Summary
In Merritt v. Pennsylvania Board of Probation and Parole, 115 Pa.Cmwlth. 34, 539 A.2d 511 (1988), aff'd, 524 Pa. 577, 574 A.2d 597 (1990), we addressed whether a parolee is entitled to credit for time served for a concurrent sentence while constructively paroled from an original sentence.
Summary of this case from Spruill v. Pa. Bd. of Prob. & ParoleOpinion
March 29, 1988.
Pennsylvania Board of Probation and Parole — Computation of backtime — Credit for time on constructive parole.
1. Under provision of the Act of August 6, 1941, P.L. 861, a convicted parole violator on constructive parole on a particular sentence while serving time on another sentence is not entitled to credit for constructive parole time against that particular sentence, and the denial of credit for constructive parole time is appropriate in concurrent as well as in consecutive sentence situations. [36]
Submitted on briefs January 22, 1988, to President Judge CRUMLISH, JR., Judge COLINS, and Senior Judge BLATT, sitting as a panel of three.
Appeal, No. 1784 C.D. 1987, from the Order of the Pennsylvania Board of Probation and Parole, in case of Marvin Merritt, Parole No. 0699-J, dated June 11, 1987.
Parolee recommitted as convicted and technical parole violator. Parolee appealed to the Pennsylvania Board of Probation and Parole for administrative relief. Relief denied. Parolee appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Patrick J. Flannery, Assistant Public Defender, for petitioner.
Timothy P. Wile, Assistant Chief Counsel, with him, Robert A. Greevy, Chief Counsel, for respondent.
Marvin Merritt appeals the Pennsylvania Board of Probation and Parole's (Board) denial of administrative relief from its order recomputing his backtime. We affirm.
Merritt was sentenced to an indeterminate to six-year term beginning September 15, 1972. He was subsequently sentenced on different charges to a one to three-year term beginning April 29, 1974, and an eleven and one-half to twenty-four months term beginning June 20, 1974. The Bureau of Correction's "Initial Sentence Status Report" indicated that all three sentences were concurrent. The Board "consecutively" paroled Merritt from the first sentence on June 20, 1974, and immediately re-entered him to continue serving the minimum terms for the remaining sentences. The Board paroled Merritt from those sentences on June 5, 1975.
Constructive parole occurs where the prisoner is administratively paroled from one sentence and immediately re-entered for the purpose of serving another. Weyand v. Pennsylvania Board of Probation and Parole, 94 Pa. Commw. 32, 503 A.2d 80 (1986). In the past, the constructive parole concept has been applied in the context of consecutive sentences. Thus, a prisoner constructively paroled from the initial sentence is re-entered so that he may begin serving the minimum term of the second consecutive sentence.
Merritt was subsequently recommitted as a convicted parole violator based upon a new criminal conviction. Merritt contends that, in computing his backtime, the Board erroneously denied him credit for the period of June 20, 1974, through June 5, 1975, which represents the time spent on constructive parole from his first sentence. We disagree.
Our scope of review is limited to a determination of whether the Board's findings are supported by substantial evidence, whether an error of law was committed, and whether any of the parolee's constitutional rights were violated. Kirkland v. Pennsylvania Board of Probation and Parole, 107 Pa. Commw. 566, 528 A.2d 711 (1987).
Section 21.1(a) of the parole statute provides that convicted parole violators "shall be given no credit for the time at liberty on parole." One who is on constructive parole is "at liberty" from confinement on that particular sentence and, therefore, is not entitled to credit against that sentence for such time. Hines v. Pennsylvania Board of Probation and Parole, 491 Pa. 142, 420 A.2d 381 (1980). We hold that the Board properly denied Merritt credit against his first sentence for the period in which he was constructively paroled from that sentence.
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, 61 P. S. § 331.21a (a).
Although Merritt does not attempt to distinguish the case law, we are aware that Hines and its progeny approved the denial of credit for constructive parole time in consecutive sentence situations. See Hines; Debnam v. Pennsylvania Board of Probation and Parole, 71 Pa. Commw. 572, 455 A.2d 297 (1983); Weyand v. Pennsylvania Board of Probation and Parole, 94 Pa. Commw. 32, 503 A.2d 80 (1986). The fact that Merritt's, sentences were concurrent does not alter our conclusion. We believe that the Board may, based upon its broad discretionary power to parole under Section 21, 61 P. S. § 331.21, grant constructive parole for the period in which the parolee is serving the minimum term of another concurrent sentence. See generally Reider v. Pennsylvania Board of Probation and Parole, 100 Pa. Commw. 333, 514 A.2d 967 (1986), and Barnhouse v. Pennsylvania Board of Probation and Parole, 89 Pa. Commw. 512, 492 A.2d 1182 (1985) (Board has administrative discretion with respect to decisions to grant or deny parole).
We therefore affirm the Board.
Merritt also contends that the period of incarceration between the conviction and sentencing on the new criminal charges should have been credited against his backtime rather than his new criminal life sentence. We disagree. Pre-sentence confinement time is properly allocated to the new sentence where, as here, the parolee failed to post bail with respect to the new criminal charges. Laguines v. Pennsylvania Board of Probation and Parole, 105 Pa. Commw. 300, 524 A.2d 541 (1987).
ORDER
The decision of the Pennsylvania Board of Probation and Parole dated June 11, 1987, is affirmed.