The opinion of the court was delivered by: Anne E. Covey, Judge
Submitted: April 13, 2012
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
William W. Yates (Yates) appeals from the Board of Probation and Parole‟s (Board) October 7, 2011 denial of his petition for administrative review. The issues before this Court are: (1) whether the Board erred by deeming Yates a recommitted technical parole violator who is unavailable to serve backtime, and (2) whether the Board erred by recommitting Yates as a technical parole violator for 9 months when he only had 4 months and 28 days remaining on his original sentence. We vacate and remand.
Yates was serving time in state prison for a sentence imposed in 2001 (Case No. ES-3564), when he was released on parole in September 2002 (2001 sentence). In 2003, after pleading guilty to new crimes (Case No. GD-3118), he was sentenced to a term of 2 to 5 years in state prison (2003 sentence). As a result of his new crimes, he was recommitted on his 2001 state sentence to serve 12 months of backtime as a technical parole violator, and 12 months as a convicted parole violator, to be served concurrently. In 2004, he was reparoled from his 2001 sentence. In 2006, he was paroled from his 2003 sentence.
Yates was arrested on January 11, 2007 for new crimes (Case No. JK-9974) (2007 sentence). As a result, the Board recommitted Yates to state prison to serve 6 months of backtime on his 2003 sentence as a technical parole violator. Following his convictions for his new crimes, the Board recommitted Yates to serve 18 months of backtime on his 2003 sentence as a convicted parole violator.
On February 4, 2010, Yates was constructively reparoled from his 2003 sentence to serve his 2007 sentence. By notice of decision issued November 22, 2010, the Board notified Yates that he would be paroled from his 2007 sentence "on or after 2/22/11 upon completion of programming as indicated by recent [Department of Corrections] assessment to a specialized community corrections center with violence prevention programming." Certified Record (C.R.) at 35-36.
On January 25, 2011, Yates was arrested and detained on a Board warrant for threatening community corrections staff, which was a violation of Condition 7 (successfully complete the community corrections program) of his 2003 constructive reparole. On January 31, 2011, Yates admitted to the violation, and waived his rights to a violation hearing, a preliminary hearing and a panel hearing. On April 26, 2011, the Board rescinded Yates‟ impending parole on his 2007 sentence.*fn1 By notice mailed May 17, 2011, the Board recommitted Yates as a technical parole violator to serve 9 months of backtime on his 2003 sentence when he became available, either by parole from or completion of his 2007 sentence. The May 17, 2011 notice stated that Yates‟ "parole violation max date is 6/23/11, subject to change." C.R. at 53.
Yates timely filed a petition for administrative review arguing that he was available to serve backtime on his 2003 sentence as of January 25, 2011, and that the Board improperly imposed backtime that exceeded his remaining sentence. On October 7, 2011, the Board denied Yates‟ appeal because Yates is not available to serve the 9 months until he is paroled from or completes his 2007 sentence, and the recommitment falls within the presumptive recommitment range for Yates‟ offense. Yates appealed to this Court.*fn2
Yates argues that the Board erred by deeming him a recommitted technical parole violator who is unavailable to serve the backtime until the 2007 sentence is fulfilled. At issue here is the order in which Yates‟ sentences and backtime are to be served. Specifically, whether Yates must first become available for parole or complete his 2007 sentence before he can serve his 2003 recommitment sentence. "Back-time is that part of an existing judicially-imposed sentence which the Board directs a parolee to complete following a finding . . . that the parolee violated the terms and conditions of parole, and before the parolee begins to serve the new sentence." Cimaszewski v. Pennsylvania Bd. of Prob. & Parole, 582 Pa. 27, 33 n.1, 868 A.2d 416, 419 n.1 (2005) (quotation marks omitted).
Here, the Board‟s February 4, 2010 notice constructively reparoled Yates from his 2003 sentence and directed him to start serving his 2007 sentence stating, in relevant part: "You are reparoled to state detainer sentence." C.R. at 29, 31. This Court has defined "detainer sentence" as a sentence, separate and distinct from that sentence the parolee is presently serving, which is noted on the parolee‟s institutional records to ensure that, after the parolee has completed his present term, he will be available to the authority which imposed the separate sentence for service of that separate sentence rather than being released from confinement.
Weyand v. Pennsylvania Bd. of Prob. & Parole, 503 A.2d 80, 82 n.5 (Pa. Cmwlth. 1986). When a prisoner is administratively paroled from one sentence and, rather than being released from prison, is immediately reentered to serve another sentence, he has been constructively paroled. Hines v. Pennsylvania Bd. of Prob. & Parole, 491 Pa. 142, 420 A.2d 381 (1980); Calloway v. Pennsylvania Bd. of Prob. & Parole, 857 A.2d 218 (Pa. Cmwlth. 2004). "While still in prison, the prisoner is serving the detainer sentence and is considered "at liberty on parole‟ from the initial sentence." Weyand, 503 A.2d at 85. Accordingly, Yates was serving his 2007 sentence when his January 25, 2011 technical violation occurred, resulting in the Board‟s May 17, 2011 order at issue here.
Section 6138(c) and (d) of the Prisons and Parole Code (Parole Code), 61 Pa.C.S. § 6138(c), (d), sets forth when backtime for a technical parole violation must be ...