Carter v. RAPONECarter v. RAPONE
Opinion by
This petition for review of actions taken by the Pennsylvania Board of Probation and Parole (Board) is ready for disposition upon cross-motiоns for summary judgment, pursuant to this court’s order that the issues be submitted on briefs.
The facts are as follows. Petitioner Richard Carter was paroled from the Delaware County Prison on June 25,1974, where he had been serving several concurrent sentences, with a maximum term expiration date of July 5,1976.
While pеtitioner was on parole, police arrested him September 30, 1974 on burglary charges. The Board lodged a warrant, charging technical parole violations, against him as a detainer, on October 2, 1974. Subsequently, the Board held a preliminary detention hearing and ordered him detainеd pending disposition of the new criminal charges.
On April 17, 1975, petitioner was found guilty of burglary and the same day sentenced to five to ten years at thе State Correctional Institution at Dallas. The sentence is recorded to be effective October 1, 1974.
Following a final revocation hеaring, the Board ordered petitioner recommitted as a convicted parole violator “when available,” with unserved backtime оn the prior sentences noted as totalling “two years, ten days.”
*162 Petitioner continues to be incarcerated at Dallas on the sentenсe imposed for his conviction of burglary in Delaware County, C.P., No. 875 December Term, 1974, the crime he committed while on parole.
Petitioner contends that the Board’s order to recommit him as a convicted parole violator “when available ’ ’ and failure to set a date for consideration of reparóle are improper because he is currently not “unavailable” to continue serving the unexpired pоrtion of the sentence from which he was paroled. According to petitioner, he is “available” because both his original and subsequent sentences come under the general jurisdiction of the Board. Section 17 of the Act of August 6, 1941, P.L. 861,
as amended,
This reasoning overlooks the fact that the order of serving sentences for parolees convicted of a subsequent crime is also governed by statute, as follows:
If a new sentence is impоsed upon such [convicted] parolee, the service of the balance of said term originally imposed shall precede the сommencement of the new term imposed in the following cases:
(1) If a person is paroled from any State penal . . . institution . . . and the new sentence imposed upon him is to be served in any such State ... institution.
(2) If a person is paroled from a county penal . . . institution and the new sentence imposed upon him is to be served in the same county penal... institution.
■ In all other cases, the service of the new term for the latter crime shаll precede commencement of the balance of the term originally imposed. (Emphasis added.)
Section 21.1(a) of the Act of August 6, 1941, P.L. 861,
as
amended, added by Section 5 of the Act of August 24, 1951, P.L. 1401,
as amended,
*163 Because petitioner was here sentenced to a state institution while on parole from a county institution, the newly imposed sentence must bе served, according to the above statute, before serving the balance of the old sentences. Thus petitioner is in fact not availаble for recommitment to the old sentences until he completes, or is paroled from, the new sentence, and the precise date when that will occur cannot now be known as a certainty. By the same token, a date for reparole reconsideration cannоt now be fixed.
Petitioner’s status is similar, although not identical, to that considered in
Gant v. Pennsylvania Board of Probation and Parole,
Here petitioner also raises the familiar question of whether credit for so-called street time, while on parole, can be validly forfeited as to a convicted parolee. It is well established that under
Still another issue raised by petitioner, the claim that he is currently precluded from participating in
*164
certain rehabilitative programs in the state correctional institution at Dallas, cannot be considered by us in this proceeding against the Boаrd because the conditions and privileges of his incarceration are under the control of a different agency, the Bureau of Corrеctions. Therefore, that question cannot be before us.
See: Commonwealth ex rel. Thompson v. Day,
Lastly, petitioner has raised a question concerning the sentence toward whiсh credit should be given for his jail detention time prior to imposition of the new sentence. The certificate of the Chairman of the Board indiсates that credit for the entire detention period is being applied to the new sentence; the certificate describes the effеctive date of that new sentence as October 1, 1974, which was the first full day of detention after the arrest on burglary charges September 30, 1974. Moreover, the Board’s determination of back-time remaining to be served on the old sentences is two years and ten days, which was the period between petitioner’s parole on June 25, 1974 and his original expiration date of July 5,1976.
We also note from the record that the judge, when imposing the new sentence, designated October 1, 1974 as its effective date, in accordance with Pa.R.Cr.P. 1406(b), which provides that a sentence shall be сomputed from the date of commitment for the offense.
An exception to that rule is set forth in
Mitchell v. Pennsylvania Board of Probation and Parole,
Here, although the Bоard did file a detainer October 2,1974, as above noted, the record does not indicate that petitioner satisfied bail requirements as to thе new charge for which he was then committed. Thus, petitioner’s detention from October 1, 1974 was due entirely to the new'charge, and the Board’s detainer was not the sole reason for the detention confinement.
Hence, the exception does not apply, and credit is to be givеn as the sentences are now recorded, with the detention time beginning October 1, 1974 credited toward the new sentence and the backtime оn the old sentence remaining as recorded.
Accordingly, we will dismiss petitioner’s motion for summary judgment and grant the Board’s motion for summary judgment.
Order
And Now, this 8th day of December, 1978, the motion for summary judgment of Petitioner Richard Carter is dismissed, and the motion for summary judgment of the Pennsylvania Board of Probation and Parole is granted.