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Jones v. Pennsylvania Board of Probation and Parole4/27/2005
dit for time served for pre- sentence detention in instances where confinement is a result of both the detainer for a parole violation and the failure to meet conditions of bail on the new offense. Significantly, the General Assembly has sought to foreclose the award of such a credit only as against time spent at liberty on parole, 61 P.S. §331.21a, thus suggesting the availability of credit where it is sought for periods of incarceration. Moreover, as noted by Judge Smith-Ribner in her dissenting opinion in this case, and Judge Friedman in her dissenting opinion in Owens v. Pennsylvania Bd. of Probation and Parole, 753 A.2d 919 (Pa. Cmwlth. 2000), the considerations relevant to the award of credit are just and equitable in nature. Unique combinations of circumstances will be presented in different cases that tip the balance for or against the particular allocation of credit. Decision making in this context is, thus, particularly suited to a discretionary framework with guidelines to ensure equitable treatment.... 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.
Id. at 604-05, 840 A.2d at 308-09 (italics in original) (bolded italics added).
Here, from June 12, 2003, to October 29, 2003, a period of four months and seventeen days, Jones was held in custody on the Board's June 6, 2003, detainer and on the new DUI charge. Jones had been arrested on June 10, 2003, but Jones received a sentence of forty-eight hours to twelve months on the new DUI charge and was paroled after forty-eight hours to begin serving his fifteen months backtime. Under Martin, the question before us is how to equitably allocate credit for the four months and seventeen days that Jones already has served in confinement. Because Jones was paroled from his DUI sentence, the only sentence of confinement remaining for Jones to serve is his original sentence.
Consistent with Martin, the four months and seventeen days must be credited to that sentence.
Accordingly, we reverse. In addition, we deny the application for leave to withdraw as counsel because we disagree that Jones' petition for review has no merit.
AND NOW, this 27th day of April, 2005, the order of the Pennsylvania Board of Probation and Parole, dated June 4, 2004, is hereby reversed. In addition, the application for leave to withdraw as counsel is denied.
ROCHELLE S. FRIEDMAN, Judge
Page 1 2 Pennsylvania DUI Attorneys
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