701 A.2d 635 | Pa. Commw. Ct. | 1997
William E. Snyder (Snyder) appeals from an order of the Pennsylvania Board of Probation and Parole (board) which denied his administrative appeal. We affirm.
By a revocation decision recorded July 20, 1994 and mailed August 19, 1994, the board recommitted Snyder as a technical parole violator to serve eighteen months “when available.” Certified Record (R.) at 11. On August 8,1994, Snyder pled guilty to the new criminal charge. On September 6, 1995, Snyder was sentenced to serve a new term of fifteen months to sixty months in a state correctional facility.
By a combined revocation decision and recalculation order dated April 18, 1996 and mailed- May 17, 1996, the board recommitted Snyder to serve forty-eight months as a convicted parole violator to run concurrently with the eighteen month recommitment for the technical parole violation. The order also announced a recalculated maximum term expiry of February 7, 2005 for Snyder’s original sentence. In calculating the maximum term expiry, the board found Snyder available for recommittal on September 7, 1995, the date which Snyder was returned to the state correctional facility following sentencing on the new criminal conviction.
Snyder filed a request for administrative relief with the board contending that his backtime
The only issue raised in this appeal is whether a parolee, who is confined in a state correctional facility, is available for recom-mittal as a technical parole violator prior to sentencing on a new conviction where the parolee did not post bail. Citing Laguines v. Pennsylvania Board of Probation and Parole, 105 Pa.Cmwlth. 300, 524 A.2d 541 (1987), Snyder contends that at the time he was deemed a technical parole violator, he was available to serve backtime because he was incarcerated in a state correctional facility, irrespective of the existence of new criminal charges for which bail had not been satisfied. This interpretation is clearly misguided.
In Laguines, a parolee was arrested and imprisoned on new criminal charges. The parolee did not post bail and remained incarcerated pending disposition of the criminal charges. At the same time, the board issued a warrant to commit and detain the parolee because of a technical parole violation. The board then ordered the parolee to serve three months backtime as a technical parole violator “when available.”
The parolee was convicted and sentenced on the new charges and then transferred from jail to the state prison system three days after sentencing. Three months later, the board ordered the parolee recommitted as a convicted parole violator to serve nine months backtime and reaffirmed its prior recommitment order that parolee serve three months backtime for the technical parole violation.
Contrary to Snyder’s contention, Laguines merely holds that a parolee incarcerated in a state prison on new criminal charges, for which bail has not been satisfied, is available to serve backtime only after sentencing. Id. This holding is in accord with 42 Pa.C.S. § 9760(1) which requires that time spent in custody awaiting trial and sentencing on new criminal charges be credited to the new sentence. See also Gaito v. Pennsylvania Board of Probation and Parole, 128 Pa.Cmwlth. 253, 563 A.2d 545 (1989), petition for allowance of appeal denied, 525 Pa. 589, 575 A.2d 118 (1990), where we held that backtime shall be credited to a convicted parole violator’s original term only when he has satisfied bail requirements for the new offense and, thus, remains incarcerated only by reason of the board’s detainer.
In the present case, Snyder did not post bail and, thus, remained incarcerated from the date of arrest until sentencing by reason of the new criminal charge, not the board’s detainer. R. at 13. Although Snyder was incarcerated in a state correctional facility at the time of his recommitment as a technical parole violator, he did not become “available” to serve this backtime until he was sentenced on the new charge. Therefore, Snyder’s pre-sentencing incarceration period is credited only to his new criminal offense.
We, therefore, conclude, the board did not err in calculating the maximum term expiry for Snyder’s original sentence. Accordingly, the order of the board is affirmed.
ORDER
AND NOW, this 16th day of October, 1997, the order of Pennsylvania Board of Probation and Parole, at Parole No. 3802-T, is affirmed.
. Backtime is the remaining part of a pre-exist-ing judicially imposed sentence that a parole violator is directed to serve before again being eligible to apply for reparole on that particular sentence. Krantz v. Pennsylvania Board of Probation and Parole, 86 Pa.Cmwlth. 38, 483 A.2d 1044(1984).
. Our scope of review is limited to a determination of whether necessary findings are supported by substantial evidence, an error of law was committed, or whether constitutional rights of the parolee were violated. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704; Shaffer v. Pennsylvania Board of Probation and Parole, 675 A.2d 784 (Pa.Cmwlth.1996).