For the Defense - Vol. 8, Issue 4 - 25

If the new sentence is a county sentence, make sure the sentencing
court timely paroles him to the Board's detainer. A new county
sentence must be served prior to a state parole recommitment20
which means that the Board will not start crediting his original
sentence until he paroles from or maxes out of the new county
sentence. A county parole release is effective on the date the order
is signed.21
Recognize the biggest lie in sentencing: " this will be concurrent
with your parole time. "
Unlike a county parole revocation where the judge retains the
discretion to order his recommitment to run concurrently with
the new sentence underlying the recommitment, the Parole Code
requires that the assessment of back time and the new sentence
of incarceration underlying the recommitment run in consecutive
order.22
When the new sentence is a county sentence and the client has
not posted appeal bail, post sentence confinement is applied to
that new sentence until such time as a paroling order is signed or
the Board has deemed your client's new sentence to have expired.
The Board cannot be compelled to honor a sentencing judge's
backdated paroling order.28
If you have a plea agreement for a short
county jail sentence, you need to seek reduction of bail or fast track
the plea and sentencing and make sure the client is timely paroled
to the Board detainer.
Where this cannot be achieved the most successful approach to
A new state sentence is served after the completion of
back time while county sentences and sentences imposed by
another sovereign are directed to be served prior to state parole
back time. The only way to achieve any concurrency between the
recommitment and the disposition of your case is when the new
sentence is probation, no further penalty, or some other sentencing
alternative which does not involve incarceration.23
Inducing the
client to plead guilty with the false promise of a sentence of
incarceration to be served concurrent with state parole back time is
an open invitation to come back to court on an ineffective assistance
of counsel claim.24
Maximize the time credit allocation between the sentence and the
parole back time.
If a new sentence of incarceration cannot be avoided, the
requirement of consecutive service of a new sentence of
incarceration and state parole back time can be a source of great
mischief to your client. Bail status is the determinative factor in
the application of pre-sentence custody credit between the new
sentence of incarceration and state parole back time. Only when bail
is posted on the criminal charges and the Board's detainer is the sole
reason for incarceration will pre-sentence incarceration be credited
to his back time rather than a new sentence of incarceration.25
The
decision not to seek bail release should never be viewed as " he
isn't getting out anyway " but should always be a conscious tactical
decision to direct pre-sentence confinement credit toward either
the back time owed on the original sentence or time served on the
new sentence.
The application of post-sentence incarceration credit is dependent
on the place of confinement directed by the sentencing order, the
existence of appeal bail, and the timing of the recommitment.
Generally, the Parole Code requires that he serve his state parole
back time before he serves a new state sentence and after he serves
a new county sentence.26
Even though the Parole Code requires
him to serve back time prior to serving a new state sentence, unless
there was a release on bail pending appeal or an extant order to
recommit as a technical parole violator at the time of the imposition
of a state sentence, credit on the new sentence accrues until a
Board member signs off on the hearing examiner's report from the
revocation hearing.27
For federal practitioners.
In 2010, the Parole Code was amended to direct that a state
parole violator serves his back time prior to the service of a new
federal sentence or a sentence from another jurisdiction. While
the Commonwealth Court sanctioned the Board with dismissal of
the recommitment for ignoring a federal court's invitation to take
custody of a state parole violator to comply with this provision
of the Parole Code; when the parolee is already outside of the
Board's jurisdiction at the time the Board notices the conviction,
the Court has accepted the Board's complaint that it is powerless
to acquire jurisdiction to revoke parole once he starts serving the
federal sentence.31
Irrespective of a parolee's constitutional right to
a timely revocation hearing, the Board is not compelled to provide
a revocation hearing to an inmate serving a federal sentence even
when subject to a Board detainer that will adversely impact his
federal sentence.32
Vol. 8, Issue 4 l For The Defense 25
Act 115 of 2019 created " short sentence parole " where offenders
sentenced to state prison with a minimum sentence of 2 years or less
(and not having a new conviction that's on a long list of excluded
offenses) may be released at his minimum without a parole
interview or within 30 days if he is already past his minimum when
committed to DOC custody.30
Your client's ability to take advantage
of this substantial benefit not only depends on your ability to
negotiate a plea to a qualifying offense and minimum sentence
term but also an awareness of the rules concerning the application
of confinement credit and conscientious efforts to reduce bail and
expedite disposition of the case. If you've worked out a great deal
for a 6-to-12-month state sentence to resolve your case, it is of little
or no benefit to the client who has 11 months' time served on the
new sentence when he is committed to DOC custody and no time
served on the 12 months of back time he will have to serve before
he is even eligible to re-parole to the new sentence.
resolve the problem of excess credit shifting to the new sentence
is to negotiate a split sentence of half the maximum intended
incarceration as the minimum sentence with the balance of the
supervision on probation. For example, on a 48-hour mandatory
minimum DUI, a 48-hour to 96-hour sentence of incarceration
followed by a 5-month 26 days sentence of probation will prevent
the Board from depriving your client of credit against his back
time for anything more than the 96-hour tail on the sentence of
incarceration because the Supreme Court has extended Gaito to
require the application of presentence confinement credit to state
parole back time when the new sentence is probation.29
For the Defense - Vol. 8, Issue 4

Table of Contents for the Digital Edition of For the Defense - Vol. 8, Issue 4
