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Smith v. Pennsylvania Board of Probation and Parole

Supreme Court of Pennsylvania

October 18, 2017


          ARGUED: May 10, 2017

         Appeal from the Order of the Commonwealth Court dated February 23, 2016 at No. 1007 CD 2015 Vacating the Order of the Pennsylvania Board of Probation and Parole dated May 21, 2015 at No. 7679-0 and Remanding.




         We consider whether the Commonwealth Court erred when it vacated the decision of the Pennsylvania Board of Probation and Parole (the Board) regarding the allocation of pre-sentence confinement credit to which appellee Derek Smith is entitled. We hold the Commonwealth Court erred, and we therefore remand for recalculation of appellee's maximum release date.

         On November 4, 1998, appellee was found guilty of robbery[1] and sentenced to ten to twenty years' imprisonment; his minimum release date was December 31, 2010, and maximum release date was December 31, 2020. He was released on parole on October 27, 2011. On January 27, 2013, while on parole, appellee was arrested in North Carolina for multiple jewelry store robberies; the record indicates appellee did not post bail and thus remained in custody. Board's Crim. Arrest & Disposition Rpt., 8/5/13, Certified Record (C.R.) at 14; Board's Ltr. to Appellee, 4/17/15, at 1, C.R. at 100 ("There is no indication that you posted bail from [your federal] charges and you do not claim that you posted bail."). The following day, the Board, which had received notice of the arrest, lodged a detainer against appellee. See 61 Pa.C.S. §6138(c)(1) (parolee under Board's jurisdiction who commits technical violation of parole may be detained pending hearing before Board). On April 23, 2013, federal authorities indicted appellee in North Carolina on charges arising from the jewelry store robberies.[2] On May 2, 2013, he was detained by federal authorities and subsequently, while still on the federal detainer, transferred to the Columbia County Prison in Pennsylvania. The Board issued a notice of charges, citing appellee's arrest for the federal crimes and his leaving the district without permission, and appellee waived his right to a parole revocation hearing and admitted only that he committed a technical violation by leaving the district without permission. On November 27, 2013, the Board recommitted appellee as a technical violator, imposed six months' imprisonment for the violation, and reparoled him immediately, subject to his federal detainer and pending the disposition of his outstanding federal charges.

         Meanwhile, appellee agreed to the transfer of his federal case from the United States District Court for the Eastern District of North Carolina to the Middle District of Pennsylvania, and on December 10, 2013, he pleaded guilty to those federal charges. The federal court imposed an aggregate term of 246 months' imprisonment on June 3, 2014. On September 10, 2014, appellee was transferred to SCI Rockview to serve the remainder of his state sentence with the same maximum release date as when he was initially sentenced, December 31, 2020, before being transferred to the federal prison system.[3]

         The Board issued a second notice of charges, and appellee again waived his right to a revocation of parole hearing, this time admitting he committed the new federal criminal offenses. On December 12, 2014, the Board: reversed the portion of its November 27, 2013 decision reparoling appellee (after imposing its six month sentence for the technical violation); recommitted him as a convicted parole violator; and ordered him to serve 48 months' back time consecutively to the previously-imposed six months' term for the technical violation.[4] The Board also calculated appellee's new maximum date as May 7, 2023, thus declining to credit his original state sentence with any time he was confined on the Board's detainer following his North Carolina arrest.

         Appellee filed two pro se administrative appeals, arguing, inter alia, the Board should have awarded him credit on his state sentence for all the time he was detained.[5]The Board denied relief, explaining it awarded 93 days' credit for the period he was held solely on its detainer (January 29 to May 2, 2013), but it did not award credit for the 397 days he was held on both its detainer and the federal detainer (May 2, 2013 to June 3, 2014), because that time must be applied to his federal sentence.[6] In doing so, the Board expressly relied on Gaito v. Pa. Bd. of Prob. & Parole, 412 A.2d 568 (Pa. 1980).[7]

         Appellee filed a counseled petition for administrative review, again arguing the Board improperly failed to credit him all the time to which he was entitled on his state sentence. The Board denied relief via letter decision, again maintaining it properly declined to apply credit toward his original state sentence pursuant to Gaito.

         Appellee filed a timely petition for review with the Commonwealth Court, arguing the Board erred in not awarding him credit on his state sentence for all the time he was held on both the Board's detainer and the federal detainer. In support, appellee relied on Baasit v. Pa. Bd. of Prob. & Parole, 90 A.3d 74 (Pa. Cmwlth. 2014), for the proposition that, under the primary jurisdiction doctrine, if Pennsylvania is the sovereign that arrests a defendant first, the Board must apply pre-sentence confinement credit to his original state sentence. See id. at 83, citing Newsuan v. Pa. Dept. of Corrections, 853 A.2d 409, 412 (Pa. Cmwlth. 2004).[8] Appellee also argued the Prisons and Parole Code previously required a convicted parole violator to serve a new federal sentence before state parole back time, see 61 Pa.C.S. §6138(a)(5)(i)-(iii), amended by Act 2010-95 (S.B. 1161), P.L. 931, § 20, but current Section 6138(a)(5.1) reverses the order and requires the original state sentence be served first, before the federal sentence.[9]Appellee construed this more recent enactment as legislative intent to address "[t]he concern that other sovereigns have used Pennsylvania prisons and ... tax dollars to satisfy their sentences." Appellee's Cmwlth. Ct. Brief at 10-11. Appellee claimed the Board therefore erred in relying on Gaito for its application of the time he was incarcerated on both detainers to his federal sentence.

         The Board denied it was required to award appellee credit on his state sentence for the time he was held on both detainers simply because Pennsylvania was the first to arrest him. It also averred Baasit incorrectly interpreted Section 6138(a)(5.1) as affecting allocation of pre-sentence credit, and claimed instead that provision merely changed the order of sentences for a convicted parole violator who received a new federal or out-of-state sentence. The Board asserted the Commonwealth Court itself recognized this principle in Armbruster v. Pa. Bd. of Prob. & Parole, 919 A.2d 348 (Pa. Cmwlth. 2007).[10] The Board maintained Gaito remains controlling precedent and the lone exception to Gaito was set forth in Martin, which allowed credit to be applied to a parolee's original sentence only if it were not possible to award all credit toward his new sentence because the new sentence was shorter than the period of pre-sentence confinement. The Board contended appellee's case is distinguishable from Martin, and thus under Gaito, it properly denied the credit on appellee's state sentence because appellee was not detained solely on the Board's detainer but also on a federal detainer.

         In a published opinion, a unanimous panel of the Commonwealth Court rejected the Board's arguments and vacated its order. Smith v. Pa. Bd. of Prob. & Parole, 133 A.3d 820 (Pa. Cmwlth. 2016). The panel extensively cited Baasit, including its statements that: Gaito's bright line rule regarding how to allocate credit for time held on detainers no longer applied because Martin afforded the Board discretion to fashion equitable awards of credit; pre-sentence confinement credit should be applied in accordance with Section 6138(a)(5.1); and the doctrine of primary jurisdiction compelled that credit should be applied to appellee's original sentence. Id. at 823. The panel specifically rejected the Board's contention Section 6138(a)(5.1) does not affect how pre-sentence credit should be applied. Id. at 824. The panel thus vacated the Board's decision and remanded for it to apply the credit at issue toward appellee's original state sentence. Id. at 825.[11]

         The Board filed a timely petition for allowance of appeal, and we granted review to determine whether the Commonwealth Court's decision conflicts with our decision in Gaito. Smith v. Pa. Bd. of Prob. & Parole, 143 A.3d 891 (Pa. 2016). The Board maintains "[a]lthough there are hundreds of Commonwealth Court decisions addressing various fact patterns, " the "straightforward credit allocation rule" of Gaito remains the cornerstone for awarding credit, as the Commonwealth Court recognized in Armbruster Board's Brief at 11, 13. The Board reiterates the only exception to the rule announced in Gaito is found in Martin, which effectively eliminated what was colloquially referred to as "dead time" - pre-sentence confinement that could not be credited to any sentence - by recognizing a convicted parole violator is entitled to credit on his original sentence if the period of presentence detention exceeds the maximum term of his new sentence; the Board notes that situation is not present here. The Board also asserts Section 6138(a)(5.1) does not govern how confinement credit should be applied, but instead simply dictates the order in which a convicted parole violator's original sentence and new sentence must be served. The Board reasons regardless of which sentence must be served first, presentence confinement credit has always been governed by Gaito and Martin, and those decisions directed its denial of credit toward appellee's original state sentence. Finally, the Board claims the primary jurisdiction doctrine does not apply, as that doctrine addresses jurisdictional disputes between sovereigns, and here, there was no such dispute because appellee was not detained by the Commonwealth until after he was sentenced on his new federal charges.

         Appellee responds Gaito was undermined by Martin, and in any event, Gaito does not apply here. Appellee avers in the past, the Board "misused" Gaito in order to create "dead time" when a parolee's new charges did not result in incarceration. Appellee's Brief at 5-6. Appellee further asserts Gaito is "factually inapplicable, " claiming that credit for pre-sentence confinement should properly be allocated to the sentence a parolee is statutorily required to serve first. Id. at 6. He maintains at the time Gaito was decided, a convicted parole violator was required to serve a new federal sentence before state parole back time, but the current Section 6138(a)(5.1) reversed this order and requires state parole back time to be served first. Appellee further alleges Section 6138(a)(5.1) was enacted as a part of legislative reforms to reduce the Pennsylvania prison population, and thus claims the "legislature intended it is not cost effective" to keep offenders in Pennsylvania longer than necessary. Id. at 12-13, citing Stewart Greenleaf, Prison Reform in the Pennsylvania Legislature, 160 U.Pa.L.Rev. PENNumbra 179, 180 (2011) (Pennsylvania's inmate population has soared and could grow 24% over next five years). Appellee also notes the risk of "double crediting" is not present in this case, as any credit for a federal sentence is determined under strict federal statutory provisions that preclude credit toward a new federal sentence for any time credited toward an original state sentence. Appellee's Brief at 8, citing Baasit, 90 A.3d at 83 (citing 18 U.S.C. §3585(b)). Finally, appellee again relies on the statement in Baasit the doctrine of primary jurisdiction requires credit for pre-sentence confinement must be allocated to an original sentence, not a new sentence.

         We note this appeal involves questions of law over which our scope of review is plenary and our standard of review is de novo. Pittman v. Pa. Bd. of Prob. & Parole, 159 A.3d 446, 473 (Pa. 2017). We further note the Commonwealth Court was charged with affirming the Board's adjudication, unless that adjudication violated appellee's constitutional rights, or was "not in accordance with law, or that the provisions of Subchapter A of Chapter 5 (relating to practice and procedure of Commonwealth agencies) have been violated in the proceedings before the agency, or that any finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence." See 2 Pa.C.S. §704. See also Goods v. Pa. Bd. of Prob. & Parole, 912 A.2d 226, 231 (Pa. 2006).

         We review the precedential landscape relevant to this appeal, beginning with our 1980 decision in Gaito. Gaito, who was on parole, was arrested and detained for violations of the Uniform Firearms Act (VUFA charges), as well as a separate Board detainer for the parole violations arising out of the VUFA charges, for almost nine months. Gaito, 412 A.2d at 569. Gaito was found guilty of the VUFA charges and received a new sentence of two to five years' imprisonment. Id. The Board recommitted him and credited the time he spent in custody between his VUFA arrest and his VUFA sentencing to his original sentence. See id. Gaito filed a petition for review in the Commonwealth Court, seeking to apply the credit against his VUFA sentence instead. Id. at 569, 571. The Commonwealth Court denied relief, relying on Mitchell v. Pa. Bd. of Prob. & Parole, 375 A.2d 902 (Pa. Cmwlth. 1977), which held that when a parolee was incarcerated for new charges and subject to a new Board detainer for a parole violation, credit for the confinement must be applied to the parolee's original sentence. Gaito, 412 A.2d at 571. By the time Gaito's appeal was before this Court, the Commonwealth Court had modified Mitchell in Rodriques v. Pa. Bd. of Prob. & Parole, 403 A.2d 184 (Pa. Cmwlth. 1979). We expressly adopted the rationale in Rodriques and held:

[I]f a defendant is being held in custody solely because of a detainer lodged by the Board and has otherwise met the requirements for bail on the new criminal charges, the time which he spent in custody shall be credited against his original sentence. If a defendant, however, remains incarcerated prior to trial because he has failed to satisfy bail requirements on the new criminal charges, then the time spent in custody shall be credited to his new sentence. 6
6 It is clear, of course, that if a parolee is not convicted, or if no new sentence is imposed for that conviction on the new charge, the pre-trial custody time must be applied to the parolee's original sentence.

Gaito, 412 A.2d at 571 & n.6. Applying this new rationale, we remanded to the Commonwealth Court to determine, as it was not apparent from the existing record, whether Gaito had satisfied the bail requirements on the new charges. Id. at 571.

         Twenty-three years later, in Martin, this Court considered Gaito and particularly the proposed exception at footnote 6 in a case in which the length of pre-trial confinement exceeded the sentence imposed for the new crimes. Martin, 840 A.2d at 301; see Gaito, 412 A.2d at 571 n.6 ("[I]f a parolee is not convicted, or if no new sentence is imposed for that conviction on the new charge, the pre-trial custody time must be applied to the parolee's original sentence."). Martin - who had been paroled after serving part of his sentence for robbery - was arrested and charged with two counts of driving under the influence (DUI); on the same day, the Board lodged a detainer against him. Martin, 840 A.2d at 300. Martin was unable to post bail for the DUI charges and remained incarcerated for more than thirteen months before he was convicted of the DUI charges and sentenced to 48 hours' time served and one year of probation. Id. Subsequently, the Board revoked parole on his original sentence, and Martin requested credit on his original sentence for the excess time he served on the Board's detainer that could not be applied to his new 48-hour sentence. Id. at 301. The Board denied the request. Id. A divided Commonwealth Court panel affirmed, relying on Commonwealth Court cases that strictly applied Gaito, strictly interpreted footnote 6 of Gaito, and held credit could be applied toward an original sentence only if the parolee was not convicted of, or if no "sentence" was imposed on, the new charges. [12] Id., citing Berry v. Pa. Bd. of Prob. & Parole, 756 A.2d 135, 138 (Pa. Cmwlth. 2000) (declining to extend Gaito exception to allow credit toward original sentence when parolee's new sentence was shorter than time he was incarcerated on detainer for parole violations). On appeal, the Martin Court recognized 42 Pa.C.S. §9760 requires a court to give credit to sentencing for new charges, [13] but the General Assembly had not set forth criteria for applying credit with respect to a parolee who commits a crime while on parole. Martin, 840 A.2d at 303. Nevertheless, although the Gaito Court did not address or even cite Section 9760, the Martin Court stated Gaito essentially construed Section 9760 to mandate credit for all incarceration served before a defendant is sentenced. Id. at 304. The Martin Court then stated footnote 6 in Gaito "attempted to impart the principle that credit should be applied equitably" when there is no new period of incarceration, but Gaito employed the broader word "sentence, " which was statutorily defined to include probation, a determination of guilt without further penalty, partial confinement, a fine, and intermediate punishment. Id. at 305, citing 42 Pa.C.S. §9721 (Sentencing Code definition of "sentence"). The Martin Court observed Gaito's use of the word "sentence" thus inadvertently directed the Board and Commonwealth Court to apply footnote 6 "strictly, rather than equitably, " such that credit was only given for an original sentence when a parolee was acquitted or the charges against him were nolle prossed. Id. at 305.[14] The Martin Court specifically stated:

It is now the opinion of this Court that the Board should not have been divested of its ability to make a determination concerning credit for time served for pre-sentence detention in instances where confinement is a result of both the detainer for a parole violation and the failure to meet conditions of bail on the new offense. ... Unique combinations of circumstances will be presented in different cases that tip the balance for or against the particular allocation of credit. Decision making in this context is, thus, particularly suited to a discretionary framework with guidelines to ensure equitable treatment.

Martin, 840 A.2d at 308. The Court thus held,

[W]here an offender is incarcerated on both a Board detainer and new criminal charges, all time spent in confinement must be credited to either the new sentence or the original sentence. We further hold that the indigency of a detainee in failing to satisfy the requirements for bail is not determinative as to whether the offender receives credit for time served.

Id. at 309 (footnote omitted).

         The Commonwealth Court subsequently attempted to extend Martin in Melhorn v. Pa. Bd. of Prob. & Parole, 883 A.2d 1123 (Pa. Cmwlth. 2005), in which the parolee Melhorn's new sentence was longer than the time he was detained on both a Board detainer for violations of parole on his original sentence and on new charges, for which he did not meet bail requirements. Melhorn, 883 A.2d at 1129-30. Neither the sentencing court nor the Board gave Melhorn any credit at all for the time detained. Id. at 1126. On appeal, the Commonwealth Court considered Martin's requirement that "where an offender is incarcerated on both a Board detainer and new criminal charges, all time spent in confinement must be credited to either the new sentence or the original sentence, " and accordingly directed the Board to credit the detention time toward the parolee's original sentence. Id. at 1129 (emphasis in original), citing Martin, 840 A.2d at 309. This Court, however, reversed without discussion in a per curiam order citing Gaito and McCray v. Pa. Dep't of Corrections, 872 A.2d 1127 (Pa. 2005). [15] Melhorn v. Pa. Bd. of Prob. & Parole, 908 A.2d 266 (Pa. 2006).

         In 2007, the Commonwealth Court decided Armbruster, in which the parolee Armbruster was detained on new charges for which he did not post bail, as well as a Board detainer arising out of the parole violations, for 250 days. Armbruster, 919 A.2d at 350. He was convicted of the new criminal charges and received a sentence of eight to 24 months' imprisonment, in which the sentencing court did not indicate he was to receive credit for the confinement. Id. Subsequently, the Board recommitted Armbruster, denying credit for the 250 days toward his original sentence. Id. at 352. On appeal to the Commonwealth Court, he argued he was entitled to the credit on his original sentence because no credit was given to his new sentence. Id. The Commonwealth Court panel reviewed Gaito and Martin and observed the Commonwealth Court has "applied the Martin rule whenever ...

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