IN THE COMMONWEALTH COURT OF PENNSYLVANIA

George Kevin Mitchell, :

Petitioner :

:

v. : No. 780 C.D. 2018

: Submitted: January 11, 2019

Pennsylvania Board of Probation :

and Parole, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE SIMPSON FILED: February 21, 2019

George Kevin Mitchell (Mitchell), an inmate at a state correctional 

institution, petitions for review from an order of the Pennsylvania Board of 

Probation and Parole (Board) that denied administrative relief from the Board’s 

recalculation of Mitchell’s maximum sentence date. For the reasons that follow, we 

affirm the Board’s order.

I. Background

Mitchell was released on parole on December 31, 2015. At that time 

his maximum release date was May 31, 2018. He had 882 days remaining on his 

original sentence. 

On April 12, 2016, Mitchell was arrested for possession of marijuana. 

The Board imposed a sanction of increased supervision while Mitchell remained on

parole. The Board later declared Mitchell delinquent as of June 28, 2016.
2

On February 14, 2017, Mitchell was arrested on various charges 

including driving under the influence of alcohol (DUI) and fleeing from a police 

officer. The Board issued its warrant to detain Mitchell the same day. 

Mitchell was unable to post bail. On March 21, 2017, however, the bail 

requirement was eliminated. Thereafter, Mitchell remained in custody solely on the 

Board’s detainer until September 19, 2017, when he pleaded guilty and was 

convicted on two DUI counts and one count of fleeing a police officer. The 

remaining charges arising from Mitchell’s February 2017 arrest were dismissed.

Mitchell subsequently signed a waiver of a revocation hearing and 

admitted his September 2017 convictions on the DUI and fleeing charges. In a

decision effective December 12, 2017, the Board recommitted Mitchell to serve 12

months of backtime1 as a convicted parole violator (CPV). Certified Record (C.R.) 

at 28. In addition, the Board recalculated Mitchell’s maximum sentence date on his 

original conviction as August 1, 2019. C.R. at 49.

After receiving the Board’s recommitment order, Mitchell filed a 

request with the Board for administrative relief. Mitchell asserted the Board 

erroneously extended the length of his remaining sentence. Further, Mitchell argued 

his signature on parole documents did not constitute a contract denoting concurrence 

in the Board’s actions.

 

1

“Back[time] is that part of an existing judicially-imposed sentence which the Board 

directs a parolee to complete following a finding ... that the parolee violated the terms and 

conditions of parole ....” Yates v. Pa. Bd. of Prob. & Parole, 48 A.3d 496, 499 (Pa. Cmwlth. 

2012).
3

The Board affirmed the recalculation of Mitchell’s maximum sentence 

date as August 1, 2019. Mitchell filed a petition for review in this Court. Counsel 

was appointed to represent him in the appeal. 

II. Issues

On appeal,2 Mitchell reasserts his argument that the Board exceeded its 

authority and extended the length of his sentence. He also asserts a second argument, 

not raised before the Board, that he was not given sufficient time at his revocation 

hearing and was not warned that the Board might forfeit credit for some or all of his 

time spent at liberty on parole.3

III. Discussion

A. Recalculation of Maximum Sentence Date

The Department of Corrections (DOC), not the Board, is responsible for 

calculating sentences in accordance with a sentencing court’s orders. Forbes v. Pa. 

Bd. of Prob. & Parole, 931 A.2d 88 (Pa. Cmwlth. 2007), aff’d, 946 A.2d 103 (Pa. 

2008). The Board lacks authority to impose additional prison time beyond the time 

ordered by the sentencing courts and calculated by the DOC. Yates v. Pa. Bd. of 

Prob. & Parole, 48 A.3d 496 (Pa. Cmwlth. 2012).

 

2 Our review is limited to determining whether constitutional rights were violated, whether 

the adjudication was in accordance with law, and whether necessary findings were supported by 

substantial evidence. Miskovitch v. Pa. Bd. of Prob. & Parole, 77 A.3d 66 (Pa. Cmwlth. 2013).

3 Although Mitchell also reasserted his contract argument in his petition for review, he did 

not brief that issue. Therefore, it is waived. Scrip v. Seneca, 191 A.3d 917 (Pa. Cmwlth. 2018) 

(en banc). Moreover, the Board did not rely on any purported contract in its recalculation decision. 

No contract issue is raised by the facts of this matter.
4

 The Prisons and Parole Code, 61 Pa. C.S. §§101-7123, provides that any 

parolee who commits a crime punishable by imprisonment while on parole, and is 

convicted of that crime, may be recommitted as a CPV. 61 Pa. C.S. §6138(a)(1). A 

recommitment is an administrative determination by the Board requiring a parolee 

to serve all or part of the unexpired term of his original sentence; it does not alter 

that sentence. Rivenbark v. Pa. Bd. of Prob. & Parole, 501 A.2d 1110 (Pa. 1985); 

Yates. If a parolee is recommitted as a CPV, he must serve the remainder of the term 

on his original sentence that he would have been compelled to serve had parole not 

been granted, with no credit for time spent at liberty on parole, unless the Board elects 

to award credit. 61 Pa. C.S. §6138(a)(2), (2.1). Any backtime owed is calculated 

from the date when the Board obtains authority to recommit a parole violator. Wilson 

v. Pa. Bd. of Prob. & Parole, 124 A.3d 767 (Pa. Cmwlth. 2015).

Here, Mitchell argues the Board failed to credit him with time he spent 

in custody. This argument is without merit. 

Our review of the record reveals Mitchell was arrested on the DUI and 

fleeing charges on February 14, 2017. C.R. at 18. He was unable to post bail. 

Therefore, from the date of that arrest until bail was eliminated on March 21, 2017, 

Mitchell was in custody on the DUI and fleeing charges, as well as on the Board’s 

detainer. In its decision on Mitchell’s appeal, the Board correctly explained that 

Mitchell will receive credit for that period against the sentence imposed by the court 

on the DUI and fleeing charge convictions, rather than against his original sentence. 

C.R. at 74; see Smith v. Pa. Bd. of Prob. & Parole, 171 A.3d 759 (Pa. 2017); Gaito 

v. Pa. Bd. of Prob. & Parole, 412 A.2d 568 (Pa. 1980).
5

The only period Mitchell spent in custody solely on the Board’s 

detainer was the period of 182 days between when bail was eliminated on March 21, 

2017 and when Mitchell was convicted and sentenced on the DUI and fleeing 

charges on September 19, 2017. C.R. at 18. The Board correctly credited that time

to Mitchell’s original sentence. See Smith; Gaito.

The Board also exercised its discretion to credit Mitchell with the 103 

days he spent at liberty on parole from his parole date to his April 12, 2016 arrest. 

C.R. at 51. In its discretion, the Board declined to credit Mitchell’s remaining time 

spent at liberty on parole. See id. at 49, 51. Notably, Mitchell does not challenge 

the Board’s authority to deny sentence credit for time spent at liberty on parole.

Mitchell had 882 days remaining on his original sentence at the time of 

his parole on December 31, 2015. The Board correctly credited a total of 285 days 

(182 + 103) toward Mitchell’s original sentence. Subtracting those days from the 

882 days previously remaining on Mitchell’s original sentence, he had 597 days left 

on his original sentence. Counting forward from his recommitment date of 

December 12, 2017 yields a maximum sentence date of August 1, 2019. Thus, the 

Board correctly recalculated Mitchell’s maximum sentence date.

B. Due Process

With regard to Mitchell’s due process issue, Mitchell waived this 

argument when he failed to raise it before the Board. Pa. R.A.P. 1551(a). He also

failed to raise this issue in his petition for review. Although he included it in his 

brief, the argument on the issue contains neither development nor any citation of 

authority. This Court is consequently unable to provide meaningful review of this 
6

issue. Accordingly, it is waived. See 37 Pa. Code §73.1(a)(3); Pa. R.A.P. 1513 

Official Note (2014).

IV. Conclusion

Based on the foregoing, we conclude the Board correctly recalculated

Mitchell’s maximum sentence date. We therefore affirm the Board’s order.

 

ROBERT SIMPSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

George Kevin Mitchell, :

Petitioner :

:

v. : No. 780 C.D. 2018

:

Pennsylvania Board of Probation :

and Parole, :

Respondent :

O R D E R

AND NOW, this 21st day of February, 2019, the order of the 

Pennsylvania Board of Probation and Parole is AFFIRMED.

 

ROBERT SIMPSON, Judge