IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jeffrey J. Burke, :
Petitioner :
:
v. :
:
Pennsylvania Board of :
Probation and Parole, : No. 847 C.D. 2018
Respondent : Submitted: February 8, 2019
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: March 25, 2019
Jeffrey J. Burke (Burke) petitions this Court for review of the
Pennsylvania Board of Probation and Parole’s (Board) May 17, 2018 order denying
his request for administrative relief. Burke presents two issues for this Court’s
review: (1) whether Burke voluntarily admitted to his parole violation and waived his
right to a revocation hearing and counsel; and (2) whether the Board violated Burke’s
right to a timely revocation hearing. After review, we affirm in part and vacate and
remand in part.
Burke is an inmate at the State Correctional Institution (SCI) at Coal
Township. On November 12, 2013, Burke was paroled from his 2- to 5-year sentence
for drug possession (Original Sentence). See Certified Record (C.R.) at 4-7. At that
time, Burke’s Original Sentence maximum release date was September 16, 2016. See
C.R. at 6. Burke had agreed to conditions governing his parole, including:
If you are arrested on new criminal charges, the Board has
the authority to lodge a detainer against you which will
prevent your release from custody, pending disposition of
those charges, even though you may have posted bail or
been released on your own recognizance from those
charges.
....
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
paroled/reparoled, with no credit for time at liberty on
parole [(i.e., street time)1].
C.R. at 8. Burke did not object to the above-quoted parole conditions.
On January 5, 2016, a criminal complaint was filed against Burke in
Northumberland County for driving under the influence of alcohol (DUI) – general
impairment, DUI – highest rate (blood alcohol level .224), a stop sign violation,
careless driving and reckless driving (New Charges) on December 13, 2015. See
C.R. at 11-16. On January 9, 2016, Burke was arrested on the New Charges. See
C.R. at 17. On April 19, 2016, Burke posted bail and the Board received notice of
Burke’s New Charges. See C.R. at 17, 37. On April 27, 2016, the Board lodged a
warrant to commit and detain Burke, and he was incarcerated at SCI-Benner
Township. See C.R. at 17, 46. On September 16, 2016, Burke was released from
SCI-Benner Township due to the expiration of his Original Sentence. See C.R. at 46.
On November 2, 2016, Burke pled guilty to one of the New Charges (the
misdemeanor DUI – general impairment charge). See C.R. at 24. On January 30,
2017, Burke was sentenced to 6 months of probation, plus costs and fines. See C.R.
at 42. On February 15, 2017, the Board relodged its detainer2 and incarcerated Burke
1
“Street time” refers to “the period of time a parolee spends at liberty on parole.” Dorsey v.
Pa. Bd. of Prob. & Parole, 854 A.2d 994, 996 n.3 (Pa. Cmwlth. 2004).
2
The Board’s detainer warrant reflected: “Although [Burke’s] [O]riginal [S]entence was [to
expire on September 16, 2016], the maximum sentence is being extended due to a new conviction.
The new maximum sentence will be computed upon recording of the Board’s final action.” C.R. at
27.
2
at SCI-Coal Township.3 See C.R. at 27, 46. On that same day, Burke admitted to his
criminal parole violation and waived his right to a revocation hearing and counsel.
See C.R. at 28. By decision recorded May 11, 2017 (mailed May 26, 2017), the
Board recommitted Burke “to a[n SCI] as a convicted parole violator [(CPV)] to
serve 6 months [of] backtime, when available, pending resolution of [his]
outstanding criminal charges.”4 C.R. at 47 (emphasis added). The Board’s May
11, 2017 decision did not specify Burke’s new maximum sentence release date.
On June 27, 2017, Burke submitted an Administrative Remedies Form
challenging the Board’s decision recorded May 11, 2017 (mailed May 26, 2017).
The Administrative Remedies Form requested:
Petition for Administrative Review (appeal of a revocation decision
regarding sentence calculations):
Check the Reason(s) for Relief and Explain:
□ Sentence Credit Challenge □ Reparole Eligibility Date
□ Order of Service of Sentences □ Other
Explanation: _____________________________________
Burke checked the “Sentence Credit Challenge” and “Other” boxes on the
Administrative Remedies Form, and under “Explanation” specified: “Credit for
confinement on offense – SCI[-]Benner Township [April 27, 2016] to [September 16,
2016] and SCI[-]Coal Township [February 15, 2017] to present[,] as I am not
incarcerated for any reason but parole violation/conviction[.] New max date after
3
“It is well-settled law that the Board retains jurisdiction to recommit an individual as a
parole violator after the expiration of the maximum term, so long as the crimes that lead to the
conviction occurred while the individual is on parole.” Miskovitch v. Pa. Bd. of Prob. & Parole, 77
A.3d 66, 73 (Pa. Cmwlth. 2013). Here, the crime to which Burke pled guilty after his Original
Sentence expired occurred while he was on parole. Accordingly, the Board had jurisdiction to
recommit Burke as a convicted parole violator.
4
The record reveals that Burke had no outstanding criminal charges at that time.
3
Board action of 6 months [of] backtime for conviction of ungraded misdemeanor.”
C.R. at 49.
On November 22, 2017, Burke requested the status of his appeal. See
C.R. at 53. By decision recorded May 9, 2018 (mailed May 17, 2018), the Board
“refer[red] to Board action recorded on [May 11,] 2017 to recommit [Burke] to a[n
SCI] as a [CPV] to serve 6 months [of] backtime[,]” and recalculated Burke’s
maximum sentence release date to July 16, 2019. C.R. at 57. In a separate order
mailed on May 17, 2018, the Board denied Burke’s request for administrative relief,
stating:
[T]he [decision recorded May 11, 2017 (mailed May 26,
2017)] recommits you as a [CPV] to serve 6 months when
available. The ‘when available’ language indicated that you
were not available to re-start service of your [O]riginal
[S]entence at the time of the Board’s decision. In this case,
you were unavailable because the Board determined that
you had not yet been sentenced on your new Allegheny
County charges.[5] Thus, the Board properly recommitted
you when available pending your sentencing and release
from county prison. However, the Board did mail you a
recalculation decision on May 17, 2018 (recorded [May 9,]
2018) that reflects that appropriate credit allocation. This
decision triggered your appeal rights on the calculation
issue.
Purely for your information, the Board recalculated your
maximum sentence date to July 16, 2019, based on your
recommitment as a [CPV]. The decision to recommit you
as a [CPV] gave the Board statutory authority to recalculate
your sentence to reflect that you received no credit for the
period you were at liberty on parole. 61 Pa. C.S. §
6138(a)(2). The Board denied you credit for time at liberty
on parole in this instance. The Board advised you of this
potential penalty on the parole conditions you signed on
November 8, 2013. You also had constructive notice of this
potential penalty via the statute. Additionally, the ability to
5
The record does not reveal that Burke had any charges filed against him in Allegheny
County.
4
challenge the recalculation decision after it is imposed
satisfies your due process rights. Therefore, the Board’s
recalculation of your maximum sentence date did not
violate any constitutional provisions, including double
jeopardy. Young v. Commonwealth, 409 A.2d 843 (Pa.
1979). Furthermore, although you pled guilty after the
expiration of your original maximum sentence date of
September 16, 2016, you committed the new criminal
offense on December 13, 2015, while at liberty on parole.
C.R. at 59 (emphasis added). Burke appealed pro se to this Court.6 This Court
appointed Northumberland County Public Defender, James L. Best, Esquire
(Counsel) to represent Burke on appeal.7
Burke first argues that although he signed the Waiver of Revocation
Hearing and Counsel/Admission Form (Form), he did not voluntarily admit to his
parole violation or waive his right to a revocation hearing and counsel. However,
despite that Burke raises an involuntary waiver issue in his Statement of Questions
Presented, he did not further argue or develop it in his brief. The law is well
established that “[a] party’s failure to develop an issue [from the Statement of
Questions Presented] in the [A]rgument section of its brief constitutes waiver of the
issue.” In re Condemnation by Dep’t of Transp., 76 A.3d 101, 106 n.8 (Pa. Cmwlth.
2013). Accordingly, this issue is waived.8
6
“Our scope of review of the Board’s decision denying administrative relief is limited to
determining whether necessary findings of fact are supported by substantial evidence, an error of
law was committed, or constitutional rights have been violated.” Fisher v. Pa. Bd. of Prob. &
Parole, 62 A.3d 1073, 1075 n.1 (Pa. Cmwlth. 2013).
7
The Court’s order afforded Counsel an opportunity to file an amended petition for review,
but he did not do so. Counsel filed a brief on Burke’s behalf on November 9, 2018. By November
29, 2018 letter, in accordance with Commonwealth v. Ellis, 626 A.2d 1137 (Pa. 1993) (prohibiting
hybrid representation in criminal cases), this Court notified Counsel that Burke filed a pro se
communication entitled “Motion to Waive Counsel,” and stated that this Court would take no
further action on pro se communications filed herein.
8
Notwithstanding, in Burke’s pro se petition for review, he admitted to signing the Form,
but asserted that he had “no recollection of what it was[,]” Pet. for Review at 3, and claimed he
“naively signed with the assumption it would expedite the process.” Pet. for Review at 4. The
record evidence confirms that Burke signed the Form, thereby admitting that he was convicted of a
5
Burke next asserts that the Board violated his right to a timely revocation
hearing by waiting until his federal sentence expired to revoke his parole.9 Fairly
encompassed in Burke’s argument on that issue are Burke’s claims that the Board
erred in calculating his recommitment time. Specifically, Burke maintains that since
he was immediately available to serve his backtime when the Board issued its
decision recorded May 11, 2017 (mailed May 26, 2017), he should not have served
more than 38 days after February 15, 2017. Burke also contends that the Board erred
by not specifying why it did not award him credit for time he spent at liberty on
parole as the Pennsylvania Supreme Court required in Pittman v. Pennsylvania Board
of Probation & Parole, 159 A.3d 466 (Pa. 2017).10
Because the issue of the revocation hearing’s timeliness is not argued or
developed in Burke’s brief, it is also waived.11 Dep’t of Transp. Pennsylvania Rule
of Appellate Procedure 1551(a) declares that “[n]o question shall be heard or
considered by the court which was not raised before the government unit . . . .”
Pa.R.A.P. 1551(a). Specifically, “[i]ssues that are not raised before the Board . . . in
the parolee’s administrative appeal are waived and cannot be considered for the first
time on appeal. Section 703(a) of the Administrative Agency Law, 2 Pa. C.S. §
criminal charge while on parole, and waiving his right to a parole revocation hearing and counsel
“[w]ith full knowledge and understanding” of his rights and “of [his] own free will, without any
promise, threat or coercion.” C.R. at 28. The Form reflects that Burke understood that his
admission could be withdrawn within 10 days. See C.R. at 28. Burke did not withdraw his waivers.
Accordingly, Burke’s argument that he did not voluntarily admit to the New Charges or waive his
right to a hearing and counsel is meritless.
9
Although Counsel references a federal sentence, there is nothing in the record to support
that Burke ever served a federal sentence. This Court is dismayed by the sloppiness of Counsel’s
brief and the Board’s decisions in this case, both obviously having mixed facts of Burke’s case with
someone else’s case.
10
Pittman was decided on April 26, 2017.
11
Regardless, this Court has held that once a parolee waives his right to a parole revocation
hearing, he also waives his right to later challenge the hearing’s timeliness. Fisher. Therefore,
even if the issue was not waived, it has no merit.
6
703(a); Pa. R.A.P. 1551(a)[.]” Anderson v. Talaber, 171 A.3d 355, 360 (Pa. Cmwlth.
2017); see also McCaskill v. Pa. Bd. of Prob. & Parole, 631 A.2d 1092, 1094-95 (Pa.
Cmwlth. 1993) (“[I]ssues not raised by a CPV before the Board . . . are waived for
purposes of appellate review by this [C]ourt.”).
Regarding the Board’s recommitment calculations,
Section 6138(a)(1) of the Prisons and Parole Code (Parole
Code) provides that
[a] parolee under the jurisdiction of the [B]oard
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 [B]oard be
recommitted as a parole violator.
61 Pa. C.S. § 6138(a)(1). Where the [Board] determines to
recommit a parolee as a [CPV],
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.
61 Pa. C.S. § 6138(a)(2) (emphasis added). Section
6138(a)(2.1) of the Parole Code provides that, ‘[t]he
[Board] may, in its discretion, award credit to a parolee
recommitted . . . for the time spent at liberty on parole,’
with three enumerated exceptions, none of which are
applicable in this case. 61 Pa. C.S. § 6138(a)(2.1).
Recently, in Pittman, our Supreme Court explained that,
when the [Board] exercises its discretion under Section
6138(a)(2.1) [of the Parole Code], it ‘must articulate the
basis for its decision to grant or deny a [CPV] credit for
time served at liberty on parole.’ [Pittman,] 159 A.3d at
474.
7
Smoak v. Talaber, 193 A.3d 1160, 1163-64 (Pa. Cmwlth. 2018) (footnotes omitted).
Here, the Board declared that Burke was not available when the Board
issued the May 11, 2017 decision (mailed May 26, 2017) because he “had not yet
been sentenced on [his] new Allegheny County charges. Thus, the Board properly
recommitted [him] when available pending [his] sentencing and release from county
prison.”12 C.R. at 59. However, there is no record of Burke having new charges in
Allegheny County for which he was awaiting sentencing. Rather, when the Board
issued its May 11, 2017 decision, since Burke had already been sentenced in
Northumberland County (only to probation) on his New Charges and no other actions
were pending against him, he was then available. In fact, by the time the Board
formally recommitted Burke on May 11, 2017, he had served 142 days under the
Board’s detainer from April 27, 2016 until his Original Sentence expired on
September 16, 2016, and he had been incarcerated for 85 days under the Board’s
detainer since February 15, 2017, based solely on his criminal parole violation.13 Yet,
despite Burke’s June 27, 2017 timely appeal, and his November 22, 2017 status
request, the Board delayed clarification until May 9, 2018 (mailed May 17, 2018).
Based upon this record, when Burke was paroled on November 12,
2013, he had 1,039 days remaining on his Original Sentence (i.e., 2 years, 5 months
and 15 days). He committed a crime while on parole. The Board had jurisdiction to,
12
In its brief, the Board represented that Burke was to be recommitted “when available”
because “it did not have all the information at that time to make a final recalculation decision,” but
that it finally recalculated his maximum sentence release date in its May 9, 2018 decision (mailed
May 17, 2018). Board Br. at 7.
13
“The Board is required to give [CPVs] credit on their original sentence for any pre-
sentence confinement that a parolee is incarcerated solely on the Board’s detainer.” Kerak v. Pa.
Bd. of Prob. & Parole, 153 A.3d 1134, 1142 (Pa. Cmwlth. 2016); see also Gaito v. Pa. Bd. of Prob.
& Parole, 412 A.2d 568 (Pa. 1980). More specifically, “where[, as here,] a parolee is convicted and
sentenced to a period of probation, pretrial custody time will be credited to the parolee’s original
sentence [] where bail has been satisfied.” Harold v. Pa. Bd. of Prob. & Parole, 797 A.2d 393, 395
(Pa. Cmwlth. 2002).
8
and did recommit him, to serve 6 months of his Original Sentence. When he was
returned to the Board’s custody on February 15, 2017 to serve his backtime, he had
already served 142 days of backtime from April 27, 2016, to September 16, 2016, and
the Board properly credited him with that time. See C.R. at 55. Therefore, Burke had
897 days remaining to be served on his Original Sentence. Adding 897 days to
Burke’s January 30, 2017 sentencing date, the Board properly recalculated Burke’s
maximum sentence release date to be July 16, 2019.
This Court acknowledges that, after the Board reissued a detainer order
on February 15, 2017, Burke was recommitted to serve his backtime. Although, at
that point, Burke had only approximately 38 days of backtime yet to be served, he
remained incarcerated at SCI-Coal Township for 703 days until his January 19, 2019
reparole.14 Clearly, Burke served more than his 6-month backtime recommitment.
However,
[a]s [this Court] stated in Krantz v. Pennsylvania Board of
Probation & Parole, . . . 483 A.2d 1044 ([Pa. Cmwlth.]
1984), ‘when the Board imposes backtime, it is establishing
a new parole eligibility date for the parolee, in effect, a
recomputed minimum term. Upon completion of the
Board-imposed backtime, the parolee has a right to
again apply for parole and have the Board consider that
application.’ Id. . . . at 1048.
Bowman v. Pa. Bd. of Prob. & Parole, 709 A.2d 945, 948-49 (Pa. Cmwlth. 1998)
(emphasis added). Accordingly, Burke was not entitled to automatic reparole after he
served his remaining backtime days, and “[t]he Board [was] not required by either
case law or statute to calculate an actual reparole eligibility date for [him]; [Burke]
[was] free to calculate the date on which he [was] eligible for reparole himself and
[could have] appl[ied] for it at that point[.]” Id. at 949.
14
The Board’s records reflect that Burke was reparoled on January 19, 2019.
9
Finally, the Board contends that Burke waived his Pittman challenge by
failing to raise it in his June 27, 2017 appeal to the Board. In Pittman, our Supreme
Court concluded that if the Board exercises its discretion pursuant to Section
6138(a)(2.1) of the Parole Code and denies credit, it “must provide a
contemporaneous statement explaining its reason for denying a CPV credit for time
spent at liberty on parole.” Id. at 475. The Supreme Court observed that the Board’s
statement need not “be extensive and a single sentence explanation is likely sufficient
in most instances.” Id. at 475 n.12.
Burke checked the “Sentence Credit Challenge” and “Other” boxes on
his Administrative Remedies Form, and explained that he challenged his new
maximum sentence release date. See C.R. at 49. He did not expressly argue that the
Board erred by failing to state the reasons why it did not credit him for time he spent
at liberty on parole. However, in Johnson v. Pennsylvania Board of Probation &
Parole, ___ A.3d ___, (Pa. Cmwlth. No. 750 C.D. 2018, filed March 22, 2019), this
Court ruled that where a parolee checks the “Sentence Credit Challenge” box on the
Administrative Remedies Form and is seeking credit for time he spent at liberty on
parole, particularly where the record does not reflect that the Board articulated to the
parolee why street time credit was denied, a Pittman challenge is subsumed therein.
See also Anderson; Cherry v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth. No. 623 C.D.
2018, filed November 15, 2018); Oliver v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth.
No. 1335 C.D. 2017, filed May 24, 2018); Plummer v. Pa. Bd. of Prob. & Parole (Pa.
Cmwlth. No. 1484 C.D. 2017, filed May 14, 2018).15
15
This Court acknowledges that its unreported memorandum opinions may only be cited
“for [their] persuasive value, but not as binding precedent.” Section 414(a) of the Commonwealth
Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a). The unreported cases cited
herein are quoted for their persuasive value.
10
There is no record evidence in this case that Burke was notified of the
Board’s Pittman explanation. It was absent from the Board’s recommitment decision
recorded May 9, 2018 (mailed May 17, 2018). See C.R. at 57-58. Nor was the
Board’s Pittman explanation contained in the decision recorded May 11, 2017
(mailed May 26, 2017), to which the May 9, 2018 decision referred. See C.R. at 47.
It was also missing from the Board’s May 17, 2018 order, affirming the Board’s May
11, 2017 action. See C.R. at 59-60. In fact, the record is devoid of any
documentation showing that the Board communicated to Burke why he was denied
credit for his street time. Because the record supports the conclusion that the Board
failed to apprise Burke of its Pittman explanation, the Board was on notice that
Burke’s sentence calculation challenge included a Pittman challenge.16 Under the
circumstances, this Court holds that Burke did not waive his Pittman challenge.
However, notwithstanding that the Board accurately calculated Burke’s
recommitment time and his new maximum sentence release date without street time
credit, because it did not “provide a contemporaneous statement explaining its reason
for denying [Burke] credit for time [he] spent at liberty on parole[,]” as required by
Pittman, the Board abused its discretion. Id. at 475. Accordingly, the Board’s May
17, 2018 order is vacated to the extent it affirmed the recalculation of Burke’s
maximum sentence date, and this matter is remanded for the Board to issue a new
decision on whether to credit Burke with street time and, if such credit is denied, the
Board must explain its reasons in accordance with Pittman. See Riley v. Talaber (Pa.
16
“Ambiguous forms will be construed against the drafting government agency.” Johnson,
___ A.3d at ___ n.___, slip op. at 9 n.8. “This Court strongly suggests that rather than perpetuating
a game of waiver ‘gotcha,’ and/or having to presume in perpetuity that a Pittman challenge is
subsumed within a parolee’s sentence credit challenge, the Board could simply revise the
administrative remedies form to include a separate Pittman challenge box.” Johnson, ___ A.3d at
___ n.___, slip op. at 9 n.8.
11
Cmwlth. No. 1459 C.D. 2017, filed January 18, 2019); see also Coffield v. Pa. Bd. of
Prob. & Parole (Pa. Cmwlth. No. 1621 C.D. 2017, filed January 17, 2019).
For all of the above reasons, the portion of the Board’s decision
revoking Burke’s parole and recommitting him as a CPV to serve backtime is
affirmed. The portion of the Board’s order recalculating Burke’s maximum sentence
release date is vacated, and this case is remanded for the Board to issue a new
decision on whether to credit Burke with street time and, if such credit is denied, the
Board shall state its explanation in accordance with Pittman. The Board shall then
recalculate Burke’s maximum sentence release date accordingly.
___________________________
ANNE E. COVEY, Judge
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jeffrey J. Burke, :
Petitioner :
:
v. :
:
Pennsylvania Board of :
Probation and Parole, : No. 847 C.D. 2018
Respondent :
ORDER
AND NOW, this 25th day of March, 2019, the portion of the
Pennsylvania Board of Probation and Parole’s (Board) May 17, 2018 order revoking
Jeffrey J. Burke’s (Burke) parole and recommitting him as a convicted parole violator
to serve backtime is affirmed. The portion of the Board’s order recalculating Burke’s
maximum sentence release date is vacated, and this case is remanded for the Board to
issue a new decision consistent with this opinion.
Jurisdiction relinquished.
___________________________
ANNE E. COVEY, Judge