IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Justin Null, :

Petitioner :

:

v. : No. 833 C.D. 2018

: Submitted: November 21, 2018

Pennsylvania Board of :

Probation and Parole, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY PRESIDENT JUDGE LEAVITT FILED: January 31, 2019

Justin Null petitions for review of an adjudication of the Pennsylvania 

Board of Probation and Parole (Parole Board) recommitting him as a convicted 

parole violator to serve his unexpired term. Null argues that the Parole Board failed 

to give him credit on his original sentence for the time he was incarcerated on the 

Board’s detainer. For the reasons that follow, we affirm the Parole Board’s 

adjudication.

In 2015, Null was sentenced to a term of incarceration of one to three 

years for criminal attempt and criminal trespass (original sentence). His maximum 

sentence date was August 6, 2018.

On January 17, 2017, Null was paroled to a Community Corrections 

Center in Harrisburg, Pennsylvania. On February 20, 2017, Null absconded from 

parole supervision. On March 17, 2017, Null was detained on the Parole Board’s 

warrant. 
2

On March 20, 2017, the Lewistown Police Department charged Null 

with possession of drug paraphernalia. On May 24, 2017, Null pled guilty and was 

ordered to pay fines and costs. On June 21, 2017, the Parole Board recommitted

Null to a state correctional institution as a convicted parole violator, with a maximum 

sentence date of August 31, 2018.

On August 21, 2017, Null was reparoled to an approved residence in 

Lewistown, Pennsylvania. On November 7, 2017, Null was arrested in Lewistown 

for criminal trespass. Because Null was unable to post bail, he remained incarcerated 

on the criminal trespass charges. On the following day, November 8, 2017, the 

Parole Board lodged a detainer against Null for violations of his parole. On 

December 19, 2017, Null pled guilty to criminal trespass and was sentenced to one 

to two years of incarceration (new sentence). The trial court credited the time he 

was incarcerated awaiting trial from November 7, 2017, to December 19, 2017, 

toward his new sentence. 

By decision of March 6, 2018, the Parole Board recommitted Null as a 

convicted parole violator to serve the unexpired term on his original sentence, which 

was 9 months and 23 days. The Parole Board awarded Null credit for the time spent 

at liberty on parole.1 Null’s parole violation maximum sentence date was calculated 

to be November 29, 2018.2

 

1 When a parolee is recommitted as a convicted parole violator, he must serve the remainder of the 

term which he would have been compelled to serve had the parole not been granted. 61 Pa. C.S. 

§6138(a)(2). In addition, the parolee does not receive credit for his time at liberty on parole unless

the Parole Board, in its discretion, awards the parolee credit for this time. 61 Pa. C.S. 

§6138(a)(2.1). 

2 On November 29, 2017, Granville Township Police Department arrested Null for receiving stolen 

property. Subsequently, Null pled guilty and was sentenced to a six-month term of probation and 

to pay a fine. By decision recorded April 27, 2018, the Parole Board determined to “note [the] 

conviction[.]” Certified Record at 166 (C.R. __). Null remained incarcerated to serve the 

unexpired term on his original sentence.
3

Null filed a request for administrative relief wherein he challenged the 

Parole Board’s calculation of his maximum sentence date. Null contended:

I have a parole warr[a]nt date of 11-8-17 when I had a parole 

detainer lodged against me, [b]ut I am only receiving credit from 

2-6-18. I was retur[ ]ned to Camp Hill as a parole violator 1-19-

18. Could I please be given credit from 11-8-17 or at least 1-19-

18[?] Thank you[.]

Certified Record at 168. By decision mailed June 1, 2018, the Parole Board denied 

Null’s administrative appeal. Null then petitioned for this Court’s review.3 

On appeal,4 Null argues that the Parole Board erred in calculating his 

parole violation maximum date. Null contends that he “has a right to receive time 

credit for all time served on [the Parole Board’s] detainer[.]” Null Brief at 5. Null 

seeks credit on his original sentence for the period from November 8, 2017, until

February 6, 2018, when the Board revoked his parole. The Parole Board responds 

that Null is not entitled to credit for this time because he was not incarcerated solely 

on the Board’s detainer; accordingly, this time can only be credited to his new 

sentence. 

We begin with a review of the law regarding allocation of credit for 

time served awaiting disposition of new criminal charges. Generally, if a defendant 

“remains incarcerated prior to trial because he has failed to satisfy the bail 

requirements on the new criminal charges, then the time spent in custody shall be 

credited to his new sentence.” Gaito v. Pennsylvania Board of Probation and 

 

3 Although Null has completed serving his original sentence, it does not render his appeal moot. 

Were the Court to grant his appeal, time served on his original sentence could be applied to his 

new sentence.

4 This Court’s review determines whether the Parole Board’s findings of fact are supported by 

substantial evidence, whether an error of law has been committed, or whether constitutional rights 

have been violated in the adjudication. 2 Pa. C.S. §704; Moroz v. Pennsylvania Board of Probation 

and Parole, 660 A.2d 131, 132 (Pa. Cmwlth. 1995).
4

Parole, 412 A.2d 568, 571 (Pa. 1980) (internal footnote omitted). However, “if a 

defendant is being held in custody solely because of a detainer lodged by the [Parole] 

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.” 

Id.

In Martin v. Pennsylvania Board of Probation and Parole, 840 A.2d 

299 (Pa. 2003), our Supreme Court addressed the allocation of pre-sentence 

confinement time when the length of pre-sentence confinement exceeds the sentence 

imposed for the new crimes. It explained that

where an offender is incarcerated on both a [Parole] Board 

detainer and new criminal charges, all time spent in confinement 

must be credited to either the new sentence or the original 

sentence. 

Id. at 309 (internal footnote omitted). Recently, the Supreme Court confirmed that 

Gaito remains the general law in this Commonwealth respecting 

how credit should be allocated for a convicted parole violator 

who receives a new sentence of incarceration, and the exception 

to Gaito, ... developed in Martin, is limited to cases in which a 

convicted parole violator receives a term of incarceration for new 

charges that is shorter than his pre-sentence confinement, such 

that application of the general Gaito rule would result in excess 

incarceration.

Smith v. Pennsylvania Board of Probation and Parole, 171 A.3d 759, 768-69 (Pa. 

2017). 

Here, the Parole Board lodged a detainer against Null on November 8, 

2017, but this detainer was not the sole reason for Null’s pre-sentence confinement. 

His detention was also based on the criminal trespass charge, for which he did not 

post bail. Accordingly, that period of confinement must be applied to the new 
5

sentence.5 Gaito, 412 A.2d at 571; see also Hill v. Pennsylvania Board of Probation 

and Parole, 683 A.2d 699, 702 (Pa. Cmwlth. 1996) (“[T]ime served by the prisoner 

prior to the date parole is revoked must be applied to the new sentence.”).

The record shows that the sentencing court expressly applied the period 

of Null’s pretrial incarceration from November 7, 2017, to December 19, 2017, to 

his new sentence. This time cannot be credited to Null’s original sentence. As we 

have explained, credit on the original sentence may be granted “only when it has not 

been credited toward another sentence.” Bright v. Pennsylvania Board of Probation 

and Parole, 831 A.2d 775, 778 (Pa. Cmwlth. 2003).6 Null contends, however, that

he did not receive credit on his new sentence for his continued incarceration from

December 19, 2017 (the date he was sentenced) until February 6, 2018 (the date his 

parole was revoked). He contends that this period of confinement should be credited 

to his original sentence. We disagree. 

The trial court’s sentencing order did not expressly address this period 

of incarceration. This omission, however, does not mean that the time gets credited 

to his original sentence. See Koehler v. Pennsylvania Board of Probation and 

Parole, 935 A.2d 44, 54 (Pa. Cmwlth. 2007) (“[I]f a trial court does not give an 

inmate full credit for time served, the Board has no duty to give an inmate full credit 

for time served.”). Null’s continued incarceration was the result of his new sentence; 

therefore, this time should be applied towards his new sentence. See Buczynski v. 

Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No. 621 C.D. 2017, 

 

5 Null was detained on the new criminal charges from November 7, 2017, until February 6, 2018, 

or 91 days. He was convicted and sentenced to one to two years of incarceration. Since his 

sentence was greater than his detention, Martin is inapplicable.

6 Likewise, Null’s reliance on Commonwealth v. Schwartz, 379 A.2d 319 (Pa. Super. 1977), is 

misplaced. Unlike the parolee in Schwartz, Null did not post bail. Although the Parole Board filed 

a detainer, Null’s continued detention was as a result of his new criminal charges. Thus, his pretrial 

confinement time must be credited to his new sentence.
6

filed December 4, 2017) (unreported) (post-sentence incarceration must be credited 

towards the parolee’s new sentence).7 If Null fears that this time will not get applied 

to his new sentence, then his remedy lies with “the [sentencing] court and through 

the direct appeal process[.]” Id., slip op. at 5 (quoting Koehler, 935 A.2d at 54). We 

reject Null’s claim for credit on his original sentence for the period of his 

incarceration from December 19, 2017, to February 6, 2018. 

With respect to the calculation of a new maximum sentence date, this 

Court has held that “a parole violator’s new maximum date is calculated from the 

date on which the [Parole] Board obtained the second signature needed to recommit 

him as a [convicted parole violator].” Palmer v. Pennsylvania Board of Probation 

and Parole, 134 A.3d 160, 166 (Pa. Cmwlth. 2016). Here, on February 6, 2018, the 

Parole Board obtained a second signature from a panel member to revoke Null’s 

parole. Thus, February 6, 2018, is the date from which the Parole Board must 

calculate Null’s new maximum sentence date.

When Null was paroled on August 21, 2017, his maximum sentence 

date was August 31, 2018. Null had 375 days remaining on his sentence. In 

recommitting Null as a convicted parole violator, the Parole Board awarded him 

credit for the time he spent at liberty on parole, i.e., from August 6, 2017, until 

November 8, 2017, which was 79 days. Subtracting 79 days from 375 days left 296 

days remaining on Null’s original sentence. Adding 296 days to February 6, 2018, 

results in a maximum sentence date of November 29, 2018. Thus, the Parole Board 

correctly calculated Null’s new parole violation maximum sentence date. 

 

7 Unreported opinions of this Court are not binding precedent, but may be cited for their persuasive 

value. Section 414 of the Commonwealth Court’s Internal Operating Procedures, 210 Pa. Code 

§69.414.
7

For these reasons, we affirm the Parole Board’s decision.

 _____________________________________

 MARY HANNAH LEAVITT, President Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Justin Null, :

Petitioner :

:

v. : No. 833 C.D. 2018

: 

Pennsylvania Board of :

Probation and Parole, :

Respondent :

O R D E R

AND NOW, this 31st day of January, 2019, the adjudication of the 

Pennsylvania Board of Probation and Parole, dated June 1, 2018, is AFFIRMED.

 _____________________________________

 MARY HANNAH LEAVITT, President Judge