Lampkin v. Pa. Bd. of Prob. & Parole

• Decision Date: 30 November 2016
• Docket Number: No. 639 C.D. 2016,639 C.D. 2016
• Parties: Tyrone Lampkin, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
• Court: Pennsylvania Commonwealth Court

Tyrone Lampkin, Petitioner
v.
Pennsylvania Board of Probation and Parole, Respondent

No. 639 C.D. 2016

COMMONWEALTH COURT OF PENNSYLVANIA

Submitted: October 7, 2016
November 30, 2016

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE McCULLOUGH

Tyrone Lampkin (Lampkin) petitions for review of the March 15, 2016 order of Pennsylvania Board of Probation and Parole (Board) that denied his administrative appeal of a Board order recommitting him as a convicted parole violator (CPV) to serve twenty-four months' backtime and recalculating his maximum sentence date to November 28, 2017.¹ We affirm.

On March 15, 2005, a trial court sentenced Lampkin to three to nine years' imprisonment following his guilty plea to person not to possess a firearm, violation of probation, possession of a controlled substance, and possession of a controlled substance with intent to deliver (PWID). Lampkin's minimum sentence

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date was September 10, 2007, and his maximum sentence date was September 10, 2013. (Certified Record (C.R.) at 1-3.)

On January 30, 2009, the Board granted Lampkin parole and he was released on March 16, 2009. Prior to his release, Lampkin signed conditions governing his parole advising that, "[i]f 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 paroled/reparoled, with no credit for time at liberty on parole." (C.R. at 12.)

On November 29, 2012, while Lampkin was on parole, the police arrested him and charged him with numerous criminal offenses. On May 20, 2015, Lampkin pled guilty to possession of a controlled substance, PWID, conspiracy to commit PWID, and possession of a prohibited firearm. On June 5, 2015, the Board lodged a warrant to detain. On July 31, 2015, the trial court sentenced Lamkpin to two to four years' imprisonment in a state correctional institution. Thereafter, Lampkin signed a waiver form prepared by the Board, waiving his right to a parole revocation hearing and his right to counsel and admitting that he violated his parole by committing the crimes for which he was convicted. (C.R. at 53-56, 59, 64-65.)

In a hearing report dated September 16, 2015, the Board accepted Lampkin's waivers and admission to being a CPV. (C.R. at 72-79.) On page 3 of the hearing report appeared the line: "BOARD Only - Credit time spent at liberty on parole: [ ] No [ ] Yes (Excluded offenses on pg. 8)." In turn, page 8 of the hearing report lists offenses that are automatically excluded from street time credit pursuant to section 9714(g) of the Judicial Code, 42 Pa.C.S. §9714(g), and Lampkin's

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convictions are not listed as one of those enumerated offenses. The Board checked "No" and denied Lampkin credit. (C.R. at 74.)

By decision dated November 4, 2015, the Board recommitted Lampkin as a CPV, ordered him to serve twenty-four months backtime, and recalculated his maximum sentence date from September 10, 2014, to November 28, 2017. In doing so, the Board cited 6138(a)(2.1) of the Prison and Parole Code (Parole Code), 61 Pa.C.S. §6138(a)(2.1), added by the Act of July 5, 2012, P.L. 1050, and our recent decision in Pittman v. Pennsylvania Board of Probation and Parole, 131 A.3d 604 (Pa. Cmwlth.) (en banc), appeal granted, 137 A.3d 572 (Pa. 2016). (C.R. at 82-85.)

On December 28, 2015, Lampkin filed a pro se administrative appeal, arguing that he was entitled to credit for time spent at liberty on parole and that his maximum sentence date should not have been altered. On March 15, 2016, the Board denied Lampkin's petition and affirmed his recommitment as a CPV. (C.R. at 86-96.)

On appeal to this Court,² Lampkin first asserts that the Board abused its discretion in failing to exercise any kind of discretion when it denied him credit for time spent at liberty on parole. Lampkin argues that the complete failure to exercise discretion is, in and of itself, an abuse of discretion, and that the Board must expressly state reasons for denying him credit.

Section 6138(a) of the Parole Code provides, in pertinent...