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Pittman v. Pennsylvania Board of Probation and Parole

Supreme Court of Pennsylvania

April 26, 2017

KEVIN PITTMAN, Appellant
v.
PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Appellee

          SUBMITTED: November 22, 2016

         Appeal from the Order of the Commonwealth Court dated January 8, 2016 at No. 978 CD 2014 Affirming the Pennsylvania Board of Probation and Parole Order dated May 29, 2014 at No. 1435-S.

          SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

          OPINION

          BAER, JUSTICE

         In this appeal, we consider whether the Pennsylvania Board of Probation and Parole (the "Board") abuses its discretion where it fails to consider whether to grant a convicted parole violator ("CPV") credit for time spent at liberty on parole. We also consider whether the Board must provide a contemporaneous statement explaining the rationale behind its decision to grant or deny credit to a CPV. For the reasons that follow, we hold that the Board abuses its discretion in failing to consider whether to grant CPVs credit for time spent at liberty on parole under the plain language of Subsection 6138(a)(2.1) of the Parole Code, 61 Pa.C.S. § 6138(a)(2.1).[1] Additionally, in order to effectuate the intent of the General Assembly in enacting Subsection 6138(a)(2.1), we further hold that the Board must provide a contemporaneous statement explaining its rationale for denying a CPV credit for time spent at liberty on parole. In this case, we conclude that because the Board's decision to deny Kevin Pittman ("Appellant") such credit was based upon its erroneous belief that Appellant was automatically precluded from receiving credit under Subsection 6138(a)(2.1), the Board abused its discretion. Accordingly, we vacate the Commonwealth Court's order, vacate the decision of the Board, and remand to the Board for further proceedings consistent with this opinion.

         The material facts underlying this matter are undisputed. In 2010, following his guilty plea to possession with intent to deliver ("PWID"), [2] Appellant was sentenced to two to four years of imprisonment, with a maximum sentence date of December 9, 2013. On December 12, 2011, the Board released Appellant on parole. Prior to his release, Appellant signed a form detailing the conditions governing his parole, which included the following:

If you are convicted of a crime committed while on parole/reparole, the Board has the authority, after an appropriate hearing, to recommit you to serve the balance of the sentence or sentences which you were serving when parole/reparoled, with no credit for time at liberty on parole.

Certified Record of the Board ("C.R.B."), Tab 3, at 11.

         In 2013, while still on parole, Appellant was arrested and charged with various criminal offenses. He ultimately pled guilty to PWID and was sentenced to one to three years of imprisonment. Appellant subsequently waived his right to a parole revocation hearing and admitted that he violated his parole by committing a crime. C.R.B., Tab 7, at 42. The Board accepted Appellant's admission and recommitted him in accord with his original 2011 sentence. The Board's hearing report form, which details the circumstances surrounding an inmate's parole revocation, includes the following line: "BOARD ONLY - Credit time spent at liberty on parole: [ ] No [ ] Yes (excluded offenses on pg. 8)." C.R.B., Tab 7, at 36. The Board checked "No" on Appellant's report form, thus denying him credit for time spent at liberty on parole. Consequently, the Board directed that Appellant serve the entire balance remaining on his original sentence and recalculated his maximum sentence date as October 21, 2015. Importantly, the Board offered no explanation for its decision not to award Appellant credit.

         Appellant subsequently filed a pro se letter with the Board, in which he sought credit for time he spent on parole. The Board, which deemed Appellant's letter to be a petition for administrative review from its recalculation of his maximum sentence date pursuant to 37 Pa. Code § 73.1(b), [3] declined to award him credit, stating in its responsive letter to Appellant that "as a convicted parole violator you automatically forfeited credit for all of the time that you spent on parole." C.R.B., Tab 10, at 50 (citing 61 Pa.C.S. § 6138(a)). This conclusion, however, conflicts with Subsection 6138(a)(2.1), which states "[t]he [B]oard may, in its discretion, award credit to a [CPV]." 61 Pa.C.S. § 6138(a)(2.1)(supra, pg. 1-2 n.1).[4]

         Appellant filed a petition for review with the Commonwealth Court, arguing, inter alia, that the Board abused its discretion in failing to award him credit for time spent at liberty on parole. Specifically, Appellant took the position that the Board abused its discretion where, as here, it failed to exercise any discretion whatsoever because it denied him credit based upon the mistaken belief that he automatically forfeited his right to receive credit as a CPV. Citing Gillespie v. Pennsylvania Department of Transportation, Bureau of Driver Licensing, 886 A.2d 317 (Pa. Cmwlth. 2005), Appellant argued that completely failing to exercise discretion, in and of itself, constitutes an abuse of discretion. Moreover, Appellant claimed that, when the Board initially denied him credit by checking the "No" box on its hearing report form, it erred in failing to issue a written statement explaining its reasoning for denying him credit.[5]

         Before the Commonwealth Court, the Board argued that by checking "No" on Appellant's hearing report form, it did, in fact, exercise its discretion to deny him credit for time spent at liberty on parole pursuant to Subsection 6138(a)(2.1). Additionally, the Board maintained that nothing in the plain language of Subsection 6138(a)(2.1) requires it to provide reasons as to why it decided not to award credit to a CPV.[6]

         The Commonwealth Court, sitting en banc, affirmed the Board's decision to deny Appellant credit. Pittman v. Pennsylvania Board of Probation and Parole, 131 A.3d 604 (Pa. Cmwlth. 2016). In the majority opinion, the Commonwealth Court determined that Subsection 6138(a)(2.1) gives the Board broad discretion when considering whether to grant a CPV credit for time spent at liberty on parole and that the Board properly exercised that discretion by checking "No" on Appellant's hearing report.[7] Additionally, the Commonwealth Court held that nothing in Subsection 6138(a)(2.1) requires the Board to issue a statement of reasons explaining its decision.

         Regarding Appellant's contention that the Board abused its discretion when it denied him credit for time served while on parole, the Commonwealth Court noted that the Board's discretion under Subsection 6138(a) is twofold. First, the Board must decide whether to recommit a parole violator. Next, if recommitment is so ordered, then the parolee shall be recommitted to serve the remainder of his original term, but the Board may, in its discretion, award the parolee credit for time spent at liberty on parole. The Commonwealth Court further observed that, under unrelated sections of the Parole Code, namely Section 6137 (relating to the Board's power to parole and reparole), the General Assembly set forth criteria to guide the Board in exercising its discretion. See, e.g., 61 Pa.C.S. § 6137(h)(1) (setting forth, inter alia, that the Board must consider the benefit to the inmate and the interests of the Commonwealth when deciding whether to recommit a paroled inmate).

         In contrast to those provisions, however, Subsection 6138(a)(2.1) simply states that the Board "may, in its discretion, award credit" without setting forth any criteria to guide the Board in exercising its discretion. Thus, the Commonwealth Court concluded that, under the plain language of Subsection 6138(a)(2.1), there are no statutory standards by which an appellate court can evaluate the Board's decision to grant or deny credit for time spent at liberty on parole. Pittman, 131 A.3d at 611 (citing Commonwealth v. Rieck Investment Corp., 213 A.2d 277, 282 (Pa. 1965) ("[I]t is not for the courts to add, by interpretation, to a statute, a requirement which the legislature did not see fit to include.")).

         The Commonwealth Court further determined that Appellant's reliance on its decision in Gillespie is misplaced. In Gillespie, after the Department of Transportation requested a continuance in a license suspension appeal, the trial court denied the continuance based on its established policy of continuing cases only when both parties agree to do so. 886 A.2d at 318-19. On appeal, the Commonwealth Court held that the trial court abused its discretion because its "[b]lind adherence to an established policy" did not constitute an exercise of discretion at all. Id. at 319-20. Conversely, in this case, the Commonwealth Court concluded that the Board did not shirk its responsibility in deciding whether to grant Appellant credit by adopting a blanket policy for CPVs. Rather, according to the Commonwealth Court, the Board affirmatively chose to deny Appellant credit after considering the record before it. Accordingly, the court held that, by checking "No" on Appellant's hearing report form, the Board properly exercised its broad discretion under Subsection 6138(a)(2.1).[8]

         Turning to Appellant's argument that the Board was required to provide a statement of reasons for denying him credit, the Commonwealth Court held that Subsection 6138(a)(2.1) contains no such requirement. Again contrasting Subsection 6138(a)(2.1) with portions of Section 6137 (relating to the Board's power to parole and reparole), which expressly require that the Board provide a contemporaneous written statement explaining its rationale for its parole decisions, the Commonwealth Court determined that the General Assembly did not intend to require the Board to issue a statement of reasons as it relates to the Board's decision to grant or deny credit for time spent at liberty on parole. Pittman, 131 A.3d at 613-14 (citing, inter alia, Fonner v. Shandon, Inc., 724 A.2d 903, 907 (Pa. 1999) ("[W]here the legislature includes specific language in one section of the statute and excludes it from another, the language should not be implied where excluded.") (citation omitted)). Accordingly, the Commonwealth Court found no error in the Board's decision and affirmed the denial of credit.

         Then-President Judge Pellegrini authored a dissenting opinion, which was joined by Judge Leavitt. In the dissent's view, Subsection 6138(a)(2.1) requires the Board to give a reason as to how it exercised its discretion to grant or deny a parolee credit against his original sentence for time spent at liberty on parole. The dissent compared the failure of the Board to provide such an explanation to a sentencing court's obligation to consider the factors set forth in Subsection 9721(b) of the Sentencing Code. See 42 Pa.C.S. § 9721(b) (setting forth general principles that sentencing courts must consider when choosing among the available sentencing options); see also Commonwealth v. Artis, 439 A.2d 1199, 1203 (Pa. Super. 1982) ("At the threshold, this court must be able to determine that a sentencing judge in fact exercised discretion[.]") (citations omitted).[9]The dissent would have imposed a similar requirement here, opining that a one sentence explanation for the Board's denial of credit would be sufficient. In the dissent's view, a statement from the Board indicating its reasoning for denying a CPV credit would, inter alia, inform the parolee that the issue was considered by the Board and that the Board has complied with the legislative mandate to exercise its discretion. Moreover, the dissent noted that, in denying Appellant administrative relief, the Board indicated its erroneous belief that Appellant automatically forfeited credit as a CPV.[10]Thus, the dissent would have found that the Board committed both an error of law and an abuse of its discretion under the Parole Code when it denied Appellant credit for time spent at liberty on parole. Accordingly, the dissent would have vacated the Board's decision and remanded to the Board for reconsideration of Appellant's request for credit with an accompanying explanation for its decision.

         This Court granted Appellant's petition for allowance of appeal to consider the following question: "Did the Parole Board abuse its discretion by summarily denying [Appellant] credit against his maximum sentence for time that he spent at liberty on parole following his recommitment as a convicted parole violator?" Pittman v. Pennsylvania Board of Probation and Parole, 137 A.3d 572 (Pa. 2016).

         It is unnecessary to explain in detail the parties' arguments to this Court, as both parties largely present the same substantive arguments that they presented to the Commonwealth Court. Stated succinctly, Appellant contends that the Board erred by denying him credit based upon its mistaken belief that he automatically forfeited credit for time spent at liberty on parole as a CPV. Thus, Appellant argues that the Board abused its discretion by failing to exercise any discretion whatsoever. Moreover, Appellant argues that the Board was required to provide a statement of reasons explaining its decision to deny him credit.

         Adopting the posture of the Commonwealth Court majority, the Board contends that the plain language of Subsection 6138(a)(2.1) demonstrates that: the Board has broad discretion in deciding whether to grant a CPV credit; there are no standards by which an appellate court can evaluate the Board's exercise of discretion; and the Board is not required to provide a contemporaneous statement of reasons explaining its decision.

         In order to answer the question presented in this appeal, we must interpret Subsection 6138(a)(2.1) of the Parole Code. This Court's interpretation of all statutes is guided by the Statutory Construction Act, 1 Pa.C.S. §§ 1501-1991. Pursuant to the Statutory Construction Act, the object of all statutory construction is to ascertain and effectuate the General Assembly's intention. 1 Pa.C.S. § 1921(a). When the words of a statute are clear and free from ambiguity, the letter of the statute is not to be disregarded under the pretext of pursuing its spirit. 1 Pa.C.S. § 1921(b). Further, we observe that issues of statutory interpretation present this Court with questions of law; accordingly, the Court's standard of review is de novo, and its scope of review is plenary. See Pennsylvania Pub. Util. Comm'n v. Andrew Seder/The Times Leader, 139 A.3d 165, 172 (Pa. 2016).

         With these standards in mind, we reiterate the crucial statutory language at issue here, which provides as follows:

§ 6138. Violation of terms of parole

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