IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Nakia William Garrus , : Petitioner :

: v. :

: Pennsylvania Board of Probation : and Parole , : No. 1 9 8 C .D. 20 20 Responde nt : Submitted: October 3 0 , 2020

BEFORE: HONORABLE MARY HANNAH LEAVITT , President Judge 1

HONORABLE ANNE E. COVEY, Judge HONORABLE ELLEN CEISLER , Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE COVEY FILED: February 3 , 2021

Nakia William Gar r us (Garrus) peti tions this Court, pro se , for review of the Pennsylvania Board of Probation and Parole ’s (Board) 2 January 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 origina l 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 S ubsequent to the filing of the petition for r eview, 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 Pris ons 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 , 202 1 ). 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, t he Board paroled Garrus to a community corrections facility (CCF)

. See id

. O n 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 assault ive manner t oward 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 ha d violated several parole c onditions, but held the matter in abeyance pending Garrus’s comp le tion of recommended program s

. See C.R. at 35. Ultimately , Garrus was declared delinquent effective September 14, 2018. See C.R. at 38. Garru s 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 O ctober 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)

. Se e 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 N ew C harges on October 29, 2018. See C.R. at 43. On November3

5, 2018 , the Board charged Garrus with a technical parole violation. See C.R. at 49.
The Board held a parole violation hearing on N ovember 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 N ew C harges , 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. a t 64. On February 26, 2019, Garrus filed an administrative remedy form with the Board challenging the Board’s January 1 4 , 2019 decision recommitting him as a TPV. 3 See
C.R. at 114.
O n January 16, 2019, Garrus pleaded guilty to unsworn falsification to authorities and the remaining charges were nolle prossed

. See C.R. at 67. T he Montgomery County Common Pleas Court ( S entencing C ourt) 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 spen t incarcerated before posting bail, i.e

. , October 21, 2018 to O ctober 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 modif ied and delet ed 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 Garr us’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, t he Board deemed Garrus not amenable to parol e supervision. The Boa rd

re calculated 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 N ew S entence. C.R. at 118. Garrus further claimed that the Board erred by imposing 12 months of backtime when the presumptive ran ge 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 S entencing C ourt paroled Garrus from his N ew S entence 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 B oard restat ed its May 15, 2019 decision and add ed that G arrus 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 tim e 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 O riginal S entence. The
Board recalculated Garrus’s Original Sentence maximum release date to November 30,
2022. See i d

.

On January 22, 2020, the B oard issued a decision advis ing 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 recommit ting
Garrus as a TPV.

By decision recorded January 23, 2020 ( mailed January 2 4 , 2020) , the
Board rescind ed its January 22, 2020 dec ision 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, 2 019 requests for administrative relief, s t ating 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 t hat the imposition of 12 months’ backtime for
the new conviction of unsworn falsification exceed ed the presumptive recommitment

range , t he 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 lear ned 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 R egulations, 37 Pa. Code § 75. 1. Here , the Board justified awarding backtime in the aggravated ran ge 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 B oard noted that its January 14, 2019 decision recommitting G arrus as a TPV was reversed by t he Board’ s S eptember 19, 20 19 decision

. T hus, 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 appoin tment 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 claim s that he did not lose his street time when he was
recommitted as a TPV on Janua ry 1 4 , 2019

. However, on May 15, 2019, when he was deemed a CPV, his ma ximum sentence date was recalculated to April 13, 2022

. See
C.R. at 102. 6 Garrus argues that , pursuant to Penjuke v. P ennsylvania B oar d of
Prob ation & 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. 202 0) (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, 202 2

.7

T herefore, because he did not lose his street time as a TPV, t he 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 ;

a nd (2) in Kazickas v. P ennsylvania B oar d of Prob ation & 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.

I n Young v. P ennsylvania Board of Prob ation & 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. T he
P ennsylvania Supreme Court held that , if the Board exercised its discretion to aw ard
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 previou sly granted pursuant to Section 6138(a)(2.1) [of the Parole Code]

. ” Young , 225 A.3d at 813

- 14. Similarly, t he 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 re commits 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 Kazi ckas , 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 Board8

may make the technical violation recommitment subject to change if the parolee is later
convicted o f the new charg e. See i d

.

Here, Garrus’s street time for the TPV and street time for the CPV
occurred in the same parole period. Further, when the B oard recommitted Garrus as a TPV o n January 14, 2019, the B oard advised Garrus that he was detained pending disposition of his N ew C harges , and his automatic reparole was subject to the
resolution of his pending New C harges. 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 C harges. 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 with in its authority, upon Garrus’s recommit ment as a CPV, to
revoke all of his street time. Moreove r , 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 B oard erred by not calcula ting his custody time correctly. Specifically, Garrus contends that the S entencing C ourt directed him
to serve his N e w S entence concurrently with his O riginal S entence. The Board responds that, a s a matter of law, a CPV must serve his N ew S entence 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 Par ole 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). T he Bo ard re calculat ed Garrus’s O rigin al
S entence maximum release date following the S entencing C ourt’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 da te
he was paroled from his N ew S entence. Thus, in its September 19, 2019 decision, the
Board recalculated Gar r us’s maximum sentence release date to November 30, 2022.
See C.R . at 106

- 108 ; s ee also Section 6138(a)(5) of the Parole Code, 61 Pa.C.S. § 6138(a)(4). Garrus did not seek administr ative review of the Board’s September 19,
2019 decision.

P arolees desiring to appeal from a parole revocation decision must file an administrative appeal with the B oard 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 fil e an appeal within

(ii) If a person is paroled from a county prison and the new sentence imposed upon him is to be s erved in the same county prison. (iii) I n 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 R egulations provides, in relevant part:
Petitions for administrative review shall be received at the Board’ s Central Office within 30 days o f 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 maile d its response to the petition for administrative review. 37 Pa. Code § 73.1(b)(1)

.10

the time required by law pre clude s a parolee ’ s right to ch allenge the Bo ard ’ s decision

. L arkin v. Pa. Bd. of Prob. & Parole , 555 A.2d 954 , 957 ( Pa. Cmwlth. 1989). Accordingly , Garrus’s claim that the B oard erroneously recalculated his custody time is not properly before the C ourt. 9

Garrus’s final claim is that the Board impermissibly altered his judicially imposed sentence when it recalculat ed his Original Sentence maximum release date.
This claim also involves the S entencing C ourt’s September 4, 2019 order , and Garrus’s
claim that the Board improperly cre dit ed his O riginal S entence in accordance with the
time served on his new conviction. However, a s addressed above, because Garrus did not appeal from this issue in his requests for administrative review , n or 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 no t err in not allowing [ Garrus’s ] [N] ew [S] entence and [O] riginal [S] entence to run concurrently .” Barnes v. Pa. Bd. of P rob. & Parole , 203 A.3d 382, 395 (Pa. Cmwlth. 2019).

10 Notwithst a nding, this Court note s 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 c ontrolling).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 , 20 2 1 , the Pennsylvania Board of
Probation and Parole ’s January 28, 2020 order is affirmed

.

___________________________ ______ ANNE E. COVEY, Judge