IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kevin Pittman, :
Petitioner :
: No. 978 C.D. 2014
v. :
: Argued: October 7, 2015
Pennsylvania Board of Probation :
and Parole, :
Respondent :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge1
HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE MARY HANNAH LEAVITT, Judge2
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION BY
JUDGE McCULLOUGH FILED: January 8, 2016
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
1
This case was assigned to the opinion writer before December 31, 2015, when President
Judge Pellegrini assumed the status of senior judge.
2
This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt
became President Judge.
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
3
By per curiam order dated June 23, 2014, this Court appointed counsel to represent
Pittman in this appeal.
4
See Section 13(a)(30) of The Controlled Substance, Drug, Device, and Cosmetic Act, Act
of April 14, 1972, P.L. 233, as amended, 35 P.S. §780-113(a)(30).
2
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
5
Our scope of review is limited to determining whether constitutional rights were violated,
whether the adjudication was in accordance with the law, and whether necessary findings were
supported by substantial evidence. 2 Pa.C.S. §704; Adams v. Board of Probation and Parole, 885
A.2d 1121, 1122 n.1 (Pa. Cmwlth. 2005).
3
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, 724 A.2d 319, 322 (Pa. 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.
4
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, 470
6
This section provides in pertinent part:
(a) General rule. –
Except as provided in subsection (c), the Commonwealth Court shall
have exclusive jurisdiction of appeals from final orders of government
agencies in the following cases:
(1) All appeals from Commonwealth agencies under Subchapter A of
Chapter 7 of Title 2 (relating to judicial review of Commonwealth
agency action) or otherwise and including appeals from the Board of
Claims, the Environmental Hearing Board, the Pennsylvania Public
Utility Commission, the Unemployment Compensation Board of
Review and from any other Commonwealth agency having Statewide
jurisdiction.
(Footnote continued on next page…)
5
A.2d 1337, 1337-38 (Pa. 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, 493 A.2d 146 (Pa.
Cmwlth. 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
(continued…)
(2) All appeals jurisdiction of which is vested in the Commonwealth
Court by any statute hereafter enacted.
42 Pa.C.S. §763.
7
Act of August 6, 1941, P.L. 861, as amended, added by Section 5 of the Act of August 24,
1951, P.L. 1401, formerly 61 P.S. §331.21a(a), repealed by the Act of August 11, 2009, P.L. 147.
6
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
7
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 term
which the parolee would have been compelled to serve had
the parole not been granted and, except as provided under
paragraph (2.1), shall be given no credit for the time at
liberty on parole.
(2.1) The board may, in its discretion, award credit to a
parolee recommitted under paragraph (2) for the time
spent at liberty on parole, unless any of the following
apply:
(i) The crime committed during the period of parole or
while delinquent on parole is a crime of violence as defined
in 42 Pa.C.S. §9714(g) (relating to sentences for second and
subsequent offenses) or a crime requiring registration under
42 Pa.C.S. Ch. 97 Subch. H (relating to registration of
sexual offenders).
61 Pa.C.S. §6138(a)(1)-(2.1)(i) (emphasis added).
Hence, the Board’s exercise of discretion under section 6138(a) of the
Parole Code is two-fold. First, the Board must determine whether to recommit a
parole violator. Second, when recommitment is so ordered, the parolee shall be
reentered to serve the remainder of the term, but the Board may, in its discretion,
award the parolee credit. Significantly, Pittman pleaded guilty to PWID and admitted
that he was a CPV on the Board’s waiver form. He never asked for credit and there is
no record of a hearing or request for credit before the Board. Nonetheless, Pittman
now claims that the Board failed to exercise discretion and should have issued a
statement of reasons as to why it did not give him credit.
8
The hearing report provided the Board with the option to award Pittman
with credit for time spent on parole in a “yes” or “no” format and listed, by way of
reference, the particular provision of the Judicial Code, section 9714(g), 42 Pa.C.S.
§9714(g), for which violation while on parole would preclude the Board from
exercising its discretion to award credit. On its face, the hearing report provided the
Board with the choice to award credit under section 6138(a)(2.1) of the Parole Code
or not. There are no further instructions regarding credit on the hearing report.
Consequently, the completed hearing report, alone, establishes that the Board
exercised discretion pursuant to section 6138(a)(2.1) by checking “no” and denying
Pittman credit for time spent at liberty on parole. In an unreported decision, Torres v.
Pennsylvania Board of Probation and Parole, (Pa. Cmwlth., No. 1090 C.D. 2014,
filed April 10, 2015), slip op. at 9, this Court reached a similar result, concluding that
the Board did not “summarily deny” the inmate credit where the Board noted that the
inmate was a CPV and checked the box for “no credit” on the hearing report.8, 9
Our conclusion is reinforced by other provisions of the Parole Code
governing decisions made by the Board. Notably, unlike the Board’s decisions to
parole and reparole under section 6137 of the Parole Code, our legislature has not
enumerated any criteria to be considered or general standard to be applied by the
Board when determining whether to award credit.
8
Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code
§69.414(a), unreported decisions may be cited for their persuasive value.
9
The Dissent states that “[i]t appears here that Pittman was not given credit solely because
the Board did not realize that the Parole Code had been amended by Act 122 thereby allowing for
certain convicted parole violators to be granted such credit.” (Dissent op. at 4.) In doing so, the
Dissent engages in supposition and ignores the hearing report.
9
Specifically, sections 6137(a)(1)(i)-(ii) and (h)(1)-(2) of the Parole Code
enunciate these guidelines as follows:
(a) General criteria for parole.
(1) The board may parole subject to consideration of
guidelines established under 42 Pa.C.S. §2154.5 (relating
to adoption of guidelines for parole) and may release on
parole any inmate to whom the power to parole is granted to
the board by this chapter, except an inmate condemned to
death or serving life imprisonment, whenever in its
opinion:
(i) The best interests of the inmate justify or require that
the inmate be paroled.
(ii) It does not appear that the interests of the
Commonwealth will be injured by the inmate’s parole.
* * *
(h) Power to recommit.
(1) The board may, during the period for which an inmate
shall have been sentenced, recommit the inmate, if
paroled, for violation of the terms and conditions of his
parole and from time to time to reparole and recommit in
the same manner and with the same procedure as in the case
of an original parole or recommitment if, in the judgment
of the board:
(i) There is a reasonable probability that the inmate will
be benefited by paroling the inmate again.
(ii) It does not appear that the interests of the
Commonwealth will be injured by paroling the inmate
again.
(2) In exercising these powers, the board shall consider
any applicable recommitment ranges established by the
commission under 42 Pa.C.S. §2154.6 (relating to
10
adoption of recommitment ranges following revocation
of parole by board).
61 Pa.C.S. §6137(a)(1)(i)-(ii), (h)(1)-(2) (emphasis added).
By way of these guidelines, the legislature established specific
parameters and means by which the Board may exercise its discretion. See 61
Pa.C.S. §6137(a)(1)(i)-(ii) (stating that the Board, after considering guidelines, may
parole when, in its opinion, “[t]he best interests of the inmate justify or require that
the inmate be paroled” and “[i]t does not appear that the interests of the
Commonwealth will be injured by the inmate’s parole.”); 61 Pa.C.S. §6137(h)(1)(i)-
(ii) (stating that the Board, after considering recommitment ranges, may recommit or
reparole when, in its judgment, “[t]here is a reasonable probability that the inmate
will be benefited by paroling the inmate again” and “[i]t does not appear that the
interests of the Commonwealth will be injured by paroling the inmate again.”).
In contrast to these provisions, section 6138(a)(2.1) only states that the
Board “may, in its discretion, award credit. . . .” 61 Pa.C.S. §6138(a)(2.1). Based
upon its plain language, there are no statutory standards in section 6138(a)(2.1) of the
Parole Code that define or curtail how, when, or in what manner discretion should or
must be exercised. It is well-settled that this Court cannot supply such guideposts as
a matter of judicial construction. Commonwealth v. Rieck Investment Corp., 213
A.2d 277, 282 (Pa. 1965) (“[I]t is not for the courts to add, by interpretation, to a
statute, a requirement which the legislature did not see fit to include.”). Ultimately,
the absence of statutory standards further supports the conclusion that the Board’s
checking of “no” on the hearing report demonstrates that the Board fully exercised
the discretion that the legislature afforded to it under section 6138 of the Parole
11
Code.10 Therefore, Pittman’s argument that the Board failed to exercise discretion is
refuted by the record and the statutory language and scheme contained in section
6138 of the Parole Code.
Pittman’s reliance on Gillespie is misplaced. In that case, the
Department of Transportation (Department) requested a continuance of a license
suspension appeal because a witness was unavailable to testify. The licensee opposed
the request, and the trial court denied the continuance on the ground that it was the
trial court’s standard policy to continue cases only where both parties agreed to the
request. Consequently, the Department could not proceed with its case, and the trial
court sustained the licensee’s appeal.
On appeal to this Court, we concluded that the trial court failed to
exercise discretion when ruling on the Department’s request for a continuance. We
initially reiterated that judicial discretion “broadly defined, is the option which a
judge may exercise either to do or not to do that which is proposed to him.” 886 A.2d
at 319 (citation omitted). After noting the trial court’s “[b]lind adherence to an
10
See also Heckler v. Chaney, 470 U.S. 821, 830 (1985) (“[I]f the statute is drawn so that a
court would have no meaningful standard against which to judge the agency’s exercise of discretion
. . . the statute (‘law’) can be taken to have committed the decision making to the agency’s judgment
absolutely. . . . [I]f no judicially manageable standards are available for judging how and when an
agency should exercise its discretion, then it is impossible to evaluate agency action for ‘abuse of
discretion.’”); Charles H. Koch, Unreviewability in State Administrative Law, 19 J. NAALJ 59, 65-
68 (1999) (“A statute might give total authority to the administrative decision maker so as to leave
no role for the courts. That is, the statute may not expressly preclude review . . . but may delegate so
much authority to the agency that there is none left for the courts. . . . The existence of unreviewable
discretion often derives from the absence of standards by which a court may evaluate the agency
decision.”). See generally Reider v. Board of Probation and Parole, 514 A.2d 967, 971 (Pa.
Cmwlth. 1986) (“Because there are so many variables which are impossible for a court to properly
evaluate . . . we believe that the action of the Board is uniquely one of administrative discretion not
subject to our review.”). Compare MJM v. MLG, 63 A.3d 331, 335-36 (Pa. Super. 2013)
(explaining how the statutory language at issue requires a trial court to expressly consider each
factor enumerated in the statute).
12
established policy,” this Court determined that the trial court “did not exercise its
discretion at all.” Id. at 319-20. In reaching this conclusion, we emphasized that the
trial court:
considered neither the merits of the Department’s request
nor whether [the licensee] would be prejudiced by a
continuance. Instead, [the trial court] essentially delegated
its decision-making function to the attorneys, or, more
accurately, to [the licensee’s] attorney. We can think of no
clearer example of an abuse of discretion than abdication of
the judge’s role to an interested party.
Id. at 320.
Unlike the trial court in Gillespie, the Board here did not “punt” away its
duty to exercise discretion in rendering its decision. Instead, the Board was presented
with a choice and affirmatively chose to deny Pittman credit. In completing the
hearing report, the Board exercised discretion in deciding “either to do or not do that
which is proposed to [it],” id. at 319, under section 6138(a)(2.1) of the Parole Code.
Notably, Pennsylvania law presumes that the Board acted lawfully and utilized its
discretion in good faith, see Office of Governorv. Donahue, 98 A.3d 1223, 1239 (Pa.
2014), and Pittman does not contend otherwise. Therefore, because the record
establishes that the Board exercised discretion, Gillespie is clearly distinguishable on
its facts.
Statement of Reasons
Pittman also asserts that the Board erred in failing to state its reasons for
denying him credit. Pittman points out that he was not convicted of an excludable
offense under section 6138(a)(2.1)(i) of the Parole Code, 61 Pa.C.S. §6138(a)(2.1)(i),
and maintains that he deserves an explanation as to why the Board denied him credit.
13
In relevant part, section 6138(a)(2.1) of the Parole Code provides that
the Board “may, in its discretion, award credit to a parolee recommitted” as a CPV.
61 Pa.C.S. §6138(a)(2.1). The Board is deprived of this discretion when: “(i) [t]he
crime committed during the period of parole or while delinquent on parole is a crime
of violence as defined in 42 Pa.C.S. §9714(g) (relating to sentences for second and
subsequent offenses) or a crime requiring registration under 42 Pa.C.S. Ch. 97 Subch.
H (relating to registration of sexual offenders)” or “(ii) [t]he parolee was recommitted
under section 6143 (relating to early parole of inmates subject to Federal removal
order).” 61 Pa.C.S. §6138(a)(2.1)(i)-(ii). Pittman is correct that neither of these
provisions applies to him.
Nonetheless, pursuant to the plain language of section 6138(a)(2.1) of
the Parole Code, there is no express requirement that the Board issue a statement of
reasons for denying credit to a CPV for time spent at liberty on parole. When section
6138(a)(2.1) is viewed alongside other provisions of the Parole Code, this fact – i.e.,
the absence of a written statement requirement – is extremely significant for purposes
of statutory interpretation.
“The cardinal rule of all statutory construction is to ascertain and
effectuate the intent of the Legislature.” O’Rourke v. Department of Corrections, 778
A.2d 1194, 1201 (Pa. 2001). To accomplish that goal, “statutory language must be
read in context, that is, in ascertaining legislative intent, every portion of statutory
language is to be read together and in conjunction with the remaining statutory
language, and construed with reference to the entire statute as a whole.” Gaming
Control Board v. Office of Open Records, 103 A.3d 1276, 1285 (Pa. 2014).
In contrast to section 6138(a)(2.1), sections 6137(b) and 6137(i) of the
Parole Code explicitly mandate that the Board provide “a written statement of the
14
reason” for denying a prisoner parole or recommitting a parolee for violating the
conditions of parole in certain situations. 61 Pa.C.S. §6137(b), (i). The pertinent
provisions of section 6137 state:
(a) General criteria for parole.
(1) The board may parole subject to consideration of
guidelines established under 42 Pa.C.S. §2154.5 (relating to
adoption of guidelines for parole) . . . .
* * *
(b) Cases involving deviations from guidelines. -- In each
case in which the board deviates from the guidelines
established under 42 Pa.C.S. §2154.5, the board shall
provide a contemporaneous written statement of the
reason for the deviation from the guidelines to the
commission as established under 42 Pa.C.S. §2153(a)(14)
(relating to powers and duties). The board may develop and
use internal decisional instruments. This subsection shall
not be construed to prevent the board from also developing
forms or other documents, policies and procedures
consistent with this chapter, including internal decisional
instruments.
* * *
(h) Power to recommit.
(1) The board may, during the period for which an inmate
shall have been sentenced, recommit the inmate. . . .
* * *
(2) In exercising these powers, the board shall consider any
applicable recommitment ranges established by the
commission under 42 Pa.C.S. §2154.6 (relating to adoption
of recommitment ranges following revocation of parole by
board).
* * *
15
(i) Cases involving deviations from guidelines. -- In each
case in which the board deviates from the recommitment
ranges established under 42 Pa.C.S. §2154.6, the board
shall provide a contemporaneous written statement of
the reason for the deviation from the recommitment
ranges to the commission, as established under 42 Pa.C.S.
§2153(a)(14).
61 Pa.C.S. §6137(a)(1), (b), (h)(1)-(2), (i) (emphasis supplied).
The legislature’s intent is clear that where the Board “deviates” from
guidelines established to determine when an individual may be paroled, “the board
shall provide a contemporaneous written statement of the reason for the deviation,”
61 Pa.C.S. §6137(b), and where the Board recommits a parolee for violating the
conditions of parole and “deviates” from the recommitment ranges established by
statute, “the board shall provide a contemporaneous written statement of the reason
for the deviation. . . .” 61 Pa.C.S. §6137(i). This statutory language requiring a
written statement of reasons is clearly based on the occurrence of a deviation by the
Board’s action. Such language does not appear anywhere in section 6138 of the
Parole Code.
Under our rules of statutory construction, “where the legislature includes
specific language in one section of the statute and excludes it from another, the
language should not be implied where excluded.” Fonner v. Shandon, Inc., 724 A.2d
903, 907 (Pa. 1999) (concluding that where one section of a statute had an “unless”
clause, but the legislature did not include the clause in another section, the “unless”
clause could not be implied into that section). Indeed, “where a section of a statute
contains a given provision, the omission of such a provision from a similar section is
significant to show a different legislative intent.” Fletcher v. Pennsylvania Property
& Casualty Insurance Guaranty Association, 985 A.2d 678, 684 (Pa. 2009). While
16
sections 6137(b) and (i) of the Parole Code contain a written statement of reasons
requirement, section 6138(a)(2.1) of the Parole Code does not. Therefore, we must
conclude that there is no statutory basis upon which to find or infer that the Board
must issue a statement of reasons for denying a CPV credit for time spent at liberty
on parole under section 6138(a)(2.1) of the Parole Code. Accord Torres, slip op. at 9
n.3 (“We also agree with the Board that there is no requirement in the [Parole Code]
that the Board explain its reasons for denying a CPV credit for street time under 61
Pa.C.S. §6138(a)(2.1).”).
“A court has no power to insert words into statutory provisions where
the legislature has failed to supply them.” Amendola v. Civil Service Commission of
Crafton Borough, 589 A.2d 775, 777 (Pa. Cmwlth. 1991). Because this Court lacks
the authority to insert a legal obligation into a statute (no matter how noble we may
perceive one to be) where our legislature has not, we decline to impose upon the
Board a requirement that the Board issue a statement of reasons for denying credit.
This is especially true considering that in the section immediately preceding section
6138(a)(2.1), the legislature expressly provided two separate instances where the
Board must issue a statement of reasons. In this context, we cannot, under the guise
of judicial construction, take it upon ourselves to include a requirement that the
legislature was entirely familiar with and could have easily inserted into section
6138(a)(2.1), but did not do so. See Commonwealth ex rel. Cartwright v. Cartwright,
40 A.2d 30, 33 (Pa. 1944) (“[T]he court cannot, under its powers of construction,
supply omissions in a statute, especially where it appears that the matter may have
been intentionally omitted. It makes no difference that the omission resulted from
inadvertence, or because the case in question was not foreseen or contemplated”). To
17
the contrary, this Court must presume that the omission was intentional. See
Fletcher, 985 A.2d at 684; Fonner, 724 A.2d at 907.11
11
The Dissent reiterates the legislative addition of section 6138(a)(2.1) concerning the
Board’s discretion to award credit to a parolee for the time spent at liberty on parole, subject to
noted exceptions. We have already addressed and disposed of this change under necessary statutory
construction principles to which the judiciary must adhere in interpreting statutory law. However,
the Dissent does not address these principles. Rather, due to differences in statutory language, the
Dissent’s reliance on Commonwealth v. Artis, 439 A.2d 1199 (Pa. Super. 1982), and section 9721 of
the Sentencing Code, 42 Pa.C.S. §9721, is severely misplaced. For instance, section 9721(a) of the
Sentencing Code mandates that in determining the sentence to be imposed, a trial court “shall,
except as provided in subsection (a.1), consider and select one or more” of seven enumerated
sentencing alternatives, 42 Pa.C.S. §9721(a) (emphasis added), which are listed in sections 9722
through 9725 of the Sentencing Code. 42 Pa.C.S. §§9722—25. Similarly, section 9721(b) of the
Sentencing Code provides that “the court shall make as a part of the record, and disclose in open
court at the time of sentencing, a statement of the reason or reasons for the sentence imposed.”
42 Pa.C.S. §9721(b) (emphasis added). As explained above, there is no such language in section
6138(a)(2.1) of the Parole Code and we cannot insert it as a matter of judicial fiat.
Instead, the Dissent would insert a requirement where none was expressed by the legislature
and, moreover, where it is necessarily excluded by application of standard statutory construction
principles. The Dissent cites two unpublished memorandum, Sampson v. Pennsylvania Board of
Probation and Parole (Pa. Cmwth., No. 1107 C.D. 2014, filed March 25, 2015) (unreported), slip
op. at 6, and Torres, slip op. at 9 n.3, for the idea that “[a] one sentence explanation for the Board’s
denial of credit can be sufficient, and the Board knows how to do this.” (Dissent op. at 4.)
However, there is no statutory or legal basis for the Dissent’s ipse dixit statement, and neither
Sampson nor Torres supports the proposition that the Board must state reasons for denying credit.
Further, the Board’s notations in those cases, “DV – assaulted wife” and “Conviction in court of
record established,” do not set forth any workable standard upon which to assess the Board’s
exercise of discretion for an abuse thereof. In essence, the Board’s notations do nothing more than
confirm that the parolee is a CPV, which is a fact that is already assumed for purposes of section
6138(a)(2) and (2.1). In the end, the Board’s notations effectively amount to no explanation at all,
and the Dissent’s attempt to fashion what it believes to be a “sufficient explanation” only highlights
the need for express legislative standards, which are lacking here.
Significantly, in addition to the above, the Dissent overlooks the waiver of a hearing by
Pittman, his guilty plea, and the lack of any request for credit in this case.
Finally, the Dissent references a law review article, Stewart Greenleaf, Essay, Prison
Reform in the Pennsylvania Legislature, 160 U. PA. L. REV 179 (2011), for the proposition that
(Footnote continued on next page…)
18
Moreover, even if we imported the statutory obligations from sections
6137(b) and (i) of the Parole Code into section 6138(a)(2.1), and found that the Board
must issue a statement of reasons, such a requirement would only apply when the
Board “deviates” from the statutory norm. See 61 Pa.C.S. §6137(b) and (i).
Here, the statutory norm is set forth in section 6138(a)(2) of the Parole
Code, which states as the norm that credit “shall” not be provided to a CPV. See 61
Pa.C.S. §6138(a)(2) (“[T]he 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.”).
Importantly, this provision was retained, not revised, when the legislature later added
section 6138(a)(2.1) of the Parole Code in 2012.
Section 6138(a)(2.1) of the Parole Code now affords the Board
discretion to award credit in certain cases. See 61 Pa.C.S. §6138(a)(2.1). Following
the structure of sections 6137(b) and (i) of the Parole Code, if a statutory requirement
were superimposed on the Board to issue a statement of reasons, we would conclude
that this requirement is only applicable when the Board departs from the presumptive
norm and awards a CPV credit under section 6138(a)(2.1) of the Parole Code. See 61
(continued…)
section 6138(a)(2.1) of the Parole Code “was enacted to make the state’s corrections system more
efficient by keeping low-risk cases out of prison in favor of less expensive and more effective
sentencing.” (Dissent op. at 2.) The article is a thorough and insightful exposition on prison
reform, effective sentencing and rehabilitation alternatives such as county probation programs,
expanding risk assessment, safe community reentry programs, and alternative sentencing programs.
While there is a footnote referencing section 6138(c)(5) of the Parole Code, 61 Pa.C.S.
§6138(c)(5)(iv), which states that technical “parole violators shall be supervised in accordance
with evidence–based practices that may include . . . [u]se of a graduated violation sanctioning
process,” 61 Pa.C.S. §6138(c)(5)(iv), there is no mention of section 6138 (a)(2.1) or implication that
credit must be awarded for convicted parole violators for time spent at liberty on parole.
19
Pa.C.S. §6138(b), (i). Because the Board did not award Pittman credit in this case,
the Board was not legally obligated to issue a statement of reasons.
Finally, we note that even if the Board were required to issue a statement
as to why it denied credit, that obligation would not be triggered unless a prisoner
requested the Board for credit and provided the Board with reasons for awarding
credit. Indeed, the Board would have no basis to issue an award of credit, or, in other
words, to deviate from the norm, unless or until the prisoner provides reasons
supporting an award of credit
Here, Pittman waived his revocation hearing, and he did not request
another hearing or utilize an informal process through which he could inform the
Board why he is entitled to an award of credit. Notably, Pittman does not contend
that the Board erroneously denied him credit based on the documentation that the
Board has in its possession. Indeed, Pittman does not make any argument that his
particular facts and circumstances support an award of credit for time spent on parole.
Given these circumstances, we would conclude that the Board was not legally
required to provide Pittman with a statement of reasons for denying him credit for
time spent at liberty on parole.12
12
We note that Pittman does not assert that procedural due process requires the Board to
issue a statement of reasons.
In any event, the Fourteenth Amendment to the United States Constitution provides, in
relevant part, that no “State [shall] deprive any person of life, liberty, or property, without due
process of law.” U.S. Const. amend. XIV, §1. To maintain a due process challenge, a party must
initially establish the deprivation of a protected liberty or property interest. Miller v. Workers’
Compensation Appeal Board (Pavex, Inc.), 918 A.2d 809, 812 (Pa. Cmwlth. 2007). Only after the
party establishes the deprivation of a protected interest will we consider what method of due process
is required. Id.
(Footnote continued on next page…)
20
Conclusion
Because the record demonstrates that the Board exercised discretion in
denying Pittman, a CPV, credit for time he spent at liberty on parole, and having
concluded that the Board was not required to issue a statement of reasons for its
decision, in this matter, we discern no basis upon which to upset the Board’s order.
This Court does not find, however, that it would be unreasonable for the legislature to
impose an additional requirement upon the Board and require the Board to issue a
statement of reasons as to why it denied credit. Nor do we find that compliance with
such a requirement would be onerous to the Board. However, applying well-settled
principles of statutory construction, we must conclude that it is incumbent upon the
legislature to explicitly impose such a requirement if it be their intent. Accordingly,
we affirm.
________________________________
PATRICIA A. McCULLOUGH, Judge
(continued…)
Here, Pittman has no constitutionally protected liberty interest in receiving credit for time
spent on parole. See Young v. Board of Probation and Parole, 409 A.2d 843, 847-48 (Pa. 1979);
Tubbs v. Board of Probation and Parole, 620 A.2d 584, 585-86 (Pa. Cmwlth. 1993); Thompson v.
Cockrell, 263 F.3d 423, 426 (5th Cir. 2001); Dews v. Waldern, 590 F.Supp.2d 42, 44 (D.D.C.
2008). Neither does Pittman have a protected property interest under state law. “When an
individual alleges a protected property interest in the receipt of a state created benefit, the individual
must establish more than a mere expectation to it; the individual must demonstrate an actual
entitlement to it.” Miller, 918 A.2d at 812. Under section 6138(a)(2.1) of the Parole Code, credit
for time served on parole is at the Board’s sole discretion (“may, in its discretion”). See Kentucky
Department of Corrections v. Thompson, 490 U.S. 454, 464-65 (1989); Frey v. Fulcomer, 132 F.3d
916, 925 n.7 (3d Cir. 1997).
21
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kevin Pittman, :
Petitioner :
: No. 978 C.D. 2014
v. :
:
Pennsylvania Board of Probation :
and Parole, :
Respondent :
ORDER
AND NOW, this 8th day of January, 2016, the May 29, 2014 order of
the Pennsylvania Board of Probation and Parole is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kevin Pittman, :
Petitioner :
:
v. : No. 978 C.D. 2014
: Argued: October 7, 2015
Pennsylvania Board of Probation :
and Parole, :
Respondent :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
DISSENTING OPINION BY
PRESIDENT JUDGE PELLEGRINI FILED: January 8, 2016
Until 2012, Section 6138(a) of the Prisons and Parole Code (Parole
Code), 61 Pa. C.S. §6138(a), required that when a parolee was recommitted as a
convicted parole violator, no matter what the nature of the crime, the parolee did not
receive credit for the time that he or she spent at liberty on parole. However, in 2012,
the Parole Code was changed by adding Section 6138(a)(2.1), 61 Pa. C.S.
§6138(a)(2.1), to give the Board of Probation and Parole (Board) the power to grant
credit for the time spent at “liberty on parole” against a parolee’s maximum sentence.
Section 6138(a)(2.1)(i) provides, in pertinent part:
The board may, in its discretion, award credit to a
parolee recommitted … for the time spent at liberty on
parole, unless any of the following apply:
(i) The crime committed during the period of parole
or while delinquent on parole is a crime of violence as
defined in 42 Pa. C.S. §9714(g) (relating to sentences for
second and subsequent offenses) or a crime requiring
registration under 42 Pa. C.S. Ch. 97 Subch. H (relating to
registration of sexual offenders). (Emphasis added).
This was one of the changes made by the Act of July 5, 2012, P.L. 1050
(Act 122) that was enacted to make the state’s corrections system more efficient by
keeping low-risk cases out of prison in favor of less expensive and more effective
sentencing. See Stewart Greenleaf, Essay, Prison Reform in the Pennsylvania
Legislature, 160 U. PA. L. REV 179 (2011).
The central issue in this case is whether, at a minimum, the Board has to
show that it exercised discretion when it denied or, for that matter, granted a parolee
credit for time spent at liberty on parole against his or her sentence by giving some
reason why it granted or denied such credit. In this case, the Board’s recommitment
decision gave no reason whatsoever, and its later decision denying Pittman’s request
for administrative relief merely stated that “as a convicted parole violator you
automatically forfeited credit for all the time that you spent on parole.” (Board
6/20/14 Decision).
In the criminal context, because it will result in a loss of liberty, it has
been held that a sentencing court’s failure to exercise its discretion by considering the
factors set forth in Section 9721(b) of the Sentencing Code, 42 Pa. C.S. §9721(b), or
the factors mandated by Sections 9722 through 9725, 42 Pa. C.S. §§9722-9725,
constitutes reversible error requiring the vacation of sentence and remand for re-
sentencing. See Commonwealth v. Artis, 439 A.2d 1199, 1203 (Pa. Super. 1982). We
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have also held that a trial court’s failure to exercise any discretion in and of itself
constitutes an abuse of discretion. Gillespie v. Department of Transportation, Bureau
of Driver Licensing, 886 A.2d 317, 319-20 (Pa. Cmwlth. 2005). I believe that the
Board violated Section 6138(a)(2.1) of the Parole Code by not giving any reasons for
denying Pittman credit for the time that he was at liberty on parole in its
recommitment decision and for denying his request for administrative relief because
it found that he was ineligible for credit based solely on his status as a convicted
parole violator.
I would hold that 61 Pa. C.S. §6138(a)(2.1) requires the Board to give a
reason as to how it exercised its discretion to grant or deny a parolee credit against his
original sentence for time spent at liberty on parole. First, the parolee would be
informed that the issue was considered by the Board as required by the Parole Code
and, just as important, that the Board has complied with the legislative mandate to
exercise its discretion. Second, by requiring the Board to explain why it denied or
granted credit for time spent at liberty on parole allows the public and the legislature
to see how the Board exercises its discretion and carries out its discretion to grant
such credit.
The reason that the Board gives does not have to be expansive. A one
sentence explanation for the Board’s denial of credit can be sufficient, and the Board
knows how to do this. See, e.g., Sampson v. Pennsylvania Board of Probation and
Parole (Pa. Cmwth., No. 1107 C.D. 2014, filed March 25, 2015), at 6 (Hearing
Report contained handwritten notation of “DV – assaulted wife” beneath the
checkbox); Torres v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No.
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1009 C.D. 2014, filed April 10, 2015), at 9 n.3 (Board indicated as a reason for
denying credit “Conviction in court of record established.”).
Moreover, the need for the Board to give a reason for its decision is
exemplified here because, in denying administrative relief, the Board stated that
Pittman was not eligible for credit for the time that he had spent at liberty on parole
only because he was a convicted parole violator. That may have been law before the
2012 amendments to the Parole Code, but it was not the law when the Board denied
credit in this case following the enactment of Act 122. It appears here that Pittman
was not given credit solely because the Board did not realize that the Parole Code had
been amended by Act 122 thereby allowing for certain convicted parole violators to
be granted such credit. This constitutes both an error of law and an abuse of
discretion because the Board failed to exercise its discretion as now required by the
Parole Code and requires this Court to vacate the Board’s decision and remand for
reconsideration.1
1
As the Supreme Court has explained:
“Abuse of discretion” is synonymous with a failure to exercise a
sound, reasonable, and legal discretion. It is a strict legal term
indicating that [an] appellate court is of [the] opinion that there was
commission of an error of law by the trial court. It does not imply
intentional wrong or bad faith, or misconduct, nor any reflection on
the judge but means the clearly erroneous conclusion and judgment—
one that is clearly against logic and effect of such facts as are
presented in support of the application or against the reasonable and
probable deductions to be drawn from the facts disclosed upon the
hearing; an improvident exercise of discretion; an error of law.
Commonwealth v. Powell, 590 A.2d 1240, 1244 n.8 (Pa. 1991) (citation omitted).
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Accordingly, I respectfully dissent.
_________________________________
DAN PELLEGRINI, President Judge
Judge Leavitt joins in this dissenting opinion.
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