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MARVIN MERRITT v. COMMONWEALTH PENNSYLVANIA (03/29/88)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 29, 1988.

MARVIN MERRITT, 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 case of Marvin Merritt, Parole No. 0699-J, dated June 11, 1987.

COUNSEL

Patrick J. Flannery, Assistant Public Defender, for petitioner.

Timothy P. Wile, 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 President Judge Crumlish, Jr.

Author: Crumlish

[ 115 Pa. Commw. Page 34]

Marvin Merritt appeals the Pennsylvania Board of Probation and Parole's (Board) denial of administrative

[ 115 Pa. Commw. Page 35]

    relief from its order recomputing his backtime. We affirm.

Merritt was sentenced to an indeterminate to six-year term beginning September 15, 1972. He was subsequently sentenced on different charges to a one to three-year term beginning April 29, 1974, and an eleven and one-half to twenty-four months term beginning June 20, 1974. The Bureau of Correction's "Initial Sentence Status Report" indicated that all three sentences were concurrent. The Board "consecutively" paroled*fn1 Merritt from the first sentence on June 20, 1974, and immediately re-entered him to continue serving the minimum terms for the remaining sentences. The Board paroled Merritt from those sentences on June 5, 1975.

Merritt was subsequently recommitted as a convicted parole violator based upon a new criminal conviction. Merritt contends that, in computing his backtime, the Board erroneously denied him credit for the period of June 20, 1974, through June 5, 1975, which represents the time spent on constructive parole from his first sentence.*fn2 We disagree.

[ 115 Pa. Commw. Page 36]

Section 21.1(a) of the parole statute*fn3 provides that convicted parole violators "shall be given no credit for the time at liberty on parole." One who is on constructive parole is "at liberty" from confinement on that particular sentence and, therefore, is not entitled to credit against that sentence for such time. Hines v. Pennsylvania Board of Probation and Parole, 491 Pa. 142, 420 A.2d 381 (1980). We hold that the Board properly denied Merritt credit against his first sentence for the period in which he was constructively paroled from that sentence.

Although Merritt does not attempt to distinguish the case law, we are aware that Hines and its progeny approved the denial of credit for constructive parole time in consecutive sentence situations. See Hines; Debnam v. Pennsylvania Board of Probation and Parole, 71 Pa. Commonwealth Ct. 572, 455 A.2d 297 (1983); Weyand v. Pennsylvania Board of Probation and Parole, 94 Pa. Commonwealth Ct. 32, 503 A.2d 80 (1986). The fact that Merritt's sentences were concurrent does not alter our conclusion. We believe that the Board may, based upon its broad discretionary power to parole under Section 21, 61 P.S. ยง 331.21, grant constructive parole for the period in which the parolee is serving the minimum term of another concurrent sentence. See generally Reider v. Pennsylvania Board of Probation and Parole, 100 Pa. Commonwealth Ct. 333, 514 A.2d 967 (1986), and Barnhouse v. Pennsylvania Board of Probation and Parole, 89 Pa. Commonwealth Ct. 512, 492 A.2d 1182 (1985) (Board has administrative discretion with respect to decisions to grant or deny parole).

[ 115 Pa. Commw. Page 37]

We therefore affirm the Board.*fn4

Order

The decision of the Pennsylvania Board of Probation and Parole dated June 11, 1987, is affirmed.

Disposition

Affirmed.


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