IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Patrick Eugene Henry, :

:

Petitioner :

:

v. : No. 858 C.D. 2018

: Submitted: March 15, 2019

Pennsylvania Board of :

Probation and Parole, :

:

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ROBERT SIMPSON, Judge1

HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: September 6, 2019

Patrick Eugene Henry (Henry) petitions for review from a decision of 

the Pennsylvania Board of Probation and Parole (Board) that denied his request for 

administrative review challenging the calculation of his parole violation maximum 

date. Henry claims that the Board miscalculated his maximum expiration date by 

failing to properly credit him for time served exclusively on its warrant. Discerning 

no error, we affirm. 

In December 2008, Henry pled guilty to escape, burglary, and criminal 

trespass, and he was sentenced to an aggregate term of 4 years and 6 months to 12

years in prison (original sentence). Certified Record (C.R.) at 1-4. In addition, in 

July 2009, Henry pled guilty to burglary, and he was sentenced to an underlapping 

 

1 This matter was assigned to this panel before September 1, 2019, when Judge Simpson 

assumed the status of senior judge.
2

concurrent term of 1 year to 10 years. Id. Henry’s original sentence carried a

controlling maximum sentence date of May 21, 2021. C.R. at 1, 3.

On September 14, 2015, the Board released Henry on parole to 

Wernersville Community Corrections Center (CCC) subject to conditions, which he 

signed. C.R. at 5-15, 35. One of the conditions imposed stated: 

If 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 10. 

While on parole, the Board declared Henry delinquent after failing to 

return to Wernersville CCC. C.R. at 16, 35. On February 2, 2016, authorities 

arrested Henry on the Board’s warrant. C.R. at 16, 35. On that same day, the Board 

issued a warrant to commit and detain Henry for technical parole violations. C.R. at 

17. The Board detained Henry in a parole violator center, pending the completion 

of recommended programming. C.R. at 18. 

Upon Henry’s successful discharge from the program and release from 

the parole violator center, the Board instructed Henry to report directly to 

Wernersville CCC and to the local parole office on May 12, 2016. C.R. at 19-20. 

When Henry did not report that day, the Board immediately declared him delinquent. 

C.R. at 21. On August 8, 2016, authorities arrested Henry on the Board’s warrant, 

and the Board lodged a warrant to commit and detain him for technical parole 

violations. C.R. at 22, 23, 35. The Board then charged Henry as a technical parole 

violator (TPV) and scheduled a hearing. C.R. at 23, 32. Henry signed a waiver of 

violation hearing and counsel/admission form, and he admitted to the violations. 
3

C.R. at 31. By action dated October 5, 2016, the Board recommitted Henry as a 

TPV to be reparoled upon successful completion of prescribed programs, if no 

misconducts, in six months pursuant to Section 6138(d)(3)(i) of the Prisons and 

Parole Code (Parole Code), 61 Pa. C.S. §6138(d)(3)(i). C.R. at 37-38. 

While detained by the Board as a TPV, Henry faced new criminal 

charges, which were filed against him in Adams County and York County. On 

December 1, 2016, York County charged Henry with burglary, conspiracy to commit 

burglary, criminal trespass, theft by unlawful taking, and receiving stolen property

(York County Case). C.R. at 41, 43-47, 122-129. On December 28, 2016, the York 

County Court of Common Pleas set bail in the amount of $50,000, which Henry did 

not post. C.R. at 123. 

On December 15, 2016, Adams County authorities arrested Henry and 

charged him with multiple counts of burglary, theft by unlawful taking, receiving 

stolen property, theft from a motor vehicle and criminal mischief (Adams County 

Case). C.R. at 48-53, 66, 68-79. That same day, the Adams County Court of 

Common Pleas set bail in the amount of $10,000, which Henry did not post. C.R. at 

68. 

The Board provided Henry with a notice of charges and its intent to 

hold a detention hearing based on the new charges. C.R. at 55. Henry signed a 

waiver of representation by counsel and a waiver of detention hearing. C.R. at 54. 

By Board decision recorded January 25, 2017, the Board detained Henry pending 

disposition of the new charges. C.R. at 66. 

With regard to the Adams County Case, on March 23, 2017, Henry pled 

guilty to burglary and theft, and he was sentenced to 2 to 7 years of confinement in 

a state correctional institution (SCI) to run consecutive to any other sentence. C.R. 
4

at 69-70. The Board provided Henry with a notice of charges and its intent to hold 

a revocation hearing for the Adams County Case conviction. C.R. at 89. Henry 

waived his right to a revocation hearing and to counsel, and he admitted to the 

convictions. C.R. at 88, 90. The Board voted to recommit Henry as a convicted 

parole violator (CPV) for 15 months. C.R. at 80-87. The Board did not award him 

credit for the time he was at liberty on parole noting “delinquency [and] continued 

non-compliance” as the reason. C.R. at 87. By Board decision recorded June 23, 

2017, the Board modified its prior decisions and recommitted Henry as a CPV to 

serve 15 months’ backtime, concurrently with the 6 months previously imposed for

the technical parole violations, when available, pending the resolution of the York 

County Case. C.R. at 120-21. 

With regard to the York County Case, on September 22, 2017, Henry 

pled guilty to burglary and conspiracy to commit burglary, and he received a

sentence of 2 to 4 years of confinement in an SCI. C.R. at 123-24. The Board 

provided Henry with a notice of charges and of its intent to hold a revocation hearing 

based on his convictions. C.R. at 139. Henry waived his right to a revocation 

hearing and to counsel, and he admitted to the York County Case convictions. C.R. 

at 138, 140. The Board voted to recommit Henry as a CPV for 18 months. C.R. at 

130-137. By Board decision recorded March 26, 2018, the Board modified its prior

decisions and recommitted Henry to serve 18 months’ backtime concurrently with 

the time previously imposed. C.R. at 159-60. The Board changed Henry’s 

maximum sentence date from May 21, 2021 to October 13, 2022. C.R. at 159; 

Supplemental Certified Record (S.C.R.) at 1A. 
5

Henry, representing himself, requested administrative review2 of the 

Board’s March 26, 2018 decision on the basis that the Board miscalculated his 

maximum sentence date having failed to properly apply credit for time served on the 

Board’s detainers. C.R. at 168. Shortly thereafter, Henry’s counsel resubmitted the 

same form on Henry’s behalf. C.R. at 170. By decision mailed June 6, 2018, the 

Board denied Henry’s request for administrative review upon determining that the 

Board did not miscalculate his maximum date and affirmed its March 26, 2018 

decision. C.R. at 171. This appeal now follows.3 

Henry, represented by counsel, claims that the Board miscalculated his 

new parole violation maximum date by failing to credit his original sentence with all 

time spent exclusively under the Board’s warrant. Specifically, he argues that “the 

concurrency of his three board actions” should “run from the date of his first 

commitment for the technical parole violation,” or alternatively, “from the date he 

received the recommitment . . . for the Adams [C]ounty [Case]” conviction. 

Petitioner’s Brief at 13. 

Section 6138(a)(1) of the Parole Code provides that any parolee who, 

during the period of parole, commits a crime punishable by imprisonment and is 

convicted or found guilty of that crime may be recommitted as a CPV. 61 Pa. C.S. 

§6138(a)(1). If the parolee is recommitted as a CPV, he must serve the remainder 

of the term, which he would have been compelled to serve had parole not been 

granted, with no credit for the time at liberty on parole. 61 Pa. C.S. §6138(a)(2). 

 

2 Henry filed an “Administrative Remedies Form,” which the Board treated as a request 

for administrative review because Henry objected to his recalculated maximum date. C.R. at 171. 

3 Our review is limited to determining whether constitutional rights were violated, whether 

the adjudication was in accordance with law, and whether necessary findings were supported by 

substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Miskovitch 

v. Pennsylvania Board of Probation and Parole, 77 A.3d 66, 70 n.4 (Pa. Cmwlth. 2013), appeal 

denied, 87 A.3d 322 (Pa. 2014).
6

The Board “may, in its discretion award credit” to a CPV for time spent at liberty on 

parole unless the offender is convicted of certain specified offenses, which are not 

applicable here. 61 Pa. C.S. §6138(a)(2.1). Where the Board denies credit for time

spent at liberty on parole, this time is applied to the original maximum expiration 

date to create a new maximum date. Armbruster v. Pennsylvania Board of Probation 

and Parole, 919 A.2d 348, 351 (Pa. Cmwlth. 2007). 

“[W]here an offender is incarcerated on both a Board detainer and new 

criminal charges, all time spent in confinement must be credited to either the new 

sentence or the original sentence.” Martin v. Pennsylvania Board of Probation and 

Parole, 840 A.2d 299, 309 (Pa. 2003); accord Gaito v. Pennsylvania Board of 

Probation and Parole, 412 A.2d 568, 571 n.6 (Pa. 1980); see Smith v. Pennsylvania 

Board of Probation and Parole, 171 A.3d 759, 769 (Pa. 2017) (holding Martin and 

Gaito remain the rule in this Commonwealth for how credit is applied). As our 

Supreme Court held in Gaito: 

[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.” 

412 A.2d at 571 (emphasis added). If, on the other hand, “a parolee is not convicted, 

or if no new sentence is imposed for that conviction on the new charge, the pre-trial 

custody time must be applied to the parolee’s original sentence.” Id. at 571 n.6. 

“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 
7

custody to be returned to the institution as a parole violator.” 

61 Pa. C.S. §6138(a)(4). 

Here, when Henry was released on parole on September 14, 2015, his 

original sentence maximum date was May 21, 2021. C.R. at 8-9. This resulted in 

Henry owing 2,076 days of backtime toward his original sentence. S.C.R. at 1A. 

The Board recommitted Henry as a CPV to serve the remainder of his term, without 

any credit for time spent at liberty on parole based on Henry’s delinquency and 

noncompliance with the terms of parole. C.R. at 87. 

With regard to allocation of time served exclusively on the Board’s 

detainers, the record reflects that the Board detained Henry for technical parole 

violations from February 2, 2016, until he absconded on May 12, 2016 (100 days). 

C.R. at 16, 21, 35; S.C.R. at 1A. The Board properly credited this 100 days to his 

original sentence. S.C.R. at 1A. The record also reflects that the Board detained 

Henry for technical parole violations from August 8, 2016, until December 15, 2016 

(129 days), when new charges were filed against him for which he did not post bail. 

C.R. at 22, 68. The Board properly credited this 129 days to his original sentence. 

S.C.R. at 1A. 

Contrary to Henry’s assertions, he is not entitled to credit towards his 

original sentence for time spent in confinement from December 15, 2016, to 

September 22, 2017, the date of sentencing in the York County Case. Once Henry 

was arrested on the new charges and did not post bail, he was no longer in custody 

solely on the Board’s detainer. Consequently, the period of confinement from 

December 15, 2016, to September 22, 2017, is applied towards his new criminal 

sentences, not his original sentence. See Gaito. 
8

Henry became available on September 22, 2017 -- the sentencing date 

in the York County Case and his return to the SCI as a parole violator -- to serve 

time on his original sentence. See 61 Pa. C.S. §6138(a)(4). The Board credited 

Henry’s original sentence with a total of 229 days (= 100 + 129) for the time he spent 

solely on the Board’s detainer. As a result, Henry owed 1847 days (= 2,076 – 229)

on his original sentence. Adding 1847 days to his September 22, 2017 availability 

date resulted in a new maximum expiration date of October 13, 2022. Thus, the 

Board did not err in its calculations. 

Accordingly, we affirm. 

MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Patrick Eugene Henry, :

:

Petitioner :

:

v. : No. 858 C.D. 2018

: 

Pennsylvania Board of :

Probation and Parole, :

:

Respondent :

O R D E R

AND NOW, this 6

th day of September, 2019, the decision of the 

Pennsylvania Board of Probation and Parole, dated June 6, 2018, is AFFIRMED.

__________________________________

MICHAEL H. WOJCIK, Judge