IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Carlos Manuel Rivera, :

Petitioner :

:

v. : No. 1371 C.D. 2017

: Submitted: August 24, 2018

Pennsylvania Board of :

Probation and Parole, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY PRESIDENT JUDGE LEAVITT FILED: November 7, 2018

Carlos M. Rivera, an inmate at the State Correctional Institution (SCI)

at Albion, petitions for review of an adjudication of the Pennsylvania Board of 

Probation and Parole (Board) denying his administrative appeal. Rivera asserts that 

the Board erred in calculating his maximum sentence after it recommitted him as a 

convicted parole violator. Rivera’s appointed counsel, Harry J. Cancelmi, Jr., 

Esquire (Counsel), has petitioned for leave to withdraw his representation. For the 

following reasons, we grant Counsel’s petition and affirm the Board’s order. 

On January 31, 2013, Rivera was sentenced to serve six to twenty-four 

months in a state correctional institution for simple assault. On November 13, 2014, 

Rivera was released on parole from SCI-Huntingdon. Certified Record at 77-80 

(C.R.__). According to the Conditions Governing Special Probation/Parole that he 

signed, Rivera agreed to “refrain from assaultive behavior.” C.R. 82. Rivera 

acknowledged that if he was arrested while on parole, the Board was authorized “to 

lodge a detainer against [him], which will [] prevent [his] release from custody
2

pending disposition [of those charges], even though [he has] posted bail.” C.R. 83. 

Rivera further acknowledged that if he was convicted of a crime committed while 

on parole, the Board was authorized, after an appropriate hearing, to recommit him 

to serve the balance of his sentence with no credit for time at liberty on parole. 

On August 14, 2015, Rivera was arrested for first degree robbery in 

Berks County. The Board issued a warrant to commit and detain Rivera for violating

his parole. On January 21, 2016, Rivera pled guilty to first degree robbery and was 

sentenced to five years and six months to twelve years of imprisonment in a state 

correctional facility. 

On February 24, 2016, the Board recommitted Rivera as a convicted 

parole violator to serve 36 months of backtime. The Board recalculated Rivera’s 

maximum sentence date to be February 23, 2021. Rivera waived his right to a parole 

revocation hearing and the assistance of counsel. 

On June 7, 2016, Rivera filed an “Administrative Remedies Form” with 

the Board that presented (1) an administrative appeal challenging his recommitment 

as unconstitutional, and (2) a petition for administrative review asserting that the 

Board failed to award him credit for the time he spent in custody from his arrest on

August 14, 2015, until his return to SCI-Graterford on February 9, 2016. 

The Board affirmed its prior decision recommitting Rivera. In its 

adjudication mailed to Rivera on September 5, 2017, the Board explained:

You were released on parole on November 13, 2014, with a 

maximum sentence date of November 13, 2019. At that point, 

1826 days remained on your sentence. Because you were 

recommitted as a convicted parole violator, you are required to 

serve the remainder of your original term and are not entitled to 

credit for any periods of time you were at liberty on parole. 

Further, based on your new conviction, the Board is not 

authorized to award you credit for time at liberty on parole. On 
3

January 21, 2016, you were sentenced to incarceration in state 

prison. You are not entitled to credit on your original sentence 

for the time you were detained prior to sentencing because you 

were not detained solely by the Board during that period. 

Because you were sentenced to state incarceration, you are 

required to serve your original sentence prior to your new 

sentence. However, that provision does not take effect until a 

parolee is recommitted as a convicted parole violator. Thus, you 

did not become available to commence service of your original 

sentence until the Board voted to recommit you as a parole 

violator on February 24, 2016. Adding 1826 days to February 

24, 2016 results in your February 23, 2021 parole violation 

maximum date. Accordingly the Board decision mailed May 18, 

2016 is AFFIRMED. 

C.R. 169 (citations omitted). Rivera now petitions this Court for review. 

On appeal,1 Rivera raises seven issues, which we combine into three for 

clarity. First, he argues that the Board lacks statutory authority to change the 

maximum date of a sentence imposed by a court. Second, Rivera argues that by 

forfeiting the period of time he was at liberty on parole, the Board violated his 

constitutional rights and the doctrine of separation of powers. Third, Rivera 

contends that the Board erred by failing to credit his original sentence for the time 

served after his arrest on August 14, 2015. 

Counsel has filed a petition for leave to withdraw as counsel and a nomerit letter, also referred to as a “Turner/Finley letter,”2

explaining his belief that 

 

1 Our review determines whether constitutional rights were violated, whether an error of law was 

committed or whether necessary findings of fact are supported by substantial competent evidence. 

Seton Company v. Unemployment Compensation Board of Review, 663 A.2d 296, 298 n.2 (Pa. 

Cmwlth. 1995).

2

In Commonwealth v. Turner, 544 A.2d 927, 928 (Pa. 1988), the Pennsylvania Supreme Court, 

applying Pennsylvania v. Finley, 481 U.S. 551 (1987), held that counsel seeking to withdraw from 

a case in which the right to counsel does not derive from the United States Constitution may 

provide a “no-merit letter” which details “the nature and extent of [the attorney’s] review and 
4

Rivera’s appeal lacks merit. We first review the technical requirements imposed 

upon appointed counsel who seeks to withdraw his representation. 

Turner/Finley counsel must review the case zealously. Turner/ 

Finley counsel must then submit a “no-merit” letter to the trial 

court, or brief on appeal to this Court, detailing the nature and 

extent of counsel’s diligent review of the case, listing the issues 

which the petitioner wants to have reviewed, explaining why and 

how those issues lack merit, and requesting permission to 

withdraw. 

Counsel must also send to the petitioner: (1) a copy of the “nomerit” letter/brief; (2) a copy of counsel’s petition to withdraw; 

and (3) a statement advising petitioner of the right to proceed pro 

se or by new counsel.

If counsel fails to satisfy the foregoing technical prerequisites of 

Turner/Finley, the court will not reach the merits of the 

underlying claims but, rather, will merely deny counsel’s request 

to withdraw. 

Zerby v. Shanon, 964 A.2d 956, 960 (Pa. Cmwlth. 2009) (quoting Commonwealth v.

Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)). If counsel’s no-merit letter 

complies with the technical requirements, this Court independently reviews the 

merits of the petitioner’s claims. Hughes v. Pennsylvania Board of Probation and 

Parole, 977 A.2d 19, 25 (Pa. Cmwlth. 2009). 

Upon review, we find that Counsel has satisfied the technical 

requirements of Turner/Finley. In his no-merit letter, Counsel thoroughly analyzed 

Rivera’s issues on appeal and explained why each is devoid of merit. Counsel 

certified that he mailed a copy of his petition for leave to withdraw and no-merit 

letter to Rivera at SCI-Albion. Further, Counsel served a copy of this Court’s June 

 

list[s] each issue the petitioner wished to have raised, with counsel’s explanation of why those 

issues were meritless.” 
5

7, 2018, order on Rivera, which advised him that he could either obtain substitute 

counsel or file a brief on his own behalf. Having concluded that Counsel has 

complied with the technical requirements of Turner/Finley, we next consider the 

merits of Rivera’s claims. 

Rivera first argues that the Board lacks the authority “to alter a 

judicially-imposed sentence” and change his maximum sentence date. Petition for 

Review ¶A1. This argument lacks merit. 

Section 6138(a) of the Prisons and Parole Code (Parole Code)3requires 

the Board to recalculate the maximum sentence date of a convicted parole violator 

to account for his forfeited street time. 61 Pa. C.S. §6138(a); Richards v. 

Pennsylvania Board of Probation and Parole, 20 A.3d 596, 599 (Pa. Cmwlth. 2011). 

Our Supreme Court has explained the difference between a judicially imposed 

sentence and a backtime sentence as follows:

The distinction between sentences imposed by the judiciary upon 

convicted criminal defendants and backtime compelled by the 

Board upon parole violators is significant. A sentence can be 

defined as the judgment formally pronounced by the court upon 

a defendant who has been convicted in a new criminal 

prosecution and which imposes the term of punishment to be 

served. By way of comparison, backtime is “that part of an 

existing judicially-imposed sentence which the Board directs a 

parolee to complete following a finding[,] after a civil 

administrative hearing[,] that the parolee violated the terms and 

conditions of parole,” and before the parolee begins to serve the 

new sentence.

Martin v. Pennsylvania Board of Probation and Parole, 840 A.2d 299, 303 (Pa. 

2003) (citations omitted) (emphasis added). Stated otherwise, “service of backtime 

 

3

61 Pa. C.S. §§101-6309.
6

relates to the original sentence from which an offender is paroled and is unrelated to 

any sentence required for a conviction on other criminal charges.” Id. It is wellsettled that the Board’s authority to order a convicted parole violator to serve the 

unexpired balance of his original maximum sentence does not usurp a court’s 

sentencing function or constitute a violation of a parolee’s due process rights. Gaito 

v. Pennsylvania Board of Probation and Parole, 412 A.2d 568, 570 (Pa. 1980). 

Accordingly, we reject Rivera’s contention that the Board usurped the sentencing 

court’s authority. 

Rivera next argues that the Board unlawfully forfeited the time he was 

at liberty on parole from November 13, 2014, until August 14, 2015. Rivera 

contends that because the phrase “at liberty on parole” remains undefined by the 

legislature, the phrase cannot be used against a parolee. He also contends that 

Section 6138(a)(2) of the Parole Code violates the separation of powers doctrine 

because it “eviscerates [] judicial discretion.” Petition for Review ¶A2. 

Our Supreme Court has observed that the Board “is under no 

constitutional obligation to diminish the length of the sentence of a recommitted 

parolee by a period equal to the time when the prisoner was on parole.” Gaito, 412 

A.2d at 570 (citing Commonwealth ex rel. Thomas v. Myers, 215 A.2d 617, 619 (Pa. 

1966)). The Board’s authority to forfeit a parolee’s street time following 

recommitment as a convicted parole violator is codified in Section 6138(a) of the 

Parole Code, which states, in relevant part:

(a) Convicted violators. –

(1) A parolee ... who, during the period of parole or 

while delinquent on parole, commits a crime 

punishable by imprisonment, for which the parolee 

is convicted or found guilty by a judge or jury or to 

which the parolee pleads guilty or nolo contendere 
7

at any time thereafter in a court of record, may at 

the discretion of the board be recommitted as a 

parole violator.

(2) If the parolee’s recommitment is so ordered, the 

parolee shall be reentered to serve the remainder of 

the term which the parolee would have been 

compelled to serve had the parole not been granted

and, except as provided under paragraph (2.1), 

shall be given no credit for the time at liberty on 

parole.

(2.1) The board may, in its discretion, award credit 

to a parolee recommitted under paragraph (2) for the 

time spent at liberty on parole, unless any of the 

following apply:

(i) The crime committed during the period of 

parole or while delinquent on parole is a 

crime of violence as defined in 42 Pa.C.S. § 

9714(g) (relating to sentences for second and 

subsequent offenses) or a crime requiring 

registration under 42 Pa.C.S. Ch. 97 Subch. 

H (relating to registration of sexual 

offenders).

(ii) The parolee was recommitted under 

section 6143 (relating to early parole of 

inmates subject to Federal removal order).

61 Pa. C.S. §6138(a) (emphasis added). In short, the Board has discretion to award 

credit, so long as the parolee was recommitted for a non-violent offense. 

Here, Rivera was recommitted following his conviction for first degree 

robbery under 18 Pa. C.S. §3701(a)(1)(ii). First degree robbery is classified as a 
8

“crime of violence” under 42 Pa. C.S. §9714(g).4 Thus, under Section 6138(a)(2.1) 

of the Parole Code, the Board could not have awarded Rivera credit for his street 

time. The Board did not err by denying street time credit for which Rivera was 

ineligible.5

Rivera’s argument that the Board’s forfeiture of his street time violated

the separation of powers doctrine of the United States and Pennsylvania 

Constitutions also lacks merit. First, it assumes, incorrectly, that he was eligible for 

credit. Second, our Supreme Court has specifically held that a statute mandating the 

denial of credit to a convicted parole violator for time spent at liberty on parole does 

not violate the separation of powers doctrine. Young v. Pennsylvania Board of 

Probation and Parole, 409 A.2d 843, 848 (Pa. 1979). We reject Rivera’s contention 

that the Board violated the separation of powers doctrine by forfeiting Rivera’s street 

time under Section 6138. 

Lastly, we address Rivera’s argument that the Board erred by not 

awarding him credit for the time he served from his arrest on August 14, 2015, until 

 

4 Section 9714(g) of the Sentencing Code states, in pertinent part: “[a]s used in this section, the 

term ‘crime of violence’ means . . . robbery as defined in 18 Pa. C.S. §3701(a)(1)(i),(ii) or (iii)[.]” 

42 Pa. C.S. § 9714(g). 

5 Rivera also argues that the phrase “at liberty on parole” is unenforceable against him because the 

legislature has not defined that term. Rivera has not developed this argument with any citation to 

pertinent legal authority. Therefore, this argument is waived. See Rapid Pallet v. Unemployment 

Compensation Board of Review, 707 A.2d 636 (Pa. Cmwlth. 1998) (holding that undeveloped 

arguments without citation to legal authority will not be considered). Even if Rivera had developed 

his argument, our Supreme Court has explained that “at liberty on parole” means “not at liberty 

from all confinement but at liberty from confinement on the particular sentence for which the 

convict is being reentered as a parole violator.” Cox v. Pennsylvania Board of Probation and 

Parole, 493 A.2d 680, 683 (Pa. 1985). From November 13, 2014, until August 14, 2015, Rivera 

was at liberty on parole from his original simple assault sentence. Rivera was still at liberty on 

parole when he was arrested on August 14, 2015, for theft-related offenses. Therefore, the 

forfeiture of street time can be imposed against Rivera. 
9

he was recommitted on February 24, 2016. Rivera argues that he was able to post 

bail, but was “prevented by the Board’s detainer [from] being able to do so.” Petition 

for Review ¶A2. 

Section 6138(a)(4) of the Parole Code provides that “[t]he period of 

time for which a parole violator is required to serve shall be computed from and 

begin on the date that the parole violator is taken into custody to be returned to the 

institution as a parole violator.” 61 Pa. C.S. §6138(a)(4). When a parolee remains 

incarcerated on new criminal charges because he is unable to satisfy bail 

requirements, the period of time that the parolee is incarcerated on a Board detainer 

and is awaiting sentencing on the new charges is applied to the new sentence. Gaito, 

412 A.2d at 571; Armbruster v. Pennsylvania Board of Probation and Parole, 919 

A.2d 348, 352 (Pa. Cmwlth. 2007). At the time the Board recorded its detainer 

warrant on October 8, 2015, Rivera was incarcerated in the Berks County Prison on 

the pending robbery charges. Rivera failed to make bail on these new charges. 

Contrary to Rivera’s contention, he was not incarcerated solely on the Board’s 

warrant. Rivera’s argument that he is entitled to credit for his incarceration from 

August 14, 2015, to February 24, 2016, lacks merit.

6

In sum, Counsel has fulfilled the technical requirements for 

withdrawing his representation, and our independent review of the record before the 

Board reveals that Rivera’s issues on appeal are without merit. Accordingly, we 

grant Counsel’s application for leave to withdraw and affirm the Board’s decision.

 _____________________________________

 MARY HANNAH LEAVITT, President Judge

 

6 The record reveals that the sentencing court awarded Rivera a total of 161 days for time served 

from the date of his January 21, 2016, sentencing. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Carlos Manuel Rivera, :

Petitioner :

:

v. : No. 1371 C.D. 2017

:

Pennsylvania Board of :

Probation and Parole, :

Respondent :

O R D E R

AND NOW, this 7th day of November, 2018, the order of the 

Pennsylvania Board of Probation and Parole dated September 5, 2017, is 

AFFIRMED, and the application for leave to withdraw as counsel filed by Harry J. 

Cancelmi, Jr., Esquire, is GRANTED. 

 _____________________________________

 MARY HANNAH LEAVITT, President Judge