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Young v. Pennsylvania Board of Probation and Parole

Commonwealth Court of Pennsylvania

June 12, 2018

Otto Young, Petitioner
v.
Pennsylvania Board of Probation and Parole, Respondent

          Argued: April 11, 2018

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE ELLEN CEISLER, Judge

          OPINION

          MARY HANNAH LEAVITT, President Judge

         Otto Young petitions for review of an adjudication of the Pennsylvania Board of Probation and Parole (Parole Board) denying his request for administrative relief from one of the terms of his recommitment as a convicted parole violator. Young contends that the Parole Board erred by revoking sentence credit it had previously awarded him in a prior recommitment. Concluding that the Prisons and Parole Code (Parole Code), 61 Pa. C.S. §§101-6309, did not confer upon the Parole Board the discretion to revoke its award of sentence credit, we reverse the Parole Board's adjudication.

         The relevant facts are not in dispute. In 2013, the Parole Board recommitted Young as a convicted parole violator as a result of his conviction for retail theft. At the recommitment, the Parole Board reviewed Young's case and decided to grant him credit toward his sentence for 1918 days, i.e., the days he had spent at liberty on parole before the retail theft.[1] Thereafter, in February 2014, Young was reparoled. In July 2014, Young was detained on the Parole Board's warrant following his arrest for burglary, and he was later convicted on the new criminal charge. In November 2015, the Parole Board recommitted him as a convicted parole violator for the 2014 burglary offense and revoked the sentence credit of 1918 days it had previously awarded him in 2013. This resulted in a new maximum sentence date of May 31, 2023.

         Young sought administrative relief, contending that the Parole Board had unlawfully revoked the credit that it had previously decided to award to him. On February 24, 2016, the Parole Board denied his request for administrative relief, explaining:

The Board paroled you from a state correctional institution on February 9, 2014 with a max sentence date of May 26, 2017. This means you had a total of 1202 days remaining on your sentence at the time of parole. In light of your recommitment as a convicted parole violator, the Board was authorized to recalculate your sentence to reflect that you received no credit for the period that you were at liberty on parole. 61 Pa. C.S. § 6138(a)(2). The Board did not give you credit in this case. This includes any prior time that you were on parole. Houser v. Pennsylvania Board of Probation and Parole, 682 A.2d 1356 (Pa. Commw. Ct. 1996). In this case, you were previously on parole from November 19, 2007 to February 18, 2013 which amounts to 1918 days. Adding the 1918 days of prior parole liberty forfeited, to the 2733[2] days you had remaining left 3120 days remaining on your sentence.

Certified Record at 187 (C.R. ___). Young petitioned for this Court's review.

         On appeal, [3] Young challenges the Parole Board's calculation of his sentence as contrary to the plain language of the Parole Code, which does not expressly authorize the Parole Board to revoke sentence credit it has decided to award to a parolee. In response, the Parole Board argues that its decision was consistent with the overall purpose of the Parole Code.

         This case of first impression raises an issue of statutory construction.[4]Specifically, we consider Section 6138(a) of the Parole Code, which states, in relevant part, as follows:

(a) Convicted violators.--
***
(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 any of the following apply:
(i) The crime committed during the period of parole or while delinquent on parole is a crime of violence as defined in 42 Pa.C.S. § 9714(g) (relating to sentences for second and subsequent offenses) or a crime requiring registration under 42 Pa.C.S. Ch. 97 Subch. H (relating to registration of sexual offenders).
(ii) The parolee was recommitted under section 6143 (relating to early parole of inmates subject to Federal removal order).

61 Pa. C.S. §§6138(a) (emphasis added).[5] Our Supreme Court has held that where the Parole Board exercises its discretion under Section 6138(a)(2.1) to deny credit for time spent at liberty on parole, it must explain its reasons therefor. Pittman v. Pennsylvania Board of Probation and Parole, 159 A.3d 466, 473-75 (Pa. 2017). Thus, where a parolee is recommitted as a convicted parole violator, the Parole Board must take action under Section 6138(a)(2.1) and either grant or deny sentence credit.[6]

         To summarize, if the Parole Board chooses not to award credit pursuant to Section 6138(a)(2.1), the parolee serves the remainder of his sentence as if he had not been granted parole. 61 Pa. C.S. §6138(a)(2). However, if the Parole Board does award credit, the parolee no longer has "time spent at liberty on parole, " i.e., "street time." Id. This is so because Section 6138(a)(2.1) requires the Parole Board to choose a course of action with regard to a convicted parole violator's street time at the time of recommitment. If the Parole Board chooses to "award credit" for the parolee's street time towards his sentence, the street time is gone. The award of sentence credit is an affirmative act and not a decision to defer the forfeiture of street time to a later time.

         The Parole Board argues that it has "authority to withdraw sentence credit it provided in a prior recommitment." Parole Board Brief at 8. In support, it directs the Court to precedent that, it argues, gives an expansive reading to the term "the parole" in Section 6138(a)(2). Parole Board Brief at 10.

         In Morris v. Pennsylvania Board of Probation and Parole, 465 A.2d 97 (Pa. Cmwlth. 1983), for example, the Parole Board decided to allow the parolee to remain on parole notwithstanding his criminal conviction. When he was later convicted of new criminal charges, the Parole Board revoked his parole and recommitted him as a technical and convicted parole violator. In calculating his new maximum sentence date, the Parole Board assumed that the parolee had forfeited all his street time. The parolee argued that he should have been credited with the street time that had accrued prior to his first conviction because the Parole Board's decision to continue his parole sealed "off from forfeiture the street time which preceded it." Morris, 465 A.2d at 97. This Court rejected this contention.

         Anderson v. Pennsylvania Board of Probation and Parole, 472 A.2d 1168 (Pa. Cmwlth. 1984), raised the question of whether street time, which was not forfeited because the parole violator was recommitted as a technical parole violator, could be forfeited upon the parolee's later conviction. As in Morris, the parolee argued that the law commonly referred to as the Parole Act[7] required him to forfeit only that street time accumulated after his most recent release on parole. He argued that the phrase "period of parole" referred only to the most recent or "current" period of parole. This Court rejected this argument. See also Caldwell v. Pennsylvania Board of Probation and Parole, 511 A.2d 884, 885 (Pa. Cmwlth. 1986) (affirming that "period of parole" as used in former Section 21.1(a) of the Parole Act refers to all parole time); Andrews v. Pennsylvania Board of Probation and Parole, 516 A.2d 838 (Pa. Cmwlth. 1986) (Parole Board's decision not to act upon a parolee's conviction did not waive the forfeiture of all street time in a subsequent recommitment).

         The Parole Board's reliance on these cases is misplaced because these cases were decided under former Section 21.1(a) of the Parole Act, 61 P.S. §331.21a(a) (repealed).[8] Under the former law, the Parole Board had no discretion with respect to the calculation of the sentence remaining for a recommitted parolee, whether a convicted or technical parole violator. By operation of law, upon recommitment, a convicted parole violator forfeited all street time.[9]See Richards v. Pennsylvania Board of Probation and Parole, 20 A.3d 596, 599 (Pa. Cmwlth. 2011); Melendez v. Pennsylvania Board ...


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