Opinion
No. 2272 C.D. 2012
06-17-2013
Nick Logan, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Nick Logan (Logan) petitions this Court for review of the Pennsylvania Board of Probation and Parole's (Board) November 19, 2012 denial of his petition for administrative review. There is only one issue before the Court: whether the Board committed an error of law by denying Logan credit on his original sentence for the period he was incarcerated on both the new criminal charges and the Board's warrant. We affirm.
Logan was originally sentenced by the Allegheny County Common Pleas Court to a term of 6 to 24 years for various theft-related offenses. Logan's original maximum date was October 18, 2015. Logan was paroled to a Community Corrections Center on September 28, 2009. On February 8, 2011, the Board declared Logan delinquent. On March 31, 2011, the Board detained Logan on new criminal charges and lodged a warrant to commit him. The new criminal charges were in the Allegheny County Common Pleas Court, docket numbers: CP-02-CR-4829-2011 (4829), CP-02-CR-4530-2011 (4530) and CP-02-CR-6403-2011 (6403). By Board action recorded May 24, 2011 and mailed June 2, 2011, the Board rendered a decision detaining Logan pending disposition of the new criminal charges and recommitting him as a technical parole violator to serve 9 months backtime, when available. On February 1, 2012, Logan was found guilty, with a sentencing date scheduled for March 19, 2012.
On March 19, 2012, Logan was sentenced in his 4829 case to an 18 to 36-month term of confinement (Certified Record (C.R.) at 37, 41); he was sentenced in his 4530 case to a 12 to 36-month term of confinement, to run consecutive to his 4829 case (C.R. at 63, 67); and he was sentenced in his 6403 case to an 18 to 36-month term of confinement, to run concurrent with his 4829 case (C.R. at 77, 82). By Board action recorded July 30, 2012 and mailed August 9, 2012, referring to Logan's May 24, 2011 recommitment to a state correctional institution as a technical parole violator to serve 9 months, Logan was recommitted to a state correctional institution as a convicted parole violator to serve 12 months backtime. Logan filed a request for administrative relief on August 27, 2012. On November 19, 2012, the Board denied Logan's request for administrative relief. Logan appealed to this Court.
Our scope of review of the Board's decision denying administrative relief is limited to determining whether necessary findings of fact are supported by substantial evidence, an error of law was committed, or constitutional rights have been violated. McNally v. Pennsylvania Bd. of Prob. & Parole, 940 A.2d 1289 (Pa. Cmwlth. 2008). --------
Logan argues that based on Gaito v. Pennsylvania Board of Probation and Parole, 488 Pa. 397, 412 A.2d 568 (1980), "[s]ince [his] time . . . served [was] prior to him serving his sentence on his new criminal charges, this time should be credited toward his original sentence." Petitioner's Br. at 14. We disagree.
The Gaito Court held:
[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.Id. at 403-04, 412 A.2d at 571. See also Hines v. Pennsylvania Bd. of Prob. & Parole, 491 Pa. 142, 147, 420 A.2d 381, 384 (1980). Here, Logan was incarcerated on both the new criminal charges and the Board's warrant from March 31, 2011 to March 19, 2012. It is undisputed that Logan failed to post bail in two of the three criminal cases that were pending at the same time the Board's warrant was in place. C.R. at 36, 76. Therefore, in accordance with Gaito and Hines, the time Logan spent in custody is to be credited to his new sentence.
Logan next asserts that Hears v. Pennsylvania Board of Probation and Parole, 851 A.2d 1003 (Pa. Cmwlth. 2004), is controlling herein because, like the instant case, Hears was incarcerated on both new criminal charges and the Board's detainer, and this Court vacated and remanded the matter to the Board to recalculate Hears maximum release on his original sentence date by giving him credit for the time he spent incarcerated. Hears is inapposite. Although Hears served pre-sentence time on both new criminal charges and the Board's warrant, unlike Logan, the time Hears served exceeded the length of his new sentence. As Logan correctly notes, the Pennsylvania Supreme Court in Martin v. Pennsylvania Board of Probation and Parole, 576 Pa. 588, 840 A.2d 299 (2003), held that:
where 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 605-06, 840 A.2d at 309 (emphasis added). In accordance with the principles established in Martin, the Court in Armbruster v. Pennsylvania Board of Probation and Parole, 919 A.2d 348 (Pa. Cmwlth. 2007), held that when the pre-sentence confinement exceeds the new sentence, then that incarceration time must be applied to the defendant's original sentence. Id. If, however, the new sentence exceeds the time spent in custody pre-sentencing, the time served is to be applied to the new sentence. Id. Here, Logan's new sentence exceeds his pre-sentence confinement, thus, his pre-sentence incarceration time must be applied to his new sentence. Accordingly, the Board properly refused to apply Logan's pre-sentence confinement time towards his original sentence.
Lastly, Logan maintains that the record is unclear as to whether his period of incarceration was actually applied to his new sentence. The Board correctly notes that it has no authority to make such correction, if in fact one is required to be made.
[T]he Supreme Court made it clear that issues regarding the proper allocation of credit on a new sentence must be addressed by the sentencing court, or the Superior Court on appeal. . . . [I]t is the duty of the Department of Corrections to credit inmates for all statutorily mandated periods of incarceration, but it must be done pursuant to the trial court's sentencing orders. The Department 'is charged with faithfully implementing sentences imposed by the courts' and 'lacks the power to adjudicate the legality of a sentence or to add or delete sentencing conditions.' If a trial court does not give an inmate full credit for time served, the Department of Corrections has no duty to give an inmate full credit for time served. The inmate's remedy is in the trial court and through the direct appeal process.Id. at 355 (citations omitted).
For all of the above reasons, the Board's order is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 17th day of June, 2013, the Pennsylvania Board of Probation and Parole's November 19, 2012 order is affirmed.
/s/_________
ANNE E. COVEY, Judge