IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alex Robert McGarvey, :

Petitioner :

:

v. :

:

Pennsylvania Board of :

Probation and Parole, : No. 1178 C.D. 2019

Respondent : Submitted: June 5, 2020

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE ELLEN 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’s1(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. After 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 

Charges). See C.R. at 12. On September 23, 2017, a criminal complaint containing 

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

Charges). 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 Sentence). 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 the Cumberland 

County Conviction. 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 was 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 again 
3

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

York County Conviction. 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 recommitted 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 trial 

court 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 maximum 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 Sentence when he was paroled on December 17, 2016. See C.R. at 

92. The Board credited McGarvey with 200 days, which represents 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 Charge). See id. Thus, applying the Board’s credit, McGarvey 

had 734 days remaining on his Original Sentence. See id. The Board determined that 

McGarvey became available to begin serving his backtime 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 affirmed 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 

Cumberland 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 6138(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 person 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 served 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)); see also Bailey v. Pa. Bd. of Prob. & Parole, 591 A.2d 778 (Pa. Cmwlth. 

1991).

5

Further, in Hoffman v. Pennsylvania 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 powerless 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 commonly 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 unreported 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 herein 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 reasons, the Board’s order is affirmed.

 ___________________________

ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alex Robert McGarvey, :

Petitioner :

:

v. :

:

Pennsylvania Board of :

Probation and Parole, : No. 1178 C.D. 2019

Respondent :

O R D E R

AND NOW, this 17th day of July, 2020, the Pennsylvania Board of 

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

___________________________

ANNE E. COVEY, Judge