IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Trevor Raible, :
Petitioner :
:
v. : No. 2648 C.D. 2015
: Submitted: June 10, 2016
Pennsylvania Board of Probation :
and Parole, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI FILED: July 6, 2016
Trevor Raible (Parolee) petitions for review of the decision of the
Pennsylvania Board of Probation and Parole (Board) denying him credit for the
period at which he was at liberty on parole. We affirm.
On May 22, 2011, Parolee was sentenced to 10 months to 2 years, 6
months for violation of his probation and theft of movable property, with a
minimum release date of January 11, 2012, and a maximum release date of
September 11, 2013. Parolee was released on parole on May 14, 2012.
While on parole, on December 12, 2012, Parolee was arrested on new
criminal charges and that same day, the Board lodged its detainer against him.
Failing to make bail, he remained in county prison until August 1, 2013, when he
was granted Release on Recognizance (ROR) bail for the new charges. He was
then arrested on August 15, 2013, on other charges and granted ROR bail on
August 19, 2013. Parolee, however, remained incarcerated on the Board’s detainer
until September 11, 2013, the maximum release date of his original sentence.
On December 3, 2014, Parolee pleaded guilty to some of the new
criminal charges and the remaining charges against him were dismissed. On
December 29, 2014, the Board lodged its detainer against him.
The Board issued Parolee a Notice of Charges and Hearing for a
revocation hearing stemming from his new criminal convictions, and Parolee
waived his right to a revocation hearing and right to counsel. The Board then
voted to recommit Parolee as a convicted parole violator and denied him credit for
time spent at liberty on parole. The trial court then sentenced Parolee on January
22, 2015, to 12 to 24 months and 6 to 12 months of confinement on his new
convictions, to be served concurrently. Parolee was placed in a State Correctional
Institution on February 13, 2015.
The Board recommitted Parolee as a convicted parole violator and
sentenced him to serve the lesser of 18 months or his unexpired term, when
available, and recalculated his maximum release date to April 10, 2016. In
arriving at that date, the Board determined that Parolee owed 485 days of backtime
2
towards his original sentence because he was paroled on May 14, 2012, and his
original maximum release date was September 11, 2013. The Board also provided
Parolee with 41 days of backtime served credit for the period of August 1, 2013, to
September 11, 2013.
Parolee filed a pro se Petition for Administrative Review, challenging
the credit awarded and, therefore, the calculation of the maximum release date.
The Board denied Parolee’s petition, reasoning that he had 485 days remaining on
his original sentence at the time of parole and that given Parolee’s recommitment
as a convicted parole violator, the Board was authorized to recalculate his sentence
without providing him credit for the time spent pursuant to Section 6138(a)(2) of
the Prisons and Parole Code (Code), 61 Pa. C.S. §6138(a)(2). The Board
explained that it gave him 41 days of credit for the period he was incarcerated
from August 1, 2013, to September 11, 2013, because he was incarcerated solely
on the Board’s detainer, but did not grant him credit for any other period of
incarceration because he was incarcerated on both the Board detainer and/or new
criminal charges. The Board further found that Parolee became available to begin
serving backtime on January 22, 2015, when he was sentenced on his new criminal
charges. This appeal followed.
On appeal,1 Parolee argues that the Board erred in not awarding him
credit on his original sentence for the time he spent at liberty on parole from
December 14, 2012, to September 11, 2013.
1
Our scope of review is limited to determining whether the Board’s decision is
supported by substantial evidence, whether an error of law was committed, or whether
(Footnote continued on next page…)
3
Time incarcerated shall be credited to a convicted parole violator’s
original term only when he remains incarcerated solely by reason of the Board’s
detainer. Gaito v. Pennsylvania Board of Probation and Parole, 412 A.2d 568,
571 (Pa. 1980). When bail is not posted, the time period during which a parolee is
incarcerated on both new criminal charges and the Board’s detainer must apply to
the new sentence. Id. Credit will only be applied to a parolee’s original sentence
when it is not possible to award all of the credit on the new sentence because the
period of pre-sentence incarceration exceeds the maximum term of the new
sentence. Armbruster v. Pennsylvania Board of Probation and Parole, 919 A.2d
348, 355 (Pa. Cmwlth. 2007).
Here, while on parole from his original sentence, Parolee was arrested
on December 14, 2012, on new charges and the Board lodged its detainer against
him that same day. Parolee remained in county prison until August 1, 2013, when
he was granted ROR bail, but remained incarcerated on the Board’s detainer until
September 11, 2013. Because he was confined solely on the Board’s detainer from
August 1, 2013, until September 11, 2013, the Board granted Parolee 41 days of
credit in calculating his new maximum date. However, Parolee is not entitled to
credit from December 14, 2012, through July 31, 2013, as he was confined on both
the Board’s detainer and his new criminal charges. The credit for this time period
shall instead apply to Parolee’s new sentence.
(continued…)
constitutional rights have been violated. Section 704 of the Administrative Agency Law, 2 Pa.
C.S. §704; Moroz v. Pennsylvania Board of Probation and Parole, 660 A.2d 131, 132 (Pa.
Cmwlth. 1995).
4
Accordingly, we affirm the Board’s decision.
________________________________
DAN PELLEGRINI, Senior Judge
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Trevor Raible, :
Petitioner :
:
v. : No. 2648 C.D. 2015
:
Pennsylvania Board of Probation :
and Parole, :
Respondent :
ORDER
AND NOW, this 6th day of July, 2016, the order of the Pennsylvania
Board of Probation and Parole bearing a mailing date of December 8, 2015, is
affirmed.
________________________________
DAN PELLEGRINI, Senior Judge