Full Opinion

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Gari Terrell Miller, : : Petitioner : : v. : No. 672 C.D. 2025 : Submitted: June 16, 2026 Pennsylvania Parole Board, : : Respondent : BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge OPINION BY JUDGE WOJCIK FILED: August 28, 2026 Gari Terrell Miller (Parolee), confined at State Correctional Institution (SCI) – Chester, petitions for review of the Pennsylvania Parole Board’s April 29, 2025 decision which affirmed its earlier order recommitting Parolee as a convicted parole violator (CPV) and recalculating his maximum sentence date as May 19, 2028. Parolee now challenges the timeliness of his parole revocation hearing under Section 71.4(1)(i) of the Board’s regulations, 37 Pa. Code §71.4(1)(i), arguing that, under a provision of federal law, the Board could have made him available to serve out the balance of his original state sentence before serving his new federal sentence. We will affirm after careful review. I. Background On February 1, 2017, Parolee pleaded guilty to two counts of drug- related offenses and one count of fleeing or attempting to elude law enforcement. See Certified Record (C.R.) at 1. These felony convictions carried a sentence of 21 to 60 months in an SCI and an additional year of probation rendering a maximum sentence date of May 5, 2021. Id. at 1-3. Parolee was subsequently released from the Quehanna Motivational Boot Camp on October 3, 2017, and his supervision was transferred to Maryland. C.R. at 4-5, 16. Not long after, on April 18, 2018, the Maryland Transportation Authority Police arrested Parolee on charges related to the possession of fentanyl. C.R. at 16. The State of Maryland ultimately withdrew from the prosecution of those charges, however, and the federal government assumed that responsibility. Thus, in the United States District Court for the District of Maryland (Federal District Court), Parolee ultimately pleaded guilty to conspiracy to distribute fentanyl and possession with intent to distribute fentanyl. Id. The Federal District Court consequently imposed concurrent sentences of 108 months for each count and committed Parolee to the custody of the United States Bureau of Prisons on September 24, 2019. Id. at 11, 16. For its part, the Board verified Parolee’s federal convictions on October 9, 2019, and issued a parole violation warrant on October 16, 2019. Id. at 10. On October 4, 2024, the Federal District Court granted Parolee’s motion for compassionate release to care for his ailing mother, reducing his sentence to time-served plus 14 days. See C.R. at 62-65. Parolee was thus returned to the custody of the Pennsylvania Department of Corrections on October 17, 2024, and the Board thereafter conducted a parole revocation hearing on December 18, 2024, at SCI-Chester. In a Board Action recorded on December 30, 2024, the Board recommitted Parolee as a CPV for a period of 24 months and recalculated his maximum sentence date as May 19, 2028. See C.R. at 88-90. The Board denied Parolee credit for time spent at liberty on parole because his new convictions were 2 the same or similar to his original offense and because Parolee continued to demonstrate unresolved drug and/or alcohol issues. Id. Parolee sought administrative relief from this Board Action in a form received on January 30, 2025, challenging, inter alia, the timeliness of his revocation hearing. Id. at 92-107. The Board denied Parolee’s request for administrative relief and affirmed its recommitment order in a decision dated April 29, 2025. As is relevant to this appeal, the Board explained that its parole revocation hearing was timely because it conducted the hearing within 120 days of Parolee becoming available to the Pennsylvania Department of Corrections’ custody as required by Section 71.4(1)(i) of the Board’s regulations. C.R. at 109 (citing Commonwealth v. Dorian, 468 A.2d 1091 (Pa. 1983)). This decision prompted Parolee to file a timely petition for review in this Court. II. Issue Now,1 Parolee presents a single issue for our review: whether the Board erred in ordering Parolee to serve backtime after his new federal sentence because the sequencing of his sentences frustrated Section 6138(a)(5.1) of the Prisons and Parole Code (Parole Code), 61 Pa. C.S. §6138(a)(5.1),2 and thereby denied Parolee 1 “Our review is limited to determining whether constitutional rights were violated, whether the adjudication was in accordance with law, and whether necessary findings were supported by substantial evidence.” Miskovitch v. Pennsylvania Board of Probation and Parole, 77 A.3d 66, 70 n.4 (Pa. Cmwlth. 2013) (citing Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704). 2 See 61 Pa. C.S. §6138(a)(5.1) (“If the offender is sentenced to serve a new term of total confinement by a Federal court or by a court of another jurisdiction because of a verdict or plea . . . the offender shall serve the balance of the original term before serving the new term.”). 3 a timely parole revocation hearing under the Board’s regulations. Parolee’s Brief at 5. III. Discussion “Due process requires that a parolee receive a timely hearing after he is taken into custody for a parole violation.” Dill v. Pennsylvania Board of Probation and Parole, 186 A.3d 1040, 1044 (Pa. Cmwlth. 2018). To safeguard due process, the Board has “obligated itself by regulation,” id., to conduct a parole revocation hearing “within 120 days from the date the Board received official verification of the plea of guilty or nolo contendere or of the guilty verdict at the highest trial court level . . ..” 37 Pa. Code §71.4(1). But where the CPV is “confined outside the jurisdiction of the Department of Corrections,” like “in a [f]ederal correctional institution[,]” the 120-day period begins running upon the official verification of the parolee’s return to an SCI. Id. §71.4(1)(i). In other words, [W]hen a parolee is in federal custody, confined in a federal facility, or is otherwise unavailable, the Board’s duty to hold a revocation hearing, or take other action beyond issuing a detainer, is deferred until the parolee is returned to a SCI regardless of when the Board received official verification of a parolee’s new conviction. Brown v. Pennsylvania Board of Probation and Parole, 184 A.3d 1021, 1025 (Pa. Cmwlth. 2017) (emphasis added).3 Where a parolee challenges the timeliness of his revocation hearing, the Board bears the burden of proving – by a preponderance of 3 See also 37 Pa. Code §71.5(a) (“If the parolee is in custody in another state, or in Federal custody, the Board may lodge its detainer but other matters may be deferred until the parolee has been returned to a State correctional facility in this Commonwealth.”); id. §71.5(c)(1) (“In determining the period for conducting hearings under this chapter, there shall be excluded from the period, a delay in any stage of the proceedings which is directly or indirectly attributable to one of the following: . . . The unavailability of a parolee or counsel.”). 4 the evidence – the timeliness of the same. Brown, 184 A.3d at 1025. If the Board fails to demonstrate it conducted a timely revocation hearing, the parole violation charges must be dismissed with prejudice. Ramos v. Pennsylvania Board of Probation and Parole, 954 A.2d 107, 109 (Pa. Cmwlth. 2008). Further, and as discussed infra, this matter also involves the doctrine of primary jurisdiction as between sovereigns, i.e., the Commonwealth and the federal government. The doctrine of primary jurisdiction is a means for resolving jurisdictional disputes between the sovereigns. The sovereign which first arrests a defendant has primary jurisdiction over him. Chambers v. Holland, 920 F. Supp. 618, 622 (M.D. Pa.), aff’d, 100 F.3d 946 (3d Cir. 1996). Primary jurisdiction remains vested in the sovereign that first arrested the defendant until it relinquishes its priority of jurisdiction by, e.g., bail release, dismissal of the state charges, parole release, or expiration of the sentence. Chambers, 920 F. Supp. at 622 (citing United States v. Warren, 610 F.2d 680, 684-85 (9th Cir. 1980) and Roche v. Sizer, 675 F.2d 507, 510 (2d Cir. 1982)). Thus, when a federal court and state court each have jurisdiction of a defendant, the doctrine of primary jurisdiction allows the tribunal which first obtained jurisdiction to hold it to the exclusion of the other until the first tribunal’s jurisdiction is exhausted. In re Liberatore, 574 F.2d 78, 88 (2d Cir. 1978). When a state has primary jurisdiction . . . jurisdiction over a defendant ends and federal custody over him commences only when the state authorities relinquish him on satisfaction or extinguishment of the state obligation. Newsuan v. Department of Corrections, 853 A.2d 409, 411-12 (Pa. Cmwlth. 2004). 5 A. Fumea Parolee argues that the Board frustrated the sequencing of his sentences under Section 6138(a)(5.1) of the Parole Code and offended his due process guarantees by waiting to hold his parole revocation hearing until his return to SCI- Chester. In Parolee’s view, the Board, although “undeniably aware” of his federal convictions, permitted him to “languish” in federal custody for several years without taking affirmative steps to obtain custody over him or otherwise make him available to serve out the balance of his original sentence. Parolee’s Brief at 13-14. Parolee acknowledges that past decisions of this Court, like Brown and Dill, have found that the Board possesses no authority to obtain custody over Parolee from a federal institution. See id. at 15. Nevertheless, in the first part of his argument, Parolee deems those cases distinguishable, such that our decision in Fumea v. Pennsylvania Board of Probation and Parole, 147 A.3d 610 (Pa. Cmwlth. 2016), controls. We are not so persuaded. In Fumea, 147 A.3d at 611, a parolee under the Board’s supervision was arrested by federal authorities for charges relating to wire fraud but later released on bond. The Board subsequently lodged a detainer against the parolee and took him into custody until the expiration of his original maximum sentence date. Thus, from the time of his release from the Board’s custody until the time of his trial and his sentencing, the parolee was at liberty. Id. The Board, however, did not issue a second warrant to commit and detain until the day of the parolee’s sentencing hearing – where his parole agent was in attendance – and allowed the parolee to be remanded into the custody of the United States Marshall. Upon satisfying his federal sentence and his return to the Board’s custody, the Parolee challenged the timeliness of his revocation hearing, arguing that Section 6138(a)(5.1) “obligated” the Board to assert its jurisdiction over him either “at or 6 before his sentencing . . .” so that he could serve out his original sentence before his federal sentence as prescribed. Id. at 615. After surveying a number of cases in which we assessed the interplay between the Board’s regulations and Section 6138(a)(5.1), we observed that we had “interpreted and applied the regulation as necessary to protect the due process rights of parolees without overburdening the Board.” Fumea, 147 A.3d at 619. Given the unusual facts of the case, we could not discern a meaningful burden on the Board and we agreed that the Board was obligated to assert its jurisdiction over the parolee. Because the Board has offered no clear explanation . . . as to why it failed to take custody of [the parolee while he] was still available to the Board at or before his federal sentencing, when it was undeniably aware of that conviction, an agent attended his sentencing, and the Board issued its detainer on the date of sentencing, we conclude that [the parolee’s] revocation hearing was not timely held, the appropriate remedy for which is dismissal of the parole violation charges. Id. at 619-20. Fumea, however, was unique on its facts and subsequent parolees have had little success relying on it.4 The parolee in Brown, 184 A.3d at 1026-27, for example, was at all relevant times in federal custody before and after sentencing because he failed to post bail on his new convictions. Within 120 days of the parolee’s return to a SCI, the Board conducted a parole revocation hearing and recommitted the parolee as a CPV. Id. at 1023. The parolee challenged the timeliness of the Board’s hearing before this Court, asserting that, as was the case in 4 See, e.g., Sampson v. Pennsylvania Parole Board (Pa. Cmwlth., No. 615 C.D. 2025, filed March 23, 2026), slip op. at 6-8; Moody v. Pennsylvania Parole Board (Pa. Cmwlth., No. 1277 C.D. 2023, filed November 8, 2024), slip op. at 8-9; Shelton v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No. 1199 C.D. 2018, filed July 23, 2019), slip op. at 7. These cases are cited for their persuasive value. Pa.R.A.P. 126(b)(1)-(2). 7 Fumea, he was available to serve his original sentence at the time of his federal conviction and the Board unlawfully delayed his revocation hearing as a consequence. Id. at 1024. We did not find Fumea applicable, however. Rather, we observed that, unlike Fumea, the parolee never posted bail and was thus unavailable to the Board at the time of his sentencing: [The parolee] argues that, pursuant to this new section, he must serve the remainder of his original sentence first and, like the parolee in Fumea, he became available to the Board at the time of his federal conviction and, therefore, a revocation hearing should have been held within 120 days of the Board’s receipt of the official verification of that conviction. However, the parolee in Fumea was not in federal custody when he became available to the Board because he was on bail from the federal charges. It was not until after the parole agent did not take the parolee into custody at his sentencing hearing that he was remanded into federal custody. Brown, 184 A.3d at 1027 (bold in original). Further, we faulted the parolee for presuming the Board possessed an ability to obtain the parolee from federal custody without providing “any legal authority that grants the Board this authority.” Id. In fact, we credited the Board’s assertion that it lacked “the ability to acquire a Pennsylvania parolee from the custody of another jurisdiction in order to recommit the parolee to serve the remainder of the original sentence.” Id. As to that parolee, we therefore applied the general revocation hearing provisions of the regulations, i.e., we concluded that the Board held a timely parole revocation hearing because its hearing occurred within 120 days of the date of the parolee’s return to an SCI. Id. at 1027-28. Since Brown, having found no evidence to the contrary, we have routinely held: “Lest there be any doubt . . . the Board does not have ‘the power to 8 pluck a Pennsylvania parolee from a federal prison for the purpose of recommitting him as a parole violator.’” Dill, 186 A.3d at 1046 (quoting Santosusso v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No. 574 C.D. 2017, filed January 30, 2018), slip op. at 6); see also Stroud v. Pennsylvania Board of Probation and Parole, 196 A.3d 667, 673 (Pa. Cmwlth. 2018) (“Here, as in Brown and Dill, this Court is not aware of any legal authority under which the Board could have retrieved [the parolee] from federal custody in order to conduct his revocation hearing and serve his state sentence pursuant to Section 6138(a)(5.1) of the Parole Code.”). As Section 6138(a)(5.1) relates to the doctrine of primary jurisdiction, then, where the federal government has relinquished its priority of jurisdiction, like through bail or bond release, Newsuan, 853 A.3d at 411-12, the Board will be obligated by Section 6138(a)(5.1) to assert its own jurisdiction over the parolee so that the parolee can serve out his state and federal sentences as prescribed. Fumea, 147 A.3d at 615, 619-20. But where the federal government’s priority of jurisdiction precludes the Board’s own, the Board is powerless to assert its jurisdiction over the Parolee and its obligation to conduct a parole revocation hearing is “deferred.” Brown, 184 A.3d at 1025; Dill, 186 A.3d at 1046. In this respect, the matter sub judice is a mirror image of Brown: Parolee never posted bail, nor was he otherwise available to the Board prior to his return to SCI-Chester. Under these circumstances, the federal government’s jurisdiction over Parolee precluded the Board’s own, and the Board’s duty to conduct a parole revocation hearing within 120 days of his new conviction was “deferred” until his return to a SCI. Brown, 184 A.3d at 1025. Absent an authority 9 which would prioritize the Board’s jurisdiction over Parolee, Fumea is inapplicable here. B. 18 U.S.C. §3623 To that end, Parolee argues that Brown and its progeny overlooked a federal statute which would have empowered the Board to obtain custody over a parolee in federal confinement: 18 U.S.C §3623.5 See Parolee’s Brief at 15-17. Section 3623 provides: The Director of the Bureau of Prisons [(Director)] shall order that a prisoner who has been charged in an indictment or information with, or convicted of, a State felony, be transferred to an official detention facility within such State prior to his release from a Federal prison facility if -- (1) the transfer has been requested by the Governor or other executive authority of the State; (2) the State has presented to the Director a certified copy of the indictment, information, or judgment of conviction; and (3) the Director finds that the transfer would be in the public interest. If more than one request is presented with respect to a prisoner, the Director shall determine which request should receive preference. The expenses of such transfer shall be borne by the State requesting the transfer. 18 U.S.C. §3623 (emphasis added). Parolee thus claims that he was never unavailable to the Board, as the Board’s failure to request a transfer under this 5 See Pub. L. No. 98-473, 98 Stat. 2008. 10 provision frustrated the sequencing of his sentences under Section 6138(a)(5.1) and caused an unjustifiable “five-plus year delay” from the official verification of his federal convictions until his revocation hearing. Parolee’s Brief at 16. Yet, very little has been said about this provision in the federal courts.6 In some instances, states have challenged the Director’s denial of its transfer, see, e.g., Hanson v. Drummond (W.D. La., No. 25-CV-101, filed February 27, 2025) (Hanson I),7 and, in others, the inmate has challenged the transfer request himself, see Hanson v. Quick (E.D. Ok., No. CIV-25-81, filed May 27, 2025) (Hanson II). The Eighth Circuit Court of Appeals has acknowledged, if only in passing, that Section 3623 touches upon the comity between sovereigns resolving jurisdictional disputes over a prisoner. See United States v. Dowdle, 217 F.3d 610, 611 (8th Cir. 2000). The United States District Court for the Eastern District of Oklahoma expanded upon this notion in Hanson II, however. “In our American system of dual sovereignty, each sovereign – whether the Federal Government or a State – is responsible for ‘the administration of [its own] criminal justice system.’” Setser v. United States, 566 U.S. 231, 241 (2013) (quoting Oregon v. Ice, 555 U.S. 160, 170 (2009)). The doctrine of primary jurisdiction (or primary custody) has developed to address the issue of an individual who has violated the law of more than one sovereign. .... The sovereign with priority of jurisdiction may exercise its discretion to relinquish that primary custody to another sovereign, but doing so is an executive, not a judicial, function. [United States v. Bates, 713 F. Supp. 3d 1153, 1155 (D. Utah 2024).] The 6 Even less has been said in our fellow state courts. See, e.g., State v. LaPointe, 434 P.3d 850, 861 (Kan. 2019); State v. Clapper (Oh. Ct. App., No. 2011-P-0067, filed June 4, 2012). 7 Although not binding, decisions from the federal district and circuit courts may be cited for their persuasive value. Edinger v. Borough of Portland, 119 A.3d 1111, 1115 (Pa. Cmwlth. 2015). 11 determination of custody and service of sentence between them is a matter of comity to be resolved by the executive branches of each sovereign. Id. (quoting Hernandez v. United States Attorney General, 689 F.2d 915, 917 (10th Cir. 1982)). Resolving such inter-sovereign issues requires “a spirit of reciprocal comity and mutual assistance to promote due and orderly procedure” developed between sovereigns. Ponzi v. Fessenden, 258 U.S. 254, 259 (1922). Section 3623 is a codification of that comity from the federal perspective. Slip op. at 2 (emphasis added). To that end, before the enactment of Section 3623, the federal courts recognized that this comity did not typically warrant judicial review. As early as 1922, the Supreme Court of the United States stressed the importance of inter- sovereign cooperation to prevent defendants from misusing “the machinery of one sovereignty to obstruct his trial in the court of the other . . . .” Ponzi, 258 U.S. at 259-60. The Supreme Court opined: One accused of a crime has a right to a full and fair trial according to the law of the government whose sovereignty he is alleged to have offended, but he has no more than that . . . . He may not complain if one sovereignty waives its strict right to exclusive custody of him for vindication of its laws in order that the other may also subject him to conviction of crime against it. Id. (emphasis added); see also Lovell v. Arnold, 391 F. Supp. 1047, 1048 (M.D. Pa. 1975) (“[T]he exercise of jurisdiction over a prisoner who has violated the law of more than one sovereign is solely a question of comity not subject to attack by the prisoner . . . .”). Regardless, neither the initial doctrine, nor its subsequent codification, contemplated judicial review over the exercise of this comity. See also Hanson I, slip op. at 3 (“Section 3623 gives the [] Director, and no one else, the 12 discretion to decide whether an inmate’s transfer is within the public interest.”); Hanson II, slip op. at 3 (“Section 3623 makes no mention of court involvement.”). If informative, this case law is still not squarely on point as Section 3623’s exact contours are not at issue here. Rather, Parolee asks this Court to now accept Section 3623 as the authority which we overlooked in Brown and Dill and by which the Board could have made Parolee available to serve out the balance of his sentence per Section 6138(a)(5.1) of the Parole Code. Put another way, does Section 6138(a)(5.1) of the Parole Code impose a duty on the Board to make a request under Section 3623 for the purpose of conducting a parole revocation hearing for a CPV? Upon careful consideration, we hold Section 6138(a)(5.1) of the Parole Code imposes no such obligation. Again, in Fumea, 147 A.3d at 619-20, we concluded that the Board unjustifiably delayed the parolee’s revocation hearing because the federal government had relinquished its priority of jurisdiction over the parolee, opening the door for the Board to assert its own unquestionable jurisdiction over him, which it failed to do. Indeed, “[w]e framed the issue in Fumea as ‘whether Section 6138(a)(5.1) imposes [a] duty upon the Board to assert its jurisdiction over a parolee who, upon his conviction in federal court becomes a [CPV] but who is not yet in federal custody . . . .’” Brown, 184 A.3d at 1026 (emphasis added) (quoting Fumea, 147 A.3d at 615). Fumea did not apply in Brown because, therein, the federal government did not relinquish its jurisdiction over the parolee until its jurisdiction was exhausted in the ordinary course, i.e., the Board did not have priority of jurisdiction over the parolee until his return to a SCI. Brown, 184 A.3d at 1027- 28. Section 3623 does not alter this analysis, because, from the Commonwealth’s or the Board’s perspective, Section 3623 is no authority at all. 13 Critically, it does not prioritize the Board’s jurisdiction over the parolee.8 It is merely the codification of comity between sovereigns. Even so, the possibility that the federal government may, in the spirit of reciprocal comity and mutual assistance, choose to relinquish its priority of jurisdiction over a parolee pursuant to a Board request9 does nothing to confer upon the Board “the power to pluck a Pennsylvania parolee from a federal prison for the purpose of recommitting him as a parole violator,” Dill, 186 A.3d at 1046 (quotations omitted).10 To conclude, when the Board initially released Parolee in 2017, it also relinquished its priority of jurisdiction over Parolee. Newsuan, 853 A.3d at 411. Per the doctrine of primary jurisdiction – notwithstanding the plain language of Section 6138(a)(5.1) – when federal authorities later assumed custody over Parolee, they assumed jurisdiction over him to the exclusion of the Board’s own jurisdiction until the federal government’s jurisdiction was satisfied or otherwise relinquished. Id. The federal government, having granted Parolee compassionate release on October 8 If anything, a request under Section 3623 concedes the federal government’s priority of jurisdiction over a parolee. 9 For what it is worth, the Board questions, inter alia, whether it is “an executive authority of the State” within the meaning of Section 3623, 18 U.S.C. §3623. The Board offers instead that “[a] more straightforward reading would require that a request for the transfer of a federal prisoner would need to come from the Governor or his designee.” Board’s Brief at 13. We need not consider the question though given our disposition. 10 In any case, requests made under Section 3623 are so vested in the Director’s discretion – and insulated from judicial review – that charging the Board with this routine obligation would do little to guarantee the sequencing of sentences under Section 6138(a)(5.1) of the Parole Code. It might, however, risk instigating jurisdictional disputes between sovereigns. So too, if Section 3623 is the codification of comity between sovereigns, and a matter left to their respective executive branches, then our acquiescence to Parolee’s challenge would have the perverse effect of permitting the Parole Code to direct the Commonwealth’s relationship with the federal government. 14 4, 2024, relinquished its jurisdiction over Parolee, permitting the Board to assert its jurisdiction over him and return him to the Board’s custody. Under Section 71.4(1)(i) of the Board’s regulations, 37 Pa. Code §71.4(1)(i), the Board had to conduct its revocation hearing within 120 days of Parolee’s return. Here, the Board did so. Thus, the Board’s hearing was timely and dismissal of his parole violation charges would be inappropriate. We are therefore inclined to reject Parolee’s arguments and conclude, as we have before, that “when a parolee is in federal custody, confined in a federal facility, or is otherwise unavailable, the Board’s duty to hold a revocation hearing, or take other action beyond issuing a detainer, is deferred until the parolee is returned to a SCI . . . .” Brown, 184 A.3d at 1025. IV. Conclusion Accordingly, the Board’s order is AFFIRMED. MICHAEL H. WOJCIK, Judge 15 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Gari Terrell Miller, : : Petitioner : : v. : No. 672 C.D. 2025 : Pennsylvania Parole Board, : : Respondent : ORDER AND NOW, this 28th day of August, 2026, the Pennsylvania Parole Board’s order dated April 29, 2025, is AFFIRMED. __________________________________ MICHAEL H. WOJCIK, Judge