*1 Accordingly, in lieu the order of the trial court assessment for the station of part suspension. part is affirmed and reversed and this case is remanded to the trial (1) The station owner bears the bur- DOT, court, for remand to to allow further that proving den of the station owner that change DOT to it records to reflect provided proper supervision the em- in- Castagna only performed faulty eleven violation, ploye who committed the but spections impose an to allow DOT to supervision the owner’s could not appropriate penalty. prevented have the violation. (2) By accepting the assessment ORDER points right the station owner waives the Department’s appeal determina- NOW, AND the order If tion the case to a court of record. Pleas of Bucks the Court Common accept station owner refuses County at 02-2796-17-6 and docketed No. assessment, point Department will hereby dated 2002 is AFFIRMED suspension provided issue the in this part part and this REVERSED chapter for the offense committed. court, REMANDED to the trial case is Department further remand to the 177.602(b). § 67 Pa.Code Transportation, for the reasons set forth First, Strickland, unlike in a document opinion. foregoing in the in fact record reveals DOT did Relinquished. Jurisdiction assessing Castagna points consider in lieu suspension. of a the document rejected option
states that be- manager/owner
cause: “The station com- violations(s).” (R.R. 149a).
mitted the
Second, point system it is clear that the employee performs option an when an faulty inspection knowledge without the manager despite of the the station station Jerry JONES, Petitioner supervision. provi- manager’s proper This when, mitigate punishment sion acts efforts, despite manager’s the station best BOARD PENNSYLVANIA though a violation still occurs. even AND OF PROBATION that he Castagna mistakenly R.J. believed PAROLE, Respondent. perform was allowed to TSI Tests on the Pennsylvania. Commonwealth Court of above, he was in eleven vehicles discussed charge of the station and was also the one Argued May 2003. inspections.5 performed faulty who Aug. Decided Therefore, mitigation penalty of the based despite proper occurring on a violation su- an
pervision would not be issue. to receive
Castagna eligible would not suspen- points
an assessment of in lieu of 177.602(b).
sion under 67 Pa.Code charge tagna’s testimony was in Although Castagna of the in- that he is the holder certificate, spection it is clear from R.J. Cas- business. *2 McClure, pe- for Huntingdon, M.
James titioner. Thomas, Harrisburg, for re-
Arthur R. spondent. COLINS, Judge,
BEFORE: President SMITH-RIBNER, McGINLEY, Judge, PELLEGRINI, Judge, Judge, FRIEDMAN, COHN, Judge, and Judge, LEAVITT, Judge. BY
OPINION
JUDGE McGINLEY.
(Jones)
for
Jerry
petitions
from a final determination of
review
and Pa
Pennsylvania Board of Probation
(Board)
him to serve
role
that recommitted
backtime and recalculated
twelve months
December
2003.1
his maximum date as
evidence,
determining
are in accordance with
is limited to
wheth-
stantial
Our review
rights have
findings
supported by
law and whether constitutional
er the Board’s
are
sub-
hearing,
a revocation
the Board on
effectively
sentenced on
After
Jones was
years
to a term of two to ten
to serve
April
recommitted Jones
February
aggravated assault.2 On
as a convicted
twelve months backtime
paroled
community
Jones was
his maxi-
parole violator and recalculated
*3
a minimum of three
corrections center for
22,
May
2003.
mum date as December
On
2000,
6,
the Board
months. On December
2, 2002,
petitioned for administrative
Jones
and detain
issued a warrant
to commit
relief.
him
Department
after the
arrested
Jones
3, 2002,
mailed June
the
a decision
5, 2000,
him
charged
on December
and
request for adminis-
Board denied Jones’s
of The
with two violations
Controlled Sub-
relief:
trative
Device,
stance, Drug,
and Cosmetic
14, 1972,
283, as amend-
April
Act of
P.L.
expiration
maximum
date
Your
113(a)(16).
ed,
January
On
35 P.S.
780—
7,
January
2002.
of sentence was
When
18, 2001,
pend-
the Board detained Jones
28,
February
2000
you
paroled
were
on
charges.
criminal
ing
disposition
the
months and 9
year,
there remained 1
on
The Board released its warrant
Janu-
You
days remaining on the sentence.
7,
ary
on the new
2002. Jones made bail
5,
December
2000 and did
were arrested
7,
February
charges
January
on
2002. On
maxi-
your original
until
13, 2002,
of Common Pleas of
the Court
on Jan-
expiration
mum
date
and
Allegheny County convicted Jones
7,
uary
2002. You were sentenced
him to six to twelve months on
sentenced
13, 2002
Allegheny County
February
on
5, 2000,
1 effective December
Count
to term of 6 months to months and
him
and sen-
paroled
from that sentence
13,
Add-
paroled February
were
year
probation
him to one
for
tenced
days
10 months and 9
ing
year,
the
consecutive to Count
Count
to be served
your
sentence to
remaining
your
on
1. Jones was credited with time served
13, 2002
availability
February
date of
6, 2000,
22, 2001.
May
from December
expiration
maximum
in a new
13, 2002,
results
the Board issued a
February
On
22, 2003.
date of December
warrant to commit and detain Jones.
Department (Department)
Pennsylvania
burgh
ar-
Board
Police
been violated.
Krantz
38,
21,
3,May
86 Pa.Cmwlth.
Probation and
him on June
1993. On
rested
(1984).
1994,
Court will inter
3. The were at a hearing alleged because the victim failed to petitioned for review with this Probation (Pa.Cmwlth.2003) con- trumps Berry and Court and contended that the Board erred pre-trial trols the allocation of his provide it did not him with credit (Williams) Williams, Thomas Williams 24, 1999, January sentenced to a term of five to ten maximum argued He also that because his to commit years conspiracy for criminal September term for the granted homicide. The Board Williams expired January time he parole. conditions of his One of the subsequent served to that date was served complete him successfully solely under the Board’s warrant. This program Community at a Correction Cen- excep- Court Gaito and noted an reviewed ter. On Williams left Pennsylvania Supreme tion our created and did not Community Correction Center Court that is not convicted or if return. The Board declared him delin- imposed no new sentence is of that quent as date. On October conviction on then the pre- charged Williams arrested and applied trial time must be third degree with one misdemeanor original sentence. summary three violations of the Vehicle excep- This Court declined to extend the Code, §§ There was 75 Pa.C.S. 101-9805. *5 tion and affirmed the Board: record whether Williams no indication bar, [Berry] required post
In the case at
Petitioner
to
bail. On October
1999, the Board issued a warrant to com-
exception
asks this
to extend the
Court
technical
mit and detain Williams
two
that
such
who receives a short-
parole violations that stemmed from his
period
er term of sentence than the
pro-
complete
failure to
the corrections
time he is incarcerated at the time of
gram.
Williams
On November
sentencing
against
is entitled to credit
was returned to a state correctional insti-
his
sentence for this additional
17, 1999,
tution. On December
case,
time. We refuse to do so. In this
recommitted Williams as a technical
Berry pled nolo contendere to charges
months backtime
violator to serve twelve
driving, fleeing
eluding
reckless
available. On October
police
driving
suspension.
under
pled guilty
driving
to
with a sus-
Williams
Hence, Berry was ‘convicted’ of these
license,
pended
driving
required
without
addition,
charges.
Berry
new
responsibility
financial
and unauthorized
(four months)
sentenced to time served
registration.
transfer or use of
The mis-
plus twenty
probation
months
aas
result
jus-
dropped.
demeanor was
The district
Berry
of this conviction. As
was ‘con-
for driv-
plus
tice fined Williams
costs
$200
victed’ of these new
and a new
As a result
ing
suspended
with a
license.
imposed,
exception
as
‘sentence’ was
convictions,
the Board conducted
Penn-
[v.
stated
Gaito and Davidson
hearing
another
and recommitted
violation
Probation and Pa-
sylvania Board of
Williams to serve nine months backtime
(Pa.Cmwlth.1995)]
role,
Now, argues that this de- petitioned Court’s for review with this Williams entitled to alleged Board Court and that he was cision Williams pa- charges while ed on new criminal the date October between arrest, he was re- and December after his arrest Shortly of his role. This parole. the revocation of his facility, date of to a state correctional turned and reversed agreed with Williams Court prior incarcerated he remained where for a recalculation and remanded county sentencing. Because his his maximum date: Williams’s the time he less than sentence was time, prison credit for Williams’ arrest the date of his between incarcerated in a state much of which was served pa- of his date of the revocation and the institution, applied can be role, months and argues that seven hold that original state sentence. We neither credited twenty-six days were to new prison where time is related original sen- nor to the his new sentence cannot credited to a new charges, and As paroled. he was tence from which prisoner shall be credited spent in credit for time Williams received with unre- that time was prison because and could not be lated to new is entitled to no credit from the Williams sentence, Jones asserts credited to a new [Community time he left the CCC Cor- portion excess to have that he is entitled rection until his arrest on Vehi- Center] incarcerated, that was the time he charges. cle There is no indica- Code charges and could applied to his new bail for tion he was sentence, credit- to his new not be credited charges, but failed to the Vehicle Code expiration his new maximum ed Therefore, support there is no do so. disagrees. date. This Court remained in custo- finding for a he *6 dy of the Code viola- because Vehicle First, were Berry both and Jones ultimately
tions. Williams
received
Williams
parole violators while
convicted
a fine for the Vehicle Code violations.
parole
Under the
result,
a technical
violator.
county
As a
there was no
sen- was
Act-
prison
as the Parole
tence of confinement which
act
known
popularly
could be credited. Under these
time
(Act)4,
and tech
parole violators
convicted
circumstances,
should receive
Williams
different
parole
nical
violators are treated
prison
credit for his
Act5,
21.1 of the
61 P.S.
ly. Section
(Citations omitted.
original 331.21a,
§
that service of
new
provides
omitted).
Footnote
subsequent
precede
crime shall
term for a
Williams,
Jones
that his situation is
Here,
on the new
did serve his term
similar to
because he was arrest-
Williams’
amended,
imposed
the new term
August
commencement of
4. Act of
P.L.
§§
following cases:
61 P.S.
331.l-331.34a.
(1)
any State
person
paroled
from
If a
was added
the Act of
5. This section
penal
institution under the
or correctional
24, 1951, P.L. 1401.
supervision
Department
of the
control and
imposed
and the new sentence
of Justice
Act,
21.1(a)
61 P.S.
6. Section
any
State
such
upon him is to be served
331.21a(a), provides
pertinent part:
§
penal or correctional institution.
(2)
county
paroled
person is
from
If a
upon
imposed
such
If a new sentence is
and the
penal or correctional
institution
of said
parolee, the service of
balance
upon
is to be
imposed
him
precede
new sentence
originally imposed
term
shall
charges
compliance
in prison solely
with the Act. The was not held
on the
provide
Act does not
that a
post
Board’s detainer.
Jones did not
“penal
entitled to a
checking account”.
charges
on the
until
re-
new
21.1(c)
contrast,
Section
61 P.S.
January
leased its detainer on
331.21a(c),
provides
pertinent part Critically, in
Williams
the record did not
parole
technical
violators “shall be
posted
indicate whether
or
Williams
recommitted for service of the balance of
Gaito,
post
was
bad. Under
originally imposed
penal
said term
or
prior
a defendant remains incarcerated
”
correctional institutions....
The Act does
satisfy
trial because he fails to
bail re-
not account for
other sentence because
quirements
charges,
on the new criminal
parole
a technical
violator is recommitted
spent
then the time
shall
not because of a subsequent criminal con-
Berry
credited to his new sentence.
did
viction but for a
violation
the conditions
not receive credit for the time
parole.
example,
For
Williams
not
was
January
from
the date for
recommitted for his fines under the Vehi-
which
given
he was
credit for time served
Instead,
cle Code.
he was recommitted for
on his new
his violation
parole
of the terms of his
date that
he
sentenced on the new
because he
abiding.
law
Convict-
charges.
did not
receive
parole
ed and technical
violators do not
credit from the time
come under the same subsection of the
given
the date for which he was
credit for
Act. The
properly
treated Jones as
posted
time served until
he
the date when
just
a convicted
Berry
violator
like
prop-
bail on the
charges.
The Board
other convicted
violators.
Berry
and Gaito. Jones is
erly
followed
key
Another
difference between Jones
“penal checking
not entitled to a
ac-
hand,
Berry,
on the one
and Williams
count.”
on the other
issue of bail.
did
bail on the new
so that he
Accordingly, we affirm.8
county penal
served in the same
or
correc-
sentenced to serve term of one and a half to
tional
years.
argued
institution.
three
Gaito
he
the time
cases,
In all other
the service of the new
spent in official
detention
the State Correc-
*7
precede
term for the latter crime shall
com-
Pittsburgh
tional Institution at
before
sen-
his
origi-
mencement of the balance of the term
tencing
applied
original
should be
to his
nally imposed.
placed
tence because he
in the institution
was
a
of
as
result
the Board’s detainer not the new
7. Jones asserts that
the fact that he was
burglary charge.
argued
Gaito
that the fact
placed
ain state correctional institution rath
prison
that he was incarcerated in the state
county facility
er than a
when he was arrested
argument.
rejected
supported
Court
his
This
charges
argument
on the new
bolsters his
argument:
Gaito’s
applied
additional credit should be
to his
previously
spent
custody pursuant
a
sentence. This Court has
Time
to detain-
rejected
argument.
Pennsyl
In Gaito v.
a
er warrant shall be credited to convicted
only
vania Board
Probation and
128 Pa.
when
violator’s
term
of
for,
petition
parolee
eligible
Cmwlth.
and had satis-
denied,
fied,
appeal
allowance
525 Pa.
for the new offense
(1990) (Gaito II),
(Gai-
Joseph
A.2d 118
Gaito
only by
and thus remained incarcerated
to)
was on
when he was arrested for
against
warrant
reason of the detainer
him.
burglary.
Gaito did not
bail and was
I dissent. Jones give the court is (Jones) spent thirteen who “all” time “as credit for posting without months charge the criminal for which result of disposition of criminal awaiting imposed-” Sec- prison sentence is [the] charges and received a sentence of 9760(1) Code, 42 Sentencing tion of the majority holds that twelve months. The 9760(1). § Pa.C.S. origi is not entitled to credit on his Jones months in nal sentence for the extra one month of thirteen disposition charge of the custody awaiting applied time that cannot be to his 13(a)(16) of The that he section I violated pursuant new sentence. realize Substance, Drug, Device Controlled Berry Board Probation Act),1 relating to unlawful (Pa.Cmwlth. (Drug Cosmetic A.2d a controlled substance. possession of 2000), await whose confinement However, received a sentence disposition charges criminal ing of new prison, the maxi- only twelve months imprison ultimate sentence of exceeds the confinement allowed period mum ment on those entitled 13(b) Act, 35 Drug law. See section against sentence for the 780-113(b). Because Jones served P.S. additional time for the served. of im- one month more than the sentence follow, reasons that I believe that ultimately imposed, it is prisonment decided and should over wrongly possible give Jones credit ruled. spent in “all” the time he new sentence for Statutory Authority
I. for Credit whether, then is question The circumstances, statutory provisions pris- governing under these origi- on time credit make clear that Jones credit should *8 he original an for the extra month that against entitled to credit either nal sentence disposition of the spent spent custody awaiting for time in sentence or a new sentence charges. of new criminal custody awaiting disposition new act, arising charge of the same custody on another out spent as a result of a criminal convicted, Section supports position. charge for time for which one is sentencing to pertains court and not to a custody prisoner spent for which a is later resentenced, Board. the spent time reprosecuted and for aside, multiple sentences where one is set on amended, 233, as April P.L. spent after an arrest on one 1. Act of and for time 780-113(a)(16). § charge later convicted 35 P.S. where the individual is B. disposition Parole Act criminal charges new is set Pennsylvania forth Gaito v. Board of The only statutory provision restricting Probation and 488 Pa. Pennsylvania the Board of Probation and (1980). parolee A.2d 568 If a is held in (Board) authority give prison Parole’s to custody solely lodged because of a detainer against original time credit an sentence is by the Board and has otherwise met the commonly section 21.1 of the act known as requirements for bail on new criminal that, the Parole Act.2 Section 21.1 states charges, spent the time is cred- when the parolee’s Board discontinues a If, against original ited the parolee status and sentence. recommits the as (CPV), however, pa- convicted violator the incarcerated remains given rolee is “no credit for the time at on new criminal charges because he faded liberty parole.” on satisfy to on those charges, spent the is cred-
Although may give the Board not a CPV ited to new An exception the sentence. against original credit an sentence for time rule, general the set forth in a footnote in liberty” parole, “at on the Parole Act does states: if a convicted prevent the Board giving credit charge, new or no new sentence is against original an sentence for time imposed for a conviction on new in custody awaiting disposition of new charge, pre-trial custody ap- time is fact, charges. criminal section 21.1 of plied parolee’s original the Parole Act suggests that give should credit Id. against original an tence for all time liberty” not “at on I general believe that the rule in Gaito view, parole.3 my section 21.1 of “typical” was intended to address the that,
the Parole Act means it unless case, where the is convicted of new possible give against parolee’s criminal and the time in Code, Sentencing sentence under the custody does not exceed the sentence of should receive credit case, imprisonment. In such a Gaito en- original sentence for time in sures receives full credit awaiting disposition of new criminal custody, for time in either the new charges.4 sentence, sentence or the but not II. Case Law both.
A. The Rule Gaito exception provides The in Gaito general parolee’s original credit on the governing rule the alloca- awaiting despite parolee’s satisfy tion of credit for time served failure August 2. Act of P.L. added Cf. Williamsv. Board Proba (Pa.Cmwlth. section Act 5 of the P.L. tion and amended, 61 P.S. 331.21a. 2003) (stating parolee's prison where a time cannot be credited to a new Only jurisdiction the Board has be credited time should CPV credit an sentence for otherwise, sentence; there would be judge, sentencing time in A trial unjustifiable an total loss of credit for permitted a CPV on new criminal *9 time). give a new sentence for time custody. may in in no event CPV receive credit on both the old and new sen- custody. tence for the same time in
171 the new (1) awaiting trial on spent as time parolee the when final spent awaiting (2) charges or as time con- parolee the convicted or violator, [the as a Like commitment no new sentence. victed but receives to credit this time rule, parolee] is entitled exception general the ensures the the the old sentence or towards either full credit for time that a receives both. but not towards exception that the custody. in shows not intend that court in Gaito did months in parolee spent thirteen applied when it general rule should be sentencing and arrest and jail between credit for time deprive would months, twelve received a sentence in custody. case, receive in this would credit on the new sentence twelve months months in spent thirteen original on the and one month credit satisfying require- without general ments. rule Under
the thirteen months is credited Jones’ Bigley The court in also held However, it new twelve-month sentence. authority to determine whether Board has impossible to credit the entire thirteen given credit is to be sen In months to twelve-month Bigley the new sentence. See tence or full order to ensure that Jones receives Act, Parole (relying on section I custody, credit for his time which 331.17, gives the Board “ex P.S. which believe to be the aim of Gaito and the Af power” parolees). recommit clusive Parole I would direct the Board to position Bigley, ter the Board took give Jones credit on his credit a that it had absolute discretion to for the extra one month that he parolee’s confinement between arrest custody.5 the old sentence or sentencing to either Mitchell v. Board the new sentence. See B. Pre-Gaito Case Law 31 Pa.Cmwlth. Probation
A
pre-dating
review of certain cases
(1977),
Pa.
aff'd,
Gaito rule make as the rule Padgett and Mitchell 2. court, suggest- evolved it was never ed that the Board should Padgett In v. Board Probation full anything less than credit for time 30 Pa.Cmwlth. 373 A.2d custody. began this court to restrict allocating credit for Board’s discretion Bigley Opinion Superior Court’s Padgett, parolee In In v. Bigley, Commonwealth 281 Pa.Su- charged and was arrested (1974) per. n. 5 381 A.2d with new criminal offenses. The added), (emphasis superior our court stat- day, that same but the issued a warrant ed: Board lifted the warrant on October until be- 1975. The did not parolee] the time [a
Whether
23, 1975. The Board credited
sentencing
tween arrest and
is treated December
pro-
Berry,
time. Without
discussion of
asked this court to
al
exception
parol-
simply
that a
priety
exception,
extend the
Gaito so
this court
of such an
stated,
ee
a sentence shorter than his
Berry,
who received
756 A.2d
"We refuse to do so."
period of incarceration would receive credit
at 138.
addition-
sentence for the
*10
prisoner
a
cred-
authority
deny
Board
to
parolee’s new
for the time
the
sentence
9, 1975,
in the
July
until
it for time incarcerated while
from
27,1975.
custody subject
In
to its detainer
This court reversed.
Board’s
October
that,
so, we stated
because of the
doing
or warrant.
warrant,
parolee
the
the
Board
Thus,
Mitchell,
Padgett
tence.6 parolee’s that the failure to did not believe Mitchell, efficacy of a Board post delayed the In decided a few months after warrant; an im- pursuant to the Board’s detainer had Padgett, argued the Board that, lodges Board a de- mediate effect.8 Bigley when the parolee a who has been ar- tainer 3. Davis Board has dis- rested on new the 488, Cuyler, In Davis v. 38 Pa.Cmwlth. following credit conviction cretion to court reconsid- the old sentence or the new sen- to either parolee in Davis was ered Mitchell. The following made the tence. This court Board May on and the arrested statement: 28, The May a warrant on 1976. issued lodges the Board ... its detainer [O]nce parolee was convicted and was sentenced a to arrested on its or causes imposing 1977. In the September on warrant, in the sentence, gave the trial court the longer the and is no incarcerated for the time he credit on his new sentence offenses for which “for the offense or May September served from imposed”.... such sentence is however, Board, ignored 1977. The Board, being compelled lodge on court’s allocation of credit based trial who re prisoner detainer will on his gave Mitchell and event, must main incarcerated period of time. original sentence for consequences of its election abide do so. Padgett focusing Mitch- Ignoring Mitchell, ell, that, in puts pointed this court out recognize holding that this us We parolee posted bail after the Board position in direct conflict with thus, detainer, and, Superior [Big lodged its adopted by Court for the have been released but 17 of the would ley] [Parole] that Section words, once 331.17, detainer. other placing exclusive dis Board’s 61 P.S. requirements, recom satisfied the bail cretionary power the Board to the sole reason violators, the Board’s detainer was extends this far. mit parolee’s for the continued confinement. grant ... This section does Padgett the new but not Obviously, analysis old sentence or this court’s parolee in contrary to Gaito. Because the both. Padgett December did not bail until require that the time Gaito would case, the Board issued 8.I note in this until October served beginning at the warrant to detain Jones be credited to the new could Under Jones’ thirteen months Mitchell, Board would be Padgett and credit Jones’ Presumably, did not issue when the Board with the entire thirteen months. warrant, still had discretion under give prison time credit to either the Bigley to
173 observation, Sentencing of the section 9760 made this this court Having Act 21.1 of the Parole Code and section in holding its Mitchell to mean modified To extent that the are credit statutes. the sole that where the Board’s detainer is expression in is an holding Gaito confinement, parolee’s for the reason expressed in those credit legislative intent apply in Board must the time confinement statutes, application that the I submit original sentence.9 Davis. that a receive requires Gaito Gaito, supreme indirectly In our court custody in possible for time much credit as doing In adopted the Davis rationale.10 criminal disposition of new awaiting so, that supreme recognized our court this thereby minimizing “dead time.” cases, court had established two lines of Checking Penal Account IV. Mitchell, it modi- one based on before was that this court majority The indicates fied, and one based on Davis. The under- rejected checking accounts” for “penal has Gaito, then, in was whether lying issue 166-67.) parolees. (Majority op. at Padgett was correct in this court concept account” was first “penal checking Board, by lodging a war- Mitchell that the introduced in the case of United States ex against posted rant a who had not Rundle, F.Supp. 285 965 rel. Smith v. im- charges, gained on new criminal (E.D.Pa.1968). Rundle, In an inmate parolee. mediate control over the Of present sentence sought credit course, the court decided that a Board under an invalid sen- for time he served detainer did have immediate effect The court denied the inmate where the failed to bail. because, ac- “penal checking if there were result, reaching this the court never enter- counts,” years several person could serve that, applying tained the notion in the rule prison under an invalid sentence adopted, parolee might that was apply prison that time to could seek to receive full credit for time in I committed. Id. yet crime that he has not type “penal checking agree that III. and “Dead Time” Credit Statutes However, there is improper. account” is checking account” in this “penal no such purposes One of the of a credit statute is case. time,” the elimination of “dead which is person spends
time that a seeks credit Whenever will not be credited to valid sentence. original sentence for time Smith, F.Supp. 159 Chavis disposition of new criminal awaiting the (D.Md.1993). statute, By enacting credit always existing an charges, there legislature seeks to ensure that a de- not a situation tence to credit. This is possible much fendant receives as credit as prison parolee seeks to have the where the for time as is consistent crime. A credited to some future practical imposed, with constitutional and consider- and it already has been fully. Given that yet Id. A credit statute can create a has not been served ations. context, awaiting protected by if a liberty interest charges and that disposition Id of new United States Constitution. Rodriques v. Padgett, on Davis in had not 10. This court relied I note Pennsylvania Board Probation lodged posted bail after the Board its detainer and, 403 A.2d Pa.Cmwlth. therefore, and, have been released. would not adopted ra- supreme court our Rodriques. tionale set forth (1971); Davis, applied time cannot be to the new L.Ed.2d 428 Durkin v. *12 (4th Cir.1976). imposed, ultimately sentence may F.2d 1037 Courts original person should receive credit on the to grant refuse credit for time served where bail was set and the defen- dant it of was unable to raise due to lack Equity V. Levi, F.Supp. wealth. Kincade v. 442 51 v. Pennsylvania Davidson (M.D.Pa.1977). Such refusal constitutes (Pa. Probation and unequal treatment between one unable to Cmwlth.1995), this court that stated the make bail and one who can make bail. exception general rule Gaito is Durkin. in equity. Equity requires based the ad petition proceed Jones filed a justice ministration of according princi pauperis with this court. forma fairness, ples justness right deali likely satisfy it is that failed to just It ng.11 deny is not fair or credit indigency. due to The ma to a for time when the jority’s view is under the Parole parolee has a sentence that could cred Jones would have been entitled to full deprive
ited. To liberty credit, original his for time give under such circumstances fails to due posted he had bail. Because sanctity liberty accord to the and trivial bail, Jones did not Jones is not enti protection liberty izes the afforded interpret tled to full credit. When we law. statute, presume we that the legislature Equal Protection VI. does not intend to violate the United States or Pennsylvania Constitutions. Non-parolee A. Parolee and 1922(3) Statutory Section Construc might argue Some should 1922(3). 1972, 1 tion Act of Pa.C.S. receive the one month credit non-parolee, sentence because a above, I For the reasons stated would credit, who has no overrule and reverse the Board’s would not receive such credit. it failure to Jones one month credit on fair anyone, is not or non-
parolee, spend thirteen months in ultimate sentence is twelve Judges SMITH-RIBNER COHN It rectify months. makes no sense not to join in this dissent. wrong parolees simply for because we rectify
are wrong unable to for non-
parolees. Indigent Non-indigent
B. right
awaiting trial on a is a bailable offense right protected by equal
constitutional
protection clause. Nelson United
States, 402 U.S. S.Ct. (1971);
L.Ed.2d 428 Gaines v. United
States, 91 S.Ct. U.S. (6th ed.1990). Dictionary
11. See Black’s Law