Penjuke v. Pa. Bd. of Prob. & Parole, 1304 C.D. 2017

• Citation: 203 A.3d 401
• Decision Date: 01 February 2019
• Docket Number: No. 1304 C.D. 2017,1304 C.D. 2017
• Parties: Martin PENJUKE, Petitioner v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent
• Court: Commonwealth Court of Pennsylvania

203 A.3d 401

Martin PENJUKE, Petitioner

v.PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent

No. 1304 C.D. 2017

Commonwealth Court of Pennsylvania.

Argued: November 14, 2018

Decided: February 1, 2019

Katherine E. Ernst, Assistant Public Defender, Norristown, for petitioner.

John C. Manning, Assistant Counsel, Harrisburg, for respondent.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION BY JUDGE McCULLOUGH

Martin Penjuke (Penjuke) petitions for review of the August 18, 2017 order of the Pennsylvania Board of Probation and Parole (Board) denying his request for administrative relief and affirming its May 5, 2017 decision to recommit Penjuke as a convicted parole violator (CPV) for the remaining term of his unexpired sentence. In this decision, the Board revoked, or at least failed to honor, sentencing credit that Penjuke received for days he spent in good standing at liberty on parole, also known as "street time,"¹ during a prior period of parole that resulted in his recommitment as a technical parole violator (TPV). For authoritative support, the Board cited an established line of case law from this Court.

Upon deliberation, we have convened en banc to reevaluate whether the precedent the Board relied upon remains viable or "good law" after, and in light of, a statutory amendment and our recent decision in Young v. Pennsylvania Board of Probation and Parole , 189 A.3d 16 (Pa. Cmwlth. 2018) (en banc ), appeal granted , ––– Pa. ––––, 200 A.3d 5, 2019 WL 77076 (2019).

The pertinent facts of this case are uncontested and are as follows. In connection with three separate criminal incidents occurring in 2012, Penjuke pleaded guilty to two charges of driving under the influence and was convicted of simple assault. A trial court sentenced Penjuke to an aggregate term of imprisonment of one year and nine months to nine years, and his minimum and maximum sentence dates were March 28, 2013, and June 28, 2020, respectively. Penjuke is incarcerated at the State Correctional Institution at Coal Township. (Certified Record (C.R.) at 1, 24-26.)

By decision recorded April 20, 2013, the Board granted Penjuke parole. Prior to his release, Penjuke 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 32.) On June 26, 2013, Penjuke was released, and he spent 793 days (or approximately 2 years and 3 months) on parole in good standing, until August 28, 2015, when the Board declared him delinquent. Thereafter, Penjuke waived his rights to a revocation hearing and the assistance of counsel, and admitted that he violated the conditions of his parole for changing his residence without permission and failing to maintain regular contact with parole supervisors. On March 28, 2016, the Board recommitted Penjuke as a TPV and extended his maximum sentence date from June 28, 2020, to December 12, 2021, to account for 167 days that he spent in delinquency. Consistent with the applicable statutory provision,² the Board did not add the 793 days that Penjuke spent in good standing to his maximum sentence date. (C.R. at 42, 47-62.)

On July 20, 2016, the Board reparoled Penjuke, and he again signed conditions governing his parole including the advisement concerning credit for street time mentioned above. On July 20, 2016, the Board released Penjuke. Shortly thereafter, on July 28, 2016, the police arrested Penjuke and he was charged with simple possession of a controlled substance, possession of drug paraphernalia, loitering and prowling at night, public drunkenness, and disorderly conduct. On February 6, 2017, Penjuke pleaded guilty to simple possession, and a trial court sentenced him to one year of probation on February 28, 2017. The Board then provided Penjuke with a notice of charges and, on March 13, 2017, Penjuke waived his rights to a revocation hearing and the assistance of counsel, and admitted that he was convicted of a crime. In a hearing report dated March 13, 2017, the Board accepted Penjuke's waivers and admission to being a CPV. (C.R. at 94-100, 109-117). In the "dispositional" section located on page two of the hearing report, the Board provided a notation: "The offender's adjustment was poor. He incurred a new criminal arrest a week after his release." (C.R. at 110.) On page three of the hearing report, the Board checked the box labeled "No" and declined to award Penjuke credit for time spent at liberty on parole. (C.R. at 111.)

On April 27, 2017, the Board recommitted Penjuke as a CPV, and recalculated his maximum sentence date, extending it to February 22, 2023. In making this computation, the Board credited Penjuke with 214 days that he spent in confinement on the criminal charges but, due to his status as a CPV, the Board did not provide him with credit for any of the days that he spent on reparole. Further, and at issue here, the Board effectively rescinded the 793 days of street time that Penjuke spent in good standing when he served his prior parole and added that amount in increasing the maximum sentence date. (C.R. at 66-78, 82-103.)

On May 22, 2017, Penjuke submitted a request for administrative relief, challenging, among other things, the Board's authority to forfeit or revoke the 793 days of credit that he acquired for the street time that he spent in good standing during the parole period that led to his recommitment as a TPV. Penjuke also questioned the accuracy of and statutory basis for the Board's recalculation of his maximum sentence.

On August 18, 2017, the Board denied the request. Citing dispositive case law from this Court, the Board concluded that when Penjuke was recommitted as a CPV, he automatically forfeited all of his street time, including credit for the days that he previously accumulated during the original parole period. (Board's decision at 1.)

Penjuke then filed a petition for review. During the pendency of the appeal, this Court rendered its decision in Young . By per curiam order dated July 9, 2018, we entered an order directing the parties to file supplemental briefs addressing the effect, if any, that Young may have on the issues presented.³ The parties have complied, and, on October 10, 2018, we entered an order listing the case for oral argument before the Court en banc .

Statutory and Legal Background

In 2009, our General Assembly codified and essentially reenacted former section 21.1 of the Parole Act⁴ in nearly identical language in what became section 6138 of the Prisons and Parole Code (Parole Code). 61 Pa.C.S. § 6138.⁵ Under both versions of the statute, collectively referred to as the Parole Statutes, the Board could recommit a parolee to prison in two distinct situations: where the parolee violated the terms and conditions of parole, legally termed a TPV, or where the parolee committed and was convicted of a crime punishable by imprisonment, legally termed a CPV.⁶ In the event the parolee was recommitted as a TPV, the Parole Statutes dictated that the parolee "shall be given credit for the time served on parole in good standing ... and may be reentered to serve the remainder of the original sentence or sentences." 61 Pa.C.S. § 6138(c)(2) ; former 61 P.S. § 331.21a(b). On the other hand, if a parolee was recommitted as a CPV, the Parole Statutes mandated, without exception, that 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 shall be given no credit for the time at liberty on parole." 61 Pa.C.S. § 6138(a)(2) ; former 61 P.S. § 331.21a(a).

As documented in our case law, and by the facts of this case, there have been instances where a parolee was released on parole and recommitted as a TPV, and the Board provided the parolee with credit for days spent in good standing in accordance with the plain language of section 6138(c)(2) of the Parole Code or its prior version, former section 21.1(b) of the Parole Act. Subsequently, the parolee was reparoled and was later recommitted as a CPV, and the Board did not provide the parolee with credit for the time spent on reparole, due to the parolee's status as a CPV, pursuant to the verbiage of section 6138(a)(2) of the Parole Code or its predecessor, former section 21.1(a) of the Parole Act. In this situation, a legal issue emerged concerning the Board's statutory authority: could the Board, in recommitting a parolee as a CPV, also take away the credit that the parolee previously accumulated during the parole period where the parolee was recommitted as a TPV?

In 1984 and 1986, this Court issued two foundational opinions that answered the question in the affirmative, Anderson v. Pennsylvania Board of Probation and Parole , 80 Pa.Cmwlth. 574, 472 A.2d 1168 (1984), and Andrews v. Pennsylvania Board of Probation and Parole , 101 Pa.Cmwlth. 468, 516 A.2d 838 (1986). Since then, Anderson and Andrews have been followed and relied upon by this Court in numerous cases. See, e.g. , Richards v. Pennsylvania Board of Probation and Parole , 20 A.3d 596, 599 (Pa. Cmwlth. 2011) (en banc ) (collecting cases). In summarizing the proposition of law that developed, the revered then-Senior Judge Kelley, writing for the panel in Armbruster v. Pennsylvania Board of Probation and Parole , 919 A.2d 348 (Pa. Cmwlth. 2007), stated:

Section 21.1(a) ... provides that a [CPV] "shall be given no credit for the time at liberty on parole." 61 P.S. § 331.21a. Upon recommitment as a [CPV], the parolee must serve the remainder of the term which he would have been compelled to

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