Johnson v. Murray12/8/2005
s not yet been prosecuted. United States ex rel. Smith v. Rundle, 285 F.Supp. 965 (E.D.Pa. 1968). Our decision in the instant matter does not create a "penal checking account". It merely provides for the allocation of all periods of confinement:
(1) where confinement is the result of both a Board warrant and pending criminal charges; (2) where there is no period of incarceration imposed; (3) where the charges are nolle prossed; (4) or the parolee is acquitted. Accordingly, we hold that, where an offender is incarcerated on both a Board detainer and new criminal charges, all time spent in confinement must be credited to either the new sentence or the original sentence. We further hold that the indigency of a detainee in failing to satisfy the requirements for bail is not determinative as to whether the offender receives credit for time served.
Martin, 576 Pa. at 605-606, 840 A.2d at 308-309 (footnote omitted).
As noted above, in the instant case, Johnson was arrested by the Pennsylvania State Police on April 21, 2004, and was confined as a result of his new charges and the Board's detainer until his sentencing in the trial court on March 7, 2005. On that date, the trial court sentenced Johnson on his new conviction to a forty-day to six-month period of incarceration, effective from the date of his arrest on April 21, 2004. Thus, in starting the service of Johnson's original sentence on October 21, 2004, the Board merely started the service of his original sentence following the period of incarceration imposed by the trial court on his new charges. Therefore, because the trial court sentenced Johnson to a period of incarceration on his new charges, and because all of the time spent by him in confinement from the date of arrest on his new charges was credited to either his new sentence or to his original sentence, the Martin doctrine is not applicable and his reliance thereon is misplaced. In short, Johnson's allegation of error in this regard is without merit.
Finally, Johnson claims that the Board also erred in failing to give him credit for the six months and eleven or fourteen days, from September 6 or 9, 2000 to March 20, 2001, during which time he was required to participate in a home monitoring program as one of the conditions of his prior release on parole. However, as stated by the Pennsylvania Supreme Court in Commonwealth v. Kyle, 582 Pa. 624, ___, 874 A.2d 12, 20 (2005), " oday, we make clear that time spent on bail release, subject to electronic monitoring, does not qualify as custody for purposes of Section 9760 [of the Sentencing Code, 42 Pa.C.S. § 9760,] credit against incarceration." Moreover, the Pennsylvania Supreme Court has relied upon its holding in Kyle to reverse a recent opinion of this Court remanding a case for a hearing on whether time spent on electronic monitoring should be credited against a parolee's sentence. See Booth v. Pennsylvania Board of Probation and Parole, 866 A.2d 1189 (Pa. Cmwlth.), reversed, ___ Pa. ___, 879 A.2d 156 (2005). In short, under Kyle, Johnson is not entitled to credit for the six months and eleven or fourteen days during which time he was required to participate in a home monitoring program, and his claim to the contrary is without merit.
Accordingly, the order of the Board is affirmed.
ORDER
AND NOW, this 8th day of December, 2005, the decision of the Pennsylvania Board of Probation and Parole, mailed June 1, 2005 at Parole No. 176-AF, is AFFIRMED.
JAMES R. KELLEY, Senior Judge
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