IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alex Robert McGarvey

, :

Petitioner :

:

v. :

: Pennsylvania Board of : Probation and Parole

, : No. 1 178 C .D. 201 9

Respondent : Submitted: June 5 , 20 20

BEFORE: HONORABLE MARY HANNAH LEA VITT, President Judge

HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLE N CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY FILED: July 17, 2020

Alex Robert McGarvey (McGarvey) petitions this Court for review of

the Pennsylvania Board of Probation and Parole’s 1 (Board) July 22, 2019 order

denying his request for administrative relief. The sole issue before this Court is

whether the Board used an incorrect parole date to calculate McGarvey’s reparole and

maximum sentence dates. A fter review, we affirm.

McGarvey is currently an inmate at State Correctional Institution (SCI)

–

Dallas. On April 15, 2016, McGarvey was sentenced to 3 to 6 years of incarceration

for violation of intermediate punishment, and robbery (Original Sentence )

. See

Certified Record (C.R.) at 7

. At that time, McGarvey’s maximum sentence release

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, No. 115 (effective February 18, 2020); see also Sections 6101 and
6111(a) of the Prisons and Parole Code, as amended , 61 Pa. C.S. §§ 6101, 6111(a).2

date was July 9, 2019. See id

. On December 17, 2016, the Board paroled McGarvey

from his Original Sentence

. See id

.

On September 21, 2017 , a criminal complaint containing multiple

charges was filed against McGarvey in Cumberland County (Cumberland County

C harges )

. S ee C.R. at 12 . On Sept e mber 23, 2017 , a criminal complaint containing

multiple charges was filed against McGarvey in York County (York County

C harge s )

. See C.R. at 18. On September 29, 2017, the Board filed a detainer against

McGarvey

. See C.R. at 24

. On November 1, 2017

, the Board issued a decision to

detain McGarvey pending disposition of the criminal charges. See C.R. at 28.

On April 17, 2018 , McGarvey pled guilty to Theft by Unlawful Taking

(Cumberland County Conviction) in the Cumberland County Common Pleas Court

(Cumberland County trial court), and was sentenced to serve 9 to 23 months in the

Cumberland County prison (Cumberland County Sent ence)

. See C.R. at 29

- 30.

On May 1, 2018, the Board issued a notice of charges and hearing with

respect to the Cumberland County Conviction. See C.R. at 31. McGarvey waived his

right to a revocation hearing and his right to counsel and admitted to th e Cumberland

County C onviction. See C.R. at 32

- 33. On May 24, 2018, the Board denied

McGarvey credit for time he spent at liberty on parole. See C.R. at 51. By June 22,

2018 decision, the Board recommitted McGarvey as a convicted parole violator

(CPV) to serve 6 months of backtime for the Cumberland County Conviction

. See

C.R. at 52

- 53.

On July 6, 2018, McGarvey pled guilty to Access Device Issued to

Another Who Did Not Authorize Use (York County Conviction) in the York County

Common Pleas Court and w as sentenced to 6 to 23 months of incarceration (York

County Sentence). See C.R. at 56.

On August 8, 2018, the Board issued a notice of charges and hearing

with respect to the York County Conviction. See C.R. at 60. McGarvey again3

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

York County C onviction. See C.R. at 59. On August 23, 2018, the Board denied

McGarvey credit for time he spent at liberty on parole. See C.R. at 67. On October

17, 2018, the Board recom mitted McGarvey as a CPV to serve 12 months of

backtime for the York County Conviction

. 2 See C.R. at 86

- 87.

On January 23, 2019, the Board paroled McGarvey from his York

County Sentence. See C.R. at 89. On May 15, 2019, the Cumberland County t rial

c our t paroled McGarvey from his Cumberland County Sentence, but directed that his

parole be retroactive to January 17, 2019 (Cumberland County Parole Order)

. See

C.R. at 90.

On May 16, 2019, the Board issued a Recommitment Order calculating

McGarvey’s new ma ximum sentence date as May 18, 2021. See C.R. at 94

- 95. In

reaching its decision, the Board considered that McGarvey had 934 days remaining

on his Original S entence when he was parole d on December 17, 2016. See C.R. at

92. The Board credited McGarvey w ith 200 days , which represent s the period from

September 29, 2017 (at which time McGarvey was held on the Board’s detainer)

, to

April 17, 2018 (at which time McGarvey pled guilty and was sentenced on his

Cumberland County C harge)

. See id

. Thus, applying the Board’s credit, McGarvey

had 734 days remaining on his O riginal S entence. See id

. The Board determined that

McGarvey became available to begin serving his b acktime on May 15, 2019 ( the

Cumberland County Parole Order date )

, rather than the January 17, 2019 effective

date specified by the Cumberland County trial court. See C.R. at 92, 94. On May 30,

2019, McGarvey filed an Administrative Remedies Form, challenging the Board’s

time calculations. See C.R. at 96

- 112. On July 22, 2019, the Board affirme d its May

2 The Board ordered that the imposed backtime for the Cumberland County Conviction and the York County Conviction were to run concurrently for a total of 12 months of backtime. See

C.R. at 86.4

16, 2019 Recommitment Order. See C.R. at 113

- 114. McGarvey appealed to this

Court. 3

McGarvey contends that the Board incorrectly calculated his reparole

and maximum sentence dates because the Board based its calculations on the date the

Cumber land County Parole Order was filed (May 15, 2019) , rather than the effective

parole date of January 17, 2019

, as ordered therein.

This Court has stated: “Section 6138(a)(5) of the Prisons and Parole

Code [ 4 ] [(Parole Code)] provides that once a parolee is recommitted as a [CPV] , the

original sentence and any new sentences must be served consecutively rather than

concurrently. [ See ] 61 Pa. C.S. § 6138(a)(5). A ‘sentencing judge has no authority to

order’ otherwise.” Kerak v. Pa. Bd. of Prob. & Parole , 153 A.3d 1134, 1138 (Pa.

Cmwlth. 2016) (quoting Commonwealth v. Draper , 293 A.2d 614, 615 (Pa. Super.

3 “Our scope of review of the Board’s decision denying administrative relief is limited to determining whether necessary findings of fact are supported by substantial evidence, an error of
law was committed, or constitutional rights have been violated.” Kazickas v. Pa. Bd. of Prob. &

Parole , 226 A.3d 109 , 115 n.9 (Pa. Cmwlth. 2020) (quoting Fisher v. Pa. Bd. of Prob. & Parole , 62
A.3d 1073, 1075 n.1 (Pa. Cmwlth. 2013) )

.

4 61 Pa.C.S. § 6138(a)(5). Section 61 38(a)(5) of the Parole Code provides:

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 per son is paroled from a [s] tate correctional institution and the new sentence imposed on the person is to be served in the
[s] tate correctional institution.

(ii) If a person is paroled from a county prison and the new sentence imposed upon him is to be serve d in the same county prison.

(iii) In all other cases, the service of the new term for the latter crime shall precede commencement of the balance of the term originally imposed.

61 Pa.C.S. § 6138 (a)(5).5

1972) ) ; s ee also Bailey v. Pa. B d. of Prob

. & Parole , 591 A.2d 778 (Pa. Cmwlth.

1991 )

. 5

Further, in Hoffman v. P ennsylvania Board of Probation & Parole (Pa.

Cmwlth. No. 17 C.D. 2018, filed October 23, 2018)

, 6 this Court recognized :

[S]entencing courts lack authority to grant retroactive parole. See Vann v. P [ a. ] B [ d. ] of Prob [ . & ] Parole (Pa.
Cmwlth. [] No. 1067 C.D. 2017, filed April 10, 2018), slip op. at 12 (unreported) (trial court cannot grant retroactive parole and, thus, parolee [is] not entitled to credit for the
time between the date he was sentenced to the date the trial court order granted parole); Moyer v. P [ a. ] B [ d. ] of Prob [

. & ] Parole (Pa. Cmwlth

. [] No. 1666 C.D. 2007, filed May 30, 2008), slip op. at 10 (unreported) (retroactive parole order is a nullity and, thus, parolee [is] not entitled to credit for time prior to the grant of parole from the county sentence); Banks v. P [ a. ] B [ d. ] of Prob [ . & ] Parole , 928 A.2d 384 (Pa. Cmwlth. [2007] )

. . . ( ‘ retroactive parole has no legal effect on availability to serve an existing state

sentence ’ ). This Court has expressly explained that a newly convicted parolee is not available to begin serving backtime on his original sentence until his release from a new
sentence is announced. Banks , 928 A.2d at 387.

Hoffman , slip op. at 5

- 6 (footnote omitted). Thus, “ a common pleas court, through

the use of retroactive parole, may not do indirectly what it is powerle ss to do directly;

namely, make a portion of [a p]etitioner’ s Board imposed backtime run concurrently

with a newly imposed county sentence.” Bailey , 591 A.2d at 781

.

In accordance with the Parole Code and the above

- referenced case law,

the Board properly recalculated McGarvey’s maximum sentence date and reparole

5 Bailey involved the application of what was common ly known as the Parole Act, Act of
June 19, 1911, P.L. 1059, as amended

. The Parole Act was repealed by the Act of August 11, 2009,
P.L. 147, when the statute was codified into the Parole Code, 61 Pa.C.S. §§101

- 6309.

6 This Court acknowledges that its unr eported memorandum opinions may only be cited “for [their] persuasive value, but not as binding precedent.” Section 414(a) of the Commonwealth Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a). Accordingly, the unreported opinions cited her ein are cited for their persuasive value.6

eligibility date based on the Cumberland County Parole Order date , rather than the

Cumberland County trial court’s retroactive effective parole date of January 17, 2019

.

For all of the above rea sons, the Board’s order is affirmed.

___________________________ ANNE E. COVEY, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alex Robert McGarvey, :

Petitioner :

:

v. :

: Pennsylvania Board of : Pro bation and Parole, : No. 1178 C.D. 2019

Respondent :

O R D E R

AND NOW, this 17 th day of July , 20 20

, the Pennsylvania Board of

Probation and Parole’s July 22, 2019 order is affirmed.

___________________________ ANNE E. COVEY, Judge