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Feb. 25, 2026 Get Citation Alerts Download PDF Add Note

K. Booth v. PPB

Commonwealth Court of Pennsylvania

• Citations: None known
• Docket Number: 489 C.D. 2025
• Precedential Status: Non-Precedential

• Judges: Cohn Jubelirer

• Opinion

• Authorities (12)

• Cited By (0)

• Summaries (0)

• Similar Cases (27.4K)

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Lead Opinion

                        by [Renee Cohn Jubelirer](https://www.courtlistener.com/person/8207/renee-cohn-jubelirer/)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kimn Booth, :
Petitioner :
:
v. : No. 489 C.D. 2025
: Submitted: February 3, 2026
Pennsylvania Parole Board, :
Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE STELLA M. TSAI, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
PRESIDENT JUDGE COHN JUBELIRER FILED: February 25, 2026

Kimn Booth petitions for review of the Order of the Pennsylvania Parole
Board (Board) that denied Booth’s Petition for Administrative Review (Petition) and
upheld the Notice of Decision recommitting Booth as a Convicted Parole Violator
(CPV) to serve the unexpired term of his original sentence and recalculating his
parole violation maximum date to April 6, 2026, based upon new convictions in
federal court. On appeal, Booth argues the Board erred because he should have
completed serving his state sentence before serving his federal sentence, it failed to
give him credit on his state sentence for time served on the federal sentence in
accordance with the federal court’s sentencing instructions, and in recommitting him
as a CPV. Upon review, we affirm.

I. BACKGROUND
On November 5, 2014, the Board released Booth on parole from his three-
year to six-year sentence for convictions of Possession with Intent to Deliver and
Person not to Possess Firearm. (Certified Record (C.R.) at 1, 4.) At the time of his
parole, Booth’s maximum date was December 5, 2018, and he had 1,483 days
remaining on his sentence. (Id. at 4.)
Booth was arrested by federal authorities on June 12, 2017, and charged
federally with multiple drug-related charges, including Possession with Intent to
Distribute Narcotics (Heroin and Fentanyl). (Id. at 17.) As of that date, Booth had
540 days remaining on his state sentence. He was preliminarily detained in the
custody of the United States Marshals by order dated June 13, 2017. (Id. at 52.) The
Board issued a Warrant to Commit and Detain (Warrant) Booth on June 15, 2017.
(Id. at 8.) The Board declared Booth delinquent as of June 12, 2017, the date of his
federal arrest, on December 7, 2018. (Id. at 9.) The Board cancelled its Warrant on
December 26, 2018. (Id. at 10.) Booth waived his federal detention hearing, he was
ordered detained, and he did not post bail on the federal charges. (Id. at 17, 58.)
Booth was confined at “NEOCC,” which is the North Eastern Ohio Correctional
Center. (Id. at 19.)
On October 16, 2019, Booth pled guilty in federal court to violating multiple
sections of the Federal Crimes Code, specifically, to two counts of Possession with
Intent to Distribute Narcotics and one count of conspiracy to do so, 21 U.S.C.
§§ 841 (a)(1) & (b)(1)(C), 846. (C.R. at 22.) That same day, a Judge in the United
States District Court for the Western District (District Court) sentenced Booth to a
term of imprisonment in the Federal Bureau of Prisons (FBP) of 120 months for each
count, to run concurrently. (Id. at 23.) The federal sentencing order provides
additional recommendations to the FBP, including that Booth “be granted credit for
time served in presentence custody, to the extent he is eligible,” and makes no
reference to Booth’s state sentence (Id. at 23-28.)

2
The Board issued a second Warrant for Booth on November 5, 2019. (Id. at
11.) On October 15, 2024, Booth was released from Federal Correctional Institution,
Loretto to Board agents, and the Board issued an order for transport of Booth to the
State Correctional Institution (SCI) Smithfield. (Id. at 12, 19, 50-51.) The Board
issued a Notice of Charges and Hearing on October 21, 2024, based on Booth’s
federal convictions, which Booth signed the same day. (Id. at 13.) Also on that day,
Booth waived his rights to a panel hearing, to a revocation hearing, and to counsel,
and admitted to the new federal convictions. (Id. at 15-16.)
Based on the records obtained from the District Court, the Board issued a
Notice of Decision, recorded on November 27, 2024, recommitting Booth as a CPV
to serve the remainder of his unexpired term because the “new charges [were]
serious/assaultive” and he was “considered a threat to the safety of the community.”
(Id. at 72.) The Board gave Booth credit for his time spent at liberty on parole in
good standing, also known as street time, and set Booth’s parole violation maximum
date as April 6, 2026. (Id. at 72-73.) In its Order to Recommit, the Board calculated
Booth’s parole violation maximum date as follows: he had 1,491 days remaining on
his sentence when he was paroled on November 5, 2014, from which the Board
subtracted 953 days for his street time credit (November 5, 2014, to June 15, 2017),
resulting in him having 538 days remaining on that sentence. (Id. at 69.) The Board
gave no credit for any confinement time. (Id.) Adding 538 days to Booth’s return
to custody date of October 15, 2024, resulted in the new parole violation maximum
date of April 6, 2026. (Id.)
Booth, via counsel, filed the Petition, raising the issues he now argues to the
Court, which the Board denied. (Id. at 74.) The Board acknowledged that Section
6138(a)(5.1) of the Prisons and Parole Code (Code), 61 Pa.C.S. § 6138(a)(5.1),

3
requires that an inmate who is released from an SCI and receives a new sentence to
be served at a federal facility should serve the original state sentence first, but for
this to occur, the federal facility has to surrender the parole violator to Pennsylvania
custody. (Id. at 76.) The Board explained it does not control the movements of
federal inmates, nor does it have the means or authority to force the return of an
inmate from federal prison. Thus, in these circumstances, Booth became available
to serve his state sentence upon completion of the federal sentence on October 15,
2024. (Id.) The Board further explained that it considered Booth’s new charges
“serious/assaultive” justifying his recommitment as a CPV, because the drug-related
charges were serious. (Id. at 77.) It stated that “Booth is considered a threat to the
safety of the community because he was selling a Heroin/Fentanyl mix to people in
the community. This could potentially harm anyone using or buying these drugs.”
(Id.) Accordingly, the Board affirmed the Notice of Decision, and Booth now
petitions this Court for review.1

II. DISCUSSION
A. The Order of Service of Booth’s State and Federal Sentences
Booth first argues that the Board’s Order should be reversed because, pursuant
to Section 6138(a)(5.1) of the Code, he should have completed the balance of his
initial state sentence before he began serving his federal sentence. Booth relies on
Fumea v. Pennsylvania Board of Probation and Parole, 147 A.3d 610 (Pa. Cmwlth.
2016), arguing that in that matter this Court dismissed the parole violation charges
against a parolee because the Board failed to assert jurisdiction over the parolee at

1
In reviewing the Board’s Order, we are to determine “whether the decision was supported
by substantial evidence, whether an error of law occurred[,] or whether constitutional rights were
violated.” Brown v. Pa. Bd. of Prob. & Parole, 184 A.3d 1021, 1023 n.5 (Pa. Cmwlth. 2017)
(quoting Ramos v. Pa. Bd. of Prob. & Parole, 954 A.2d 107, 109 n.1 (Pa. Cmwlth. 2008)).

4
his federal sentencing so as to ensure the statutory order of sentences was complied
with. (Booth’s Brief (Br.) at 12-14.) The same result should occur here, according
to Booth, because the Board has not provided an explanation as to why it did not
assert its jurisdiction over him before being taken into federal custody. (Id. at 14.)
The Board responds that it properly recommitted Booth as a CPV based on
Booth’s own admissions, and that his admission and waiver of his hearing rights
resulted in a waiver of any challenge to the recommitment based on his admitted
new conviction. (Board’s Br. at 7-8 (citing, e.g., Fisher v. Pa. Bd. of Prob. & Parole,
62 A.3d 1073 (Pa. Cmwlth. 2013)).) The Board further argues that even if this issue
is not waived, Fumea is distinguishable. (Id. at 8-9.) The Board also asserts this
Court has rejected arguments that the Board has an obligation to obtain a parolee
from federal custody to conduct a revocation hearing, holding that such parolee is
considered unavailable until released from federal custody. (Id. at 9-10 (citing
Stroud v. Pa. Bd. of Prob. & Parole, 196 A.3d 667 (Pa. Cmwlth. 2018); Brown v. Pa.
Bd. of Prob. & Parole, 184 A.3d 1021 (Pa. Cmwlth. 2017)).)
Section 6138(a)(1) of the Code authorizes the Board to, “at its discretion,
revoke the parole of a paroled offender if the offender, during the period of parole
. . . , commits a crime punishable by imprisonment, for which the offender is
convicted or found guilty . . . or to which the offender pleads guilty.” 61 Pa.C.S.
§ 6138(a)(1). Booth’s arguments are based on the language found in Section
6138(a)(5.1) of the Code, which states that “[i]f 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 under paragraph (1) the offender shall serve the balance
of the original term before serving the new term.” 61 Pa.C.S. § 6138(a)(5.1). Under

5
this provision, Booth maintains he had to serve his original term first, and the
Board’s failure to ensure that this occurred requires reversal of its Order.
The Board asserts this issue is waived, and, pursuant to our precedent, we are
constrained to agree. Booth could have raised the issue of the order of his sentences
during the parole revocation hearing, but he waived his right to a revocation hearing
and admitted to his new federal convictions. Under the Court’s precedent, Booth’s
“waiver of [his] right to a hearing necessarily encompasse[d] the right to advance
claims of error he could have raised at the hearing.” Fisher, 62 A.3d at 1075-76.
Therefore, Booth has waived this issue. Id.
Even if the issue was not waived, Booth’s arguments would be unavailing.
First, Fumea is distinguishable. In that case, the parolee had posted bail on his
federal charges and, therefore, was not in federal custody at the time of his federal
sentencing, and a Board agent was present at that sentencing and could have taken
the parolee into custody but did not. Fumea, 147 A.3d at 611-12, 616. Because the
Board’s agent did not assert jurisdiction, the federal court directed that the parolee
be entered into federal custody after sentencing instead. Id. at 612. We held that,
based on the circumstances in Fumea, the parolee’s revocation hearing was untimely
because the Board could not explain why its agent did not take the parolee into
custody. Id. at 616. There is nothing in this record that suggests that Booth was not
in federal custody until his release to Board agents on October 15, 2024, or that the
Board had an agent present at Booth’s federal sentencing hearing to at least try to
assert the Board’s jurisdiction. In Brown, we rejected a parolee’s argument based
on Fumea because, like Booth here, the parolee was in federal custody before and
after his federal sentencing. Brown, 184 A.3d at 1027. Accordingly, Fumea does
not support Booth’s position.

6
Second, this Court has rejected the argument that the Board has an obligation,
let alone the authority, to acquire a parolee from federal custody in order to serve the
state sentence first, noting that there was no legal authority giving the Board the
ability to do so. Stroud, 196 A.3d at 673-74; Brown, 184 A.3d at 1027. See also
Dill v. Pa. Bd. of Prob. & Parole, 186 A.3d 1040, 1046 (Pa. Cmwlth. 2018)
(“Simply, there is no legal authority for the notion that the Board could or should
‘pluck’ [a parolee] from federal prison to hold a revocation hearing.”) (citation
omitted). In Brown, we noted that,

under the [Board’s] regulations, 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 regardless of
when the Board received official verification of a parolee’s new
conviction.

Id., 184 A.3d at 1025 (citing 37 Pa. Code § 71.5 (a), (c)(1)). Here, the record shows
that Booth did not post bail on his federal charges and, therefore, remained in federal
custody until October 15, 2024. (C.R. at 17, 58.) Therefore, the Board’s alleged
failure to obtain Booth from federal custody is not a reason to reverse the Board’s
Order.

B. Credit on State Sentence for Time Served on Federal Sentence
Booth next argues that the Board abused its discretion in not awarding him
credit toward the state sentence for the time spent serving the federal sentence
because the federal sentencing judge “indicated at the time of sentencing that her
intention was for the [federal] sentence to be run concurrently with any state
revocation sentence that might be imposed.” (Booth’s Br. at 15.) Had he been given

7
this credit, Booth asserts, his state sentence would have expired during the service
of his federal sentence. (Id. at 16.)
The Board asserts that Booth’s credit arguments must fail because they are
based on a factual assertion that is not contained in this record and are contrary to
the federal sentencing documents that are in the record. In particular, the Board
points to the federal sentencing order which directs that the sentences for the three
federal charges were to run concurrently but makes no reference to Booth’s prior
state sentence. (Board’s Br. at 12-13.) Even if there was evidence to support
Booth’s factual averment, the Board argues his assertion would fail because
awarding credit as requested would be contrary to Pennsylvania law, which
explicitly prohibits a CPV from serving a new sentence and old sentence
concurrently notwithstanding the existence of a sentencing order so requiring. (Id.
at 13-14 (citing, e.g., Dorian v. Pa. Bd. of Prob & Parole, 409 A.2d 980, 981 (Pa.
1983); Barnes v. Pa. Bd. of Prob. & Parole, 203 A.3d 382, 395 (Pa. Cmwlth.
2019)).)
Booth relies on his contention that the federal sentencing judge intended for
the federal sentence to run concurrently with his parole revocation and Section
6138(a)(2.1) of the Code, 61 Pa.C.S. § 6138(a)(2.1),2 which generally authorizes the

2
Section 6138(a)(2.1) states:

The [B]oard may, in its discretion, award credit to an offender recommitted under
paragraph (2) for the time spent at liberty on parole, unless any of the following
apply:

(i) The crime committed during the period of parole or while delinquent on
parole is a crime of violence or a crime listed under 42 Pa.C.S. Ch. 97
Subch. H 1 (relating to registration of sexual offenders) or I 2 (relating to
continued registration of sexual offenders).

(Footnote continued on next page…)

8
Board to, within its discretion, award credit toward a recommitted parolee’s original
sentence for the time spent at liberty on parole except under certain circumstances
not relevant here. As the Board points out, however, there is nothing in this record
that supports Booth’s factual assertion regarding the federal sentencing judge’s
intent. Rather, Booth’s federal sentencing order contains no mention of his state
sentence and states that the sentences for his convictions on the three federal
charges were to run concurrently. (C.R. at 23-28.) The federal sentencing order
also recommended to the FBP, that Booth “be granted credit for time served in
presentence custody, to the extent he is eligible,” (Id. at 23.) Beyond the fact that
there is no evidence in this record of what was said at Booth’s sentencing hearing,
there is a written sentencing order here, and it is the text of a written sentencing
order, not statements made at the sentencing, that controls. Commonwealth
v. Borrin, 80 A.3d 1219, 1226-27 (Pa. 2013). Thus, this is not a reason to reverse
the Board’s Order.3

C. Booth’s Revocation and Recommitment
Last, Booth argues the Board’s reasons for revoking his parole and
recommitting him as a CPV, that the new charges were “serious/assaultive,” he was
“not amenable to parole supervision,” and that he was “considered a threat to the
safety of the community,” are not supported by the record. (Booth’s Br. at 17.) The

(ii) The offender was recommitted under [S]ection 6143 of the Code, 61 Pa.C.S.
§ 6143.

61 Pa.C.S. § 6138(a)(2.1).
3
Because there is no basis in the record for Booth’s factual assertion regarding the federal
sentencing judge’s intent, we do not address the Board’s alternate reason for rejecting Booth’s
argument.

9
record shows, Booth asserts, that he was paroled early, he had no prior revocations
of parole, and that his new conviction was not “assaultive” in nature. (Id. at 17-18.)
The Board responds that Booth waived this argument pursuant to
Pennsylvania Rule of Appellate Procedure 2119, Pa.R.A.P. 2119, and
Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009), because he cites no legal
authority in support thereof. The Board also argues, if the issue is considered, that
it did not abuse its discretion in revoking Booth’s parole and recommitting him. It
explained its reasoning for finding Booth’s new conviction to be “serious” and
considered him a threat to the safety of the community in its Order, and those reasons
support its decision. (Board’s Br. at 10-11.)
Rule 2119(a) provides that “[t]he argument [section of a brief] shall be divided
into as many parts as there are questions to be argued; and shall have at the head of
each part--in distinctive type or in type distinctively displayed--the particular point
treated therein, followed by such discussion and citation of authorities as are deemed
pertinent.” Pa.R.A.P. 2119(a). In Johnson, our Supreme Court explained that
“where an appellate brief fails to provide any discussion of a claim with citation to
relevant authority or fails to develop the issue in any other meaningful fashion
capable of review, that claim is waived.” 985 A.2d at 924. While Booth has not
provided legal citations to support his argument, we cannot say that he did not
provide “any discussion,” id., on this issue because it is apparent that he believes the
Board’s determination was an abuse of discretion based on what is contained in the
record. For this reason, we will not find the issue waived, but we do not find it
persuasive.
Booth asserts the Board abused its discretion in ordering his recommitment.
“[I]n reviewing the Board’s discretionary acts, this Court will only overturn the

10
Board’s actions where the Board acts in bad faith, fraudulently, capriciously or
commits an abuse of its power.” Baldelli v. Pa. Bd. of Prob. & Parole, 76 A.3d 92,
96 (Pa. Cmwlth. 2013). “Due to the broad discretionary powers granted the Board,
we will only find that the Board made an arbitrary, capricious or unreasonable
determination in the absence of substantial evidence in the record to support that
determination.” Chapman v. Pa. Bd. of Prob. & Parole, 484 A.2d 413, 418 (Pa.
Cmwlth. 1984). Under this standard, we discern no abuse of discretion in the
Board’s recommitting Booth as a CPV to serve his unexpired term.
As the Board explained in its Order, it found Booth’s new convictions on
three federal charges, which relate to the possession of, distribution of, and
conspiracy to distribute Heroin, a Schedule I controlled substance, and a
detectable amount of Fentanyl, a Schedule II controlled substance, to be “serious.”
(C.R. at 77.) Even if these charges are not “assaultive,”4 we cannot say the Board’s
finding that these charges are “serious” was arbitrary, fraudulent, capricious,
unreasonable, or an abuse of power. Baldelli, 76 A.3d at 96; Chapman, 484 A.2d at
418. Booth’s argument appears to be that a charge is only serious if it is also
assaultive, but we are not persuaded by that logic. Nor can we say that the Board’s
determination that possession of, distribution of, and conspiring to distribute a mix
of Heroin and Fentanyl to people constituted a threat to the safety of the community
meets the abuse of discretion standard because such sale can cause harm to anyone
using those drugs. (C.R. at 77.) Finally, that Booth had not previously been
subjected to revocation proceedings or was in good standing on parole does not
lessen the severity of his committing new, serious drug-related crimes that
threatened the safety of the community or alter the conclusion that he was not

4
A review of the record reflects that the phrase “serious/assaultive” is a checkbox used on
the Hearing Examiner’s Report as a reason for recommitting a parolee as a CPV. (C.R. at 43.)

11
amenable to parole where the new convictions were similar to Booth’s original state
conviction for possession with intent to deliver. (See id. at 3.)

III. CONCLUSION
For the foregoing reasons, we discern no abuse of discretion or error of law in
the Board’s actions, and, therefore, we affirm the Board’s Order.

---

RENÉE COHN JUBELIRER, President Judge

12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kimn Booth, :
Petitioner :
:
v. : No. 489 C.D. 2025
:
Pennsylvania Parole Board, :
Respondent :

ORDER

NOW, February 25, 2026, the Order of the Pennsylvania Parole Board,
entered in the above-captioned matter, is hereby AFFIRMED.

---

RENÉE COHN JUBELIRER, President Judge