’ credit and

his backtime owed was 4,353 days. (C.R. at 20.)

2 Section 4915.2(a)(1)-(2) provides:

(a) Offense defined.--An individual who is subject to registration under 42 Pa.C.S. § 

9799.55(a), (a.1) or (b) (relating to registration) or who was subject to registration 

under former 42 Pa.C.S. § 9793 (relating to registration of certain offenders for ten 

years) commits an offense if the individual knowingly fails to:

(1) register with the [PSP] as required under 42 Pa.C.S. § 9799.56 (relating to 

registration procedures and applicability);

(Footnote continued on next page...)
3

to three years’ incarceration. Id. at 94. He received 563 days’ credit toward his new 

sentence for the time he was incarcerated awaiting sentencing and unable to post bail, 

from January 28, 2020, to August 13, 2021. Id. at 94. On September 9, 2021, Petitioner 

signed documentation with the Board waiving his right to counsel and a revocation 

hearing and admitting his criminal convictions. Id. at 90-92. On September 22, 2021, 

a hearing examiner and a Board member executed and signed a revocation hearing 

report recommitting Petitioner as a CPV to serve the balance of his original sentence. 

Id. at 112-119. Thereafter, on November 3, 2021, the Board recorded its action and 

recommitted Petitioner as a CPV to serve 12 months’ backtime and denied him any 

credit for time spent in good standing while at liberty on parole because Petitioner had 

absconded while on parole supervision. Id. at 140-43. Petitioner was awarded 13 days’ 

credit for the period of January 15, 2020, to January 28, 2020, when he was held solely 

on the Board’s warrant. In recalculating Petitioner’s new maximum sentence date, the 

Board determined that Petitioner owed 3,681 days on his original maximum sentence. 

Discounting the period of time from Petitioner’s release date, August 9, 2018, to the 

date of his recommitment as a CPV, the Board added the 3,681 days to the date it voted 

to recommit Petitioner, September 22, 2021, and recalculated his maximum sentence 

date as October 21, 2031. Id.

On November 24, 2021, the Board received Petitioner’s administrative 

remedies form challenging the Board’s decision. Id. at 157. The form, submitted 

through counsel, claimed that (1) Petitioner’s aggregated sentence had been 

miscalculated; (2) the Board failed to give Petitioner credit for all time incarcerated or 

(2) verify the individual’s residence or be photographed as required under 42 

Pa.C.S. § 9799.60 (relating to verification of residence).

18 Pa.C.S. § § 4915.2(a)(1)-(2).
4

served solely pursuant to the Board’s warrant; and (3) the Board used the wrong 

custody for return date in calculating Petitioner’s maximum date. Id. at 157. 

By decision dated March 3, 2022, the Board initially noted that, to the 

extent that Petitioner’s aggregated sentence was miscalculated, such concern should be

addressed by the records department for the Department of Corrections and not the 

Board. Id. at 160. Next, the Board stated that, based on the record, Petitioner was 

properly awarded 13 days’ credit toward his original sentence because he was held 

solely on the Board’s warrant during that period (January 15, 2020, to January 28, 

2020). The Board explained that Petitioner was not entitled to credit on his original 

sentence from January 28, 2020, to August 12, 2021, because he did not post bail on 

his new criminal charges and, thus, the Board did not hold him solely on its detainer 

following his arrest. Gaito v. Pennsylvania Board of Probation and Parole, 412 A.2d 

568 (Pa. 1980). Finally, the Board concluded that pursuant to Section 6138(a)(4)-(5)(i)

of the Prisons and Parole Code (Code), 61 Pa.C.S. § 6138(a)(4)-(5)(i),

3

a CPV who is 

3 Section 6138(a)(1) of the Code provides the Board with the authority to recommit a parolee 

as a CPV. Subsections (4) and (5) of this provision state as follows:

(4) The period of time for which the parole violator is required to serve 

shall be computed from and begin on the date that the parole violator is 

taken into custody to be returned to the institution as a parole violator.

(5) If a new sentence is imposed on the parolee, the service of the 

balance of the term originally imposed by a Pennsylvania court shall 

precede the commencement of the new term imposed in the following 

cases:

(i) If a person is paroled from a State correctional institution and 

the new sentence imposed on the person is to be served in the 

State correctional institution.

61 Pa.C.S. § 6138(a)(4)-(5)(i).
5

released on parole and receives a new sentence while on parole must first serve the 

original sentence before beginning the terms of the new sentence. According to the 

Board, Petitioner did not become available to serve his original sentence until 

September 22, 2021, because that was the date the Board had voted to recommit him

as a CPV.

4

 Id. at 160-62. This appeal followed.

5

 

II. Issues

On appeal,6 Petitioner raises the following issues: (1) whether the Board 

erred in determining his custody for return date; and (2) whether the Board abused its 

discretion by failing to award Petitioner credit for all time served in good standing on 

parole.

III. Discussion

A. Custody for Return Date

Petitioner argues that his custody for return date should be August 12, 

2021, the day he was sentenced for his new conviction, and not September 22, 2021, 

the day the Board voted to revoke his parole. We disagree.

4 After reviewing the record, this Court notes that the March 3, 2022 Board decision contains 

an error. The Board erroneously noted the wrong maximum date of August 19, 2028, from 

Petitioner’s original sentence instead of September 19, 2028, therefore reducing the total backtime 

owed by one month. However, the Board did state the correct recalculated maximum date. This 

typographical error does not have any impact on the decision of this case.

5 The Petition for Review was filed by Attorney Kent Watkins, Petitioner’s counsel (Counsel),

on March 22, 2022. On April 21, 2022, the Court granted Petitioner’s application to proceed in forma 

pauperis. On July 22, 2022, Petitioner’s brief was submitted by Counsel. Subsequently, Counsel was 

granted an application to withdraw as counsel on May 16, 2023, and Petitioner did not submit any 

briefs on his own behalf after that date. 

6 Our standard of review is limited to a determination of whether the necessary findings are 

supported by substantial evidence, whether an error of law was committed, or whether constitutional 

rights of the parolee were violated. See 2 Pa. C.S. § 704; Young v. Pennsylvania Board of Probation 

and Parole, 189 A.3d 16, 18 n.3 (Pa. Cmwlth. 2018).
6

Recently, in Wiles v. Pennsylvania Board of Probation and Parole (Pa. 

Cmwlth., No. 503 C.D. 2019, filed February 10, 2020),

7

this Court addressed the very 

same argument that Petitioner raises here. In that case, the petitioner contended that, 

under Section 6138(a)(4)-(5) of the Code, he was placed in the custody of the Board 

on “the date on which he was sentenced for the new conviction” because, at that time, 

“he was available to begin serving his backtime.” Wiles, slip op. at 5. The petitioner 

argued that, as such, his sentencing date on the new convictions should have been the 

baseline day the Board used to calculate his new maximum sentence date. In rejecting 

the petitioner’s contentions, we stated as follows:

This Court has examined the plain language of Section 6138 

numerous times and has long held that a CPV only becomes 

available to serve backtime on the date his parole is 

revoked, not the date he is sentenced for a new criminal 

conviction. Barnes v. Pennsylvania Board of Probation and 

Parole, 203 A.3d 382, 392 (Pa. Cmwlth. 2019); Hill v. 

Pennsylvania Board of Probation and Parole, 683 A.2d 699, 

702 (Pa. Cmwlth. 1996); Williams v. Pennsylvania Board of 

Probation and Parole, 654 A.2d 235, 237 (Pa. Cmwlth. 

1995); Campbell v. Pennsylvania Board of Probation and 

Parole, 409 A.2d 980, 982 (Pa. Cmwlth. 1980). Parole 

revocation occurs when a hearing examiner and a Board 

member, or two Board members, sign a hearing report 

recommitting a parolee as a CPV. 61 Pa.C.S. §6113(b).

When the Board recommits a CPV to serve the balance of his 

original sentence, the backtime must be computed from the 

revocation date. Hill, 683 A.2d at 702; Campbell, 409 A.2d 

at 982. If a CPV has served time prior to the date the Board 

revokes his parole, that time must be applied to his new 

sentence. Wilson v. Pennsylvania Board of Probation and 

Parole, 124 A.3d 767, 770 (Pa. Cmwlth. 2015); Campbell, 

409 A.2d at 982. We decline [the petitioner’s] invitation to 

disturb this well-settled precedent.

7 We cite Wiles, Flynn, and Williams for their persuasive value in accordance with Section 

414(a) of this Court’s Internal Operating Procedures. 210 Pa. Code §69.414(a).
7

Wiles, slip op. at 6 (emphasis added); see also Flynn v. Pennsylvania Parole Board

(Pa. Cmwlth., No. 181 C.D. 2020, filed October 26, 2020).

As our decision in Wiles illustrates, Petitioner’s argument is directly 

refuted by our case law. Petitioner was sentenced on August 12, 2019. On September 

9, 2019, Petitioner waived his right to counsel and a revocation hearing and admitted

his criminal convictions. On September 22, 2021, a hearing examiner and a Board 

member executed and signed a revocation hearing report recommitting Petitioner as a 

CPV to serve the balance of his original sentence. Pursuant to Wiles, Petitioner became 

available to serve backtime on September 22, 2021, the date his parole was revoked. 

Therefore, the Board correctly used the parole revocation date and not the sentencing

date as Petitioner’s custody for return date in Petitioner’s new maximum sentence date

calculations. 

B. Credit for Time Spent at Liberty on Parole

Section 6138(a)(2.1) of Code “unambiguously grants the Board discretion 

to award credit to a CPV recommitted to serve the remainder of his sentence.” Pittman

v. Pennsylvania Board of Probation and Parole, 159 A.3d 466, 473 (Pa. 2017). There 

are two enumerated exceptions to the Board’s discretion to award credit. Specifically, 

Section 6138(a)(2.1)(i-ii) of the Code provides that the Board may, in its discretion, 

“award credit to an offender . . . 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 Judicial Code, 42 Pa.C.S. § 9714(g)] 

or a crime listed under 42 Pa. C.S. Ch. 97 Subch. H[8]

8

42 Pa.C.S. §§ 9799.10-9799.40.
8

(relating to registration of sexual offenders) or I

[9]

(relating 

to continued registration of sexual offenders). 

(ii) The offender was recommitted under section 6143 

(relating to early parole of offenders subject to Federal 

removal order).

61 Pa.C.S. § 6138(a)(2.1)(i)-(ii). Given that Petitioner was actually convicted of, inter 

alia, failing to register as a sex offender, the exception in Section 6138(a)(2.1)(ii)

applies. 

In Williams v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth., 

No. 1149 C.D. 2019, filed April 24, 2020), the Board recommitted the petitioner to 

serve his unexpired term as a CPV after he pled guilty to Involuntary Deviate Sexual 

Intercourse with a Child, Sexual Abuse of Children (Photograph/Film/Depict on 

Computer Sex Act – Knowingly or Permitting a Child), and Incest. The Board did not 

award the petitioner credit for the time spent at liberty on parole. After the Board 

denied the petitioner’s request for administrative relief, he appealed to this Court. We 

explained that “Section 9714(g) of the Judicial Code defines ‘rape, involuntary deviate 

sexual intercourse, aggravated indecent assault, incest, [and] sexual assault’ as crimes 

of violence. 42 Pa.C.S. § 9714(g).” Williams, slip op. at 6. Therefore, under Section 

6138(a)(2.1)(i), the Board was precluded from awarding the petitioner credit; thus he 

was not entitled to credit for his time spent at liberty on parole. 

As in Williams, Section 6138(a)(2.1)(i) applies to Petitioner. Petitioner

committed a crime listed under 42 Pa. C.S. Ch. 97 Subch. H, failure to register with the 

PSP and failure to verify address/be photographed. Therefore, the Board did not err in 

declining to award Petitioner credit for time spent at liberty on parole. 

9

42 Pa.C.S. §§ 9799.51-9799.75.
9

IV. Conclusion

Accordingly, discerning no error in the Board’s decision, we affirm the 

Board’s order. 

________________________________

PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kelly B. Donahue, :

Petitioner :

: No. 239 C.D. 2022

v. :

:

Pennsylvania Parole Board, :

Respondent :

ORDER

AND NOW, this 16th day of April, 2024, the March 3, 2022 order of 

the Pennsylvania Parole Board is hereby AFFIRMED.

________________________________

PATRICIA A. McCULLOUGH, Judge