Submitted February 7, 2014
Appealed from No. 790CR. State Agency: Pennsylvania Board of Probation and Parole.
David Crowley, Chief Public Defender, Bellefonte, for petitioner.
Kara W. Haggerty, Assistant Counsel, Harrisburg, for respondent.
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE JAMES GARDNER COLINS,
ROBERT SIMPSON, Judge
In an appeal that re-examines credit issues between federal criminal sentences and state criminal sentences, Ismail Baasit (Inmate) petitions for review from an order of the Pennsylvania Board of Probation and Parole (Board) that denied his administrative appeal from a prior order recommitting him as a convicted parole violator and recalculating the maximum date of his original state sentence. Inmate contends the Board incorrectly recalculated his maximum sentence date by failing to credit the un-served balance of his state sentence with four years he spent in pre-federal sentence confinement in a state correctional institution (SCI). For the reasons that follow, we vacate the Board's order and remand for further proceedings.
In May 2007, the Board paroled Inmate from his original aggregate sentence of 5 to 12 years for convictions on charges of robbery, burglary of an occupied structure, simple assault and escape. Inmate's initial maximum sentence date was March 22, 2012.
On November 26, 2007, Williamsport police arrested Inmate on new charges including robbery and unlawful possession of a firearm. The same day, the Board lodged a detainer against Inmate. In late August 2008, all new state criminal charges against Inmate were dismissed.
However, prior to dismissal of the state charges, the U.S. Attorney's Office arrested Inmate on charges of distribution and possession with the intent to distribute heroin, distribution and possession with the intent to distribute heroin within protected zones, and knowingly possessing, using, brandishing and carrying a firearm in furtherance of a drug trafficking crime. On August 29, 2008, a U.S. Magistrate issued a detention order committing Inmate to the custody of the U.S. Attorney General for confinement in a corrections facility pending trial on the federal criminal charges. See Certified Record (C.R.) at 69-70. The order noted: " The defendant is in federal custody." Id. At this point, there were both Board and federal detainers for Inmate.
Thereafter, the U.S. Attorney charged Inmate by amended information with two counts of interstate travel and transportation in furtherance of the distribution of heroin in violation of 18 U.S.C. § 1952(a)(3) and 21 U.S.C. § 841(a)(1). See C.R. at 71-72. In August 2010, Inmate pled guilty to both counts.
In November 2010, the Board held a revocation hearing at SCI-Rockview. In January 2011, the Board recommitted Inmate as a convicted parole violator to serve 30 months' backtime, when available, pending sentencing on his new convictions. C.R. at 79.
On August 27, 2012, a federal district court sentenced Inmate to serve 48 months in federal custody. See C.R. at 80-97. More specifically, the federal court's judgment provided that Inmate's 48-month term " consists of 48 months imprisonment on each of Counts 1 and 2 [of the amended information] to be served concurrently to each other and consecutive to any sentence the defendant is now serving or for
which he is being held." Id. at 83 (emphasis added).
The next day, August 28, 2012, Inmate returned to SCI custody. See id. at 115. In September 2012, the Board rendered a decision recommitting Inmate to serve 30 months' backtime and recalculated the maximum date of Inmate's original sentence as October 12, 2016. Id. at 99. In April 2013, the Board modified Inmate's maximum date by two days to October 10, 2016. Id. at 114.
The Board's recommitment order credited Inmate with 277 days from his arrest and detainer on November 26, 2007 on new state charges until August 29, 2008, when a U.S. Magistrate issued an order detaining Inmate on federal charges. See C.R. at 115. Subtracting 277 days from the 1781 days left on Inmate's original state sentence at time of his initial parole in May 2007 left a remaining backtime of 1504 days. Id. Adding the 1504 days to Inmate's return to custody on August 28, 2012 yielded a new maximum date of October 10, 2016. Id.
Inmate appealed the Board's decision, including the recalculation of his maximum date, by submitting an " administrative remedies form," which specified challenges to sentencing credit and the order of service of the sentences. See C.R. at 118-22. Inmate argued that in addition to the 277 days credit he received, the Board should have awarded him credit toward his backtime for the balance of his pre-sentence confinement.
The Board considered Inmate's appeal as a petition for administrative relief. In a June 2013 decision, the Board stated its reasons for denying Inmate credit for his entire pre-federal sentence confinement. See id. at 123-24. In particular, the Board explained:
[Inmate] is not entitled to a back time served credit (i.e. time that [Inmate] was held solely on the Board's warrant prior to his recommitment order) because he was never incarcerated solely on the Board's warrant. See [Gaito v. Pennsylvania Board of Probation and Parole,
488 Pa. 397, 412 A.2d 568 (1980)]. [Inmate] received back time credit from November 26, 2007 (date of Board's warrant) to August 29, 2008 (date federal charges filed) or 277 days. This is because the Lycoming County charges were withdrawn and thus, the Board's warrant was the sole source of [Inmate's] incarceration during this period of time. However, [Inmate] is not entitled to additional credit because he was being held on secured bail at his federal docket until the date of his conviction on August 28, 2012. Thus, when applying 277 days to 1,781 days yields a total of 1,504 days owed (or 4 years, 1 month, 12 days). [Inmate] became available to Pennsylvania authorities on August 28, 2012 when he was convicted at his federal docket. Adding 1,504 days to August 28, 2012 yields a new parole violation maximum date of October 10, 2016. Therefore, [Inmate's] new parole violation maximum sentence date is correct.
Id. (second emphasis by underline added). Inmate petitions for review.
Inmate contends the Board's recalculation of his new maximum sentence date failed to credit his original sentence with
all the time to which he is entitled. In particular, Inmate disagrees with the Board's conclusion that he remained unavailable to serve his state parole violation backtime until the federal court returned him to state custody on August 28, 2012.
Inmate asserts the Board's response to his administrative appeal appeared to concede that he is required to serve his state parole backtime prior to his service of his new 48-month federal sentence. Section ...