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Anderson v. Talaber

Commonwealth Court of Pennsylvania

September 20, 2017

Terry Lee Anderson, Petitioner
v.
John Talaber, Esq., Secretary and the Pennsylvania Board of Probation and Parole, Respondents

          Submitted: July 28, 2017

          BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE JULIA K. HEARTHWAY, Judge [1] HONORABLE JAMES GARDNER COLINS, Senior Judge

          OPINION

          JAMES GARDNER COLINS, Senior Judge.

         Terry Lee Anderson petitions this Court for review of the February 17, 2017 determination of the Pennsylvania Board of Probation and Parole (Board), which denied his administrative appeal of a Board order that recommitted him as a convicted parole violator to serve 18 months backtime. For the reasons set forth below, we vacate the Board's order and remand this matter to the Board for further proceedings.

         On December 3, 2012, Anderson was released on parole from the State Correctional Institution at Chester; at the time of his release, Anderson had 1, 371 days remaining on his original sentence and a parole violation maximum date of September 4, 2016. (Certified Record (C.R.) 4-6, 48.) On August 12, 2014, the Coatesville Police Department arrested Anderson on new charges. (C.R. 10-12.) Bail was set on these new charges on August 14, 2014, which Anderson failed to post. (C.R. 15-16.) The Board issued a warrant to commit and detain Anderson on August 18, 2014. (C.R. 21.)

         On March 3, 2015, Anderson pleaded guilty in the Court of Common Pleas of Chester County to one count of manufacture, delivery or possession of a controlled substance with intent to deliver.[2] (C.R. 15, 17.) On the same date as his guilty plea, Anderson was sentenced to 11 and ½ months to 23 months incarceration in Chester County Prison. (C.R. 22, 24.)

         On March 16, 2015, the Board notified Anderson that it intended to hold a revocation hearing based on his conviction on new charges. (C.R. 27.) Anderson waived his right to a revocation hearing and counsel, and admitted his conviction on new charges. (C.R. 28-31.) By a decision mailed July 24, 2015, the Board recommitted Anderson to serve 18 months backtime when available following his release of his county sentence. (C.R. 40-41.) Following Anderson's completion from his county sentence, Anderson was released into the Board's custody on July 14, 2016. (C.R. 45, 48.)

         By a decision mailed September 8, 2016, the Board referred to its previous recommitment of Anderson to serve 18 months backtime and set Anderson's new parole violation maximum date at April 15, 2020. (C.R. 46-47.) Petitioner, acting pro se, submitted an Administrative Remedies Form, including an attached Administrative Appeal form, dated September 27, 2016 challenging the Board's September 8, 2016 decision (the September 27, 2016 appeal); this document was stamped as received by the Board on September 30, 2016. (C.R. 53-61.) Petitioner submitted a subsequent Administrative Appeal of the Board's decision dated September 28, 2016, which was stamped as received by the Board on October 3, 2016 (the September 28, 2016 appeal). (C.R. 62-66.) The Board affirmed its earlier deterimination in a February 17, 2017 letter, stating that it had the authority to recalculate his parole violation maximum date and that, as a convicted parole violator, he was not entitled to credit for any period he was at liberty on parole. (C.R. 67.) Anderson filed a timely petition for review of the Board's decision.

         Anderson, now represented by counsel, presents one issue on appeal to this Court, arguing that the Board erred in its recalculation of his parole violation maximum date and failure to state any reason for denying him credit for the time he spent at liberty on parole, or "street time."[3] Anderson cites our Supreme Court's recent decision in Pittman v. Pennsylvania Board of Probation and Parole, 159 A.3d 466 (Pa. 2017), in which the Court held that, except in certain explicitly excluded categories of crimes, Section 6138(a) of the Prisons and Parole Code (Code), 61 Pa. C.S. § 6138, requires the Board to articulate the basis for its decision to grant or deny a convicted parole violator credit for street time.[4]

         It is clear from our review that this case squarely falls under Pittman. In Pittman, the Court addressed the effect of a 2012 amendment to Section 6138(a) of the Code; prior to this amendment, recommitment without credit for street time was mandatory. However, pursuant to the Act of July 5, 2012, P.L. 1050, language was added to paragraph 2 and a new paragraph 2.1 was added to Section 6138(a) giving the Board the discretion to give credit for time spent at liberty on parole except where a parolee commits a crime of violence or a crime that requires registration as a sexual offender under the Sexual Offender Registration and Notification Act[5] or where paroled subject to a federal removal order. The relevant provisions of Section 6138 now read as follows:

(a) Convicted violators.--
(1)A parolee under the jurisdiction of the board released from a correctional facility who, during the period of parole or while delinquent on parole, commits a crime punishable by imprisonment, for which the parolee is convicted or found guilty by a judge or jury or to which the parolee pleads guilty or nolo contendere at any time thereafter in a court of record, may at the discretion of the board be recommitted as a parole violator.
(2) If the parolee's recommitment is so ordered, the parolee shall be reentered to serve the remainder of the term which the parolee would have been compelled to serve had the parole not been granted and, except as provided under paragraph (2.1), shall be given no credit for the time at liberty on parole.
(2.1) The board may, in its discretion, award credit to a parolee recommitted under paragraph (2) for the time spent at liberty on parole, unless ...

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