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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Clifford L. Detar,
:

Petitioner

:




:

v.


: No. 1894 C.D. 2004




:
Pennsylvania Board of Probation
: Submitted: January 14, 2005
and
Parole,


:

Respondent

:
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE
DORIS
A.
SMITH-RIBNER, Judge

HONORABLE JESS S. JIULIANTE, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE JIULIANTE

FILED: March 9, 2005


Clifford L. Detar (Detar) petitions for review of an August 13, 2004,
decision of the Pennsylvania Board of Probation and Parole (Board) that denied his
request for administrative review of a Board order recommitting Detar to serve a
total of 15 months backtime as a convicted and technical parole violator and
recalculating his maximum term expiration to be June 3, 2006. Detar argues that
the Board failed to properly credit his original sentence with 1 year and 9 months1
in accordance with our Supreme Court's decision in Martin v. Pennsylvania Board
of Probation and Parole, 576 Pa. 588, 840 A.2d 299 (2003). We affirm.

1 We believe that Detar's calculations contain a mathematical error. The period at issue
is June 9, 2002 through March 23, 2004, a total of 1 year, 9 months and 14 days. Detar sets forth
that the time frame at issue is equivalent to 1 year, 9 months and 16 days.


On August 21, 2000, Detar was paroled from a sentence of 2 to 8
years for burglary and theft by unlawful taking. (C.R. 30) The maximum
expiration term of his sentence was November 1, 2002. (C.R. 6) At the time of his
parole, 2 years, 2 months and 10 days remained on Detar's original sentence.

On February 7, 2002, Detar was charged with issuing bad checks. On
June 9, 2002, Detar was arrested and charged with the unauthorized use of an
automobile in Allegheny County. (C.R. 35) He was held in the Allegheny County
jail and was unable to post bond at that time. On June 10, 2002, the Board lodged
its detainer against Detar. (C.R. 33) By decision of November 1, 2002, the Board
withheld its action pending disposition of the criminal charges. (C.R. 37)

On June 17, 2002, Detar was found guilty of issuing bad checks and
sentenced to serve 75 days in the Allegheny County jail. He was then transferred
to the State Correctional Institution at Pittsburgh on June 19, 2002. On August 5,
2002, the Pennsylvania State Police lodged a detainer against Detar based on
burglary charges originating in Clarion County. He was unable to post bail on
these charges. By decision dated December 13, 2002, the Board recommitted
Detar to serve 9 months backtime as a technical parole violator. (C.R. 38)

Thereafter, on March 23, 2003, Detar pleaded nolo contendere to the
Clarion County burglary charges and received a 2 to 4-year prison sentence. (C.R.
80) On May 21, 2003, Detar pleaded guilty to the Allegheny County charge of
unauthorized use of an automobile (C.R. 42) and was sentenced to serve 6 months
to 1 year in the Allegheny County prison concurrent to his 4-year burglary
sentence, effective May 21, 2003. (C.R. 69)

By decision dated August 23, 2003, the Board recommitted Detar as a
as a convicted parole violator to serve a total of 15 months backtime as a result of
his March 23, 2003 nolo contendere plea in Clarion County. (C.R. 41)
Additionally, by decision dated December 15, 2003, the Board recommitted Detar
2

as a convicted parole violator based on his May 2003 Allegheny County guilty
plea. (C.R. 79) On March 23, 2004, Detar was paroled from his 1-year Allegheny
County sentence.

On June 25, 2004, the Board rescinded prior Board actions occurring
throughout 1996 to 1999 due to sentencing restructure by the Department of
Corrections; the Board actions at issue occurred prior to Detar's August 20, 2000
parole. The Board's June 25, 2005 order further affirmed its decision to recommit
Detar to 15 months backtime as a convicted and technical parole violator. Adding
the remainder of Detar's original sentence to March 23, 2004, the Board calculated
Detar's new maximum term expiry to be June 3, 2006.

Detar timely filed a request for administrative review alleging that the
Board failed to properly credit his original sentence with 1 year and 9 months spent
in custody.2 He alleges that he was confined for the period of June 9, 2002 through
March 23, 2004 on new criminal charges and the Board's detainer a period of 1
year, 9 months and 14 days. Therefore, because he spent 14 days in Allegheny
County jail on the unauthorized use of an automobile charge, he was entitled to
credit of 1 year and 9 months.

Detar received the following pre-sentence credits. From June 9 (the
day of his arrest) to August 5, 2002 (the day the Pennsylvania State Police charged
him with burglary in Clarion County), Detar received a credit of 1 month and 26
days against his Allegheny County sentence of 1 year.

As of his arrest on August 5, 2002 on the Clarion County burglary
charges, time spent in custody was due to the burglary charges and Detar remained

2 On review, we are limited to determining whether the Board's findings of fact are
supported by substantial evidence, whether constitutional rights were violated or whether an
error of law was committed. Colden v. Pennsylvania Board of Probation and Parole, 795 A.2d
457 (Pa. Cmwlth. 2002).
3

in custody until March 14, 2003, the date upon which he pleaded guilty to those
charges and received a 4 year sentence. Thus, the Clarion County sentence was
credited with 7 months and 9 days.

Detar, however, remained in custody due to the outstanding
Allegheny County charges and was therefore not available to begin serving the
backtime on his original sentence. Pursuant to our decision in Doria v.
Department of Corrections, 630 A.2d 980 (Pa. Cmwlth. 1993), aff'd, 539 Pa. 245,
652 A.2d 281 (1994)(a defendant's pre-sentence custody in one county after
sentence in another county constitutes time served under that other county's
sentence, not additional pre-sentence custody time to be credited to the latter
county's sentence), the time spent in custody from March 14 to May 21, 2003 was
credited to Detar's Clarion County sentence. Thus, Detar's Clarion County
sentence was credited with 2 months and 7 days.

Finally, for the time period of May 21, 2003 through March 23, 2004,
the date of his parole from the Allegheny County sentence, Detar served 10 months
and 2 days against his 4-year Clarion County sentence and concurrent 1-year
Allegheny County sentence. See Parish v. Horn, 768 A.2d 1214 (Pa. Cmwlth.
2001), aff'd, 569 Pa. 45, 800 A.2d 294 (2002)(where a county sentence is to run
concurrent to a state sentence, time spent serving the county sentence reduces time
owed on the state sentence). Because Detar was on parole from a state sentence at
the time of his Allegheny County conviction and because he received a county
sentence, he was required to serve the county sentence prior to serving the Board-
imposed backtime. Section 21.1(a) of the Act of August 5, 1941, P.L. 861, as
amended, added by the Act of August 24, 1951, 61 P.S. 331.21a(a).

Upon his March 23, 2004 parole from the Allegheny County sentence,
Detar became available to begin serving his backtime. Adding the remainder of
4

Detar's original sentence (2 years, 2 months and 10 days) to March 23, 2004
results in a new maximum expiration date of June 3, 2006.

The Supreme Court's decision in Martin is simply inapplicable to the
instant matter. In Martin, the parolee failed to post bail on new criminal charges
and was also held pursuant to a Board detainer. When sentenced on the new
criminal charges, the parolee received a sentence of 48 hours time served. The
Board refused to credit the parolee's sentence with time spent in custody from the
date of his arrest on the new criminal charges (less the 48 hours time served) and
his sentencing date, a total of 1 year, 1 month and 19 days. The Supreme Court
determined that the Board's action was in error, concluding that where a parole is
incarcerated on both a Board detainer and new criminal charges, all time spent in
custody must be credited to either the original or new sentence; the parolee's
inability to post bail is not determinative of whether the parolee receives credit for
time served.

In the case sub judice, Detar's pre-sentence confinement did not
exceed the new sentences that were imposed. His total pre-sentence confinement
was 1 year, 9 months, and 14 days; his Clarion County sentence was 4 years and
his Allegheny County sentence was 1 year, to run concurrently with the Clarion
County sentence. With regard to his Allegheny County sentence, Detar served a
total of 11 months and 28 days (June 9 through August 5, 2002 and May 21, 2003
through March 23, 2004). As outlined above, the remaining periods of
incarceration were credited to Detar's Clarion County sentence. Thus, there was
no pre-sentence confinement for which Detar did not receive a credit against either
his Allegheny or Clarion County sentences.



5


Accordingly, we affirm.










JESS S. JIULIANTE, Senior Judge



Judge Smith-Ribner concurs in the result only.
6

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Clifford L. Detar,
:

Petitioner

:




:

v.


: No. 1894 C.D. 2004




:
Pennsylvania Board of Probation
:
And
Parole,


:

Respondent

:

O R D E R


AND NOW, this 9th day of March, 2005, the August 13, 2004 order of
the Pennsylvania Board of Probation and Parole is AFFIRMED.









JESS S. JIULIANTE, Senior Judge




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