Pittman v. Pa. Bd. of Prob. & Parole, 978 C.D. 2014

• Decision Date: 08 January 2016
• Docket Number: No. 978 C.D. 2014,978 C.D. 2014
• Citation: 131 A.3d 604
• Parties: Kevin PITTMAN, Petitioner v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.
• Court: Pennsylvania Commonwealth Court

131 A.3d 604

Kevin PITTMAN, Petitioner

v.PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.

No. 978 C.D. 2014

Commonwealth Court of Pennsylvania.

Argued Oct. 7, 2015.

Decided Jan. 8, 2016.

Raymond D. Roberts, Norristown, for petitioner.

John C. Manning, Harrisburg, for respondent.

BEFORE: DAN PELLEGRINI, President Judge¹ , BERNARD L. McGINLEY, Judge, ROBERT SIMPSON, Judge, MARY HANNAH LEAVITT, Judge² , P. KEVIN BROBSON, Judge, PATRICIA A. McCULLOUGH, Judge, and ANNE E. COVEY, Judge.

OPINION BY Judge McCULLOUGH

.

Kevin Pittman (Pittman) petitions for review of the May 29, 2014 order of the Pennsylvania Board of Probation and Parole (Board), affirming its November 21, 2013 decision to recommit Pittman as a convicted parole violator (CPV) for the remaining term of his unexpired sentence without awarding him credit for the time he spent at liberty on parole.³ After considering the parties' briefs, the record, and the applicable law, we affirm.

On March 10, 2010, Pittman was sentenced to two to four years' imprisonment following his guilty plea to possession of a controlled substance with the intent to deliver (PWID).⁴ Pittman's minimum sentence date was December 9, 2011, and his maximum sentence date was December 9, 2013. (Certified Record (C.R.) at 1–3.)

On October 19, 2011, the Board granted Pittman parole and he was released on December 12, 2011. Prior to his release, Pittman 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 11.)

On April 13, 2013, the police arrested Pittman and charged him with criminal offenses. The Board lodged a warrant on that same day. On August 1, 2013, Pittman entered a guilty plea to PWID, and, on October 23, 2013, the trial court sentenced him to a term of one to three years' imprisonment. (C.R. at 8–10, 14, 25–28.) Thereafter, Pittman 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 PWID. ("Waiver of Revocation Hearing and Counsel/Admission Form," C.R. at 42.).

In a hearing report dated September 18, 2013, the Board accepted Pittman's waivers and admission to being a CPV. 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 PWID is not enumerated as one of those offenses. The Board checked "No" and denied Pittman credit. (C.R. at 36, 42.)

By decision recorded on November 21, 2013, the Board recommitted Pittman as a CPV and recalculated his maximum sentence date from December 9, 2013, to October 21, 2015, which constituted the entire balance remaining on his original sentence. (C.R. at 46.).

On December 4, 2013, Pittman submitted a request for administrative relief, arguing, among other things, that he was entitled to credit for time that he had spent on parole in good standing. On May 29, 2014, the Board denied Pittman's request for administrative relief. In doing so, the Board cited section 6138(a)(2) of the Prison and Parole Code (Parole Code), 61 Pa.C.S. § 6138(a)(2)

, and determined that as a CPV, Pittman was not entitled to credit for time he spent at liberty on parole. (C.R. at 47–50, 96.)

Pittman now appeals to this Court.⁵

Discussion

In this case, we decide, as a prefatory matter, whether this Court has statutory jurisdiction to review Pittman's appeal. We also decide whether the Board, in denying Pittman credit, exercised discretion as that concept is contemplated by the Parole Code. Finally, we decide whether the Board was legally obligated to provide written reasons for denying Pittman credit.

Statutory Jurisdiction

Initially, we address whether Pittman can appeal the Board's November 21, 2013 order denying him credit for time spent at liberty on parole. We raise this issue, sua sponte, as it affects our statutory jurisdiction and authority to conduct appellate review. Pennhurst Medical Group, P.C. v. Department of Public Welfare, 796 A.2d 423, 425 n. 2 (Pa.Cmwlth.2002)

.

The courts of this Commonwealth have generally held that an order which "involves parole" does not constitute an appealable adjudication for purposes of the Administrative Agency Law, 2 Pa.C.S. §§ 101

–754. For example, in Rogers v. Board of Probation and Parole, 555 Pa. 285, 724 A.2d 319, 322 (1999), our Supreme Court concluded that this Court lacked statutory jurisdiction to review the Board's order to deny a prisoner parole because the definition of "adjudication" excludes a decision "which involves ... paroles ...." (citation omitted). Similarly, in Wheeler v. Board of Probation and Parole, 862 A.2d 127, 130 (Pa.Cmwlth.2004), this Court held that the Board's order imposing, and declining to revoke, a condition of parole—i.e., that the parolee was not to have any contact with his wife while on parole—was not an adjudication from which an appeal could be taken.

Although the Board's decision in this case may be tangentially related to parole, unlike the Board's decisions in Rogers and Wheeler, it does not directly involve the grant, denial, or conditions of parole; in other words, the substantive facets governing and surrounding the decision to parole. Instead, the Board's decision in this case, first and foremost, recalculates Pittman's maximum sentence date pursuant to statute. Specifically, the Board extended Pittman's maximum sentence date by declining to provide Pittman with credit for time spent on parole under sections 6138(a)(2) and (2.1) of the Parole Code.

In varying circumstances, the courts of this Commonwealth have held that when a prisoner challenges the Board's computation or calculation of his maximum sentence date, that prisoner's appeal rights include an administrative appeal to the Board and also a statutory appeal to this Court in our appellate jurisdiction under section 763 of the Judicial Code

, 42 Pa.C.S. § 763 (Direct appeals from government agencies).⁶

See McMahon v. Board of Probation and Parole, 504 Pa. 240, 470 A.2d 1337, 1337–38 (1983) (holding that when a prisoner challenges the Board's calculation of his maximum sentence date, based upon subsequent criminal convictions, the challenge is "a matter properly addressed to [this Court's] appellate jurisdiction, 42 Pa.C.S. § 763"); Calloway v. Board of Probation and Parole, 857 A.2d 218, 220–22 (Pa.Cmwlth.2004) (concluding that when a prisoner seeks credit on the Board's recalculation order, the prisoner "was required to file a direct appeal of that order addressed to this Court's appellate jurisdiction."); Evans v. Board of Probation and Parole, 713 A.2d 741 (Pa.Cmwlth.1998) (explaining that when the prisoner alleges that the Board erred in calculating his maximum sentence date, the prisoner's appeals process consists of filing an appeal to the Board and then an appeal to this Court); St. Clair v. Board of Probation and Parole, 89 Pa.Cmwlth. 561, 493 A.2d 146 (1985). In St. Clair, the Board entered an order extending the prisoner's maximum sentence date in accordance with former section 21.1(a) of the Parole Act,⁷ which stated that a CPV shall not receive credit for time spent at liberty on parole. In dismissing the prisoner's mandamus claim filed in our original jurisdiction, this Court held that "claims by parolees for time credit are properly addressed to our appellate jurisdiction under 42 Pa.C.S. § 763."

Here, Pittman is challenging the recalculation of his maximum sentence date, contending that he was improperly denied credit as a CPV under section 6138(a)(2) of the Parole Code. Based upon St. Clair and the above case law, we conclude that we possess statutory jurisdiction via section 763 of the Judicial Code

. 42 Pa.C.S. § 763. Accordingly, we proceed to address the arguments that Pittman raises in this appeal.

Abuse of Discretion

On appeal, Pittman does not dispute that under section 6138(a)(2) of the Parole Code, the Board can deny him credit for time spent at liberty on parole. Instead, Pittman argues that the Board overlooked section 6138(a)(2.1) of the Parole Code, 61 Pa.C.S. § 6138(a)(2.1)

, added by the Act of July 5, 2012, P.L. 1050 (Act 122), which grants the Board discretion to award a CPV credit for time spent on parole. Citing Gillespie v. Pennsylvania Department of Transportation, Bureau of Driver Licensing,

886 A.2d 317 (Pa.Cmwlth.2005), Pittman contends that the Board completely failed to exercise its discretion under section 6138(a)(2.1) of the Parole Code by checking a box denying credit and that this alleged failure to exercise discretion, in and of itself, constitutes an abuse of discretion. On this basis, Pittman seeks a remand.

We proceed first with a review of section 6138(a) of the Parole Code, which requires that if a parolee's recommitment is ordered, then the parolee shall be reentered to serve the remainder of the term had parole not been granted. Specifically, section 6138(a) of the Parole Code in pertinent part states:

§ 6138

. Violation of terms of parole.

(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...