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Martin v. Pennsylvania Board of Probation and Parole12/30/2003
tor is required to serve shall be computed from and begin on the date that he is taken into custody to be returned to the institution as a parole violator.
61 P.S. § 331.21a(a) (emphasis added). Thus, according to this statute, a parolee may only receive credit towards his original sentence for that time spent in jail after he is taken into custody "as a parole violator." See id.
In the instance where a parolee is arrested on new criminal charges and incarcerated because he cannot post bail, that period of incarceration is due to his new charges, not his parole violation, and therefore the time cannot be credited to his original sentence under the plain language of section 331.21a. See Gaito, 412 A.2d at 571; Rodriques v. Pennsylvania Bd. of Prob. and Parole, 403 A.2d 184, 185-86 (Pa. Commw. 1979); Davis v. Cuyler, 394 A.2d 647, 649-50 (Pa. Commw. 1978). While, as the majority notes, the Board may file a detainer against the arrested parolee who fails to post bail that "will prevent the parolee from making bail, pending disposition of the new charges or other action of the court," 37 Pa. Code § 65.5(2), that does not change the fact that the parolee must nevertheless remain incarcerated due to his failure to post bail on the new charges. The detainer will only take effect if the parolee manages to meet bail, or when the new charges are resolved. See Davis, 394 A.2d at 650 (detainer simply assures that "the [parolee] will be turned over to the Board when available"). Unless one of these two occurrences takes place, the parolee remains incarcerated due to his failure to post bail on the new charges and thus, pursuant to section 331.21(a) of the Parole Act, that pre-trial incarceration time may not be credited to his original sentence. See 61 P.S. § 331.21a(a); Gaito, 412 A.2d at 571.
Accordingly, as I believe that section 331.21a of the Parole Act requires that this Court maintain the rule established in Gaito, I must disagree with the majority's decision to change that rule to permit a parolee's pre-trial confinement to be credited to his original sentence and/or his new sentence when he did not post bail on the new charges and the Board filed a detainer against him. Moreover, in my view, permitting such a credit option to a parolee, who has been convicted of and received a sentence for new charges, would grant such a recidivist criminal an unwarranted windfall.
Thus, as Appellant failed to post bail on his new charges, I believe that the Board properly refused to credit his pre-trial confinement time to his original sentence based on the rule established by this Court in Gaito.
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