maximum length of sentence, not maximum date, is controlling
How later courts described this case
- maximum length of sentence, not maximum date, is controlling
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joshua Lee Powell, :
Petitioner :
:
v. :
:
Pennsylvania Parole Board, : No. 1306 C.D. 2023
Respondent : Submitted: October 8, 2024
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: November 15, 2024
Joshua Lee Powell (Powell) petitions this Court for review of the
Pennsylvania Parole Board’s (Board) October 27, 2023 decision denying his request
for administrative relief from the Board’s February 21, 2023 decision (mailed
February 24, 2023) that recommitted him as a convicted parole violator (CPV) and
recalculated his maximum release date to May 25, 2025. Powell presents two issues
for this Court’s review: (1) whether the Board erred in its recalculation of his
maximum release date by setting a new maximum release date after his maximum
release date had expired; and (2) whether the Board erred by not awarding him credit
for the period of incarceration from February 16, 2021 until August 4, 2022. After
review, this Court affirms.
Powell is currently incarcerated at the State Correctional Institution
(SCI) at Huntingdon.1 On May 29, 2018, Powell pleaded guilty to multiple drug
1
See https://inmatelocator.cor.pa.gov/#/Result (last visited Nov. 14, 2024).
charges, firearm charges, and one count of criminal use of a communications facility
for which the Centre County Common Pleas Court sentenced him to an aggregate
term of three to six years of incarceration (Original Sentence). See Certified Record
(C.R.) at 1. At that time, his maximum release date was August 4, 2022. See id. On
May 9, 2019, the Board paroled Powell on or after August 4, 2019. See C.R. at 5.
On August 7, 2019, the Board released Powell on parole. See C.R. at 7.
On November 4, 2019, the Board issued a warrant to commit and detain
Powell in the Johnstown Community Corrections Center (CCC) (Warrant 1). See
C.R. at 106, 107. On February 25, 2020, the Board released Warrant 1. See C.R. at
107. On June 23, 2020, the Board issued a warrant to commit and detain Powell in
Tomorrow’s Hope2 (Warrant 2). See C.R. at 108, 109. On September 1, 2020, the
Board released Warrant 2. See C.R. at 109. On February 12, 2021, the Department
of Corrections (DOC) issued a warrant to commit and detain Powell based on his
arrest for technical parole violations (Warrant 3). See C.R. at 112.
On February 18, 2021, the Logan Township Police Department arrested
Powell on multiple drug offenses (New Charges). See C.R. at 67. On February 22,
2021, the Blair County Common Pleas Court set Powell’s bail for the New Charges,
which he did not post. See C.R. at 75. On August 4, 2022, DOC released Warrant
3 because Powell’s maximum release date had expired. See C.R. at 111. On
November 2, 2022, Powell pleaded guilty to the New Charges, and the Blair County
Common Pleas Court sentenced him to two and one-half to five years of
incarceration, followed by five years of probation (New Sentence). See C.R. at 60-
65. On December 7, 2022, DOC issued a warrant to commit and detain Powell due
to his conviction on the New Charges. See C.R. at 28.
2
“Tomorrow’s Hope is a traditional housing center for parolee residents from the
Department of Corrections.” https://tomorrowshopepa.com (last visited Nov. 4, 2024).
2
On January 18, 2023, the Board presented Powell with a Notice of
Charges and Parole Revocation Hearing. See C.R. at 29. On February 13, 2023, the
Board held a parole revocation hearing at which the Huntingdon County Public
Defender’s Office represented Powell. See C.R. at 39-58. That same day, the Board
revoked Powell’s parole and denied him credit (only for his current period at liberty
on parole). See C.R. at 91-101. On February 21, 2023, the Board recommitted
Powell as a CPV and recalculated his maximum release date to May 25, 2025. See
C.R. at 112. On March 3, 2023, Powell appealed from the Board’s decision. See
C.R. at 116-121. On October 27, 2023, the Board affirmed its decision recorded on
February 21, 2023 (mailed February 24, 2023). See C.R. at 132-134. Powell
appealed to this Court.3 By December 7, 2023 Order, this Court appointed the
Huntingdon County Public Defender to represent Powell in this appeal.
Powell first argues that the Board erred in its calculation of his
recalculated maximum release date by setting a new maximum release date after his
Original Sentence maximum release date had expired. This Court has explained:
When a parolee violates the terms and conditions of his
parole, the Board may recommit him to serve all or part of
the remainder of his original sentence. Yates v. Pa. Bd. of
Prob. & Parole, 48 A.3d 496 (Pa. Cmwlth. 2012). The
time served on recommitment is known as backtime. Id.
Thus, backtime cannot exceed the time remaining on the
original judicial sentence. Id. By definition, when the
Board imposes backtime, it does not alter a judicially[
]imposed sentence; it simply requires the prisoner to serve
some or all of the time remaining on the original sentence.
Id. The Board is authorized to recalculate the
maximum date of a sentence beyond the original date
where it is not adding to the total length of the sentence.
3
This Court’s “review is limited to determining whether constitutional rights were violated,
whether the decision was in accordance with law, or whether the necessary findings of fact were
supported by substantial evidence.” White v. Pa. Parole Bd., 276 A.3d 1247, 1255 n.7 (Pa.
Cmwlth. 2022).
3
Hughes v. Pa. Bd. of Prob. & Parole, 179 A.3d 117 (Pa.
Cmwlth. 2018) (maximum length of sentence, not
maximum date, is controlling).
Marshall v. Pa. Bd. of Prob. & Parole, 200 A.3d 643, 648 (Pa. Cmwlth. 2018)
(emphasis added).
Here, the Board released Powell from an SCI on August 7, 2019, with
a maximum release date of August 4, 2022. This left Powell with a total of 1,093
days remaining on his Original Sentence. In recalculating Powell’s Original
Sentence maximum release date, the Board did not add to his Original Sentence but,
rather, ordered him to serve days he still owed on that sentence. See Yates.
Accordingly, the Board did not err in its calculation of his Original Sentence
maximum release date by setting a new maximum release date.
Powell next argues that the Board erred by not awarding him credit for
his February 16, 2021 to August 4, 2022 incarceration period, because he was
serving a technical parole violation and ultimately maxed out the parole time owed.
It is well established that “time spent in custody pursuant
to a detainer warrant shall be credited to a [CPV’s] original
term . . . only when the parolee was eligible for and had
satisfied bail requirements for the new offense and thus
remained incarcerated only by reason of the detainer
warrant lodged against him.” Barnes v. [Pa.] [Bd.] of
Prob[.] [&] Parole, 203 A.3d 382, 392 (Pa. Cmwlth. 2019)
(quoting Gaito v. [Pa.] [Bd.] of Prob[.] [&] Parole, . . .
412 A.2d 568, 571 ([Pa.] 1980)). If the parolee “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.”
Barnes, 203 A.3d at 392 (quoting Gaito, 412 A.2d at 571)
(emphasis in original). Conversely, if a parolee “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.” Barnes, 203 A.3d at 392 (quoting Gaito,
412 A.2d at 571).
4
Ford v. Pa. Bd. of Prob. & Parole, 226 A.3d 677, 680 (Pa. Cmwlth. 2020) (emphasis
added).
Here, the Board explained its recalculation:
[T]he Board paroled [Powell] from a[n] [SCI] on August
7, 2019[,] with a max[imum release] date of August 4,
2022. This left [Powell] with a total of 1[,]093 days
remaining on [his] sentence at the time of parole. The
Board’s decision to recommit [Powell] as a [CPV]
authorized the recalculation of [his] sentence to reflect that
[he] received no credit for the time [he was] at liberty on
parole. [See Section 6138(a)(2) of the Prisons and Parole
Code,] 61 Pa. C.S. § 6138(a)(2). In this case, the Board
did not award credit for time at liberty on parole.
However, [Powell] did receive confinement credit for the
time [he was] incarcerated after diversion to the parole
violator [CCC] from November 4, 2019 to February 25,
2020[,] (113 days) and from June 23, 2020 to September
1, 2020[,] (70 days). This means 1[,]093 - 113 - 70 = 910
days still remain[ed] on [Powell’s Original S]entence
based on [his] recommitment.
On February 12, 2021, [Powell] [was] arrested for
technical parole violations and [DOC] issued a detainer.
On February 22, 2021, [Powell] [was] criminally charged
for new offenses out of Blair County. [Powell] did not
post bail. After reaching [his] max[imum release] date, []
DOC released that detainer against [Powell] on August 4,
2022.
On November 2, 2022, [Powell] [was] sentenced in the
Blair County Court of Common Pleas on CR-581-2021 (2
years, 6 months - 5 years [of] confinement; 5 years [of]
probation; no further penalty). A new DOC detainer was
re-lodged against [Powell] on December 7, 2022.
C.R. at 133.
The Board clarified Powell’s recalculated maximum release date:
[Powell] [was] given backtime credit from February 12,
2021 to February 22, 2021[,] for a total of 10 days
because the Board held [Powell] solely on its warrant.
[See] Gaito . . . . When you subtract 10 days from 910,
5
there were 900 days remaining on [Powell’s Original
S]entence. In this case, December 7, 2022[,] [was
Powell’s] effective date of return because DOC re-lodged
a warrant against [him] at that time. Adding 900 days to
that date yields a new maximum [release] date of May 25,
2025.
C.R. at 133 (emphasis added). This Court discerns no error in the Board’s
recalculation of Powell’s Original Sentence maximum release date. Because Powell
was in custody solely on the Board’s warrant from February 12, 2021 to February
22, 2021, that time in custody was properly credited to his Original Sentence. See
Ford. Because Powell was in custody on both the Board’s warrant and his New
Charges from February 22, 2021 until August 4, 2022, that time in custody was
properly credited to his New Sentence. See id. Accordingly, the Board did not err
by not awarding Powell credit for his February 22, 2021 to August 4, 2022
incarceration period.
For all of the above reasons, the Board’s decision is affirmed.
_________________________________
ANNE E. COVEY, Judge
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joshua Lee Powell, :
Petitioner :
:
v. :
:
Pennsylvania Parole Board, : No. 1306 C.D. 2023
Respondent :
ORDER
AND NOW, this 15th day of November, 2024, the Pennsylvania Parole
Board’s October 27, 2023 decision is affirmed.
_________________________________
ANNE E. COVEY, Judge