Melhorn v. Pennsylvania Board of Probation and Parole9/30/2005
Barry Melhorn petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) that denied his request for administrative relief. Melhorn was confined for 5 months, 10 days, because of a Board detainer and a new criminal charge on which he did not post bail. He pled guilty and was sentenced on the new criminal charge. The trial court's sentencing order did not permit the time he spent in custody prior to his sentencing to be credited to his new sentence; consequently, Melhorn asserts that it should be credited to the backtime on his original sentence.
The following facts are relevant. Melhorn, on December 13, 1999, was released on parole from a sentence for aggravated assault, involuntary manslaughter, reckless endangerment and simple assault ("original sentence"). At that time, his maximum expiration date was December 3, 2005. On July 31, 2003, the Board issued a warrant and Melhorn was picked up that day for parole violations. He remained incarcerated on the Board's warrant and then was charged on August 19, 2003 with the new criminal charges of corruption of a minor, indecent assault, furnishing liquor to a minor and harassment. He did not post bail on the new charges. The nineteen-day period he was incarcerated solely on the Board's warrant, from July 31 to August 19, was credited toward his original sentence and is not in dispute here.
On December 9, 2003, while still incarcerated, Melhorn pled guilty to the charge of corrupting a minor. The court issued a sentencing order on February 9, 2004 ("new sentence"). That order provides:
SENTENCE
And now, February 9, 2004, the Order of the Court is as follows:
1. On Count No 1, the sentence of the Court is that the defendant, Barry L. Melhorn, pay the costs of prosecution, pay a fine in the amount of $300.00, and be committed to the Bedford County Jail for a term of no less than six (6) months or more than twenty-three and one-half (23 1/2 ) months commencing January 30th, 2004.
2. On motion of the District Attorney, Count Nos. 2, 3 & 4 of the information are hereby nolle prossed.
(O.R. 47) (emphasis added). In that sentencing order, the trial court did not credit against Melhorn's new sentence the time he spent in custody from August 19, 2003 to January 30, 2004 (5 months, 10 days) ("pre-sentence time").
On April 5, 2004, a Board hearing examiner held a parole revocation hearing relating to Melhorn's December 2003 guilty plea. The Board, by order mailed May 13, 2004, re-committed Melhorn to serve six months backtime as a technical parole violator and eighteen months backtime as a convicted parole violator, concurrently, "when available." (O.R. 49-50.) This order erroneously reflected a re-calculated maximum date of April 29, 2004. Melhorn then, on May 23, 2004, filed for administrative relief with the Board, asserting that if, in fact, his maximum date is April 29, 2004, the Board no longer had jurisdiction over him. Alternatively, he contended that, if the Board erred in re-computing his maximum date, it should re-calculate that date to January 20, 2010. (O.R. 52-54.)
The Board responded on July 2, 2004 and advised Melhorn that the parole violation maximum date listed in the April 29th order was a "clerical error," and that it had deleted that maximum date on June 24, 2004. (O.R. 56.) It additionally stated that, because Melhorn was currently unavailable to begin serving his backtime, the Board could not yet re-calculate his new parole violation maximum date. Id. Melhorn petitioned this Court for review of the Board's July 2, 2004 determination and, in Melhorn v. Pa. Bd. of Prob. and Parole, __A.2d__, No. 1
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