Pittman v. Pennsylvania Board of Probation & Parole

159 A.3d 466, 639 Pa. 40, 2017 WL 1489047, 2017 Pa. LEXIS 940
CourtSupreme Court of Pennsylvania
DecidedApril 26, 2017
DocketPittman, K., Aplt. v. PA Board of Prob & Parole - No. 56 MAP 2016
StatusPublished
Cited by250 cases

This text of 159 A.3d 466 (Pittman v. Pennsylvania Board of Probation & Parole) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pittman v. Pennsylvania Board of Probation & Parole, 159 A.3d 466, 639 Pa. 40, 2017 WL 1489047, 2017 Pa. LEXIS 940 (Pa. 2017).

Opinions

[42]*42OPINION

JUSTICE BAER

In this appeal, we consider whether the Pennsylvania Board of Probation and Parole (the “Board”) abuses its discretion where it fails to consider whether to grant a convicted parole violator (“CPV”) credit for time spent at liberty on parole. We also consider whether the Board must provide a contemporaneous statement explaining the rationale behind its decision to grant or deny credit to a CPV. For the reasons that follow, we hold that the Board abuses its discretion in failing to consider whether to grant CPVs credit for time spent at liberty on parole under the plain language of Subsection 6138(a)(2.1) of the Parole Code, 61 Pa.C.S. § 6138(a)(2.1).1 Additionally, in order to effectuate the intent of the General Assembly in enacting Subsection 6138(a)(2.1), we further hold that the Board must provide a contemporaneous statement explaining its rationale for denying a CPV credit for time spent at liberty on parole. In this case, we conclude that because the Board’s [43]*43decision to deny Kevin Pittman (“Appellant”) such credit was based upon its erroneous belief that Appellant was automatically precluded from receiving credit under Subsection 6138(a)(2.1), the Board abused its discretion. Accordingly, we vacate the Commonwealth Court’s order, vacate the decision of the Board, and remand to the Board for further proceedings consistent with this opinion.

The material facts underlying this matter are undisputed. In 2010, following his guilty plea to possession with intent to deliver (“PWID”),2 Appellant was sentenced to two to four years of imprisonment, with a maximum sentence date of December 9, 2013. On December 12, 2011, the Board released Appellant on parole. Prior to his release, Appellant signed a form detailing the conditions governing his parole, which included the following:

If 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 parole/reparoled, with no credit for time at liberty on parole.

Certified Record of the Board (“C.R.B.”), Tab 3, at 11.

In 2013, while still on parole, Appellant was arrested and charged with various criminal offenses. He ultimately pled guilty to PWID and was sentenced to one to three years of imprisonment. Appellant subsequently waived his right to a parole revocation hearing and admitted that he violated his parole by committing a crime. C.R.B., Tab 7, at 42. The Board accepted Appellant’s admission and recommitted him in accord with his original 2011 sentence. The Board’s hearing report form, which details the circumstances surrounding an inmate’s parole revocation, includes the following line: “BOARD ONLY—Credit time spent at liberty on parole: [ ] No [ ] Yes (excluded offenses on pg. 8).” C.R.B., Tab 7, at 36. The Board checked “No” on Appellant’s report form, thus denying him credit for time spent at liberty on parole. Consequently, the Board directed that Appellant serve the entire balance re[44]*44maining on his original sentence and recalculated his maximum sentence date as October 21, 2015. Importantly, the Board offered no explanation for its decision not to award Appellant credit.

Appellant subsequently filed a pro se letter with the Board, in which he sought credit for time he spent on parole. The Board, which deemed Appellant’s letter to be a petition for administrative review from its recalculation of his maximum sentence date pursuant to 37 Pa. Code § 73.1(b),3 declined to award him credit, stating in its responsive letter to Appellant that “as a convicted parole violator you automatically forfeited credit for all of the time that you spent on parole.” C.R.B., Tab 10, at 50 (citing 61 Pa.C.S. § 6138(a)). This conclusion, however, conflicts with Subsection 6138(a)(2.1), which states “[t]he [B]oard may, in its discretion, award credit to a [CPV].” 61 Pa.C.S. § 6138(a)(2.1)(supra, pg. 42 n.1, 159 A.3d at 468 n.1).4

Appellant filed a petition for review with the Commonwealth Court, arguing, inter alia, that the Board abused its discretion in failing to award him credit for time spent at liberty on parole. Specifically, Appellant took the position that the Board abused its discretion where, as here, it failed to exercise any discretion whatsoever because it denied him credit based upon the mistaken belief that he automatically forfeited his right to [45]*45receive credit as a CPV. Citing Gillespie v. Pennsylvania Department of Transportation, Bureau of Driver Licensing, 886 A.2d 317 (Pa. Cmwlth. 2005), Appellant argued that completely failing to exercise discretion, in and of itself, constitutes an abuse of discretion. Moreover, Appellant claimed that, when the Board initially denied him credit by checking the “No” box on its hearing report form, it erred in failing to issue a written statement explaining its reasoning for denying him credit.5

Before the Commonwealth Court, the Board argued that by checking “No” on Appellant’s hearing report form, it did, in fact, exercise its discretion to deny him credit for time spent at liberty on parole pursuant to Subsection 6138(a)(2.1). Additionally, the Board maintained that nothing in the plain language of Subsection 6138(a)(2.1) requires it to provide reasons as to why it decided not to award credit to a CPV.6

The Commonwealth Court, sitting en banc, affirmed the Board’s decision to deny Appellant credit. Pittman v. Pennsylvania Board of Probation and Parole, 131 A.3d 604 (Pa. Cmwlth. 2016). In the majority opinion, the Commonwealth Court determined that Subsection 6138(a)(2.1) gives the Board broad discretion when considering whether to grant a CPV credit for time spent at liberty on parole and that the Board properly exercised that discretion by checking “No” on Appellant’s hearing report.7 Additionally, the Commonwealth [46]*46Court held that nothing in Subsection 6138(a)(2.1) requires the Board to issue a statement of reasons explaining its decision.

Regarding Appellant’s contention that the Board abused its discretion when it denied him credit for time served while on parole, the Commonwealth Court noted that the Board’s discretion under Subsection 6138(a) is twofold. First, the Board must decide whether to recommit a parole violator. Next, if recommitment is so ordered, then the parolee shall be recommitted to serve the remainder of his original term, but the Board may, in its discretion, award the parolee credit for time spent at liberty on parole. The Commonwealth Court further observed that, under unrelated sections of the Parole Code, namely Section 6137 (relating to the Board’s power to parole [47]*47and reparole), the General Assembly set forth criteria to guide the Board in exercising its discretion. See, e.g., 61 Pa.C.S. § 6137(h)(1) (setting forth, inter alia, that the Board must consider the benefit to the inmate and the interests of the Commonwealth when deciding whether to recommit a paroled inmate).

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Bluebook (online)
159 A.3d 466, 639 Pa. 40, 2017 WL 1489047, 2017 Pa. LEXIS 940, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pittman-v-pennsylvania-board-of-probation-parole-pa-2017.