McIntosh Parole Revocation Affirmed, Docket 1719 C.D. 2024

Jump To

Top Caption [Lead Opinion

by Wolf](https://www.courtlistener.com/opinion/10847162/dc-mcintosh-v-ppb/#o1)

Support FLP

CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.

Please become a member today.

Join Free.law Now

April 23, 2026 Get Citation Alerts Download PDF Add Note

D.C. McIntosh v. PPB

Commonwealth Court of Pennsylvania

• Citations: None known
• Docket Number: 1719 C.D. 2024
• Precedential Status: Non-Precedential

• Judges: Wolf

• Opinion

• Authorities (5)

• Cited By (0)

• Summaries (0)

• Similar Cases (28K)

• PDF

Lead Opinion

by Wolf

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David C. McIntosh, :
Petitioner :
:
v. : No. 1719 C.D. 2024
:
Pennsylvania Parole Board, :
Respondent : Submitted: March 3, 2026

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE MATTHEW S. WOLF, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE WOLF FILED: April 23, 2026

David C. McIntosh (McIntosh) petitions for review of the final
determination of the Pennsylvania Parole Board (Board) mailed November 27, 2024.
The Board affirmed its prior decision recorded September 25, 2024, denying
McIntosh’s request for administrative relief from that decision. After careful review,
we affirm.
The Board first granted McIntosh parole by action recorded February
26, 2010, and he was released on parole May 20, 2010, with a controlling maximum
sentence date of November 14, 2018. Certified Record (C.R.) at 5-8. On August
26, 2016, the sheriff of Catawba County, North Carolina arrested McIntosh on state
charges of trafficking in illegal drugs and unlawfully possessing a firearm. Id. at 12.
On September 12, 2018, United States Marshals arrested McIntosh in the Western
District of North Carolina, and on January 11, 2019, McIntosh pleaded guilty there
to federal felony charges for conspiracy and distribution of controlled substances.
Id. at 20. McIntosh was sentenced to 10 years of incarceration in federal prison. Id.
at 14. On June 14, 2024, McIntosh was returned to a state correctional institution
following his release from federal prison. Id. at 20, 96.
The Board conducted a parole revocation hearing on August 28, 2024,
at which McIntosh was represented by counsel. C.R. at 23-24. The Board prepared
a hearing report revoking McIntosh’s parole. Id. at 88. By action recorded
September 25, 2024, the Board recommitted McIntosh as a convicted parole violator
(CPV) to serve 24 months’ backtime. Id. at 103-04. The Board awarded only partial
credit for time at liberty on parole because McIntosh’s federal conviction involved
conspiracy to distribute a significant amount of illegal drugs. Id. The Board
recalculated McIntosh’s maximum sentence date as September 3, 2026. Id.
On November 4, 2024, McIntosh filed a request for administrative
relief with the Board, arguing the Board had improperly required him to serve his
federal sentence before his state sentence and only awarded partial credit for time at
liberty on parole. Id. at 105-07. In a decision mailed November 27, 2024, the Board
denied McIntosh’s administrative appeal and affirmed its September 25, 2024
decision. Id. at 108-09. The Board reasoned:

The Prisons and Parole Code [(Parole Code)] gives the
Board statutory authority to recalculate the maximum
dates of convicted parole violators to reflect that they
receive no credit for the time spent at liberty on parole. 61
Pa. C.S. § 6138(a)(2) . . . . In this case, the Board in its
discretion awarded partial credit from the date of
[McIntosh’s] release (5/20/2010) until the date of his
initial arrest for the current conviction (8/25/2016).

Next, the [Parole Code] provides that a [CPV] who was

2
released from a state correctional institution [(SCI)] and
receives a new sentence by a Federal court or by a court of
another jurisdiction must serve the original sentence first,
and those terms must be served consecutively. 61 Pa. C.S.
§ 6138(a)(5.1). However, that provision is contingent on
federal authorities actually releasing [] McIntosh to return
to the SCI. The Board has no mechanism to remove a
federal inmate from serving a sentence in federal custody,
nor can it compel federal authorities to comply with the
statute. Thus, [McIntosh] became available to commence
service of his original sentence on June 14, 2024 when he
completed his federal sentence.

Id. (emphasis original) (some internal citations omitted). McIntosh petitioned this
Court for review.
On appeal,1 McIntosh raises two issues. First, he argues the remainder
of his state sentence should have been served before, not after, his federal sentence.
Second, he argues the Board abused its discretion in awarding only partial credit for
time served.
As to the order of sentences, McIntosh relies on a decision where we
held the Board did not timely conduct a parole revocation hearing when a parolee
received a federal sentence. See Fumea v. Pa. Bd. of Prob. & Parole, 147 A.3d 610,
611-20 (Pa. Cmwlth. 2016). We determined the parolee was available to the Board
because he was not then in federal custody, so the Board should have held the
revocation hearing within 120 days of the federal sentencing. Id. Failing to do so
required dismissal of the parole violation matter. Id. McIntosh argues the Board
here did not hold the revocation hearing until years after his federal sentencing in
2019, even though it knew of his federal charges. He claims this is unexplained as

1
Our review of a Board decision is limited to determining whether necessary findings of
fact are supported by substantial evidence, whether the Board committed an error of law, or
whether the parolee’s constitutional rights were violated. Section 704 of the Administrative
Agency Law, 2 Pa. C.S. § 704.

3
in Fumea, and because the Parole Code requires service of the state sentence first,
his backtime is unlawful. The Board responds McIntosh waived any challenge to
timeliness by failing to raise it at the hearing, and even if preserved, McIntosh was
in federal custody immediately upon his federal sentencing, preventing the Board
from asserting jurisdiction until his federal release in August 2024.
We agree McIntosh waived any timeliness issue. The transcript of the
revocation hearing contains no mention of Fumea or timeliness. See C.R. at 23-49.
Failure to raise the issue before the Board results in waiver. See Malarik v. Pa. Bd.
of Prob. & Parole, 25 A.3d 468, 469 (Pa. Cmwlth. 2011). For completeness,
however, we will address the argument. “[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.” Brown v. Pa. Bd. of Prob. & Parole, 184 A.3d
1021, 1025 (Pa. Cmwlth. 2017). Further, the Parole Code’s requirement that the
original sentence be served first and consecutively with the second is only operative
once parole is revoked, not before. Barnes v. Pa. Bd. of Prob. & Parole, 203 A.3d
382, 391 (Pa. Cmwlth. 2019). We conclude the Board did not err in revoking parole
after McIntosh’s release from federal custody and requiring him to serve backtime
on the state sentence.
Finally, McIntosh argues the Board’s explanation for partially denying
credit for street time is inadequate. He explains the Board awarded credit from his
parole in 2010 through August 25, 2016, when North Carolina authorities arrested
McIntosh on state charges, which were ultimately dismissed. It was not until 748
days later, on September 12, 2018, that the federal charges were filed. McIntosh
argues the Board’s stated reason for withholding credit applies only to the federal

4
charges, so the 748 days preceding them should be credited as well. The Board
responds it has statutory discretion to award any amount of credit, including no
credit. It states its explanation relying on conspiracy to distribute large amounts of
illegal drugs is supported by the federal indictment, which shows McIntosh’s
involvement in a large drug distribution conspiracy as early as 2016, and the federal
indictment was filed years after the conspiracy began.
We agree with the Board that its explanation for the partial credit award
is sufficient. It must only give a contemporaneous reason for the decision that is
consistent with the Parole Code. See Pittman v. Pa. Bd. of Prob. & Parole, 159 A.3d
466, 475 (Pa. 2017). Here, the Board’s stated reason and the dates for which it
denied credit are supported by the record, and specifically by McIntosh’s guilty plea.
We find no abuse of discretion in the Board’s credit decision.
Accordingly, we affirm the Board’s final determination.

MATTHEW S. WOLF, Judge

5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David C. McIntosh, :
Petitioner :
:
v. : No. 1719 C.D. 2024
:
Pennsylvania Parole Board, :
Respondent :

ORDER

AND NOW, this 23rd day of April 2026, the final determination of the
Pennsylvania Parole Board mailed November 27, 2024, is AFFIRMED.

MATTHEW S. WOLF, Judge