IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Daniel Clark, : Petitioner :

:

v. : No. 854 C.D. 2019

: Submitted: January 10, 2020 Pennsylvania Board of : Probation and Parole, : Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE BROBSON FILED: October 1, 2020

Petitioner Daniel Clark (Clark) petitions for review of a final determination of

the Pennsylvania Board of Probation and Parole 1 (Board), dated June 17, 2019. The

Board denied Clark’s request for administrative relief, thereby rejecting his claim

that the Board failed to credit his sentence properly . For the reasons set forth below,

we affirm.

On April 22, 2016

, Clark ple ade d guilty to simple assault and unlawful

possession of a firearm , and the Court of Common Pleas of Somerset County

1 Subsequent to the filing of the petition for review, the Pennsylvania Board of Probation and Parole was renamed the Pennsylvania Parole Board. See Sections 15, 16, and 16.1 of the Act of December 18, 2019, P.L. 776 (effective February 18, 2020); see also Sections 6101 and 6111(a) of the Prisons and Parole Code (Code), as amended , 61 Pa. C.S. §§ 6101, 6111(a).2

sentenced him to a term of incarceration of 18 months to 4 years , including a shorter

concurrent sentence for the simple assault charge . (Certified Record (C.R.) at 1.)

On August 17, 2016, Clark pleaded guilty to possession with the intent to

manufacture a controlled substance , and the Cour t of Common Pleas of Jefferson

C ounty sentenced him to a term of incarceration of 9 months to 2 years, to be served

concurrently with his Somerset County sentence s

. ( Id. ) As a result of these

sentences, Clark had a minimum sentence date of August 25, 2017, and a maximum

sentence date of February 25, 2020. ( Id. ) On August 21, 2017

, Clark was released

on parole to a community corrections facility . ( Id. at 4 .)

On August 25, 2017, police arrested Clark at the community corrections

facility fo r possession of controlled substances. ( Id. at 28.) That same day, the

Board issued a warrant to commit and deta in Clark, and the Court of Common Pleas

of Westmoreland County ( Westmoreland CCP ) set Clark’s monetary bail at $5,000.

( Id. at 16 , 26.) Clar

k posted bail on September 7, 2017, but Westmoreland CCP

revoked his bail on January 22, 2018. ( Id. at 33, 46, 64.) By decision recorded

April 20, 2018, the Board detained Clark pending disposition of his new criminal

charges. ( Id. at 43.)

On June 5, 2018, Clark pleaded guilty to one felony and one misdemeanor

count related to possession of a contro lled substance, and Westmoreland CCP

sentenced him to a term of incarceration of 111⁄2 months to 23 months

. ( Id. at 47 .)

On June 21, 20 18, the Bo ard issued a notice of charges and scheduled a parole

revocation hearing for June 2 9, 201 8 , based on Clark’s status as a convicted parole

violator (CPV). ( Id. at 32 .) On that same date, Clark signed a Waiver of Revocation

Hearing and Counsel/Admission Fo rm, thereby waiving his right to a revocation

hearing, the right to a panel hearing, and the right to have counsel present at that3

hearing. ( Id. at 36 .) By signing this form, Clark also admitted that he pleaded guilty

to some of his new criminal charges. ( Id .)

By decision recorded July 19, 2018 (mailed August 9, 2018), the Board

recommitted Clark as a CPV to serve 24 months’ backtime following completion of

his parole from his Westmoreland County sentence and his return to a state

correctional institutio n (SCI) . ( Id. at 54.) The Board did not recalculate Clark’s

parole violation maximum sentence date at that time

. ( Id .) Westmoreland CCP

gran ted Clark parole from his Westmoreland County sentence on March 14, 2019,

and he was released from confinement on March 22, 2019

. ( Id. at 56.) By decision

recorded May 6, 2019, the Board recalculated Clark’s parole violation maximum

sentence date as May 11, 2021, and calculated Clark’s parole eligibility date as

November 7, 2020. ( Id. at 59.) The Board also denied Clark credit for all time spent

at liberty on parole because his “new conviction [ wa s the ] same/similar to the

original offense.” ( Id. )

Clark challenged the Board’s decision by filing a request for administrative

relief, which the Bo ard received on May 21, 2019. ( Id. at 61.) Clark essentially

argued that the Board erred in recalculating his maximum sentence date because it

failed to credit his sentence properly

. By decision mailed June 17, 2019, t he Board

denied Clark’s request for administrative relief. ( Id. at 64

- 66 .) In so doing, the

Board reasoned:

The Board paroled you from a[n SCI] on August 21, 2017 [,] with a max date of February 25, 2020. This left you with a total of 918 days remaining on your sentence a t the time of parole. The Board’ s decision to recommit you as a [CPV] authorized the recalculation of your sentence to reflect that you receive [d] no credit for the time you were at liberty on parole. 61 Pa. C.S. § 6138(a)(2). In this case, the [B] oard did not award you credit for time at liberty on parole. This means you4

still had a total of 910 [sic 2 ] days remaining on your sentence based on your recommitment.
On August 25, 2017 [,] the Board lodged its detainer against you and you were arrested for new criminal ch arges in the Court of Common Pleas of Westmoreland County at docket number CP 3978

- 2017. You posted bail on September 7, 2017 [,] an d it was revoked on January 22, 2018. You were sentenced on June 5, 2018, to a county term and gra nted parole effective Mar ch 22, 2019.

Based on these facts, backtime credit was awarded from September 7, 2017 [,] to January 22, 2018 (137 days). Subtracting this time means you now had a total of 781 days remai ning on your original

sentence.

. . . . In this case, March 22, 2019 [,] is your effective date because that is when you were available to the [B] oard from your Westmoreland County conviction. Adding 781 days to that date yields a new maximum date of May 11, 2021.

( Id. )

On appeal to this Court, 3 Clark argues that the Board erred or abused its

discretion by failing to give him credit for time he spent in custody on the detainer

lodged by the Board prior to being sentenced for his new criminal charges. 4 For the

reasons set forth below, we cannot c onclude that the Board improperly denied Clark

credit

.

2 This statement appears to be a typographical error. The Board’s earlier statement

— that

Clark had 918 days remaining on his sentence at the time of his parole

— correctly states the

difference between Clark’s initial maximum sentence date ( February 25, 2020) and his parole date (August 21, 2017) . Moreover, the remaining 918 days

— not 910 days

— is the basis for the Board’s later calculation that, after c rediting Clark the 137 days during which he was detained solely on its warrant, Clark had 781 days

— not 773 d ays

— remaining on his sentence.

3 This Court’s standard of review is limited to determining whether constitutional rights were violated, whether an e rror of law was committed, or whether necessary findings of fact are supported by substantial evidence. 2 Pa. C.S. § 704.

4 Clark also suggests that the Board erred because it attributed some period of Clark’s confinement to a sentence received in a juris diction outside Pennsylvania. The Board did not, however, discuss any sentence from another jurisdiction , and the record contains no suggestion

that Clark has received such a sentence . Thus, w e will not address this argument further.5

When the Board has lodged a detainer and the parolee has not posted bail on

his new criminal charges, such that the parolee is being confined on both the Board’s

detainer and as a result of the pending criminal charge s , pre

- sentence confinement

credit must be applied to reduce the new sentence of incarceration unless the credit

would exceed that new sentence of incarceration. Martin v. Pa. Bd. of Prob. &

Parole , 84 0 A.2d 299, 307

- 09 (Pa. 2003). By con trast , when a parolee has posted

bail on the new criminal charges , such that he is detained solely on the Board’s

warrant, the Board must apply the pre

- sentence confinement credit to reduce the

unserved balance of the sentence from which the parolee was pa roled

. Gaito v. Pa.

Bd. of Prob. & Parole , 412 A.2d 568, 571 (Pa. 1980)

. Here, Clark had 918 days left on his sentence when he was released on parole.

(C.R. at 6 4 .) Clark was arrested on the new charges on August 25 , 2017 , the same

day the Board issued its warrant , and he failed to post bail until September 7, 2017

. ( Id. at 16, 28, 33.) Clark remained incarcerated, therefore, on both the Board’s

warrant and the new criminal charges from his arrest until September 7, 2017

. U nder

Martin , that time must be applied to his new sentence. In compliance with Gaito

,
the Board credited Clark with the 137 days for which he was detained solely on its

warrant from Septe m

ber 7, 2017 , until Westmoreland CCP revoked his bail on

January 22, 2018, effectively detaining him again on the new criminal charges.

( Id. at 64.) After applying the 137

- day credit to Clark’s remaining original sentence,

his unserved balance is 781 days. ( Id. ) Adding 781 days to March 22, 2019

— the

date Clark was paroled from his Westmoreland Co unty sentence and became

available to serve the remaining balance of his original sentence 5

— results in a new

5 Section 6138(a)(4) of the Prisons and Parole Code, 61 Pa. C.S. § 6138(a)(4), provides : “The period of time for which the parole violator is required to serve shall be computed from and6

maximum sentence date of May 11, 2021. The Board, therefore, did not err in its

recalculation of Clark’s new maximum sentence date, and it did not deny Clark any

credit to which he is entitled.

Accordingly, we affirm the final determination of the Board.

P. KEVIN BROBSON, Judge

begin on the date that the parole violator is taken into custody to be returned to the institution as a parole violator .” (Emphasis added.) Clark does not challenge the start date the Board used in

recalculat ing his maximum sentence date.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Daniel Clark, : Petitioner :

:

v. : No. 854 C.D. 2019

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

O R D E R

AND NOW, thi s 1 st day of October, 20 20

, the final determination of the

Pennsylvania Board of Probation and Parole, dated June 17, 2019, is AFFIRMED.

P. KEVIN BROBSON, Judge