IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert McGrath, :
Petitioner :
:
v. : No. 712 C.D. 2018
: SUBMITTED: February 15, 2019
Pennsylvania Board of Probation :
and Parole, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: October 10, 2019
Petitioner Robert McGrath petitions for review nunc pro tunc of Respondent
Pennsylvania Board of Probation and Parole’s (Board) March 23, 2018 ruling
affirming its October 18, 2016 decision recommitting McGrath as a convicted parole
violator (CPV) to serve two years, one month, and six days of backtime. After
thorough consideration, we affirm the challenged ruling in part and vacate it in part,
and remand this matter to the Board for further consideration consistent with our
Supreme Court’s decision in Pittman v. Pennsylvania Board of Probation and
Parole, 159 A.3d 466 (Pa. 2017).
On January 15, 2013, McGrath pleaded guilty in the Court of Common Pleas
of Bradford County (Trial Court) to one count each of driving under the influence
and driving while operating with a suspended or revoked license. McGrath received
an aggregate sentence of 1 year, 2 months, and 29 days-to-4 years in state prison.
Certified Record (C.R.) at 1. McGrath was paroled on April 2, 2014, at which point
his maximum date was November 9, 2016. On June 29, 2014, McGrath was arrested
and charged with two counts of disorderly conduct, two counts of criminal trespass,
and one count of public drunkenness. Id. at 5, 20. McGrath was arraigned on July 7,
2014 and released on nonmonetary bail that same day, but bail was revoked after his
parole officer found McGrath passed out from alcohol intoxication during a routine
check of McGrath’s residence on October 10, 2014. Id. at 20. On December 4, 2014,
McGrath pleaded guilty to one count each of disorderly conduct and public
drunkenness. The Trial Court then sentenced McGrath to 4-to-12 months’
imprisonment, to be served consecutively to his January 2013 sentence. Id. at 3.1
On April 10, 2015, McGrath was paroled from his January 2013 sentence, at
which point he began serving his December 2014 sentence. Id. at 37. He was
transferred to a community corrections center on October 7, 2015, whereupon he
was released to an approved home plan the following day. Id. On November 10,
2015, McGrath was again arrested during the early morning hours, when local police
officers found a violently belligerent, intoxicated McGrath outside his residence,
which was “engulfed in flames[.]” Id. at 12-15. That same day, the Board ordered
that McGrath be detained for 48 hours, due to violations of his parole terms. Id. at
10. On November 11, 2015, McGrath was charged with two counts of arson in
Athens Borough, after which the Board lodged another detainer upon him. Id. at 11,
1
Some of these facts pertaining McGrath’s June 29, 2014 arrest, subsequent plea, and
sentencing are drawn from relevant criminal records, which can be found under docket number
CP-08-CR-0000554-2014. We are permitted to take judicial notice of this information. See, e.g.,
Pa. R.E. 201(b)(2); Doxsey v. Com., 674 A.2d 1173, 1174 (Pa. Cmwlth. 1996).
2
37.2 On May 31, 2016, McGrath pleaded no contest to one count of reckless burning
or exploding and was subsequently sentenced by the Trial Court on August 15, 2016,
to serve 12-to-24 months, consecutive to his previous sentences. Id. at 38, 44, 55-
56.3
McGrath waived his right to a parole violation hearing and admitted to the
veracity of his most recent conviction. Id. at 23-24. On August 29, 2016, the Board
ordered McGrath to serve the remainder of his unexpired January 2013 sentence as
backtime without specifying the precise length of the imposed backtime, nor the
beginning and end dates for its service. The Board merely noted that recommitment
would occur once McGrath was “available[.”]. Id. at 53. On October 18, 2016, the
Board issued another decision specifying that the remaining time left on McGrath’s
January 2013 sentence was two years, one month, and six days, that McGrath was
returned to the Board’s custody on August 16, 2016, and calculated his new
maximum date as September 24, 2018. Id. at 57, 60. Without explanation, the Board
elected not to award credit to McGrath for time served at liberty on parole. See id. at
24-31, 57-58, 60 (Board’s parole violation hearing report, order to recommit, and
October 18, 2016 decision).
Over the next 17 months, McGrath repeatedly sought to challenge this
decision at the administrative level. On October 18, 2016, McGrath sent a pro se
administrative remedies form to the Board, on which he checked the “Sentence
2
McGrath was unable to make bail and, thus, was detained on both the Board’s warrant
and pending resolution of these new charges. See C.R. at 39. On January 11, 2016, the Board
formally ordered McGrath detained pending resolution of these charges. Id. at 22.
3
In connection with the plea agreement, the Trial Court granted the Commonwealth of
Pennsylvania’s request “[w]ith no objection, to amend the information to add a count of Reckless
Burning or Exploding, 18 Pa. C.S.A. §3301(d)(l), a felony of the third degree.” Id. at 38.
3
Credit Challenge” box on the form and claimed that the Board had miscalculated his
maximum date on the January 2013 sentence by failing to give him credit for time
spent in Bradford County Jail between November 10, 2015, and September 8, 2016.
Id. at 61.4 On November 10, 2016, McGrath sent another administrative remedies
form to the Board.5 He again checked the “Sentence Credit Challenge” box on the
form, and explained in an attached narrative statement that he believed the Board
had erroneously failed to credit him for time served at liberty on parole between
April 10, 2015, and October 9, 2015, and had therefore unlawfully extended his
maximum date. Id. at 63-68. On October 4, 2017, McGrath sent a third
administrative remedies form to the Board inquiring as to the status of his previous
forms and requested reparole. Id. at 69-70. On January 30, 2018, McGrath sent a
letter to the Board, recapitulating his prior arguments and specifying that he was
requesting 6-to-13 months’ credit. McGrath wanted this credit to be primarily
applied towards the remaining time left on his January 2013 sentence. Id. at 71-73.
On March 12, 2018, McGrath sent a fourth administrative remedies form to the
Board asserting that the Board erred by failing to give him credit for seven months
of time served at liberty on parole when he was a technical parole violator, as well
as six months of time during which he was incarcerated in state prison. Id. at 74-76.
4
It appears that McGrath was somehow able to get a copy of the Board’s October 18, 2016
decision, which was recorded on October 3, 2016, prior to its mailing, prompting him to
coincidentally file his form on the same day this decision was mailed to him. See, e.g., id. at 71
(letter from McGrath to the Board, in which he stated that his administrative remedies form
challenged the Board’s October 3, 2016 decision).
5
When McGrath filed his second form, he was represented by Chief Public Defender David
Crowley, Esquire, of the Centre County Public Defender Office, but was thereafter pro se. See id.
at 63-75.
4
On March 23, 2018, the Board issued a ruling affirming its October 18, 2016
decision. According to the Board, McGrath was not entitled to any credit for time
served at liberty on parole, because he was a CPV, leaving him with an unexpired
term on his January 2013 sentence of 769 days. Id. at 77. In addition, the Board
explained that it could not give him credit for the period of presentence incarceration
between November 11, 2015, and August 15, 2016, as he was being held both on the
Board’s detainer and the unpaid bail on the newer charges. Id. The Board did,
however, find that McGrath should have been given one day of credit, since he was
held solely on the Board’s detainer between November 10 and November 11, 2015.
Id. at 77. Finally, the Board noted that backtime service cannot start until a parolee
is formally declared a parole violator, which did not occur in this matter until August
16, 2016. Id. The Board consequently concluded it had correctly calculated
McGrath’s maximum date, as September 24, 2018 was 769 days after August 16,
2016. Id.
On appeal,6 McGrath raises essentially two arguments. First, the Board erred
by failing to explain why it declined to give him credit for time served at liberty on
parole. 7 Second, the Board improperly extended his maximum date by failing to give
6
On May 24, 2018, McGrath sought leave to file a petition for review nunc pro tunc, to
which the Board offered no objection. See Petition for Review Nunc Pro Tunc at 1-3. Our Court
granted McGrath leave to file his petition nunc pro tunc on June 22, 2018, via per curiam order.
7
Subsection 6138(a)(2.1) of the Prisons and Parole Code (Parole Code) states:
The [B]oard may, in its discretion, award credit to a parolee
recommitted under [Subsection 6138(a)](2) [of the Parole Code] 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
5
him credit for such time served between April 10, 2015, and October 9, 2015. See
McGrath’s Br. at 5-11. In response, the Board argues that McGrath waived his ability
to challenge the Board’s failure to offer such an explanation, as he did not raise this
challenge at the administrative level. Board’s Br. at 7. The Board also maintains that
McGrath was actually on constructive parole8 between April 10, 2015, and October
9, 2015, rather than at liberty on parole. Id. at 7-8.
Here, the recalculated maximum date on McGrath’s original January 2013
sentence was September 24, 2018. Therefore, it appears that McGrath has already
completed the full term of that sentence. As this Court has held, “the expiration of a
parolee’s maximum term renders an appeal of a Board revocation order moot. It is
well settled that an appeal will be dismissed when the occurrence of an event renders
it impossible for the court to grant the requested relief.” Taylor v. Pa. Bd. of Prob.
& Parole, 746 A.2d 671, 674 (Pa. Cmwlth. 2000) (citations omitted). We will refuse
to dismiss a moot appeal “only if the issues involved are capable of repetition yet
42 Pa. C.S. Ch. 97 Subch. H (relating to registration of
sexual offenders).
(ii) The parolee was recommitted under [S]ection 6143 [of
the Parole Code] (relating to early parole of inmates subject
to Federal removal order).
61 Pa. C.S. § 6138(a)(2.1).
Our Supreme Court has held that, “in order to effectuate the dictates of the Pennsylvania
Constitution, to honor the basic notions of due process, and to comport with the intent of the
General Assembly in enacting Subsection 6138(a)(2.1), . . . the Board must provide a
contemporaneous statement explaining its reason for denying a CPV credit for time spent at liberty
on parole.” Pittman, 159 A.3d at 475.
8
“A prisoner on constructive parole is paroled from his original sentence to immediately
begin serving a new sentence.” Spruill v. Pa. Bd. of Prob. & Parole, 158 A.3d 727, 730 (Pa.
Cmwlth. 2017).
6
likely to evade review and of important public interest, or where a party will suffer
some detriment without [our] court’s decision.” Id.
In the instant matter, we note that McGrath is still currently incarcerated at
State Correctional Institution - Waymart. See Inmate Locator, PA. DEP’T OF CORR.,
http://inmatelocator.cor.pa.gov (last visited September 5, 2019). By law, McGrath
must have first completed the backtime imposed by the Board pertaining to his
original January 2013 sentence before starting to serve his more recent 2016 state
sentence. See 61 Pa. C.S. § 6138(a)(5)(i). However, if McGrath’s claims are accurate
(i.e., the Board did not properly explain why it declined to give him credit for street
time and incorrectly calculated his maximum date by virtue of not giving him such
credit), then it is possible that the Board may have erroneously impeded McGrath’s
ability to start serving his 2016 sentence and, thus, improperly delayed his ultimate
release from state custody. Consequently, we find that McGrath may “suffer some
detriment without [our] court’s decision[,]” Taylor, 746 A.2d at 674. For this reason,
McGrath’s arguments are thus reviewable under an exception to the mootness
doctrine.
Preliminarily, we find that McGrath did not waive his claim that the Board
failed to provide a proper, contemporaneous explanation for why it declined to give
him credit for time served at liberty on parole. Given that McGrath specifically
indicated to the Board that he was making a sentence credit challenge and took issue
with the Board’s failure to credit him for time served at liberty on parole, he has
preserved this issue for our consideration. See Johnson v. Pa. Bd. of Prob. & Parole,
206 A.3d 88, 93-94 (Pa. Cmwlth. 2019) (checking sentence credit challenge box on
administrative remedies form, coupled with disputing Board’s time calculations,
preserved Pittman claim for appellate review); Anderson v. Talaber, 171 A.3d 355,
7
361 (Pa. Cmwlth. 2017) (a claim that the Board improperly failed to award credit
for time served at liberty on parole “fairly encompasses the argument addressed in
Pittman”).
We also note that both the Board’s October 18, 2016 decision and McGrath’s
October 18, 2016 administrative remedies form were mailed before Pittman was
decided on April 26, 2017, while the Board’s March 23, 2018 ruling affirming the
October 18, 2016 decision was issued after Pittman. This fact pattern is similar to
that of Plummer v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No.
1484 C.D. 2017, filed May 14, 2018), 2018 WL 2187872. 9 In Plummer, we reasoned
that
[s]ince applicable law did not require the Board to explain
its credit decision when Plummer filed his administrative
appeal, he did not question the Board’s lack of
explanation.
...
Therefore, the petition for review was Plummer’s earliest
opportunity to question the denial of credit for time spent
at liberty on parole based on the Board’s failure to explain
its credit decision.
Slip op. at 7-8, 2018 WL 2187872 at *3-4. Like Plummer, McGrath’s first chance to
specifically invoke the holding of Pittman came when he filed his Petition for
Review Nunc Pro Tunc, which provides another basis for deeming the Board’s
waiver argument to be without merit.10
9
See Commonwealth Court Internal Operating Procedure 414(a), 210 Pa. Code § 69.414(a)
(unreported Commonwealth Court opinions issued after January 15, 2008 may be cited for their
persuasive value).
10
Though, as we have already noted, McGrath sent multiple administrative remedies forms
and a letter to the Board between October 18, 2016, and March 12, 2018, the Board’s
administrative regulations only afford a 30-day window for administrative challenges and impose
a limit of one administrative challenge per parole revocation decision. See 37 Pa. Code § 73. 1(a)-
8
Turning to the substance of McGrath’s arguments,11 we agree with McGrath
that the Board failed to abide by the Parole Code’s dictates regarding withholding
credit from a CPV for time served at liberty on parole. As our Supreme Court
recognized in Pittman, in certain circumstances the Board has discretionary power
via the Parole Code to grant such credit, but must provide a contemporaneous and
reasonable explanation if it declines to make such an award. 159 A.3d at 473-75.
Given that the Board did not articulate such an explanation, and instead concluded
that McGrath was not entitled to credit for time served at liberty on parole because
he was a CPV, it abused its discretion and committed an error of law.
Consequently, we affirm the Board’s March 23, 2018 ruling in part, with
regard to the Board’s decision to recommit McGrath as a CPV, and vacate this ruling
in part, to the extent the Board failed to explain why it did not award McGrath credit
for time served at liberty on parole.12 Furthermore, we remand this matter to the
Board, with instructions that it consider whether, given the factual circumstances,
McGrath is entitled to credit for time served at liberty on parole and, in addition, that
it provide a sufficient explanation for the resultant decision.13 See Pittman, 159 A.3d
(b). Therefore, McGrath could not have properly raised a Pittman argument before the Board
between when our Supreme Court ruled upon that case and when the Board issued its decision on
October 18, 2016.
11
Our standard of review in this matter is limited to determining whether the Board violated
McGrath’s constitutional rights, committed an error of law, or made findings of fact that were not
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §
704.
12
Because we dispose of McGrath’s appeal via his Pittman claim, we need not address the
merits of his remaining argument.
13
Though Pittman was issued after the Board’s October 18, 2016 decision, its holding must
be applied both prospectively and retroactively. See Anderson, 171 A.3d at 362.
9
at 468 (Board’s incorrect conclusion that it did not have discretion to award credit
to CPV for street time violated Subsection 6138(a)(2.1) of the Parole Code, an error
which required the challenged Board decision to be vacated, as well as a remand for
further proceedings).14
__________________________________
ELLEN CEISLER, Judge
14
Furthermore, we cannot excuse the Board’s egregious, 17-month delay in ruling upon
McGrath’s administrative remedies forms, by virtue of which the Board effectively ran out most
of the clock on McGrath’s 2013 sentence. Though we recognize that the Board has limited
manpower to deal with the volume of administrative challenges which it receives, we remind the
Board that it must nonetheless fulfill its statutory duties, and its obligations to those under its
supervision, with diligence and reasonable promptitude. As the founder of our Commonwealth
once recognized, “to delay Justice is Injustice.” WILLIAM PENN, SOME FRUITS OF SOLITUDE 86
(Headley Bros. 1905) (1693).
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert McGrath, :
Petitioner :
:
v. : No. 712 C.D. 2018
: Submitted: February 15, 2019
Pennsylvania Board of Probation :
and Parole, :
Respondent :
ORDER
AND NOW, this 10th day of October, 2019, it is hereby ORDERED that the
Pennsylvania Board of Probation and Parole’s (Board) March 23, 2018 ruling,
through which it denied Petitioner Robert McGrath’s requests for administrative
relief and affirmed its October 18, 2016 decision, is AFFIRMED IN PART, with
regard to the Board’s decision to recommit McGrath as a convicted parole violator,
and VACATED IN PART, to the extent the Board failed to explain why it did not
award McGrath credit for time served at liberty on parole. It is FURTHER
ORDERED that this matter is remanded to the Board for consideration consistent
with Pittman v. Pennsylvania Board of Probation and Parole, 159 A.3d 466 (Pa.
2017).
Jurisdiction relinquished.
__________________________________
ELLEN CEISLER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert McGrath, :
Petitioner :
: No. 712 C.D. 2018
v. :
: Submitted: February 15, 2019
Pennsylvania Board of Probation :
and Parole, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
DISSENTING OPINION
BY JUDGE McCULLOUGH FILED: October 10, 2019
Respectfully, I believe the Majority’s reliance on the appearance of
Robert McGrath’s name on the Department of Corrections’ (DOC) inmate locator
as an exception to the mootness doctrine is misplaced.
As the Majority aptly recognized, the expiration of a parolee’s
maximum term renders an appeal of a Pennsylvania Board of Probation and Parole
(Board) revocation order moot. It is well settled that an appeal will be dismissed
when the occurrence of an event renders it impossible for us to grant the requested
relief. Taylor v. Pennsylvania Board of Probation and Parole, 746 A.2d 671, 674
(Pa. Cmwlth. 2000) (en banc). In the present case, the record shows that
McGrath’s parole violation maximum sentence date expired on September 24,
2018.
Nevertheless, the Majority sua sponte takes judicial notice of
information contained on DOC’s inmate locator, which shows that McGrath
remains incarcerated at the State Correctional Institution – Waymart. Aside from
raising this issue sua sponte, there are other problems with using this inmate
locator. First, it does not set forth the reasons for McGrath’s incarceration, i.e., the
nature of the sentence resulting in this incarceration.
Additionally, the inmate locator website referenced by the Majority
contains a disclaimer, which states, inter alia, that:
The Pennsylvania Department of Corrections and
Pennsylvania Board of Probation and Parole update this
information daily to ensure that it is complete and as
accurate as possible. Information other than an inmate
number/parole number, institutional assignment/district
office and committing county/county of residence is
furnished by sources other than the
Department/Board and is not independently verified.
Inmate Locator, PA. DEP’T OF CORRECTIONS, http://inmatelocator.cor.pa.gov (last
visited September 16, 2019) (emphasis added). As to judicial notice, Rule
201(b)(2) of the Pennsylvania Rules of Evidence provides, in relevant part, that
“[t]he court may judicially notice a fact that is not subject to reasonable dispute
because it . . . can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.” Pa.R.E. 201(b)(2) (emphasis added).
The disclaimer on the website here notes that it contains information from other
sources which are not independently verified and thus raises the serious question of
accuracy.
Given this disclaimer, the fact that neither party has requested that this
Court take judicial notice of such information, and that it conflicts with the
PAM-2
information contained within the certified record, this Court should not rely on the
inmate locator as a basis for finding an exception to the mootness doctrine.
While I agree with the Majority that McGrath did not waive his claim
that the Board “failed to provide a proper, contemporaneous explanation for why it
declined to give him credit for time served at liberty on parole” in accordance with
Pittman v. Pennsylvania Board of Probation and Parole, 159 A.3d 466 (Pa. 2017),
Majority, slip op. at 7, at most this warrants a remand to the Board to provide such
an explanation, as the Majority so directed.
Hence, I respectfully dissent.
________________________________
PATRICIA A. McCULLOUGH, Judge
PAM-3