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Plummer v. Pennsylvania Board of Probation and Parole

Commonwealth Court of Pennsylvania

August 16, 2019

Thomas Lee Plummer, Petitioner
v.
Pennsylvania Board of Probation and Parole, Respondent

          Submitted: May 31, 2019

          BEFORE: HONORABLE ROBERT SIMPSON, ANNE E. COVEY, ELLEN CEISLER, Judge

          OPINION

          ROBERT SIMPSON, JUDGE

         This matter returns to us after our remand in Plummer v. Pennsylvania Board of Probation & Parole (Pa. Cmwlth., No. 1484 C.D. 2017, filed May 14, 2018), 2018 WL 2187872 (unreported) (Plummer I). Thomas Lee Plummer (Plummer), through appointed counsel, petitions for review from the post-remand order of the Pennsylvania Board of Probation and Parole (Board), that affirmed its decision to deny credit for time spent at liberty on parole.[1] Plummer argues the Board failed to provide a contemporaneous statement explaining its reason for denying credit pursuant to Pittman v. Pennsylvania Board of Probation & Parole, 159 A.3d 466 (Pa. 2017). He also challenges the legal sufficiency of the Board's reason for denying credit. Upon review, we affirm.

         I. Background

         A. Plummer I[2]

         Plummer was originally sentenced to a term of four to eight years for firearm possession. Two months after his July 2012 release on parole, Plummer was arrested on drug-related charges. He remained in custody for approximately one year until the charges were dropped in September 2013.

         In 2015, Plummer was arrested on other drug charges and detained in lieu of bail. He pled guilty to the charges and was sentenced to 30 months to 5 years in prison with credit for 378 days for time served. A hearing examiner recommended recommitting Plummer as a convicted parole violator (CPV), as not amenable to supervision, and denying him credit for street time.

         In May 2016, the Board recommitted Plummer as a CPV to serve his unexpired term of one year, eight months and eight days (Recommitment Order I). Relevant here, the Board made no reference to exercising discretion in forfeiting or awarding credit for Plummer's street time.

         Plummer, then unrepresented by counsel, filed an administrative appeal arguing the Board erred in recalculating his maximum sentence because Recommitment Order I stated he did not forfeit street time. The Board denied Plummer's appeal, noting it acted within its discretion to forfeit street time when recommitting a CPV. The Board did not state a reason for denying Plummer credit for his street time. Plummer petitioned this Court for review of the Board's order.

         On Plummer's first appeal to this Court, we remanded this matter to the Board to explain its reason for denying credit under Pittman.[3] Plummer I. We also directed the Board to issue a corrected recommitment order, if necessary, to clarify the amount of time Plummer forfeited as a result of his conviction. Id.

         B. Remand

         On remand, the Board reconsidered the issue of whether to award or to deny Plummer credit for his street time. In June 2018, the Board affirmed its decision to recommit Plummer as a CPV to serve a total of one year, eight months, and eight days (Recommitment Order II). Certified Record (C.R.) at 29. Relevant here, the Board explained it denied Plummer credit for time spent at liberty on parole due to his "prior history of supervision failures." Id.; see also C.R. at 15.

         Plummer filed an administrative appeal, which the Board denied. Plummer timely ...


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