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ROBERT P. DEVAULT v. COMMONWEALTH PENNSYLVANIA (12/02/87)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 2, 1987.

ROBERT P. DEVAULT, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT

Appeal from the Order of the Pennsylvania Board of Probation and Parole in the case of Robert P. DeVault, Parole No. 3486-J.

COUNSEL

Henry B. Furio, Assistant Public Defender, for petitioner.

Arthur R. Thomas, Assistant Chief Counsel, with him, Robert A. Greevy, Chief Counsel, for respondent.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 111 Pa. Commw. Page 413]

Robert DeVault (petitioner) petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) which granted in part his request for administrative relief. In granting the petitioner's request, the Board deleted any reference to technical violations for which the petitioner was also recommitted as a convicted parole violator.

The petitioner, while on parole, was arrested for receiving stolen property and for violating the Uniform Firearms Act. He was thereafter convicted in the Fayette County Court of Common Pleas and sentenced to serve two to five years. On July 30, 1980, the Board recommitted him to serve eighteen months backtime as a convicted parole violator for the above-mentioned convictions and twelve months as a technical parole violator for possessing a weapon.*fn1 On January 18, 1983 he was

[ 111 Pa. Commw. Page 414]

    paroled from his original sentence to begin serving his new sentence of two to five years. On March 23, 1984 and December 10, 1984, he was refused parole on the new sentence, and on December 13, 1984 he was recommitted as a technical parole violator to serve six months backtime for failure to abide by the rules and regulations of the institution in which he was incarcerated. On May 5, 1986, the Board ordered that the petitioner be reparoled on May 20, 1986. In August 1986, he was again recommitted for nine months as a multiple technical parole violator. The petitioner requested administrative relief from his July 30, 1980 recommitment. Accordingly, on October 16, 1986, the Board deleted all references to the technical parole violations pursuant to Rivenbark v. Pennsylvania Board of Probation and Parole, 509 Pa. 248, 501 A.2d 1110 (1985), but reaffirmed its recommitment of the petitioner as a convicted parole violator and indicated that his maximum term expiration date was July 30, 1985. The petitioner was thereafter reparoled to his new sentence on November 28, 1986.

The petitioner contends that the Board erred in deleting all references to the July 30, 1980 technical parole violation without also deleting the twelve months backtime for that violation. Accordingly, he contends that his "expiration date" (maximum term expiration date), after the deletion of the twelve months should be May 2, 1986.*fn2 And, our scope of review is limited to determining whether or not constitutional rights were violated, an error of law was committed, or a necessary finding is unsupported by substantial evidence. Zazo v. Pennsylvania Board of Probation and Parole, 80 Pa. Commonwealth Ct. 198, 470 A.2d 1135 (1984).

[ 111 Pa. Commw. Page 415]

Preliminarily, we note that Rivenbark is retroactive, and that, under such retroactive application, the petitioner was erroneously recommitted for twelve months as a technical parole violator. See Caldwell v. Pennsylvania Board of Probation and Parole, 102 Pa. Commonwealth Ct. 287, 518 A.2d 5 (1986). We have also held, however, that the imposition of backtime by the Board is a civil administrative decision merely establishing a new parole eligibility date, and the amount of backtime is within the sound discretion of the Board. Krantz v. Pennsylvania Board of Probation and Parole, 86 Pa. Commonwealth Ct. 38, 483 A.2d 1044 (1984). Moreover, a parolee is not entitled to receive credit on a subsequent unrelated parole revocation for time served on a prior, invalid recommitment. Caldwell. Accordingly, we can find no error by the Board in refusing to credit the twelve months backtime erroneously served by the petitioner to the backtime ordered for a subsequent parole violation.

We must determine, therefore, whether or not the Board erred in refusing to credit the twelve months which the petitioner spent in confinement to his maximum term for a subsequent conviction. In Krantz, Judge Williams stated that:

We duly note that due process does not require that a criminal defendant receive credit on a subsequent unrelated sentence for time served on a prior invalid sentence. See United States ex rel. Smith v. Rundle, 285 F. Supp. 965 (E.D. Pa. 1966). There is no constitutional requirement that the time a defendant served on a prior invalid sentence must be credited against a subsequent valid sentence arising from unrelated offenses as the Constitution does not authorize penal checking accounts.

Id. at 44-45 n. 5, 438 A.2d at 1048 n. 5. Furthermore, the Board is without authority to credit erroneously

[ 111 Pa. Commw. Page 416]

    served backtime to reduce a maximum parole expiration date because the amount of backtime to be served is a civil administrative decision, and the maximum term expiration date is set by a trial judge upon a criminal conviction. See Section 21.1a(a) of the Penal Code.*fn3

Accordingly, inasmuch as the Board can neither delete backtime that has already been served nor alter a criminally imposed maximum term expiration date, the petitioner here has received all the relief to which he is entitled under Rivenbark.

We will, therefore, affirm the order of the Board.

[ 111 Pa. Commw. Page 417]

Order

And Now, this 2nd day of December, 1987, the order of the Pennsylvania Board of Probation and Parole in the above-captioned matter is affirmed.

Disposition

Affirmed.


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