Lead Opinion
OPINION
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
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.
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.
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,
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,
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,
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,
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,
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 con-fmement 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,
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,
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,
[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
Gaito,
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,
■ On appeal, the Martin Court recognized 42 Pa.C.S. § 9760 requires a court to give credit to sentencing for new charges,
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,
[Wjhere 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,
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,
Martin is limited to the allocation of excess pre-sentence confinement credit. In other words, where a parole violator is confined on both the Board’s warrant and the new criminal charges and it is not possible to award all of the credit on the new sentence because the period of presentence incarceration exceeds the maximum term of the new sentence, the credit must be applied to the offender’s original sentence.
Armbruster,
Notably, when the above cases were decided, Section 6138(a)(5) of the Prisons & Parole Code was in effect, although none of the cases mentioned or referred to it. At that time, the sub-section provided:
(5) If a new sentence is imposed on the parolee, the service of the balance of the term originally imposed shall precede the commencement of the new term imposed in the following cases:
(i) If a person is paroled from a State correctional institution and the new sentence imposed on the person is to be served in the State correctional institution.
(ii) If a person is paroled from a county prison and the new sentence imposed upon him is to be served in the same county prison.
(iii) In all other cases, the service of the new term for the latter crime shall precede commencement of the balance of the term originally imposed. ,
61 Pa.C.S. § 6188(a)(5)(i)—(iii). Thus, pursuant to sub-section (5)(iii), when a convicted parole violator received a new federal sentence, he was to serve it first before commencing the back time on his original state sentence.
However, in 2010, the legislature added Section (a)(5.1), which requires a parolee to serve back time first, before a new federal sentence:
(5.1) If the parolee is sentenced to serve a new term of total confinement by a Federal court or by a court of another jurisdiction because of a verdict or plea ..., the parolee shall serve the balance of the original term before serving the new term.
See 61 Pa.C.S. § 6138(a)(5.1).
In the case sub judice, the panel below, similar to the Baasit court, extraced the statement in Martin that the Board may allocate time spent in custody on both a Board detainer and detainer for new charges “to ensure' équitable credit” without also acknowledging Martin’s extensive explanation that a strict application of Gai-to to the parolee in that case — whose new sentence was longer than his pre-sentence .confinement — would unfairly result in excess imprisonment. See Martin,
We also reject the panel’s interpretation of Section 6138(a)(5.1) as requiring credit to b.e applied to a convicted parole violator’s original sentence. As stated above, Section 6138(a)(5.1),provides, “If the parolee is sentenced to serve a new term of total confinement by a Federal court or by a court of another jurisdiction because of a verdict or plea ... the parolee shall serve the balance of the original term. before serving the new term.” 61 . Pa.C.S. § 6138(a)(5.1). The plain language of this sub-section provides only that a convicted parole violator shall serve the balance of his original state sentence before serving a new sentence imposed by a federal court or court of other jurisdiction. The Board correctly points out the predecessor provision, Section 6138(a)(5) — which remains in effect for cases in which the new sentence is also a Commonwealth sentence — was not applied in Gaito or any of its progeny as pertinent to the question of how credit should be applied. In fact, the panel’s interpretation of Section 6138(a)(5.1) supplies additional language that is. simply not present in the provision, and interprets it as dictating how credit for detention should be allocated when a parolee receives multiple sentences.
Finally, we disagree with the panel that the primary jurisdiction doctrine requires confinement credit be allocated to the sentence of the jurisdiction which first arrests a defendant. The panel again relied on Baasit for this conclusion. In Baasit, the Commonwealth Court adopted the parolee’s argument that “under the doctrine of primary jurisdiction, pre-sentence confinement credit must be applied to state parole back time rather than the new federal sentence because the state parole detainer pre-dated the federal charges,” without providing any supporting explanation. Baasit,
Our conclusion that credit here should be awarded according to new [61 Pa.C.S. § 6138(a)(5.1) is also supported by the primary jurisdiction doctrine. Under that doctrine the sovereign which first arrests a defendant is afforded primary jurisdiction. See Newsuan [,853 A.2d at 411 .] Our conclusion is also consistent with the Supreme Court’s more flexible approach to credit, as set forth in Martin.
Baasit,
The doctrine of primary jurisdiction is a means for resolving jurisdictional disputes between the sovereigns.... Thus, when a federal court and state court each have jurisdiction of a defendant, the doctrine of primary jurisdiction allows the tribunal which first obtained jurisdiction to hold it to the exclusion of the other until the first tribunal’s jurisdiction is exhausted.
When a state has primary jurisdiction ... primary jurisdiction over a defendant ends and federal custody over him commences only when the state authorities relinquish him on satisfaction or ex-tinguishment of the state obligation. The federal sentence does not commence until the defendant is received into custody at the official detention facility at which the sentence is to be served. 18 U.S.C. § 3585(a); U.S. v. Pungitore,910 F.2d 1084 , 1118-19 (3d Cir. 1990), cert. denied,500 U.S. 915 ,111 S.Ct. 2009 ,114 L.Ed.2d 98 (1991) (“a federal sentence does not begin to run until the defendant is delivered to the place where the sentence is to be served”).
The doctrine of primary jurisdiction can be problematic when the defendant receives a state sentence that is to be served concurrently with an existing federal sentence.
Newsuan,
The doctrine of primary jurisdiction simply relates to the question of which sovereign exercises jurisdiction first over a defendant; it does not govern how credit should be allocated when two or more sovereigns impose sentences. See id. The concern in Newsuan is not implicated here. Appellee was not ordered to serve his original and federal sentences concurrently, and there was no dispute as to when the federal authorities would release appellee to serve his state sentence — the panel specifically noted appellee was transferred to SCI Rockview on September 10, 2014, to commence his back time on the original state sentence before being returned to federal authorities to serve his new federal sentence. Smith,
Here, appellee was detained on both the Board’s and federal detainers — where he did not satisfy bail for the federal charges — for 209 days, and then received a new federal sentence of 246 months, or approximately 7,480 days. The federal sentence obviously is longer, and thus the general holding of Gaito applies to this case, not the exception that was set forth at footnote 6 .and expanded in Martin. Accordingly, we hold the panel erred in extending Martin to hold the Board had discretion to apply credit for the detention to appellee’s original sentence, and the panel’s decision in this regard contravened Gaito. We further hold the Board properly denied credit under Gaito, and thus reverse the decision of the Commonwealth Court and remand for a correct calculation of appellee’s maximum release date.
Order reversed. Case remanded for proceedings consistent with this opinion. Jurisdiction relinquished.
Justices Baer, Donohue, Wecht and Mundy join the opinion.
Chief Justice Saylor files a dissenting opinion.
Justice Todd files a dissenting opinion.
Notes
. 18 Pa.C.S. § 3701(a).
. Appellee was indicted in the' United States . District. Court for the Eastern District of North Carolina under his alias, Rodger Kent Williams. The charges were: possession of a firearm by a.ponvicted felon, 18 U.S.C. § 922(g); use of a firearm during a crime of violence, 18 U.S.C. § 924(c)(1)(A); and interference with commerce by threat, violence or robbery, 18 U.S.C. § 1951.
. Although the Board’s November 27, 2013 notice imposed six months’ imprisonment on appellee for a technical violation, it apparently did not include this six-month term in stating his maximum date was December 31, 2020. See Notice of Board Decision, 11/27/13, C.R. at 58.
. The Board erroneously calculated the sum of 6 months and 48 months to be 56 months, instead of 54 months. Notice of Board Decision, 12/12/14, C.R. at 88.
. Appellee did not, in this petition or either of his two subsequent petitions to the Board, suggest any particular number of days’ credit to which he was purportedly entitled, nor the maximum release date he should have been granted.
. Neither the panel below nor the parties acknowledged the Board reparoled appellee on November 27, 2013, and thus, as of that date, he was detained only on the federal detainer. We calculate the actual time appel-lee was detained on both the Board and federal detainers as 209 days (May 2, 2013, when the federal authorities lodged its detainer, through November 27, 2013, when the Board reparoled appellee) rather than 397 days. We note this discrepancy does not affect our analysis or ultimate holding that the time appellee spent on both detainers must be credited to his federal sentence, as both terms—209 and 397 days—are shorter than appellee’s federal sentence of 246 months’ imprisonment. See Martin v. Pa. Bd. of Prob. & Parole,
.As discussed in more detail infra, this Court held in Gaito that if a parolee is detained both on a detainer by the Pennsylvania Board of Probation and Parole and for new charges for which he did not satisfy bail requirements, the time spent in custody is to be credited to the sentence imposed for the new charges, but if the parolee met bail requirements for the new charges and was thus detained solely on the Board's detainer, time in custody is to be credited against the original sentence. Gaito,
. In Newsuan, the Commonwealth Court noted that when a federal court and state court each have jurisdiction over a defendant, the doctrine of primary jurisdiction allows the tribunal which first obtained jurisdiction to hold him to the other’s exclusion until its jurisdiction is exhausted, e.g. by bail release, dismissal of charges, parole release, or expiration of sentence. Newsuan,
. Section 6138(a)(5.1) provides: “Ifthe parolee is sentenced to serve a new term of total confinement by a Federal court or by a court of another jurisdiction because of a verdict or plea ..., the parolee shall serve the balance of the original term before serving the new term.” 61 Pa.C.S. § 6138(a)(5.1).
.In Armbruster, the convicted parole violator was denied pre-sentence credit for time he was confined on both new criminal charges and a Board detainer for violation of parole. Armbruster,
. The panel did not address Armbruster, on which the Board had relied. The panel below also did not acknowledge appellee had advanced an additional argument, that Baasit also held a "double credit problem” — in which a parolee who receives credit toward his original sentence seeks the same credit against his new sentence — would not arise where the new sentence is a federal one because federal statute 18 U.S.C. § 3585(b) precludes credit for a federal sentence for any time already credited toward an original state sentence. See Baasit,
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.
. Judgé Smith-Ribner dissented, reasoning Martin should receive credit on his original sentence for the excess time spent in custody. Martin,
. Section 9760 provide^ credit shall be given against a sentence for all time a defendant spent in custody as result of criminal charges, 42 Pa.C.S. § 9760(1)—(4).
. Citing McCoy v. Pa. Bd. of Prob. & Parole,
. In McCray, this Court held a challenge to the denial of credit on a sentence for new criminal offenses must be presented to the sentencing court or in an appeal to the Superior Court, and is not-to be resolved by the Board. McCray v. Pa. Dep’t of Corr.,
. The 2010 amendment also added the phrase "by a Pennsylvania court” to subsection (a)(5) as follows: "the service of the balance of the term originally imposed by' a Pennsylvania court shall precede 61 Pa.C.S. § 6138(a)(5), amended by Act 2010-95 (S.B. 1161), P.L. 931, § 20, approved Oct. 27, 2010.
. Section 6138 includes two references, to credit: "Section 6138(a)(2), which provides a parolee recommitted by the Board shall not be given credit for the time spent at liberty on parole; and Section 6138(a)(2.1), which states the Board may, in its discretion, award credit for time spent at liberty on parole, barring express circumstances. 61 Pa.C.S. § 6138(a)(2), (2.1). Neither of these provisions pertains to credit for incarceration on a Board detainer.
. We recognize the force of Chief Justice Saylor's position this Court should reconsider the appropriateness of per se rules as justice requires, see Dissenting Opinion, Saylor, C.J., op. at 772-73, citing Commonwealth v. Henderson,
. As it is clear Baasit improperly interpreted Martin, Section 6138(a)(5.1), and the primary jurisdiction doctrine as eroding or eliminating the rule in Gaito, we now expressly disapprove of Baasit.
We also reject appellee's "double credit” argument — that if he were to receive credit for the confinement period toward his original state sentence, there would be no risk he would receive the same credit for his federal sentence because 18 U.S.C. § 3585(b) would not allow such "double credit.” Although it is true the federal statute does not generally allow credit for federal pre-sentence confinement when the same time confinement has already been credited toward another sentence, see 18 USCS § 3585(b)(1)-(2) (defendant shall be given credit, toward term of imprisonment for any time he spent in official detention prior to date sentence commences, that has not been credited against another sentence), this circumstance does not warrant a different result here. The fact that appellee would be denied federal credit if he now received credit for his original state sentence is not in itself a persuasive basis for granting state credit.
. See also n.4, n.6, supra.
Dissenting Opinion
DISSENTING
The subject of credit for time served is a difficult one, in that the matter would seem to be most suitable to close regulation by the political branch; however, in the absence of specific legislative development, the treatment has fallen largely to the courts. See Martin v. Pennsylvania Bd. of Probation and Parole,
It is axiomatic, of course, that once a' judicially created rule is promulgated, the common law system requires that appellate courts consider this rule in its various factual guises and expand or contract the rule as justice requires.
Commonwealth v. Henderson,
I would follow the latter approach here and adhere to the Commonwealth Court’s essential treatment. Gaito certainly did not anticipate the resource-related and fiscal issues that attend the channeling of credit for time served away from the state system in which an inmate, is physically housed and effectively diverting -it 'to a federal sentence. Although the doctrine of primary jurisdiction and Section 6138(a)(5.1) of the Prisons & Parole Code may not directly answer the question presented here, their policy implications are. consistent with the intermediate court’s holding, and I simply would not construe Gaito as foreclosing the Commonwealth from allocating time-spent in state institutions to state (as opposed to federal) sentences. By taking the opposite approach— and. extending Gaito to .the present factual circumstances which were never contemplated there — the majority relegates the Commonwealth penal system to accommodating prisoners for longer periods of- time than reflected in their state terms of sentence. The result is to require the state system to absorb the attendant costs and other burdens while being used, effectively, as a proxy for federal custody.
Finally, relative to the majority’s discussion of the per curiam order in Melhorn v. PBPP,
For the above reasons, I respectfully dissent.
. In fact, given Martin's exposition of the various difficulties attendant in Gaito's rationale, I would be receptive to reconsidering that decision in an appropriate case, particularly as most other states have adopted a rule opposite that of Gaito. See State v. Aubuchon,
Dissenting Opinion
DISSENTING
I join Chief Justice Saylor’s cogent Dissenting Opinion in all respects but one. First, I share his worthy observations about the-lack of legislative guidance in this area. Even though nearly a decade and a half has elapsed since our Court’s observation in Martin v. Pennsylvania Board of Probation and Parole,
I also agree with Chief Justice Saylor that Gaito does not govern the outcome of this case, nor, in my estimation, does Martin, as neither case involved the type of sentences at issue here, ie,, the offender’s new sentence was imposed by a federal court for a crime committed outside of Pennsylvania, and the offender’s prior sentence was imposed by a Pennsylvania court for a Pennsylvania crime. However, I wholly concur in Chief Justice Saylor’s assessment, and that of the lower court, that a compelling indication of the legislature’s intent in this situation can be discerned from Section 6138(a)(5,l) of the Prisons and Parole Code which specifies the ordering of service of these two type of sentences: “[i]f the parolee is sentenced to serve a new term of total confinement by a Federal court or by a court of another jurisdiction ... the parolee shall serve the balance of the original term before serving the new term,’’ 61 Pa.C.S. § 6138(a)(5.1). While this statutory provision does not speak directly to the issue of time credit, it indicates a legislative preference 'that, in these situations, the Pennsylvania sentence must be served first. Thus, it is reasonable to conclude, as the Commonwealth Court did, that credit for time served should also be assigned to Appellee’s Pennsylvania sentence, as Pennsylvania seemingly has the most significant interest in seeing this time credit applied to its own court’s sentence. It .is, after all, the Commonwealth’s correctional system and, by extension, our Commonwealth’s budget supported by the taxpayers which will bear the costs of. incarcerating Appellee, and all others similarly situated, in a Pennsylvania prison because of a, Pennsylvania sentence.
However, because, in my view, Gaito and Martin provide an appropriate framework for the proper, assignment of time credit whenever the sentences are imposed by Pennsylvania courts' and .the terms of incarceration will be served in Pennsylvania correctional facilities, unlike the Chief Justice, I see no reason to revisit either ease in the absence of further legislative direction in this area,. In all other, respects, I join him in dissenting from the Majority Opinion.
. See Martin,