Hernandez v. Commonwealth, Pennsylvania Board of Probation & Parole
Hernandez v. Commonwealth, Pennsylvania Board of Probation & Parole
Opinion of the Court
Opinion by
Victor J. Hernandez (Petitioner) appeals an order of the Pennsylvania Board of Probation and Parole (Board)
On October 5, 1985, Petitioner was paroled by the Board from a sentence of one to three years imposed as a result of his conviction of the offense of risking a catastrophe.
. In February of 1987, Petitioner sold a half-ounce of Cocaine to an undercover narcotics agent in Harrisburg. As a result of this transaction, he was arrested and charged with unlawful delivery of a controlled substance in May of 1987. He was later convicted of the charge on September 18, 1987.
Petitioner-testified at a parole revocation hearing before the Board on December 9, 1987. By order recorded on that date, the Board recommitted Petitioner as a convicted parole violator and imposed twelve months backtime.
Petitioner filed a request for administrative relief dated January 29, 1988, which was denied. On appeal to this Court, Petitioner contends he should receive credit against his maximum sentence for the ten months
In Hines v. Pennsylvania Board of Probation and Parole, 491 Pa. 142, 148, 420 A.2d 381, 384 (1980), our Supreme Court, quoting Haun v. Cavell, 190 Pa. Superior Ct. 346, 353, 154 A.2d 257, 261 (1959); held that the words “at liberty on parole” did not mean liberty from all confinement but “at liberty from confinement on the particular sentence for which the convict is being sentenced as a parole violator.” Thus the Court held that the time a parolee spends incarcerated on a sentence from a second conviction constitutes “constructive parole” and may not be used as credit against the original sentence.
We applied the holding in Hines in Debnam v. Pennsylvania Board of Probation and Parole, 71 Pa. Commonwealth Ct. 572, 455 A.2d 297 (1983). The prisoner in that case was paroled at the expiration of the minimum sentence received upon his conviction of offenses in Philadelphia County. At that time, he began
Petitioner maintains that the theory behind constructive parole is to prevent a parolee from receiving credit toward two separate sentences for a single period of incarceration. He then argues that the interpretation given to the words “at liberty on parole” in Hines should not apply to his situation as he was not receiving credit toward an underlying sentence while on constructive parole. Instead he was being detained while the INS determined his deportability.
In Debnam and Hines, the parolees were incarcerated during the period of constructive parole on sentences which were for separate offenses from those from which they were paroled. Although Petitioner was not serving a specific sentence when incarcerated pursuant to the INS detainer, his confinement during those ten months was clearly unrelated to the original sentence from which he was paroled. Our Supreme Court, in Cox v. Board of Probation and Parole, 507 Pa. 614, 493 A.2d 680 (1985), stated that a parolee may be entitled to credit against his maximum sentence for time spent in a drug rehabilitation program. However, participation in the program was made a condition of parole and therefore applied to the particular sentence from which parole was granted.
During the time that a convict may be on parole from a particular offense he might be confined in a Pennsylvania prison on another offense, or in a prison of another state, or in a federal prison, or in a mental institution, or in an enemy prison camp during a war. It was not the intent of the legislature to have the words ‘at liberty’ to mean freedom from confinement under all these and other conceivable circumstances.
Although Petitioner was not serving time on a specific sentence while incarcerated on the INS detain-er, he was nonetheless on constructive parole for purposes of Section 21.1a of the Parole Act. We therefore hold that Petitioner may not seek credit against a sentence imposed by the Commonwealth for time spent confined on a detainer issued by the federal government acting through the INS.
Accordingly, we will affirm the Board’s order.
Order
And Now, this 30th day of September, 1988, the order of the Pennsylvania Board of Probation and Parole dated February 22, 1988, at Parole No. 4075-R, denying the request for administrative relief filed by Victor J. Hernandez, is affirmed.
Section 3302(b) of the .Crimes Code, 18 Pa. C. S. §3302(b).
In his brief, Petitioner contends he should receive credit for the nine months he was, incarcerated on the INS detainer. However, we note that he was detained by the INS from October 7, 1986 through August 4, 1987, a period of approximately ten months.
Pursuant to Section 704 of the Administrative Agency Láw, 2 Pa. C. S. §704, our scope of review-is limited to determining whether the Boards order is in accordance with the law, whether
61 P.S. §331.21a.
The INS may detain an alien pending a determination of deportability. Section 242(a) of the Immigration and Nationality Act, 8 U.S.C. §1252(a).
See, Rosenberger v. Pennsylvania Board of Probation and Parole, 98 Pa. Commonwealth Ct. 19, 510 A.2d 866 (1986), where we held that a prisoner who was paroled from a state sentence to serve a federal sentence, is not entitled to a credit against his original sentence from the constructive parole time served in the federal focility when his parole has been revoked for criminal violations.
Reference
- Full Case Name
- Victor J. Hernandez v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole
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- 5 cases
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- Published