[J-42-2017]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
DEREK SMITH, : No. 82 MAP 2016
:
Appellee : Appeal from the Order of the
: Commonwealth Court dated February
: 23, 2016 at No. 1007 CD 2015 Vacating
v. : the Order of the Pennsylvania Board of
: Probation and Parole dated May 21,
: 2015 at No. 7679-0 and Remanding.
PENNSYLVANIA BOARD OF :
PROBATION AND PAROLE, : ARGUED: May 10, 2017
:
Appellant :
OPINION
JUSTICE DOUGHERTY DECIDED: October 18, 2017
We consider whether the Commonwealth Court erred when it vacated the
decision of the Pennsylvania Board of Probation and Parole (the Board) regarding the
allocation of pre-sentence confinement credit to which appellee Derek Smith is entitled.
We hold the Commonwealth Court erred, and we therefore remand for recalculation of
appellee’s maximum release date.
On November 4, 1998, appellee was found guilty of robbery1 and sentenced to
ten to twenty years’ imprisonment; his minimum release date was December 31, 2010,
and maximum release date was December 31, 2020. He was released on parole on
1
18 Pa.C.S. §3701(a).
October 27, 2011. On January 27, 2013, while on parole, appellee was arrested in
North Carolina for multiple jewelry store robberies; the record indicates appellee did not
post bail and thus remained in custody. Board’s Crim. Arrest & Disposition Rpt., 8/5/13,
Certified Record (C.R.) at 14; Board’s Ltr. to Appellee, 4/17/15, at 1, C.R. at 100 (“There
is no indication that you posted bail from [your federal] charges and you do not claim
that you posted bail.”). The following day, the Board, which had received notice of the
arrest, lodged a detainer against appellee. See 61 Pa.C.S. §6138(c)(1) (parolee under
Board’s jurisdiction who commits technical violation of parole may be detained pending
hearing before Board). On April 23, 2013, federal authorities indicted appellee in North
Carolina on charges arising from the jewelry store robberies.2 On May 2, 2013, he was
detained by federal authorities and subsequently, while still on the federal detainer,
transferred to the Columbia County Prison in Pennsylvania. The Board issued a notice
of charges, citing appellee’s arrest for the federal crimes and his leaving the district
without permission, and appellee waived his right to a parole revocation hearing and
admitted only that he committed a technical violation by leaving the district without
permission. On November 27, 2013, the Board recommitted appellee as a technical
violator, imposed six months’ imprisonment for the violation, and reparoled him
immediately, subject to his federal detainer and pending the disposition of his
outstanding federal charges.
Meanwhile, appellee agreed to the transfer of his federal case from the United
2
Appellee was indicted in the United States District Court for the Eastern District of
North Carolina under his alias, Rodger Kent Williams. The charges were: possession of
a firearm by a convicted felon, 18 U.S.C. §922(g); use of a firearm during a crime of
violence, 18 U.S.C. §924(c)(1)(A); and interference with commerce by threat, violence
or robbery, 18 U.S.C. §1951.
[J-42-2017] - 2
States District Court for the Eastern District of North Carolina to the Middle District of
Pennsylvania, and on December 10, 2013, he pleaded guilty to those federal charges.
The federal court imposed an aggregate term of 246 months’ imprisonment on June 3,
2014. On September 10, 2014, appellee was transferred to SCI Rockview to serve the
remainder of his state sentence with the same maximum release date as when he was
initially sentenced, December 31, 2020, before being transferred to the federal prison
system.3
The Board issued a second notice of charges, and appellee again waived his
right to a revocation of parole hearing, this time admitting he committed the new federal
criminal offenses. On December 12, 2014, the Board: reversed the portion of its
November 27, 2013 decision reparoling appellee (after imposing its six month sentence
for the technical violation); recommitted him as a convicted parole violator; and ordered
him to serve 48 months’ back time consecutively to the previously-imposed six months’
term for the technical violation.4 The Board also calculated appellee’s new maximum
date as May 7, 2023, thus declining to credit his original state sentence with any time he
was confined on the Board’s detainer following his North Carolina arrest.
Appellee filed two pro se administrative appeals, arguing, inter alia, the Board
3
Although the Board’s November 27, 2013 notice imposed six months’ imprisonment on
appellee for a technical violation, it apparently did not include this six-month term in
stating his maximum date was December 31, 2020. See Notice of Board Decision,
11/27/13, C.R. at 58.
4
The Board erroneously calculated the sum of 6 months and 48 months to be 56
months, instead of 54 months. Notice of Board Decision, 12/12/14, C.R. at 88.
[J-42-2017] - 3
should have awarded him credit on his state sentence for all the time he was detained.5
The Board denied relief, explaining it awarded 93 days’ credit for the period he was held
solely on its detainer (January 29 to May 2, 2013), but it did not award credit for the 397
days he was held on both its detainer and the federal detainer (May 2, 2013 to June 3,
2014), because that time must be applied to his federal sentence. 6 In doing so, the
Board expressly relied on Gaito v. Pa. Bd. of Prob. & Parole, 412 A.2d 568 (Pa. 1980).7
Appellee filed a counseled petition for administrative review, again arguing the
Board improperly failed to credit him all the time to which he was entitled on his state
sentence. The Board denied relief via letter decision, again maintaining it properly
declined to apply credit toward his original state sentence pursuant to Gaito.
5
Appellee did not, in this petition or either of his two subsequent petitions to the Board,
suggest any particular number of days’ credit to which he was purportedly entitled, nor
the maximum release date he should have been granted.
6
Neither the panel below nor the parties acknowledged the Board reparoled appellee
on November 27, 2013, and thus, as of that date, he was detained only on the federal
detainer. We calculate the actual time appellee was detained on both the Board and
federal detainers as 209 days (May 2, 2013, when the federal authorities lodged its
detainer, through November 27, 2013, when the Board reparoled appellee) rather than
397 days. We note this discrepancy does not affect our analysis or ultimate holding that
the time appellee spent on both detainers must be credited to his federal sentence, as
both terms — 209 and 397 days — are shorter than appellee’s federal sentence of 246
months’ imprisonment. See Martin v. Pa. Bd. of Prob. & Parole, 840 A.2d 299, 309 (Pa.
2003) (when offender is incarcerated both on Board detainer and for new charges and
receives new sentence of imprisonment that is shorter than term of pre-sentence
incarceration, credit shall apply to original sentence).
7
As discussed in more detail infra, this Court held in Gaito that if a parolee is detained
both on a detainer by the Pennsylvania Board of Probation and Parole and for new
charges for which he did not satisfy bail requirements, the time spent in custody is to be
credited to the sentence imposed for the new charges, but if the parolee met bail
requirements for the new charges and was thus detained solely on the Board’s detainer,
time in custody is to be credited against the original sentence. Gaito, 412 A.2d at 571.
[J-42-2017] - 4
Appellee filed a timely petition for review with the Commonwealth Court, arguing
the Board erred in not awarding him credit on his state sentence for all the time he was
held on both the Board’s detainer and the federal detainer. In support, appellee relied
on Baasit v. Pa. Bd. of Prob. & Parole, 90 A.3d 74 (Pa. Cmwlth. 2014), for the
proposition that, under the primary jurisdiction doctrine, if Pennsylvania is the sovereign
that arrests a defendant first, the Board must apply pre-sentence confinement credit to
his original state sentence. See id. at 83, citing Newsuan v. Pa. Dept. of Corrections,
853 A.2d 409, 412 (Pa. Cmwlth. 2004).8 Appellee also argued the Prisons and Parole
Code previously required a convicted parole violator to serve a new federal sentence
before state parole back time, see 61 Pa.C.S. §6138(a)(5)(i)-(iii), amended by Act 2010-
95 (S.B. 1161), P.L. 931, § 20, but current Section 6138(a)(5.1) reverses the order and
requires the original state sentence be served first, before the federal sentence. 9
Appellee construed this more recent enactment as legislative intent to address “[t]he
concern that other sovereigns have used Pennsylvania prisons and ... tax dollars to
satisfy their sentences.” Appellee’s Cmwlth. Ct. Brief at 10-11. Appellee claimed the
Board therefore erred in relying on Gaito for its application of the time he was
incarcerated on both detainers to his federal sentence.
8
In Newsuan, the Commonwealth Court noted that when a federal court and state court
each have jurisdiction over a defendant, the doctrine of primary jurisdiction allows the
tribunal which first obtained jurisdiction to hold him to the other’s exclusion until its
jurisdiction is exhausted, e.g. by bail release, dismissal of charges, parole release, or
expiration of sentence. Newsuan, 853 A.2d at 411.
9
Section 6138(a)(5.1) provides: “If the parolee is sentenced to serve a new term of total
confinement by a Federal court or by a court of another jurisdiction because of a verdict
or plea …, the parolee shall serve the balance of the original term before serving the
new term.” 61 Pa.C.S. §6138(a)(5.1).
[J-42-2017] - 5
The Board denied it was required to award appellee credit on his state sentence
for the time he was held on both detainers simply because Pennsylvania was the first to
arrest him. It also averred Baasit incorrectly interpreted Section 6138(a)(5.1) as
affecting allocation of pre-sentence credit, and claimed instead that provision merely
changed the order of sentences for a convicted parole violator who received a new
federal or out-of-state sentence. The Board asserted the Commonwealth Court itself
recognized this principle in Armbruster v. Pa. Bd. of Prob. & Parole, 919 A.2d 348 (Pa.
Cmwlth. 2007).10 The Board maintained Gaito remains controlling precedent and the
lone exception to Gaito was set forth in Martin, which allowed credit to be applied to a
parolee’s original sentence only if it were not possible to award all credit toward his new
sentence because the new sentence was shorter than the period of pre-sentence
confinement. The Board contended appellee’s case is distinguishable from Martin, and
thus under Gaito, it properly denied the credit on appellee’s state sentence because
appellee was not detained solely on the Board’s detainer but also on a federal detainer.
In a published opinion, a unanimous panel of the Commonwealth Court rejected
the Board’s arguments and vacated its order. Smith v. Pa. Bd. of Prob. & Parole, 133
A.3d 820 (Pa. Cmwlth. 2016). The panel extensively cited Baasit, including its
statements that: Gaito’s bright line rule regarding how to allocate credit for time held on
10
In Armbruster, the convicted parole violator was denied pre-sentence credit for time
he was confined on both new criminal charges and a Board detainer for violation of
parole. Armbruster, 919 A.2d at 350. On appeal from the Board’s denial of credit
toward the original sentence, the Commonwealth Court affirmed, holding Martin
permitted credit for an original sentence only when the length of pre-sentence
confinement exceeded the maximum term of a new sentence, such that if the credit
were applied to the new sentence, the parolee would thus serve excess time. Id. at
355.
[J-42-2017] - 6
detainers no longer applied because Martin afforded the Board discretion to fashion
equitable awards of credit; pre-sentence confinement credit should be applied in
accordance with Section 6138(a)(5.1); and the doctrine of primary jurisdiction compelled
that credit should be applied to appellee’s original sentence. Id. at 823. The panel
specifically rejected the Board’s contention Section 6138(a)(5.1) does not affect how
pre-sentence credit should be applied. Id. at 824. The panel thus vacated the Board’s
decision and remanded for it to apply the credit at issue toward appellee’s original state
sentence. Id. at 825.11
The Board filed a timely petition for allowance of appeal, and we granted review
to determine whether the Commonwealth Court’s decision conflicts with our decision in
Gaito. Smith v. Pa. Bd. of Prob. & Parole, 143 A.3d 891 (Pa. 2016). The Board
maintains “[a]lthough there are hundreds of Commonwealth Court decisions addressing
various fact patterns,” the “straightforward credit allocation rule” of Gaito remains the
cornerstone for awarding credit, as the Commonwealth Court recognized in Armbruster.
Board’s Brief at 11, 13. The Board reiterates the only exception to the rule announced
in Gaito is found in Martin, which effectively eliminated what was colloquially referred to
as “dead time” — pre-sentence confinement that could not be credited to any sentence
— by recognizing a convicted parole violator is entitled to credit on his original sentence
11
The panel did not address Armbruster, on which the Board had relied. The panel
below also did not acknowledge appellee had advanced an additional argument, that
Baasit also held a “double credit problem” — in which a parolee who receives credit
toward his original sentence seeks the same credit against his new sentence — would
not arise where the new sentence is a federal one because federal statute 18 U.S.C.
§3585(b) precludes credit for a federal sentence for any time already credited toward an
original state sentence. See Baasit, 90 A.3d at 83, citing 18 U.S.C. §3585(b)(1)
(defendant shall be given sentencing credit for any time spent in official detention prior
to date sentence commences that has not been credited against another sentence).
[J-42-2017] - 7
if the period of presentence detention exceeds the maximum term of his new sentence;
the Board notes that situation is not present here. The Board also asserts Section
6138(a)(5.1) does not govern how confinement credit should be applied, but instead
simply dictates the order in which a convicted parole violator’s original sentence and
new sentence must be served. The Board reasons regardless of which sentence must
be served first, presentence confinement credit has always been governed by Gaito and
Martin, and those decisions directed its denial of credit toward appellee’s original state
sentence. Finally, the Board claims the primary jurisdiction doctrine does not apply, as
that doctrine addresses jurisdictional disputes between sovereigns, and here, there was
no such dispute because appellee was not detained by the Commonwealth until after he
was sentenced on his new federal charges.
Appellee responds Gaito was undermined by Martin, and in any event, Gaito
does not apply here. Appellee avers in the past, the Board “misused” Gaito in order to
create “dead time” when a parolee’s new charges did not result in incarceration.
Appellee’s Brief at 5-6. Appellee further asserts Gaito is “factually inapplicable,”
claiming that credit for pre-sentence confinement should properly be allocated to the
sentence a parolee is statutorily required to serve first. Id. at 6. He maintains at the
time Gaito was decided, a convicted parole violator was required to serve a new federal
sentence before state parole back time, but the current Section 6138(a)(5.1) reversed
this order and requires state parole back time to be served first. Appellee further
alleges Section 6138(a)(5.1) was enacted as a part of legislative reforms to reduce the
Pennsylvania prison population, and thus claims the “legislature intended it is not cost
effective” to keep offenders in Pennsylvania longer than necessary. Id. at 12-13, citing
[J-42-2017] - 8
Stewart Greenleaf, Prison Reform in the Pennsylvania Legislature, 160 U.PA.L.REV.
PENNUMBRA 179, 180 (2011) (Pennsylvania’s inmate population has soared and could
grow 24% over next five years). Appellee also notes the risk of “double crediting” is not
present in this case, as any credit for a federal sentence is determined under strict
federal statutory provisions that preclude credit toward a new federal sentence for any
time credited toward an original state sentence. Appellee’s Brief at 8, citing Baasit, 90
A.3d at 83 (citing 18 U.S.C. §3585(b)). Finally, appellee again relies on the statement in
Baasit the doctrine of primary jurisdiction requires credit for pre-sentence confinement
must be allocated to an original sentence, not a new sentence.
We note this appeal involves questions of law over which our scope of review is
plenary and our standard of review is de novo. Pittman v. Pa. Bd. of Prob. & Parole,
159 A.3d 446, 473 (Pa. 2017). We further note the Commonwealth Court was charged
with affirming the Board’s adjudication, unless that adjudication violated appellee’s
constitutional rights, or was “not in accordance with law, or that the provisions of
Subchapter A of Chapter 5 (relating to practice and procedure of Commonwealth
agencies) have been violated in the proceedings before the agency, or that any finding
of fact made by the agency and necessary to support its adjudication is not supported
by substantial evidence.” See 2 Pa.C.S. §704. See also Goods v. Pa. Bd. of Prob. &
Parole, 912 A.2d 226, 231 (Pa. 2006).
We review the precedential landscape relevant to this appeal, beginning with our
1980 decision in Gaito. Gaito, who was on parole, was arrested and detained for
violations of the Uniform Firearms Act (VUFA charges), as well as a separate Board
detainer for the parole violations arising out of the VUFA charges, for almost nine
[J-42-2017] - 9
months. Gaito, 412 A.2d at 569. Gaito was found guilty of the VUFA charges and
received a new sentence of two to five years’ imprisonment. Id. The Board
recommitted him and credited the time he spent in custody between his VUFA arrest
and his VUFA sentencing to his original sentence. See id. Gaito filed a petition for
review in the Commonwealth Court, seeking to apply the credit against his VUFA
sentence instead. Id. at 569, 571. The Commonwealth Court denied relief, relying on
Mitchell v. Pa. Bd. of Prob. & Parole, 375 A.2d 902 (Pa. Cmwlth. 1977), which held that
when a parolee was incarcerated for new charges and subject to a new Board detainer
for a parole violation, credit for the confinement must be applied to the parolee’s original
sentence. Gaito, 412 A.2d at 571. By the time Gaito’s appeal was before this Court,
the Commonwealth Court had modified Mitchell in Rodriques v. Pa. Bd. of Prob. &
Parole, 403 A.2d 184 (Pa. Cmwlth. 1979). We expressly adopted the rationale in
Rodriques and held:
[I]f a defendant is being held in custody solely because of a detainer
lodged by the Board and has otherwise met the requirements for bail on
the new criminal charges, the time which he spent in custody shall be
credited against his original sentence. If a defendant, however, remains
incarcerated prior to trial because he has failed to satisfy bail requirements
on the new criminal charges, then the time spent in custody shall be
credited to his new sentence. 6
_________________________
6
It is clear, of course, that if a parolee is not convicted, or if no new
sentence is imposed for that conviction on the new charge, the pre-trial
custody time must be applied to the parolee’s original sentence.
Gaito, 412 A.2d at 571 & n.6. Applying this new rationale, we remanded to the
Commonwealth Court to determine, as it was not apparent from the existing record,
whether Gaito had satisfied the bail requirements on the new charges. Id. at 571.
Twenty-three years later, in Martin, this Court considered Gaito and particularly
[J-42-2017] - 10
the proposed exception at footnote 6 in a case in which the length of pre-trial
confinement exceeded the sentence imposed for the new crimes. Martin, 840 A.2d at
301; see Gaito, 412 A.2d at 571 n.6 (“[I]f a parolee is not convicted, or if no new
sentence is imposed for that conviction on the new charge, the pre-trial custody time
must be applied to the parolee’s original sentence.”). Martin — who had been paroled
after serving part of his sentence for robbery — was arrested and charged with two
counts of driving under the influence (DUI); on the same day, the Board lodged a
detainer against him. Martin, 840 A.2d at 300. Martin was unable to post bail for the
DUI charges and remained incarcerated for more than thirteen months before he was
convicted of the DUI charges and sentenced to 48 hours’ time served and one year of
probation. Id. Subsequently, the Board revoked parole on his original sentence, and
Martin requested credit on his original sentence for the excess time he served on the
Board’s detainer that could not be applied to his new 48-hour sentence. Id. at 301. The
Board denied the request. Id. A divided Commonwealth Court panel affirmed, relying
on Commonwealth Court cases that strictly applied Gaito, strictly interpreted footnote 6
of Gaito, and held credit could be applied toward an original sentence only if the parolee
was not convicted of, or if no “sentence” was imposed on, the new charges. 12 Id., citing
Berry v. Pa. Bd. of Prob. & Parole, 756 A.2d 135, 138 (Pa. Cmwlth. 2000) (declining to
extend Gaito exception to allow credit toward original sentence when parolee’s new
sentence was shorter than time he was incarcerated on detainer for parole violations).
On appeal, the Martin Court recognized 42 Pa.C.S. §9760 requires a court to
12
Judge Smith-Ribner dissented, reasoning Martin should receive credit on his original
sentence for the excess time spent in custody. Martin, 840 A.2d at 301.
[J-42-2017] - 11
give credit to sentencing for new charges,13 but the General Assembly had not set forth
criteria for applying credit with respect to a parolee who commits a crime while on
parole. Martin, 840 A.2d at 303. Nevertheless, although the Gaito Court did not
address or even cite Section 9760, the Martin Court stated Gaito essentially construed
Section 9760 to mandate credit for all incarceration served before a defendant is
sentenced. Id. at 304. The Martin Court then stated footnote 6 in Gaito “attempted to
impart the principle that credit should be applied equitably” when there is no new period
of incarceration, but Gaito employed the broader word “sentence,” which was
statutorily defined to include probation, a determination of guilt without further penalty,
partial confinement, a fine, and intermediate punishment. Id. at 305, citing 42 Pa.C.S.
§9721 (Sentencing Code definition of “sentence”). The Martin Court observed Gaito’s
use of the word “sentence” thus inadvertently directed the Board and Commonwealth
Court to apply footnote 6 “strictly, rather than equitably,” such that credit was only given
for an original sentence when a parolee was acquitted or the charges against him were
nolle prossed. Id. at 305.14 The Martin Court specifically stated:
It is now the opinion of this Court that the Board should not have been
divested of its ability to make a determination concerning credit for time
served for pre-sentence detention in instances where confinement is a
result of both the detainer for a parole violation and the failure to meet
13
Section 9760 provides credit shall be given against a sentence for all time a
defendant spent in custody as result of criminal charges. 42 Pa.C.S. §9760(1)-(4).
14
Citing McCoy v. Pa. Bd. of Prob. & Parole, 793 A.2d 1004 (Pa. Cmwlth. 2002) (denial
of credit toward original sentence for convicted parole violator who received new
sentence of fine only); Gallagher v. Pa. Bd. of Prob. & Parole, 804 A.2d 729 (Pa.
Cmwlth. 2002) (denial of credit toward original sentence for convicted parole violator
who received new sentence of probation); Smarr v. Pa. Bd. of Prob. & Parole, 748 A.2d
799 (Pa. Cmwlth. 2000) (denial of credit toward original sentence for convicted parole
violator who received new sentence of probation).
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conditions of bail on the new offense. ... Unique combinations of
circumstances will be presented in different cases that tip the balance for
or against the particular allocation of credit. Decision making in this
context is, thus, particularly suited to a discretionary framework with
guidelines to ensure equitable treatment.
Martin, 840 A.2d at 308. The Court thus held,
[W]here an offender is incarcerated on both a Board detainer and new
criminal charges, all time spent in confinement must be credited to either
the new sentence or the original sentence. We further hold that the
indigency of a detainee in failing to satisfy the requirements for bail is not
determinative as to whether the offender receives credit for time served.
Id. at 309 (footnote omitted).
The Commonwealth Court subsequently attempted to extend Martin in Melhorn
v. Pa. Bd. of Prob. & Parole, 883 A.2d 1123 (Pa. Cmwlth. 2005), in which the parolee
Melhorn’s new sentence was longer than the time he was detained on both a Board
detainer for violations of parole on his original sentence and on new charges, for which
he did not meet bail requirements. Melhorn, 883 A.2d at 1129-30. Neither the
sentencing court nor the Board gave Melhorn any credit at all for the time detained. Id.
at 1126. On appeal, the Commonwealth Court considered Martin’s requirement that
“where an offender is incarcerated on both a Board detainer and new criminal charges,
all time spent in confinement must be credited to either the new sentence or the
original sentence,” and accordingly directed the Board to credit the detention time
toward the parolee’s original sentence. Id. at 1129 (emphasis in original), citing Martin,
840 A.2d at 309. This Court, however, reversed without discussion in a per curiam
order citing Gaito and McCray v. Pa. Dep’t of Corrections, 872 A.2d 1127 (Pa. 2005). 15
15
In McCray, this Court held a challenge to the denial of credit on a sentence for new
criminal offenses must be presented to the sentencing court or in an appeal to the
(continued…)
[J-42-2017] - 13
Melhorn v. Pa. Bd. of Prob. & Parole, 908 A.2d 266 (Pa. 2006).
In 2007, the Commonwealth Court decided Armbruster, in which the parolee
Armbruster was detained on new charges for which he did not post bail, as well as a
Board detainer arising out of the parole violations, for 250 days. Armbruster, 919 A.2d
at 350. He was convicted of the new criminal charges and received a sentence of eight
to 24 months’ imprisonment, in which the sentencing court did not indicate he was to
receive credit for the confinement. Id. Subsequently, the Board recommitted
Armbruster, denying credit for the 250 days toward his original sentence. Id. at 352.
On appeal to the Commonwealth Court, he argued he was entitled to the credit on his
original sentence because no credit was given to his new sentence. Id. The
Commonwealth Court panel reviewed Gaito and Martin and observed the
Commonwealth Court has “applied the Martin rule whenever the parolee’s new
sentence was less than the time spent in custody awaiting trial on the new charges.”
Id. at 354 (emphasis in original). The panel then considered the facts and holding in
Melhorn and concluded,
Martin is limited to the allocation of excess pre-sentence confinement
credit. In other words, where a parole violator is confined on both the
Board’s warrant and the new criminal charges and 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,
the credit must be applied to the offender’s original sentence.
(…continued)
Superior Court, and is not to be resolved by the Board. McCray v. Pa. Dep’t of Corr.,
872 A.2d 1127, 1133 (Pa. 2005); see also Martin, 840 A.2d at 303 (emphasizing
distinction between “sentence,” which is imposed by trial court following conviction in
new criminal prosecution and “back time,” which is part of existing judicially-imposed
sentence that Board directs parolee to complete following finding in civil administrative
hearing he violated terms of parole).
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Armbruster, 919 A.2d at 355 (emphasis in original).
Notably, when the above cases were decided, Section 6138(a)(5) of the Prisons
& Parole Code was in effect, although none of the cases mentioned or referred to it. At
that time, the sub-section provided:
(5) If a new sentence is imposed on the parolee, the service of the
balance of the term originally imposed shall precede the commencement
of the new term imposed in the following cases:
(i) If a person is paroled from a State correctional institution and the
new sentence imposed on the person is to be served in the State
correctional institution.
(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)(i)-(iii). Thus, pursuant to sub-section (5)(iii), when a convicted
parole violator received a new federal sentence, he was to serve it first before
commencing the back time on his original state sentence.
However, in 2010, the legislature added Section (a)(5.1), which requires a
parolee to serve back time first, before a new federal sentence:
(5.1) If the parolee is sentenced to serve a new term of total
confinement by a Federal court or by a court of another jurisdiction
because of a verdict or plea …, the parolee shall serve the balance of the
original term before serving the new term.
See 61 Pa.C.S. §6138(a)(5.1). 16 In this new statutory context, the Commonwealth
16
The 2010 amendment also added the phrase “by a Pennsylvania court” to subsection
(a)(5) as follows: “the service of the balance of the term originally imposed by a
Pennsylvania court shall precede ….” 61 Pa.C.S. §6138(a)(5), amended by Act 2010-
95 (S.B. 1161), P.L. 931, §20, approved Oct. 27, 2010.
[J-42-2017] - 15
Court decided Baasit, on which the panel below relied. Baasit was on parole when he
was detained both on a Board detainer arising out of parole violations and for new
federal drug charges. Baasit, 90 A.3d at 75. He pleaded guilty to the federal charges
and was sentenced to 48 months’ federal custody, to be served consecutively to any
sentence he was already serving. Id. The Board recommitted him and, citing Gaito, did
not give credit toward his original sentence because he was not incarcerated solely on
its detainer. Id. at 76. On appeal, the Commonwealth Court noted federal statute 18
U.S.C. §3585 provides a defendant shall be given credit for any time spent in detention
prior to sentencing, so long as credit for the same period of confinement had not been
given to any other sentence. The panel thus reasoned Baasit would be entitled to credit
on his federal sentence for the time he spent in pre-sentence confinement, and
furthermore, there was “no possibility” he would receive “double credit” for his pre-
sentence confinement. Baasit, 90 A.3d at 80, 83. The panel also emphasized the
statement in Martin, which it characterized as a departure from Gaito, that unique
circumstances provide the Board discretion to grant credit “to ensure equitable
treatment.” Id. at 81-82. The panel then stated the Board failed to adequately address
Section 6138(a)(5.1), which the panel determined required confinement credit be
allocated to Baasit’s original sentence. Id. at 83. Finally, the panel stated this
conclusion was supported by the primary jurisdiction doctrine, which provides the
sovereign which first arrested a defendant is afforded primary jurisdiction. Id.
In the case sub judice, the panel below, similar to the Baasit court, extracted the
statement in Martin that the Board may allocate time spent in custody on both a Board
detainer and detainer for new charges “to ensure equitable credit” without also
[J-42-2017] - 16
acknowledging Martin’s extensive explanation that a strict application of Gaito to the
parolee in that case — whose new sentence was longer than his pre-sentence
confinement — would unfairly result in excess imprisonment. See Martin, 840 A.2d at
308-09. While Martin broadly interpreted the word “sentence” in footnote 6 of Gaito,
neither Martin nor any other decision by this Court, contrary to the panel’s claim,
imparted any indication Gaito’s general rule was to be relaxed or overruled. See id. at
305. Indeed, in our per curiam order in Melhorn, we expressly relied on Gaito to
reverse the Commonwealth Court’s attempt to extend Martin where the parolee’s pre-
sentence confinement was shorter than his new term of imprisonment. Melhorn, 908
A.2d 266. Although the Commonwealth Court discussed and applied these principles in
Armbruster, the panel below overlooked that case. Additionally, although the panel
below also emphasized Martin’s recognition that “[u]nique combinations of
circumstances will be presented in different cases that tip the balance for or against the
particular allocation of credit,” the panel did not aver any such unique circumstances
exist in this case that warrant treatment different from that directed in Gaito. See Smith,
133 A.3d at 823 at n.6, quoting Baasit, 90 A.3d at 81-82 (quoting Martin, 840 A.2d at
308). Notwithstanding the panel’s alternate reading, Gaito remains the general law in
this Commonwealth respecting how credit should be allocated for a convicted parole
violator who receives a new sentence of incarceration, and the exception to Gaito, set
forth at footnote 6 and further developed in Martin, is limited to cases in which a
convicted parole violator receives a term of incarceration for new charges that is shorter
than his pre-sentence confinement, such that application of the general Gaito rule would
result in excess incarceration.
[J-42-2017] - 17
We also reject the panel’s interpretation of Section 6138(a)(5.1) as requiring
credit to be applied to a convicted parole violator’s original sentence. As stated above,
Section 6138(a)(5.1) provides, “If the parolee is sentenced to serve a new term of total
confinement by a Federal court or by a court of another jurisdiction because of a verdict
or plea … the parolee shall serve the balance of the original term before serving the
new term.” 61 Pa.C.S. §6138(a)(5.1). The plain language of this sub-section provides
only that a convicted parole violator shall serve the balance of his original state
sentence before serving a new sentence imposed by a federal court or court of other
jurisdiction. The Board correctly points out the predecessor provision, Section
6138(a)(5) — which remains in effect for cases in which the new sentence is also a
Commonwealth sentence — was not applied in Gaito or any of its progeny as pertinent
to the question of how credit should be applied. In fact, the panel’s interpretation of
Section 6138(a)(5.1) supplies additional language that is simply not present in the
provision, and interprets it as dictating how credit for detention should be allocated
17
when a parolee receives multiple sentences. This was error. See, e.g.,
Commonwealth v. Gehris, 54 A.3d 862, 864-65 (Pa. 2012) (“[I]t is not for the courts to
add, by interpretation, to a statute, a requirement which the legislature did not see fit to
include.”); Commonwealth v. Shiffler, 879 A.2d 185, 189 (Pa. 2005) (best indication of
legislative intent is plain language of statute). Accordingly, we agree with the Board that
17
Section 6138 includes two references to credit: Section 6138(a)(2), which provides a
parolee recommitted by the Board shall not be given credit for the time spent at liberty
on parole; and Section 6138(a)(2.1), which states the Board may, in its discretion,
award credit for time spent at liberty on parole, barring express circumstances. 61
Pa.C.S. §6138(a)(2), (2.1). Neither of these provisions pertains to credit for
incarceration on a Board detainer.
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the Baasit court improperly interpreted Section 6138(a)(5.1), and hold Gaito and Martin
remain the rule in this Commonwealth for how credit is applied.18 In other words, the
Board may require a convicted parole violator to serve his original sentence first while at
the same time denying allocation of credit to that sentence and still be in compliance
with both Section 6138(a)(5.1) and Gaito.
Finally, we disagree with the panel that the primary jurisdiction doctrine requires
confinement credit be allocated to the sentence of the jurisdiction which first arrests a
defendant. The panel again relied on Baasit for this conclusion. In Baasit, the
Commonwealth Court adopted the parolee’s argument that “under the doctrine of
primary jurisdiction, pre-sentence confinement credit must be applied to state parole
back time rather than the new federal sentence because the state parole detainer pre-
dated the federal charges,” without providing any supporting explanation. Baasit, 90
A.3d at 77-78. The court’s full discussion of the primary jurisdiction doctrine spanned
two sentences:
Our conclusion that credit here should be awarded according to new
[61 Pa.C.S. §6138(a)(5.1) is also supported by the primary jurisdiction
doctrine. Under that doctrine the sovereign which first arrests a defendant
18
We recognize the force of Chief Justice Saylor’s position this Court should reconsider
the appropriateness of per se rules as justice requires, see Dissenting Opinion, Saylor,
C.J., slip op. at 2, citing Commonwealth v. Henderson, 47 A.3d 797, 803 (Pa. 2012).
However, appellee has not presented any argument, either below or before this Court,
that he or any other defendant similarly situated would suffer any particular injustice if
sentencing credit were applied to a federal sentence rather than an original state
sentence. Instead, appellee advances a fiscal policy argument — one that he arguably
does not have standing to raise in the first instance — based on the escalating financial
burden on the Commonwealth due to rising state prison populations. Of course we are
not unaware of these very real concerns, but we are equally cognizant that the General
Assembly is in the superior position to consider these ramifications of the present
legislative context.
[J-42-2017] - 19
is afforded primary jurisdiction. See Newsuan[,853 A.2d at 411.] Our
conclusion is also consistent with the Supreme Court’s more flexible
approach to credit, as set forth in Martin.
Baasit, 90 A.3d at 83. In citing Newsuan for the general provisions of the primary
jurisdiction doctrine, however, the Baasit panel overlooked Newsuan’s discussion of
when the primary jurisdiction doctrine is properly invoked:
The doctrine of primary jurisdiction is a means for resolving
jurisdictional disputes between the sovereigns. ... Thus, when a federal
court and state court each have jurisdiction of a defendant, the doctrine of
primary jurisdiction allows the tribunal which first obtained jurisdiction to
hold it to the exclusion of the other until the first tribunal’s jurisdiction is
exhausted.
When a state has primary jurisdiction ... primary jurisdiction over a
defendant ends and federal custody over him commences only when the
state authorities relinquish him on satisfaction or extinguishment of the
state obligation. The federal sentence does not commence until the
defendant is received into custody at the official detention facility at which
the sentence is to be served. 18 U.S.C. § 3585(a); U.S. v. Pungitore, 910
F.2d 1084, 1118-19 (3d Cir. 1990), cert. denied, 500 U.S. 915 … (1991)
(“a federal sentence does not begin to run until the defendant is delivered
to the place where the sentence is to be served”).
The doctrine of primary jurisdiction can be problematic when the
defendant receives a state sentence that is to be served concurrently with
an existing federal sentence.
Newsuan, 853 A.2d at 411 (emphasis added) (some citations omitted).
The doctrine of primary jurisdiction simply relates to the question of which
sovereign exercises jurisdiction first over a defendant; it does not govern how credit
should be allocated when two or more sovereigns impose sentences. See id. The
concern in Newsuan is not implicated here. Appellee was not ordered to serve his
original and federal sentences concurrently, and there was no dispute as to when the
federal authorities would release appellee to serve his state sentence — the panel
specifically noted appellee was transferred to SCI Rockview on September 10, 2014, to
[J-42-2017] - 20
commence his back time on the original state sentence before being returned to federal
authorities to serve his new federal sentence. Smith, 133 A.3d at 821. Therefore, the
panel erred in invoking the primary jurisdiction doctrine to apply the sentencing credit to
appellee’s original sentence.19
Here, appellee was detained on both the Board’s and federal detainers — where
he did not satisfy bail for the federal charges — for 209 days, and then received a new
federal sentence of 246 months, or approximately 7,480 days. The federal sentence
obviously is longer, and thus the general holding of Gaito applies to this case, not the
exception that was set forth at footnote 6 and expanded in Martin. Accordingly, we hold
the panel erred in extending Martin to hold the Board had discretion to apply credit for
the detention to appellee’s original sentence, and the panel’s decision in this regard
contravened Gaito. We further hold the Board properly denied credit under Gaito, and
thus reverse the decision of the Commonwealth Court and remand for a correct
19
As it is clear Baasit improperly interpreted Martin, Section 6138(a)(5.1), and the
primary jurisdiction doctrine as eroding or eliminating the rule in Gaito, we now
expressly disapprove of Baasit.
We also reject appellee’s “double credit” argument — that if he were to receive
credit for the confinement period toward his original state sentence, there would be no
risk he would receive the same credit for his federal sentence because 18 U.S.C.
§3585(b) would not allow such “double credit.” Although it is true the federal statute
does not generally allow credit for federal pre-sentence confinement when the same
time confinement has already been credited toward another sentence, see 18 USCS §
3585(b)(1)-(2) (defendant shall be given credit, toward term of imprisonment for any
time he spent in official detention prior to date sentence commences, that has not been
credited against another sentence), this circumstance does not warrant a different result
here. The fact that appellee would be denied federal credit if he now received credit for
his original state sentence is not in itself a persuasive basis for granting state credit.
[J-42-2017] - 21
calculation of appellee’s maximum release date.20
Order reversed. Case remanded for proceedings consistent with this opinion.
Jurisdiction relinquished.
Justices Baer, Donohue, Wecht and Mundy join the opinion.
Chief Justice Saylor files a dissenting opinion.
Justice Todd files a dissenting opinion.
20
See also n.4, n.6, supra.
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