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ANDRE DAVIS v. COMMONWEALTH PENNSYLVANIA (12/08/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 8, 1982.

ANDRE DAVIS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT

Original jurisdiction in the case of Andre Davis v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole.

COUNSEL

Timothy P. Wile, Assistant Public Defender, for petitioner.

Robert A. Greevy, Chief Counsel, with him Arthur R. Thomas, Assistant Chief Counsel, Jay C. Waldman, General Counsel, and LeRoy S. Zimmerman, Attorney General, for respondent.

Judges Rogers, Craig and MacPhail, sitting as a panel of three.

Author: Per Curiam

[ 70 Pa. Commw. Page 283]

Petitioner Andre Davis, reincarcerated as a parole violator convicted for a new offense while on parole, seeks review of the computation of his service of backtime on his original sentence, as made by the Pennsylvania Board of Probation and Parole in connection with the board's setting of a new reparole date.*fn1

[ 70 Pa. Commw. Page 284]

The petitioner's contention is that the board has subjected him to serving an eleven-month backtime period twice -- initially from May 1981 and then again from February 1982.

The precise question presented is: Where a parole violator, ultimately convicted for an offense committed while on parole, is not released on bail but remains in detention until trial, should the pre-trial detention time, even after the lodging of a board detainer, be counted toward backtime or attributed to the sentence for the new offense?

The definite answer to the question is that, in such circumstances, the pre-trial detention time is counted toward the new sentence, not toward backtime. We confirmed that interpretation in Campbell v. Pennsylvania Board of Probation and Parole, 48 Pa. Commonwealth Ct. 454, 409 A.2d 980 (1980), and Carter v. Rapone, 39 Pa. Commonwealth Ct. 160, 394 A.2d 1092 (1978), following Davis v. Cuyler, 38 Pa. Commonwealth Ct. 488, 394 A.2d 647 (1978), clarifying Mitchell v. Pennsylvania Board of Probation and Parole, 31 Pa. Commonwealth Ct. 243, 375 A.2d 902 (1977), on which the petitioner has relied.

Therefore, the trial judge was quite correct in applying the detention time to the sentence he imposed for the new offense, and the board was also correct when it revised its actions to be consistent with that result. The petitioner is actually seeking to have his pre-trial detention, after the lodging of a board detainer, count concurrently on both backtime and the new sentence and therefore has no basis for claiming a doubled application of the backtime. We made clear in Davis, Carter and Campbell that the absence of posting of bail -- although bail-posting in such circumstances is admittedly unlikely -- is nevertheless determinative in characterizing the nature of pre-detention custody.

[ 70 Pa. Commw. Page 285]

Order

Now, December 8, 1982, the actions of the Pennsylvania Board of Probation and Parole appealed from, up to and including the action of July 12, 1982, are hereby affirmed.

Disposition

Petition dismissed and Board action affirmed.


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