203 A.3d 382
Pa. Commw. Ct.2019Background
- Russell Barnes was serving a 9–19 year sentence (max Jan. 16, 2025), paroled Jan. 18, 2015, and arrested Sept. 2, 2015 on new PWID and weapons charges; the Board issued a detainer.
- After a mistrial, Barnes pled guilty May 25, 2017 to one count of possession with intent to deliver (heroin), sentenced 1–2 years concurrent with other sentences (credit for time served), then was returned to DOC custody May 31, 2017.
- The Board held a revocation hearing Sept. 27, 2017 and recommitted Barnes as a convicted parole violator (CPV) to serve 30 months of backtime (no credit for time at liberty); it recalculated his max date to Sept. 25, 2027.
- Barnes administratively appealed, challenging hearing timeliness, use of a 30‑month backtime, denial of credit for street time and for pre‑revocation custody, and the Board’s refusal to give effect to his plea’s concurrency provision.
- The Commonwealth Court affirmed the Board on timing, backtime range, denial of street‑time credit, and concurrency, but reversed limitedly: it held Barnes must receive 24 days’ credit to his original sentence for custody time that exceeded the two‑year maximum of his new PWID sentence, and remanded for recalculation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Timeliness of revocation hearing | Barnes: hearing was untimely because it occurred 125 days after plea ( >120 days). | Board: timing runs from return to state custody (May 31, 2017); hearing within 120 days. | Held: Hearing timely — held 119 days after return to state custody. |
| 2) Presumptive backtime range | Barnes: PWID with statutory max ≤5 years -> 9–15 months presumptive range. | Board: PWID involved heroin (Schedule I) -> 15‑year max -> 24–36 months range; 30 months is within range. | Held: Board correct — heroin PWID has 15‑year max; 30 months is within 24–36 range. |
| 3) Credit for time at liberty on parole (street time) | Barnes: Pittman requires adequate contemporaneous explanation; he should get credit. | Board: discretionary denial with reasons (new conviction same/similar; early failure). | Held: Board had discretion and provided sufficient explanation in its Feb. 20, 2018 order; denial upheld. |
| 4) Credit for pre‑revocation custody (Sept. 3, 2015–Sept. 27, 2017) | Barnes: custody time should be credited to original sentence (or allocated equitably). | Board: most pre‑revocation custody credited to new sentence; original sentence backtime begins on recommitment date. | Held: Generally Board correct, but under Martin where pre‑sentence custody exceeds new sentence maximum, excess must be credited to original sentence — Barnes was entitled to 24 days’ credit; remand to recalc. |
| 5) Concurrency of new and original sentences | Barnes: plea provided new sentence to run concurrently; he should get concurrent service. | Board: 61 Pa.C.S. §6138(a)(5) requires backtime on original sentence precede new sentence; trial court cannot force concurrency. | Held: Board correct — new sentence must run consecutive to original backtime; plea concurrency provision ineffective as to Board. |
Key Cases Cited
- Ramos v. Pennsylvania Board of Probation & Parole, 954 A.2d 107 (Pa. Cmwlth. 2008) (Board bears burden to prove revocation‑hearing timeliness)
- Pittman v. Pennsylvania Board of Probation & Parole, 159 A.3d 466 (Pa. 2017) (Board must state contemporaneous reason when denying CPV credit for street time)
- Martin v. Pennsylvania Board of Probation & Parole, 840 A.2d 299 (Pa. 2003) (when pre‑sentence custody exceeds new sentence maximum, excess must be credited to original sentence)
- Gaito v. Pennsylvania Board of Probation & Parole, 412 A.2d 568 (Pa. 1980) (pre‑trial custody while detained on both new charges and Board detainer is generally credited to new sentence unless bail was otherwise satisfied)
- Armbruster v. Pennsylvania Board of Probation & Parole, 919 A.2d 348 (Pa. Cmwlth. 2007) (applying Martin when pre‑sentence custody exceeds new sentence maximum requires credit to original sentence)
- Kerak v. Pennsylvania Board of Probation & Parole, 153 A.3d 1134 (Pa. Cmwlth. 2016) (Board need not honor trial court order to make new sentence concurrent with original backtime under §6138(a)(5))