115 Pa. Commw. 34 539 A.2d 511

539 A.2d 511

Marvin Merritt, Petitioner v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole, Respondent.

Submitted on briefs January 22, 1988,

to President Judge Crumlish, Jr., Judge Colins, and Senior Judge Blatt, sitting as a panel of three.

Patrick J. Flannery, Assistant Public Defender, for petitioner.

Timothy P. Wile, Assistant Chief Counsel, with him, Robert A. Greeny, Chief Counsel, for respondent.

March 29, 1988:

Opinion by

President Judge Crumlish, Jr.,

Marvin Merritt appeals the Pennsylvania Board of Probation and Paroles (Board) denial of administrative *35relief 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 Corrections “Initial Sentence Status Report” indicated that all three sentences were concurrent. The Board “consecutively” paroled1 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.

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.2 We disagree.

*36Section 21.1(a) of the parole statute3 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.

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. Commonwealth Ct. 572, 455 A.2d 297 (1983); Weyand v. Pennsylvania Board of Probation and Parole, 94 Pa. Commonwealth Ct. 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. Commonwealth Ct. 333, 514 A.2d 967 (1986), and Barnhouse v. Pennsylvania Board of Probation and Parole, 89 Pa. Commonwealth Ct. 512, 492 A.2d 1182 (1985) (Board has administrative discretion with respect to decisions to grant or deny parole).

*37We therefore affirm the Board.4

Order

The decision of the Pennsylvania Board of Probation and Parole dated June 11, 1987, is affirmed.

Merritt v. Commonwealth
115 Pa. Commw. 34 539 A.2d 511

Case Details

Name
Merritt v. Commonwealth
Decision Date
Mar 29, 1988
Citations

115 Pa. Commw. 34

539 A.2d 511

Jurisdiction
Pennsylvania

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