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

institut ion, 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 orde r.

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 O n February 14, 2017, Mitche ll 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, t he 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 char ges arising from Mitchell’s February 2017 arrest were dismissed.

Mitchell subsequently signed a waiver of a revocation hearing and

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

decision effective December 12, 2017 , the Boa rd re committed Mitchell to serve 12

months of backtime 1 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 do cuments 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, 49 9 (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 r epresent 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. H e also assert s a second argument,

not raised before the Board, that he was not given su fficient 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 th e 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 t ime 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 ). Moreo ver, 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 pun ishable 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 o f 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 authori ty 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 rev eals 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 c harges, 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 t han against his original sentence

.

C.R. at 74 ; s ee 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 Marc h 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

.

T he Board also exercised its discretion to cred it 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 a t 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 day s left

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

December 12 , 2017 yields a maximum sentence date of August 1, 201 9 . Thus, the

Board correctly recalculated Mitchell’s maximum sentence date.

B

. Due Process

With regard to M itchell’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 contain s neither development nor any citation of

authority. This Court is consequently unable to provide meaningful review of this6

iss ue. 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 recalculat ed

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

ROBERT SIMPSON, JudgeIN 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 21 st day of February , 2019, the order of the

Pennsylvania Board of Probation and Parole is AFFIRMED

.

ROBERT SIMPSON, Judge