Calloway v. PA. BD. OF PROBATION AND PAROLE

• Citation: 857 A.2d 218
• Parties: Mikhail CALLOWAY, Petitioner v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.
• Decision Date: 01 September 2004
• Court: Commonwealth Court of Pennsylvania

857 A.2d 218

Mikhail CALLOWAY, Petitioner v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.

Commonwealth Court of Pennsylvania.

Submitted on Briefs July 30, 2004.

Decided September 1, 2004.

Mikhail Calloway, petitioner, pro se.

Arthur R. Thomas, Harrisburg, for respondent.

BEFORE: PELLEGRINI, Judge, LEAVITT, Judge, and McCLOSKEY, Senior Judge.

OPINION BY Judge PELLEGRINI.

Before this Court is an Application for Summary Relief filed by Mikhail Calloway (Calloway), pro se, against the Pennsylvania Board of Probation and Parole (Board) seeking credit towards his original sentence and seeking recalculation of his maximum original sentence.

In 1987, Calloway was sentenced to serve a ten-year state prison sentence (PA Sentence) with a maximum expiry of October 5, 1996.¹ He was constructively paroled on June 11, 1992, to serve a prison sentence in Philadelphia County Prison (County Sentence). He was released therefrom on October 1, 1992.

Two weeks later, on October 15, 1992, Calloway was arrested in New Jersey for robbery. He did not post bail. On December 3, 1992, the Board filed a detainer with the New Jersey authorities in relation to this arrest. On April 29, 1993, Calloway pled guilty to a reduced charge of Theft from a Person arising from the arrest for robbery in New Jersey. He was sentenced to serve a three-year sentence in a New Jersey state prison on May 21, 1993, (NJ Sentence), with credit for time served from October 15, 1992, (the date of arrest), to May 21, 1993, (the date of conviction for the theft charge). The maximum term expiry for this sentence was February 4, 1995.

On April 20, 1994, the Board removed its detainer, and four days later (April 24, 1994), Calloway was paroled from his NJ Sentence, which now had a maximum term expiry of February 8, 1995. On July 1, 1994, he was arrested by New Jersey authorities for violating his parole, but was released 18 days later without having his parole revoked. On October 7, 1994, New Jersey authorities again arrested him for violation of his New Jersey parole, and this time he remained in official detention for four months and one day until February 8, 1995 (the recalculated date of expiry for the theft charge).

On March 7, 1995, Calloway was arrested by the FBI and tried in federal court for four charges of bank robbery. The next day, the Board lodged its detainer. He was then convicted and sentenced to serve 92 months in federal prison (Federal Sentence) for the four bank robberies. On December 14, 2001, Calloway was released from federal prison.

On February 6, 2002, the Board revoked Calloway's parole after a hearing and recommitted him for 24 months as a direct violator of his parole because of his four new federal bank robbery convictions. His PA Sentence now carried a maximum term expiry of April 8, 2006. This recalculation order did not credit his PA Sentence with the incarceration for the County Sentence (June 11, 1992 to October 1, 1992 = three months and 20 days); in addition, it did not credit his PA Sentence for the time he was incarcerated in New Jersey on the Board's detainer (December 3, 1992 to April 20, 1994 = one year, four months, and 17 days). The Board reasoned that none of this time served was for the original PA Sentence, and, consequently, Calloway could not receive a credit towards that sentence.

In March of 2004, a New Jersey order was issued vacating Calloway's conviction for Theft from a Person and amended the conviction to Fourth Degree Theft, which carried a sentence of ten months instead of three years. The order indicated that Calloway was sentenced to time actually served from April 21, 1994, to February 8, 1995, and was issued as a result of a negotiated plea by Calloway and the local district attorney's office.

Calloway then filed a Petition for Review in the Nature of Mandamus² addressed to this Court's original jurisdiction requesting that the Court order the Board to recalculate the maximum expiry date of his original PA Sentence to July 30, 2004, instead of April 6, 2006, to reflect the time he served (1) on the County Sentence (three months and 20 days); and (2) all the time he spent in confinement including his pre-sentence detention in New Jersey for the robbery arrest for which he did not post bail while on a Board detainer (five months and 18 days) and the time he served for the NJ Sentence (ten months and 17 days). Asserting that there were no issues of material fact and that he was entitled to relief as a matter of law, Calloway filed the present Application for Summary Relief.³

I.

As to the County Sentence (three months and 20 days) for which Calloway is seeking credit, because this claim is an attack on the 2002 recalculation order issued by the Board denying credit for the time he served while on constructive parole,⁴ Calloway was required to file a direct appeal of that order addressed to this Court's appellate jurisdiction. See McMahon v. Pennsylvania Board of Probation and Parole, 504 Pa. 240, 470 A.2d 1337 (1983) (per curiam). In any event, although incarcerated in county prison to serve time for another charge, Calloway nevertheless was on constructive parole from his original PA Sentence when he was serving his County Sentence.⁵See Hines v. Pennsylvania Board of Probation and Parole, 491 Pa. 142, 420 A.2d 381 (1980)

(holding that parolee not entitled to credit for time spent serving sentence while on constructive parole because he was "at liberty on parole," which is gauged by the time spent not serving the original sentence, not whether the offender is, in fact "at liberty"). Also, if we held otherwise, it would result in the same time being counted against both Calloway's PA Sentence and his County Sentence which, unless the sentences were ordered to run concurrently, is impermissible. Because his appeal rights have lapsed and cannot be revived under the guise of a mandamus action, and in any event, he is not entitled to credit for time while on constructive parole, Calloway has failed to state a claim for credit against his PA Sentence for the three months and 20 days incarcerated for the County Sentence.

II.

Even though the New Jersey Court issued its order 11 years after the original three year sentencing, nine years after Calloway's three-year New Jersey prison sentence had expired and two years after the Board had issued its Recalculation Order,⁶ Calloway claims that the Board should have recalculated the maximum term expiry on his original PA Sentence to reflect the time spent in pre-sentence detention awaiting sentencing in New Jersey (5 months and 18 days) and the time he actually served in New Jersey that was later reduced by the amended order in 2004 (ten months and 17 days). While we recognize that Calloway would have been credited both with the time he spent in pre-sentence detention⁷ had he been detained in Pennsylvania and the excess time he served resulting from his reduced sentence if a Pennsylvania court had later reduced the Pennsylvania sentence, Section 9760(3) of the Sentencing Code⁸ does not provide that periods of incarceration in other jurisdictions as a result of convictions in those jurisdictions can be credited towards Pennsylvania sentences if those foreign sentences are later vacated or reduced.⁹ 42 Pa.C.S. § 9760(3). See, e.g., Commonwealth ex rel. Jones v. Rundle, 413 Pa. 456, 199 A.2d 135 (1964); Commonwealth ex rel. Tyson v. Day, 181 Pa.Super. 259, 124 A.2d 426 (1956),cert. denied, 353 U.S. 951, 77 S.Ct. 862, 1 L.Ed.2d 859 (1957); Commonwealth ex rel. McAuliffe v. Burke, 158 Pa.Super. 610, 45 A.2d 870 (1946). See also, e.g., Feilke v. Pennsylvania Board of Probation and Parole, 167 Pa.Cmwlth. 381, 648 A.2d 121 (1994)

; Doria v. Pennsylvania Department of Corrections, 158 Pa.Cmwlth. 59, 630 A.2d 980 (1993),

affirmed,

539 Pa. 245, 652 A.2d 281 (1994); Lantzy v. Commonwealth of Pennsylvania, 47 Pa.Cmwlth. 266, 407 A.2d 926 (1979); Commonwealth ex...