IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Nakia William Garrus, :

Petitioner :

:

v. :

:

Pennsylvania Board of Probation :

and Parole, : No. 198 C.D. 2020

Respondent : Submitted: October 30, 2020

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1

HONORABLE ANNE E. COVEY, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY 

JUDGE COVEY FILED: February 3, 2021

Nakia William Garrus (Garrus) petitions this Court, pro se, for review of 

the Pennsylvania Board of Probation and Parole’s (Board)2January 28, 2020 order 

denying his request for administrative relief. Garrus presents three issues for this 

Court’s review: (1) whether the Board erred by failing to grant him credit for the time 

he spent at liberty on parole; (2) whether the Board erred by requiring him to serve his 

new sentence consecutively to his original sentence; and (3) whether the Board erred 

by altering his judicially imposed sentence. After review, we affirm. 

1 This case was assigned to the opinion writer before January 4, 2021, when Judge Leavitt 

completed her term as President Judge. 

2 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, 61 Pa.C.S. §§ 6101, 6111(a).
2

Background

Garrus is currently an inmate at the State Correctional Institution (SCI) at

Benner Township. See https://www.inmatelocator.cor.pa.gov (last visited February 2, 

2021). On April 8, 2000, the Philadelphia County Common Pleas Court convicted 

Garrus of voluntary manslaughter, and sentenced him to 10 to 20 years of incarceration 

(Original Sentence). See Certified Record (C.R.) at 74. At the time of his conviction, 

Garrus’s maximum release date was April 8, 2020. 

On September 8, 2015, the Board paroled Garrus to a community 

corrections facility (CCF). See id. On February 23, 2016, the CCF discharged Garrus 

for failing to provide urine for a drug test. See id. In a decision recorded March 14, 

2016 (mailed March 18, 2016), the Board recommitted Garrus as a technical parole 

violator (TPV) to serve 6 months’ backtime for acting in an assaultive manner toward 

a parole officer during intake after his release from the CCF. See C.R. at 1.

On August 23, 2016, the Board reparoled Garrus. See C.R. at 75. On 

August 1, 2018, the Board issued an administrative action finding probable cause to 

believe Garrus had violated several parole conditions, but held the matter in abeyance 

pending Garrus’s completion of recommended programs. See C.R. at 35. Ultimately, 

Garrus was declared delinquent effective September 14, 2018. See C.R. at 38. Garrus 

was ordered, as a special parole condition, to enter a “SELF-HELP” program and remain 

there until he was successfully discharged. C.R. at 36. Garrus never reported to the 

program. See C.R. at 49.

On October 21, 2018, the Cheltenham Township Police Department 

arrested Garrus for unsworn falsification to authorities, false identification to law 

enforcement, retail theft and receipt of stolen property (New Charges). See C.R. at 41-

42. The Board lodged a detainer against Garrus that same day. See C.R. at 39. Garrus 

posted bail on the New Charges on October 29, 2018. See C.R. at 43. On November 
3

5, 2018, the Board charged Garrus with a technical parole violation. See C.R. at 49. 

The Board held a parole violation hearing on November 16, 2018. See C.R. at 52. In 

a decision recorded January 14, 2019 (mailed January 16, 2019), the Board detained 

Garrus pending disposition of the New Charges, recommitted him as a TPV for 9

months for changing his residence without permission, and granted Garrus reparole 

after 6 months if he successfully completed prescribed programs. See C.R. at 64. On 

February 26, 2019, Garrus filed an administrative remedy form with the Board 

challenging the Board’s January 14, 2019 decision recommitting him as a TPV.3 See 

C.R. at 114. 

On January 16, 2019, Garrus pleaded guilty to unsworn falsification to 

authorities and the remaining charges were nolle prossed. See C.R. at 67. The 

Montgomery County Common Pleas Court (Sentencing Court) sentenced Garrus to 

time served to 23 months (New Sentence). See C.R. at 68. The Board credited Garrus’s

Original Sentence for the time he spent incarcerated before posting bail, i.e., October 

21, 2018 to October 29, 2018. 

On April 4, 2019, the Board notified Garrus that it was charging him as a 

convicted parole violator (CPV), due to his new conviction. Garrus waived his rights 

to counsel and a revocation hearing. See C.R. at 71. By decision recorded May 15, 

2019 (hand delivered May 17, 2019), the Board modified and deleted the reparole 

portion of its January 14, 2019 order. See C.R. at 102. The Board recommitted Garrus 

to serve 9 months’ backtime as a TPV and 12 months’ backtime as a CPV, for a total 

of 21 months’ backtime. The Board based its backtime assessment on Garrus’s poor 

adjustment under supervision, early failure of parole and reparole, failure to comply 

with sanctions, his declaration of delinquency and his prior parole failures. 

3 Garrus’s administrative remedy form was deemed filed as of February 13, 2019. See C.R. 

at 114.
4

Accordingly, the Board deemed Garrus not amenable to parole supervision. The Board 

recalculated Garrus’s Original Sentence maximum release date to April 13, 2022, but 

stated it was subject to change. See C.R. at 103. 

On June 13, 2019, Garrus filed a second administrative remedies form 

challenging the Board’s May 15, 2019 decision increasing his backtime in light of his 

designation as a CPV. See C.R. at 116. On June 20, 2019, Garrus filed a “Petition for 

Administrative Remedies” with the Board challenging both the Board’s January 14, 

2019 and May 15, 2019 decisions, and requesting that his Original Sentence maximum 

release date be recalculated because his backtime should be served concurrently with 

his New Sentence. C.R. at 118. Garrus further claimed that the Board erred by 

imposing 12 months of backtime when the presumptive range for unsworn falsification 

is 3 to 6 months. See id. On July 5, 2019, Garrus filed an “Administrative Appeal 

Letter,” again claiming that the Board erred in recalculating his backtime and that he 

should be reparoled no later than October 21, 2019. See C.R. at 124-125. 

On September 4, 2019, the Sentencing Court paroled Garrus from his New 

Sentence effective January 16, 2019, and Garrus began serving his Original Sentence. 

See C.R. at 105. By decision recorded on September 19, 2019 (mailed the same day),

the Board restated its May 15, 2019 decision and added that Garrus would not receive 

credit for the time spent at liberty on parole because he previously absconded while 

under supervision. See C.R. at 108. The Board credited Garrus for the time he spent 

in pretrial custody solely on the Board’s warrant from October 29, 2018, to January 16, 

2019. See C.R. at 106. Thus, Garrus owed 1,183 days on his Original Sentence. The 

Board recalculated Garrus’s Original Sentence maximum release date to November 30, 

2022. See id.

On January 22, 2020, the Board issued a decision advising Garrus that,

“DUE TO RECEIPT OF ADDITIONAL INFORMATION,” it was rescinding its January 14, 
5

2019 decision.

4

 See C.R. at 111. As such, the Board modified its May 15, 2019 and 

September 19, 2019 decisions by removing all references therein to recommitting

Garrus as a TPV. 

By decision recorded January 23, 2020 (mailed January 24, 2020), the 

Board rescinded its January 22, 2020 decision due to missing information and modified 

its January 14, 2019, May 15, 2019, and September 19, 2019 decisions by removing 

Garrus’s TPV recommitment. See C.R. at 112. The Board modified its September 19, 

2019 decision to declare that Garrus was recommitted to an SCI to serve 12 months of

backtime as a CPV. Garrus’s Original Sentence maximum release date remained

November 30, 2022.

On January 28, 2020, the Board issued its response to Garrus’s February 

26, June 13 and June 20, 2019 requests for administrative relief, stating that it properly 

recalculated Garrus’s Original Sentence maximum release date because Garrus 

received a new conviction and, as such, was found to be a CPV. See C.R. at 137. The 

Board, in its discretion, denied Garrus credit for the time he served at liberty on parole. 

Therefore, the Board declared that Garrus’s Original Sentence maximum release date 

was properly calculated to include that time. 

Concerning Garrus’s claim that the imposition of 12 months’ backtime for 

the new conviction of unsworn falsification exceeded the presumptive recommitment 

range, the Board acknowledged the presumptive range was 3 to 6 months. See Section 

75.2 of the Board’s Regulations, 37 Pa. Code § 75.2. However, the Board asserted that 

it may deviate from the presumptive range by providing a reason for so doing. See 

4

In its brief, the Board explained that it rescinded the TPV recommitment decision because it 

learned that only one Board member had signed the decision (C.R. at 61) and at least two members 

must sign the decision for it to be valid. See Board Br. at 7; see also Section 6113(b) of the Prisons 

and Parole Code, 61 Pa.C.S. § 6113(b) (“The [B]oard may make decisions on . . . revocation in panels 

of two persons. A panel shall consist of one [B]oard member and one hearing examiner or of two 

[B]oard members.”). 
6

Section 75.1(c) of the Board’s Regulations, 37 Pa. Code § 75.1. Here, the Board 

justified awarding backtime in the aggravated range based on Garrus’s poor adjustment 

to supervision, early failure on parole, failure to comply with sanctions, prior parole 

violations, and declaration of delinquency. Additionally, the Board noted that its

January 14, 2019 decision recommitting Garrus as a TPV was reversed by the Board’s 

September 19, 2019 decision. Thus, only Garrus’s recommitment as a CPV remains, 

including the Board’s imposition of 12 months’ backtime and its denial of credit for 

time Garrus spent at liberty on parole.

On February 5, 2020, Garrus appealed to this Court.5 On April 3, 2020, 

Huntingdon County Public Defender Nicholas E. Newfield, Esquire (Counsel) filed an 

amended petition for review. On June 15, 2020, this Court vacated the appointment of 

Counsel based on Garrus’s request to retain private counsel or proceed pro se. 

Thereafter, Garrus, pro se, filed an amended brief. 

Discussion

Garrus first claims that he did not lose his street time when he was 

recommitted as a TPV on January 14, 2019. However, on May 15, 2019, when he was 

deemed a CPV, his maximum sentence date was recalculated to April 13, 2022. See 

C.R. at 102.6 Garrus argues that, pursuant to Penjuke v. Pennsylvania Board of 

Probation & Parole, 203 A.3d 401 (Pa. Cmwlth. 2019), appeal denied, 228 A.3d 254 

(Pa. 2020), the Board cannot revoke street time credit that was previously granted. 

5

“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)).

6 The Board recalculated Garrus’s Original Sentence maximum release date in its September 

19, 2019 decision to November 30, 2022. 
7

Therefore, because he did not lose his street time as a TPV, the Board had no authority 

to revoke it later, when he was deemed a CPV. 

The Board rejoins that Penjuke does not apply in this case for two reasons: 

(1) the Board decision finding Garrus to be a TPV was rescinded on January 22, 2020; 

and (2) in Kazickas v. Pennsylvania Board of Probation & Parole, 226 A.3d 109 (Pa. 

Cmwlth. 2020), this Court held that Penjuke does not apply when the conviction 

leading to a parolee’s recommitment as a CPV occurred during the same parole period 

as the violation that led to his recommitment as a TPV. 

In Young v. Pennsylvania Board of Probation & Parole, 225 A.3d 810 

(Pa. 2020), the Board revoked the street time of a CPV, including the street time the 

Board had previously granted to the parolee in a prior CPV proceeding. The 

Pennsylvania Supreme Court held that, if the Board exercised its discretion to award 

street time credit, it could not revoke that credit in a subsequent revocation proceeding. 

Specifically, the Young Court held: “[T]he Prisons and Parole Code [(Parole Code)] 

does not authorize the Board to withdraw an award previously granted pursuant to

Section 6138(a)(2.1) [of the Parole Code].” Young, 225 A.3d at 813-14. Similarly, the 

Penjuke Court addressed the issue of whether the Board could forfeit the street time of 

a CPV that was credited in a prior TPV proceeding. This Court held: “[T]he Board 

lacks the statutory authority to revoke street time credit previously granted to a parolee 

as a TPV when it subsequently recommits the parolee as a CPV.” Penjuke, 203 A.3d 

at 420.

However, in both Young and Penjuke, two separate periods of street time 

credit were at issue. In Kazickas, this Court explained that the Board is precluded from 

reaching back in time to revoke a prior grant of street time. However, when the

technical violation and the new charge occur in the same parole period, the Board 
8

may make the technical violation recommitment subject to change if the parolee is later 

convicted of the new charge. See id.

Here, Garrus’s street time for the TPV and street time for the CPV 

occurred in the same parole period. Further, when the Board recommitted Garrus as a 

TPV on January 14, 2019, the Board advised Garrus that he was detained pending 

disposition of his New Charges, and his automatic reparole was subject to the 

resolution of his pending New Charges. See C.R. at 64-65. The Board further advised 

Garrus that his May 13, 2020 Original Sentence maximum release date was subject to 

change if he was convicted of the New Charges. See C.R. at 66. Consequently, because 

Garrus’s street time as a TPV involved the same parole period as his street time as a 

CPV, the Board was within its authority, upon Garrus’s recommitment as a CPV, to 

revoke all of his street time. Moreover, as in Kazickas, the Board advised Garrus that 

his maximum sentence date was subject to change if he was deemed a CPV. 

Accordingly, the Board properly revoked Garrus’s street time credit.

Next, Garrus claims that the Board erred by not calculating his custody 

time correctly. Specifically, Garrus contends that the Sentencing Court directed him 

to serve his New Sentence concurrently with his Original Sentence. The Board 

responds that, as a matter of law, a CPV must serve his New Sentence and original 

sentence consecutively. See Section 6138(a)(5) of the Parole Code, 61 Pa.C.S. §

6138(a)(5)(i).7

7 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[n SCI] and the new sentence 

imposed on the person is to be served in the [SCI].
9

Preliminarily, this Court notes that Garrus is raising this argument for the 

first time in his appeal to this Court. “Failure to raise an issue before the Board results 

in a waiver and precludes this Court’s review.” Reavis v. Pa. Bd. of Prob. & Parole, 

909 A.2d 28, 34 (Pa. Cmwlth. 2006). The Board recalculated Garrus’s Original 

Sentence maximum release date following the Sentencing Court’s September 4, 2019

order, several months after Garrus filed his multiple administrative appeals and 

supplementary filings with the Board. See C.R. at 105. 

Moreover, Garrus was returned to custody on September 4, 2019, the date

he was paroled from his New Sentence. Thus, in its September 19, 2019 decision, the 

Board recalculated Garrus’s maximum sentence release date to November 30, 2022. 

See C.R. at 106-108; see also Section 6138(a)(5) of the Parole Code, 61 Pa.C.S. § 

6138(a)(4). Garrus did not seek administrative review of the Board’s September 19, 

2019 decision. 

Parolees desiring to appeal from a parole revocation decision must file an 

administrative appeal with the Board within 30 days. See Section 73.1(b)(1) of the 

Board’s Regulations, 37 Pa. Code § 73.1(b)(1).

8 The failure to file an appeal within 

(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).

8 Section 73.1(b)(1) of the Board’s Regulations provides, in relevant part:

Petitions for administrative review shall be received at the Board’s 

Central Office within 30 days of the mailing date of the Board’s 

determination. When a timely petition has been filed, the determination 

will not be deemed final for purposes of appeal to a court until the 

Board has mailed its response to the petition for administrative review.

37 Pa. Code § 73.1(b)(1). 
10

the time required by law precludes a parolee’s right to challenge the Board’s decision. 

Larkin v. Pa. Bd. of Prob. & Parole, 555 A.2d 954, 957 (Pa. Cmwlth. 1989). 

Accordingly, Garrus’s claim that the Board erroneously recalculated his custody time 

is not properly before the Court.9

Garrus’s final claim is that the Board impermissibly altered his judicially

imposed sentence when it recalculated his Original Sentence maximum release date. 

This claim also involves the Sentencing Court’s September 4, 2019 order, and Garrus’s

claim that the Board improperly credited his Original Sentence in accordance with the

time served on his new conviction. However, as addressed above, because Garrus did 

not appeal from this issue in his requests for administrative review, nor appeal from the 

Board’s September 19, 2019 decision that recalculated his Original Sentence maximum 

release date upon his return to the Board’s custody, that issue is not properly before the 

Court.10

Conclusion

For all of the above reasons, the Board’s order is affirmed. 

________________________________

ANNE E. COVEY, Judge

9 Notwithstanding, “pursuant to our precedent[,] any sentences for crimes committed on parole 

must be served consecutive to the original sentence. Thus, the Board did not err in not allowing 

[Garrus’s] [N]ew [S]entence and [O]riginal [S]entence to run concurrently.” Barnes v. Pa. Bd. of 

Prob. & Parole, 203 A.3d 382, 395 (Pa. Cmwlth. 2019). 

10 Notwithstanding, this Court notes that the Board is authorized to recalculate a parolee’s 

sentence date to require completion of the original judicially-mandated sentence. See Hughes v. Pa. 

Bd. of Prob. & Parole, 179 A.3d 117 (Pa. Cmwlth. 2018) (maximum length of sentence, not 

maximum date, is controlling).
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Nakia William Garrus, :

Petitioner :

:

v. :

:

Pennsylvania Board of Probation :

and Parole, : No. 198 C.D. 2020

Respondent :

O R D E R

AND NOW, this 3

rd day of February, 2021, the Pennsylvania Board of 

Probation and Parole’s January 28, 2020 order is affirmed.

_________________________________

ANNE E. COVEY, Judge