IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ronald J. Kent, : : No. 362 C.D. 2016 Petitioner : Submitted: October 14, 2016

:

v. :

: Pennsylvania Board of : Probation and Parole, :

: Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE WOJCIK FILED: February 13, 2017

Ronald J. Kent petitions for review of th e decision of the

Pennsylvania Board of Probation and Parole (Board) denying his request for

administrative relief after the Board revoked his parole and recommitted him to

serve the remainder of his unexpired term of imprisonment as a convicted parole

vio lator. We dismiss the appeal as moot.

T he Luzerne County Common Pleas Court (trial court) initially

sentenced Kent to a 7

- to 15

- year term of imprisonment for a violation of his

probation imposed on robbery convictions . Kent ’s initial controlling minimum

sentence date was December 23, 200 4 , and his controlling maximum sentence date

was December 23, 201 2

. I n August 2005 , Kent was released on parole.2 In June 20 07 , the Board revoked Kent ’s parole and recommitted him

to serve 1 8 months backtime as a convicted parole violator based on his conviction

for possession of a controlled substance with the intent to deliver

. In December

20 08

, Kent was constructively parole d to the detainer sentence for his drug

conviction. T he maximum date on his detainer sentence was November 21, 2013,

and the maximum date on his original sentence was July 23, 2014.

In January 2010, Kent was released on parole from his detainer

sentence to the Minsec Hazl e ton Treatment Center (Center). In August 2010, the

Board declared Kent delinquent.

In April 2011, Kent was arrested by the Wilmington, Delaware Police

for a number of drug and related charges. In May 2011, Kent was sentenced by a

Delaware court to a suspended 5

- year term of imprisonment for his convictions for

possession with the intent to deliver a controlled substance and forgery and Kent

was transferred to the State Correctional Institution

– Graterford.

In August 2011, the Board again revoked Kent’s parole and

recommitted him as a te chnical and convicted parole violator to serve 15 months

ba cktime based on his convictions and the violations of his parole conditions. The

Board recalculated Kent ’s parole violation maximum date to be A ugust 2, 2017. In

an administrative appeal, the Boa rd directed that an evidentiary hearing should be

held to determine if Kent was entitled to credit against his sentence for the period

of time he was at the Center.

However, in April 2015, the Department of Corrections restructured

Kent’s original sentenc e 1 based on a trial court order changing the commitment

1 The Department’s April 2015 DC16E Sentence Status Summary states, in pertinent
part: (Footnote continued on next page...)3

credit on that sentence. As a result, in May 2015, the Board issued a decision

noting the restructuring of Kent’s original sentence; modifying its prior decisions;

and changing his maximum date to De cember 29, 2016.

In Ma y 2015, Kent sought administrative relief with the Board

challenging the calculation of his maximum date and seeking credit against his

original sentence for the time that he spent at the Center and in custody in

Delaware prior to se ntencing

. In September 2015, a hearing was conducted on the

issue of credit for time spent at the Center and , in October 2015, the Board denied

Kent ’s credit request. In February 2016 , the Board denied Kent’s request for

administrative relief regarding c redit for his time at the Center and the calculati on

of his maximum date. Kent filed the instant petition for review, 2 arguing that the

Board erred in denying credit for the 202 days that he spent at the C enter ; the 27

(continued...)

Version 9 was created because commitment credit has been adjusted per order dated 2

- 12

- 15 by [the trial court] which clarified

credit time.

This credit adjustment changed subject’s origin al max date.

* * * PBPP MUST ADJUST THE PV MAX DATE TO ALLOW

FOR THIS CREDIT * * *

Certified Record (C.R.) at 1.

2 Our scope of review is limited to determining whether necessary findings of fact are supported by substantial evidence, whether an error of law was committed, or whether

const itutional rights were violated. McNally v. Pennsylvania Board of Probation and Parole

, 940 A.2d 1289, 1292 (Pa. Cmwlth. 2008 ).4

days that he spent awaiting sentencing in Delaware; and t hat he should be released

from prison

. 3

However, w e will not address the merits of Kent ’s claim s on appeal.

This Court has explained that “the expiration of a parolee’s maximum term renders

an appeal of a Board revocation ord er moot.” Taylor v. Pennsylvania Board of

Probation and Parole , 746 A.2d 671, 674 (Pa. Cmwlth. 2000). We will dismiss an

appeal when the occurrence of an event renders it impossible for this Court to grant

the requested relief. Id. We will refuse dismi ssal only if the issues involved are

capable of repetition yet likely to evade review and are of important public interest,

or where a party will suffer some detriment without this Court’s decision. Id. ;
Sands v. Pennsylvania Board of Probation and Parole , 396 A.2d 914, 915 (Pa.

Cmwlth. 1979).

Because the maximum date of December 29, 201 6, on Kent’s original

sentence has passed and he is no longer serving that sentence , th e instant appeal is

moot. Although the credit issue s that Kent raises in this appea l are likely capable

of repetition, t hey will not evade review and ha ve been addressed in a number of

other appeals from Board decisions denying administrative relief. Kent will not

suffer any detriment without this Court’s d ecision because he is no longe r serving

his original sentence and we cannot grant the requested relief. 4

3 We granted appointed counsel leave to withdraw and allowed Kent to proceed pro se in

th is appeal.

4 As noted above, Kent was on constructive parole from his original sentence to his

detainer sentence at the time that he was paroled from the detainer sentence to the Center . As a result, any credit for any purported confinement that he serve d at the Center would apply to his detainer sentence and not to his original sentence. See, e.g., Wile, Pennsylvania Law of

Probation and Parole , §3:8 at 89 (3 rd ed. 2010) (“Constructive parole is considered ‘time at liberty’ on parole for purposes of sec tion 6138(a) of the Prisons and Parole Code, [61 Pa. C.S. (Footnote continued on next page...)5 Accordingly, the instant appeal is dismissed as moot.

MICHAEL H. WOJCIK, Judge

(continued...)

§6138(a),] or ‘street time,’ for purposes of determining to what credit an offender is due against a maximum sentence upon recommitment as a parole violator. Periods of constructive parole are

forf eited upon an offender’s recommitment by the [ Board ] as a convicted parole violator . . . .”) (footnotes omitted).

Moreover, Kent’s claims for credit are without merit. R e garding the conditions of confinement at the Center, the Board found that: it was not a secure facility; the Center did not detain Kent or refuse his right to depart the facility under his own power; the Center’s residents were not locked in their rooms and there was a release mechanism on each door; the residents were permitted to lea ve for approved periods without escort or restraint; and Kent testified that he obtained employment while housed at the center and routinely signed out to go to work for extended periods of time. C.R. at 137. These findings are supported by the testimony of Kent

and that of his parole agent

. I d. at 110, 111, 115, 116, 119, 120, 122, 123. The findings also support the Board’s determination that the conditions at the Center were not so restrictive as to constitute the equivalent of incarceration thereby warranting credit on his original sentence. Medina v. Pennsylvania Board of Probation and Parole , 120 A.3d 1116, 1119

- 1121 (Pa

. Cmwlth. 2015). Finally, Kent is not entitled to credit for the time awaiting sentencing on his

conviction in Delaware because he does not allege and did not demonstrate that he was solely held by the Board’s detainer at that time or that he did not rece ive credit for that time on his new

sentence

. Gaito v. Pennsylvania Board of Probation and Parole , 412 A.2d 568, 571 (Pa. 1980).IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ronald J. Kent, : : No. 362 C.D. 2016 Petitioner :

:

v. :

: Pennsylvania Board of : Probation and Parole, :

: Respondent :

O R D E R

AND NOW, this 13 th day of February , 201 7

, the above

- captioned

appeal is DISMISSED as moot.

__________________________________ MICHAEL H. WOJCIK, Judge