Kerak v. Pennsylvania Board of Probation & Parole
2016 Pa. Commw. LEXIS 565
| Pa. Commw. Ct. | 2016Background
- In 2001 Michael Kerak was sentenced for aggravated assault (6–10 years); released on parole in 2006 but had 1,388 days of unserved "backtime." Parole was revoked in 2008 after a DUI conviction; Board set a PV (parole violator) max date by adding backtime.
- Kerak received two additional DUI convictions in 2012 (Lehigh and Berks Counties). Berks County originally sentenced him on October 26, 2012, and its order stated the Berks sentence was to run concurrently with his original Lehigh County sentence.
- The Board recommitted Kerak as a convicted parole violator and recalculated his PV maximum date by adding his 1,388 days of backtime to the date he became available to serve that backtime.
- After a later PCRA-based Agreement and Order (May 2014), Berks County modified the 3rd DUI sentence to a split sentence and reiterated the concurrent intent; Kerak was released by Berks on March 16, 2014.
- The Board treated the Berks order as a new sentencing order and computed Kerak’s PV max date by adding 1,388 days to March 16, 2014 (result: January 2, 2018), refusing to give concurrent credit because 61 Pa.C.S. § 6138(a)(5) requires backtime to be served prior to new sentences.
- Kerak appealed; the Commonwealth Court affirmed the Board, holding a Pennsylvania trial court cannot require parole backtime to run concurrently with a new sentence and the Board correctly calculated the PV max date because Kerak was never confined solely on the Board’s warrant before March 16, 2014.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board must honor a state trial court’s order that a new sentence run concurrently with a parolee’s backtime | Kerak: Berks County ordered the 3rd DUI sentence to run concurrently with the original sentence; Board should use the Berks sentencing date (Oct 26, 2012) to compute PV max date | Board: Section 6138(a)(5) bars concurrency; trial courts cannot order new sentences to run concurrently with parole backtime; Board must enforce the Code when calculating PV dates | Held for Board: Section 6138(a)(5) requires backtime be served before new term; the trial court cannot mandate concurrency and Board correctly refused to apply concurrency |
| Proper start date for serving backtime / credit for pre-sentence custody | Kerak: He should get credit from earlier sentencing date per Berks order, producing an Aug 14, 2016 PV max date | Board: He never was confined solely on the Board warrant pre-recommitment; under Gaito, only confinement solely on a Board detainer yields backtime credit — earliest availability was March 16, 2014 | Held for Board: Kerak not entitled to credit prior to March 16, 2014; adding 1,388 days to that date yields Jan 2, 2018 |
| Applicability of the Walker/Santiago exception for "foreign" sentencing orders | Kerak: Cites Walker and Santiago to argue exception applies | Board: Those cases involved out-of-state (Maryland) orders; here both orders are Pennsylvania courts so exception inapplicable | Held for Board: Walker/Santiago exception limited to out-of-state orders; not applicable when both sentencing courts are Pennsylvania courts |
| Remedy for breach of plea agreement when sentence is unenforceable | Kerak: He relied on plea agreement producing concurrent sentence | Board: Remedy lies in trial court (vacatur) or DOC recalculation; Board will adjust if DOC modifies calculation | Held: Court follows precedent—proper remedy is to seek relief in sentencing court; Board not required to implement concurrency contrary to statute |
Key Cases Cited
- Gaito v. Pennsylvania Board of Probation and Parole, 488 Pa. 397, 412 A.2d 568 (Pa. 1980) (pre-sentence confinement solely on a Board detainer may be credited toward original sentence)
- Commonwealth v. Zuber, 466 Pa. 453, 353 A.2d 441 (Pa. 1976) (trial court cannot order new sentence to run concurrent with parole backtime; remedy may be relief in court)
- Commonwealth v. Dorian, 503 Pa. 116, 468 A.2d 1091 (Pa. 1983) (reinforcing Zuber; concurrence with backtime prohibited)
- Walker v. Pennsylvania Board of Probation and Parole, 729 A.2d 634 (Pa. Cmwlth. 1999) (parole backtime must be served consecutively; recognized narrow exception context later limited)
- Palmer v. Pennsylvania Board of Probation and Parole, 134 A.3d 160 (Pa. Cmwlth. 2016) (applied §6138(a)(5) to reject plea/court-ordered concurrency; directed remedy to trial court)
- Commonwealth v. Martinez, 147 A.3d 517 (Pa. 2016) (courts may enforce specific plea-bargain terms despite later statutory changes; focuses on enforcing plea bargains when part of agreement)
- Rivera v. Pennsylvania Board of Probation and Parole, 79 Pa. Cmwlth. 558, 470 A.2d 1088 (Pa. Cmwlth. 1984) (statutory scheme for CPVs requires consecutive service of backtime and new sentences)