IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Benther J. Michael, :
Petitioner :
:
v. : No. 1564 C.D. 2019
: Submitted: June 12, 2020
Pennsylvania Board of Probation :
and Parole, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: September 17, 2020
Benther J. Michael (Petitioner) petitions for review of an Order of the
Pennsylvania Board of Probation and Parole (Board),1 affirming a decision of the
Board recommitting Petitioner as a convicted parole violator (CPV) to serve his
unexpired term of 2 years, 1 month, and 28 days and recalculating his parole
violation maximum date to January 16, 2021. Petitioner contends that the Board
erred by failing to give Petitioner time credit for the time he was incarcerated
1
Subsequent to the filing of the petition for review, the Pennsylvania Board of Probation
and Parole was renamed the Pennsylvania Parole Board. See Sections 15, 16, and 16.1 of the
Act of December 18, 2019, P.L. 776, No. 115 (effective February 18, 2020); see also Sections
6101 and 6111(a) of the Prisons and Parole Code (Code), as amended, 61 Pa.C.S. §§ 6101,
6111(a).
solely on the Board’s warrant and in not giving a contemporaneous reason for
denying Petitioner time credit for time spent at liberty on parole, commonly known
as street time. Discerning no error, we affirm.
I. Factual Background
Following a conviction for drug-related offenses, Petitioner was sentenced
on January 20, 2010, to four to nine years’ imprisonment, and the Board first
paroled Petitioner on April 14, 2014, with a controlling minimum date of January
15, 2013, and a controlling maximum date of January 15, 2018. (Certified Record
(C.R.) at 1, 6.) When Petitioner did not comply with his parole reporting
requirements, the Board declared him delinquent effective July 15, 2014. (Id. at
22.) Petitioner was then arrested on new drug charges, of which he was convicted
on September 4, 2015, and the Board recommitted Petitioner to a state correctional
institution (SCI). (Id.) Upon his recommitment in 2015, Petitioner had a new
parole violation maximum date of October 28, 2018. (Id. at 1-2.) By decision
recorded on August 4, 2016, the Board granted Petitioner parole, and he was
released on August 31, 2016. While Petitioner was on parole, he was arrested on
January 19, 2017, in Cumberland County for violating Section 13(a)(16) and (30)
of The Controlled Substance Drug, Device and Cosmetic Act,2 and Sections
7512(a) and 6301(a)(1)(i) of the Crimes Code, respectively, 18 Pa.C.S. §§ 7512(a)
(criminal use of communication facility), 6301(a)(1)(i) (corruption of minors).
Petitioner was committed to the county jail on the new charges when he failed to
2
Act of April 14, 1972, P.L. 233, as amended, 35 P.S. § 780-113(a)(16) (knowing or
intentional possession of a controlled substance), (30) (manufacture, delivery, or possession with
intent to manufacture or deliver a controlled substance).
2
post bail. (C.R. at 14.) Also on January 19, 2017, the Board issued a Warrant to
Commit and Detain Petitioner for parole violations. (Id. at 16.)
The Board issued a Notice of Charges and Hearing, advising Petitioner of an
upcoming detention hearing as a result of his new criminal charges in Cumberland
County. Petitioner waived his right to a hearing and right to be represented by
counsel. (Id. at 25.) By decision mailed March 8, 2017, the Board detained
Petitioner pending the disposition of his criminal charges. On August 23, 2017,
Petitioner pled “guilty to two counts of Unlawful Delivery of a Controlled
Substance, Heroin, and Criminal Conspiracy To Deliver Heroin.” (Id. at 29.) The
Court of Common Pleas of Cumberland County (common pleas) committed
Petitioner to the custody of “the Department of Corrections for an evaluation . . . to
determine whether [Petitioner] should be sentenced to State Intermediate
Punishment [(SIP)].” (Id.) Petitioner was transferred to SCI-Camp Hill for this
purpose.
Following Petitioner’s guilty plea and sentencing, the Board issued a Notice
of Charges and Hearing on October 31, 2017, advising Petitioner of a revocation
hearing due to his new criminal conviction. Petitioner waived his right to a
revocation hearing and right to counsel, and admitted to the new conviction. (Id. at
44.) By Board decision recorded December 1, 2017, the Board recommitted
Petitioner as a CPV with “reparole only upon acceptance into the [SIP] program [];
otherwise recommit to serve [his] unexpired term, when available, pending
sentencing on [his] Cumberland County convictions.” (Id. at 56.) The Board
further stated “in its discretion[, it] did not award credit to [Petitioner] for the time
spent at liberty on parole,” providing the following reason, “split credit; not
3
recommended to award credit for time at liberty on parole since last release of
08/31/2016.” (Id. at 57.)
On March 12, 2018, common pleas issued an order stating that because
Petitioner “would benefit from the [SCI SIP] Program,” it was ordering Petitioner
“to undergo [SIP] for 24 months to date from January 19, 2017.” (Id. at 58.)
Further, Petitioner was to “receive credit for time served.” (Id. at 59.) The Board
then issued an Order to Recommit dated May 1, 2018, forfeiting Petitioner’s prior
92 days of street time, and adding those 92 days to the 788 days remaining on his
original sentence as of his August 31, 2016 release, for a total of 880 days of
backtime. Adding the 880 days to his custody for return date of March 12, 2018,
the Board recalculated Petitioner’s maximum date as August 8, 2020. (Id. at 77.)
By decision recorded on May 15, 2018, referring back to the Board’s December 1,
2017 decision recommitting Petitioner as a CPV to be reparoled upon acceptance
into the SIP, the Board ordered Petitioner to abide by the rules and regulations of
the institution and be evaluated for, among others, drug and alcohol treatment. (Id.
at 81.) The Board issued another Order to Recommit on May 24, 2018, in which it
recalculated Petitioner’s maximum date with the same custody for return date and
prior liberty forfeited as in its May 1, 2018 Order to Recommit. However, in the
May 24, 2018 Order to Recommit, the Board gave Petitioner backtime credit of
417 days,3 which reduced the backtime Petitioner owed to 463 days. Accordingly,
in its May 24, 2018 Order to Recommit, the Board recalculated Petitioner’s
maximum date as June 18, 2019. (Id. at 83.)
3
These 417 days of backtime credit were from January 19, 2017, the date of Petitioner’s
Cumberland County arrest, to March 12, 2018, the date common pleas sentenced Petitioner to a
SIP program for 24 months to date from January 19, 2017.
4
By Board decision recorded June 7, 2018, the Board rescinded its Board
decision recorded on May 15, 2018, “in its entirety, due to a technician error,” and
referring back to its December 1, 2017 decision recommitting Petitioner as a CPV,
ordered that Petitioner was “reparoled[] only upon acceptance into the [SIP]
program . . . if there are no misconducts.” (Id. at 85.) Petitioner timely filed an
administrative remedies form challenging this decision, arguing that the Board’s
recalculation of his maximum date exceeded his original maximum date by 8
months, which was incorrect because the 8 months added to his original maximum
date was “due to [Petitioner’s] incarceration of 225 days confined in Cumberland
County prison.” (Id. at 89.) While this request for administrative remedies was
pending,4 by decision recorded June 25, 2018, the Board modified its June 7, 2018
decision “by deleting the reparole clause and conditions, due to expiration of
program eligibility,” and ordering Petitioner to serve his “unexpired maximum
sentence, 06/18/2019.” (Id. at 87.) Petitioner filed a request for administrative
remedies challenging this June 25, 2018 decision, arguing again that his maximum
date extended his original maximum date by eight months, which he contended
was error since his incarceration for those eight months was in the Cumberland
County prison on a state detainer and he was not at liberty during that time. (Id. at
92-93.)
On July 19, 2018, the Department of Corrections notified Petitioner by letter
that he was removed from SIP “due to [l]ack of [t]ime to [c]omplete” the program
through “no fault of [Petitioner’s], [but due to] a delay in processing this case as a
4
It does not appear that the Board ever issued a response to this request for
administrative remedies.
5
parole violator case . . . .”5 (Id. at 134.) Common pleas then issued an order dated
November 20, 2018, explaining that following a video conference and a letter from
the Department of Corrections, it was determined that Petitioner “no longer
qualifie[d] for the [SIP] Program” because Petitioner “ha[d] insufficient time
remaining on any [SIP] sentence to complete the mandated programs . . . .” (Id. at
97.) Accordingly, by agreement of the parties, common pleas sentenced Petitioner
to 16 to 32 months’ imprisonment in an SCI, and gave Petitioner sentence credit
from January 19, 2017, to November 20, 2018. (Id. at 97-98.)
In an internal memo dated October 15, 2018, the Board acknowledged that,
pursuant to the Pennsylvania Supreme Court’s decision in Pittman v. Pennsylvania
Board of Probation and Parole, 159 A.3d 466 (Pa. 2017), it was required to
provide a reason for why it denied Petitioner credit for his street time in its June
25, 2018 decision. The memo lists several reasons for denying credit, and the
Board Member to which the memo was addressed circled the following reason:
“[n]ew conviction same/similar to the original offense.” (C.R. at 95.) Further, by
decision mailed October 26, 2018, the Board advised Petitioner that it was
modifying its December 1, 2017 decision to “add[] the following reason the Board
did not award credit for time spent at liberty on parole: 1. new conviction
same/similar to the original offense.” (Id. at 96.)
On August 2, 2019, the Board issued a new Order to Recommit recalculating
Petitioner’s maximum date. Specifically, adding 788 days of backtime to
5
This letter also advised Petitioner he could file a grievance to contest his removal from
the SIP program, which he did, but the grievance was ultimately denied with the explanation that
the Board had to complete various steps before Petitioner could complete the SIP program
following common pleas’ March 12, 2018 order, but the Department of Corrections did not
receive clearance from the Board until June 7, 2018, at which point there was insufficient time
for Petitioner to transition through the program. (C.R. at 135.)
6
Petitioner’s custody for return date of November 20, 2018, the Board recalculated
the new maximum date to be January 16, 2021. (Id. at 123.) Notably, this Order
to Recommit does not reflect the forfeiture of the 92 days of Petitioner’s prior
street time, which would have given him 880 days of backtime, but also does not
reflect any credit for Petitioner’s most recent street time. By Board decision
recorded the same day, the Board modified its June 25, 2018 and October 19, 2018
decisions to correct Petitioner’s new maximum date in light of his resentencing.
(Id. at 125.) Three days later, by Board decision recorded on August 5, 2019, the
Board modified its August 2, 2019 decision, correcting it to “recommit [Petitioner]
to a[n SCI] as a [CPV] to serve [his] unexpired term; 2 years, 1 month, 28 days.”
(Id. at 126.) Petitioner appealed this August 5, 2019 decision, arguing that the
Board did not provide a timely, contemporaneous justification for revoking his
street time and “improperly penalized [him] for failing to complete SIP, despite the
Board itself being responsible for [his] inability to complete the program.” (Id. at
129.)
The Board, by Order mailed October 15, 2019, responded to Petitioner’s
request for administrative remedies and affirmed its August 5, 2019 decision.
With regard to the Board’s decision to recommit Petitioner to serve his unexpired
term, the Board explained that pursuant to the Board’s regulations, the presumptive
recommitment range for each of Petitioner’s new convictions was 24 to 36 months,
37 Pa. Code §§ 75.1, 75.2. Therefore, for all three new convictions, the Board had
a presumptive recommitment maximum of 108 months and Petitioner’s unexpired
term of 2 years, 1 month, and 28 days fell within that range and was not subject to
challenge. (C.R. at 138.) The Board further stated that upon Petitioner’s parole on
August 31, 2016, he had 788 days remaining on his sentence, and the Board was
7
authorized to recalculate Petitioner’s sentence to reflect no time credit for street
time under Section 6138(a)(2) of the Prisons and Parole Code (Code), 61 Pa.C.S.
§ 6138(a)(2). The Board explained that Petitioner was arrested in Cumberland
County, the Board lodged its detainer on the same day, Petitioner did not post bail
on the new charges, and Petitioner was sentenced to incarceration on November
20, 2018. The Board stated it did not award credit for Petitioner’s street time,
meaning he had 788 days remaining on his sentence which, when added to
November 20, 2018, the date upon which Petitioner became available to serve his
original sentence, yielded a new maximum of January 16, 2021. Accordingly, the
Board affirmed its August 5, 2019 decision. (C.R. at 139.) Petitioner petitions for
review.6
II. Arguments
Petitioner argues before this Court that the Board erred in two respects, as it
failed to give Petitioner credit for the time he was incarcerated or held only on the
Board’s warrant, and the Board abused its discretion by denying Petitioner credit
for street time. Petitioner alleges he was first sentenced on his new conviction on
August 23, 2017, and was returned to SCI-Camp Hill on September 1, 2017.
Petitioner recounts the numerous orders issued by the Board rescinding and
modifying its prior decisions between the time of Petitioner’s arrest, conviction,
sentencing, and resentencing by common pleas, and the final decision issued by the
Board, which Petitioner appealed. Petitioner asserts there is nothing in the record
6
Our review is “limited to determining whether necessary findings of fact are supported
by substantial evidence, whether an error of law was committed, or whether constitutional rights
were violated.” McCloud v. Pa. Bd. of Prob. & Parole, 834 A.2d 1210, 1212 n.6 (Pa. Cmwlth.
2003).
8
to support the Board’s decision to use November 20, 2018, the date at which
Petitioner was resentenced to 16 to 32 months’ incarceration, as the date of
Petitioner’s recommitment. Further, Petitioner contends the Board erred because it
did not give Petitioner any “more credit than he had at his original sentencing”
when he was resentenced on November 20, 2018, and nothing in the record
indicates that Petitioner “was serving anything other than his backtime sentence.”
(Petitioner’s Brief (Br.) at 13.) Petitioner asserts that the Board’s prior decision on
March 12, 2018, that calculated Petitioner’s maximum date as June 18, 2019, was
correct. As for Petitioner’s street time credit, Petitioner argues he was paroled
under the same institution number from April 14, 2014, to June 23, 2015, and he
should have received credit for that time in the recalculation of his maximum date.
Further, there is no backtime credit from January 19, 2017, to March 12, 2018,
although there should be as Petitioner was incarcerated at an SCI beginning on
September 1, 2017. By adding Petitioner’s 788 days of backtime to December 1,
2017, the date Petitioner was recommitted, Petitioner argues his maximum date
should be January 28, 2020.
Finally, Petitioner contends that the Board abused its discretion because it
did not provide a timely and contemporaneous reason for not crediting Petitioner’s
original sentence for the time he spent at liberty on parole. Further, the Board, in
its May 24, 2018 Order to Recommit, indicated that Petitioner forfeited 92 days of
prior liberty from April 14, 2014, to July 15, 2015, but provided no explanation for
its decision. The Board did not mention its denial of street time credit to Petitioner
or a reason for that denial in its decisions of December 1, 2017, May 15, 2018,
June 7, 2018, and June 25, 2018. The Board did not provide an explanation for
this decision to deny street time credit until its supplemental decision dated
9
October 19, 2018. For these reasons, Petitioner contends the Board abused its
discretion.
The Board responds, asserting that it did not err or abuse its discretion but
properly recalculated Petitioner’s parole violation maximum date when it
recommitted Petitioner as a CPV. Petitioner had 788 days remaining on his
sentence when he was released on parole on August 31, 2016. Upon Petitioner’s
arrest in Cumberland County on January 19, 2017, Petitioner was detained on both
the Board’s warrant and the new charges due to his failure to post bail. Therefore,
Petitioner was detained on his new charges until the date of his sentence on
November 20, 2018, and he was awarded credit for that time on his new sentence
and was not entitled to credit on his original sentence for this presentence
confinement. The Board has the authority to recalculate maximum dates for CPVs
and has the discretion to not award CPVs credit for street time. The Board
exercised its discretion not to credit Petitioner for his street time, reasoning that
Petitioner’s new conviction was similar to his original offense, which was
appropriate and justified by the record. (Board’s Br. at 7 (citing Barnes v. Pa. Bd.
of Prob. & Parole, 203 A.3d 382 (Pa. Cmwlth. 2019)).) Because Petitioner was
serving a sentence at an SCI when he was released on parole and was sentenced to
an SCI for the new conviction, the Board contends Petitioner must complete his
original sentence first before serving his new sentence pursuant to Section
6138(a)(5) of the Code. At that time, Petitioner’s new sentence will be calculated
by the Department of Corrections, and Petitioner will receive 670 days of credit on
his Cumberland County sentence for his presentence confinement. To the extent
that Petitioner argues the Board is bound by its maximum date calculations issued
prior to Petitioner’s sentencing on November 20, 2018, which erroneously awarded
10
credit against the original sentence, the Board argues this Court has held that an
administrative agency may correct such errors on its own motion. Moreover, this
type of correction “is particularly appropriate in cases where no corrective action
would result in the Board commuting a portion of an inmate’s sentence that he was
statutorily required to serve.” (Board’s Br. at 8 (citing Armbruster v. Pa. Bd. of
Prob. & Parole, 919 A.2d 348, 352 n.3 (Pa. Cmwlth. 2007)).) Therefore, the
Board asks us to affirm.
III. Discussion
We first address Petitioner’s contention that the Board erred by failing to
give him credit against his original sentence for the time Petitioner claims he was
incarcerated solely on the Board’s warrant. Our Supreme Court held in Gaito v.
Pennsylvania Board of Probation and Parole:
[I]f a defendant is being held in custody solely because of a detainer
lodged by the Board and has otherwise met the requirements for bail
on the new criminal charges, the time which he spent in custody shall
be credited against his original sentence. If a defendant, however,
remains incarcerated prior to trial because he has failed to satisfy bail
requirements on the new criminal charges, then the time spent in
custody shall be credited to his new sentence.
412 A.2d 568, 571 (Pa. 1980). Here, Petitioner was arrested on January 19, 2017,
and the Board issued a Warrant to Commit and Detain him on that same day.
However, the record reflects that, also on that day, Petitioner was detained on the
new criminal charges because he did not post bail for those charges. (C.R. at 14.)
Therefore, from January 19, 2017, until August 23, 2017, the date Petitioner pled
guilty to the new charges, Petitioner was incarcerated for “fail[ure] to satisfy bail
requirements on new criminal charges,” and pursuant to Gaito, that time must be
11
credited towards his new sentence. 412 A.2d at 571. Accordingly, the Board did
not err when it did not credit Petitioner’s original sentence with this time.
To the extent Petitioner’s argument also challenges the Board not awarding
him credit for the time he was incarcerated between his guilty plea and his
resentencing on November 20, 2018, we discern no error. “SIP is a two-year
program designed to benefit persons with drug and alcohol problems,” but without
“a history of present or past violent behavior,” whom the Department of
Corrections determines “is in need of drug and alcohol treatment.” Commonwealth
v. Kuykendall, 2 A.3d 559, 560 (Pa. Super. 2010) (citing Sections 4102-4109 of the
Code, 61 Pa.C.S. §§ 4102-4109). This Court explained SIP and its effect upon a
CPV’s credit determinations in Williams v. Pennsylvania Board of Probation and
Parole, 68 A.3d 386 (Pa. Cmwlth. 2013). In that case, the petitioner was arrested
on new criminal charges while he was at liberty on parole and remained
incarcerated both on the Board’s warrant and the new criminal charges as he was
unable to post bail. When the petitioner pled guilty to the new criminal charges,
the sentencing court sentenced the petitioner to two to four years’ incarceration,
with credit for time served, but also deemed the petitioner eligible for SIP. During
the Board’s revocation proceedings, the petitioner admitted the conviction to the
Board and requested the Board credit his original sentence with the time between
his arrest until the date of his new sentence “because the SIP program requires that
all credit on a new sentence for time served be forfeited, resulting in none of this
time being credited toward his new sentence.” Id. at 387. The Board recommitted
the petitioner to serve his unexpired term and recalculated his parole maximum
date without providing the requested credit. The petitioner appealed, asserting that
the Board erred in its recalculation, and the Board denied the appeal.
12
On appeal to this Court, the petitioner argued that because the sentencing
court sentenced him and gave him credit for time served, but also deemed him
eligible for SIP, he could not receive credit for the time served on his new sentence
and, therefore, should be given credit on his original sentence for his presentence
confinement. We disagreed, explaining the purpose and function of SIP. Noting
Section 4103 of the Code, which defined a SIP participant as “an eligible offender
actually sentenced to [SIP] pursuant to [Section 9721(a)(7) of the Judicial Code,]
42 Pa.C.S. § 9721(a)(7) (relating to sentencing generally),” Williams, 68 A.3d at
388 (quoting former Section 4103 of the Code,7 61 Pa.C.S. § 4103), we explained
that the sentencing court “determined that [the petitioner] was eligible for the SIP
program; therefore, because [the petitioner] is not currently a participant in the SIP
program, he is not subject to the program’s requirements.” Id. at 388-89.
Therefore, “at the time the Board recorded its . . . decision recalculating [the
petitioner’s] parole violation maximum date based upon his conviction on new
criminal charges,” the petitioner “had not forfeited any of the court-ordered credit
for time served pursuant to the requirements of the SIP program.” Id. at 389.
Further, even if the petitioner was actually sentenced to the SIP program, we
stated that he “would not be entitled to have the court-ordered credit for time
served on his new sentence applied to his original sentence” under the
Pennsylvania Supreme Court’s decision in Martin v. Pennsylvania Board of
Probation and Parole, 840 A.2d 299 (Pa. 2003). Williams, 68 A.3d at 389. While
7
At the time Williams was decided and Petitioner here was sentenced, Section 4103 of
the Code defined a SIP program participant as “[a]n eligible offender actually sentenced to [SIP]
pursuant to 42 Pa.C.S. § 9721(a)(7) (relating to sentencing generally).” Former 61 Pa.C.S.
§ 4103. Section 4103 was amended on December 18, 2019, and now defines a participant as
“[a]n eligible person placed in the State drug treatment program.” 61 Pa.C.S. § 4103.
13
the Supreme Court held in Martin that when a parolee is incarcerated on new
criminal charges and a Board detainer, all time spent in confinement must be
credited to “either the new sentence or the original sentence,” we reasoned that this
was not the case in Williams. Id. (quoting Martin, 840 A.2d at 309). We explained
that participation in the SIP program is a privilege that reduces the time of
incarceration in exchange for “surrender[ing the] statutory right to credit for time
served while housed in a county correctional institution or non-Pennsylvania state
correctional facility.” Id. (quotations and emphasis omitted). Therefore, we held
that “due to the nature of the SIP program, an eligible offender, such as [the
petitioner], cannot expect credit for time served towards an original sentence
pursuant to Martin if the offender is actually sentenced to, and becomes a
participant in, the SIP program.” Id.
Here, when Petitioner pled guilty, common pleas “committed [Petitioner] to
the Department of Corrections for an evaluation to be used by [common pleas] to
determine whether he should be sentenced to [SIP],” and transferred Petitioner to
SCI-Camp Hill for evaluation. (C.R. at 29.) Like the petitioner in Williams,
Petitioner here was not “actually sentenced to [SIP],” but was eligible for the SIP
program. 68 A.3d at 388 (quoting former 61 Pa.C.S. § 4103). Moreover, while
common pleas later issued an order on March 12, 2018, sentencing Petitioner to the
SIP program, the record demonstrates that Petitioner was later found not to qualify
for the SIP program because he could not timely complete the programs. (C.R. at
97.) As Petitioner recounts in his brief, the Board issued numerous decisions in
this matter modifying and rescinding its prior orders between the time of
14
Petitioner’s new arrest and his resentencing.8 As noted by Petitioner and the
Department of Corrections in its letter to Petitioner, the delay in processing
Petitioner’s parole violation case ultimately resulted in there being insufficient
time for Petitioner to complete the programs required for the SIP, which required
common pleas to resentence Petitioner. As a result of this delay, Petitioner did not
participate in the SIP program.
Because Petitioner did not ever participate in the SIP program, this time was
not forfeited but rather credited to his new sentence. Therefore, when common
pleas resentenced Petitioner to incarceration on his new charges on November 20,
2018, the time that Petitioner was incarcerated between the date of his arrest on
January 19, 2017, and his resentencing was credited to the new sentence instead of
his original sentence. In fact, common pleas’ November 20, 2018 order expressly
reflects this, stating Petitioner “is to be given credit from January 19[], 2017 to the
present date to the extent permitted by law.” (Id. at 98.) Accordingly, the time
that Petitioner was incarcerated from January 19, 2017, the date of his arrest, to
November 20, 2018, the date of resentencing, was credited to Petitioner’s new
sentence. If this time was credited to Petitioner’s original sentence and new
sentence, it would result in that time being served twice, which is impermissible.
See Barndt v. Pa. Dep’t of Corr., 902 A.2d 589, 595 (Pa. Cmwlth. 2006).
Therefore, the Board did not err by not crediting that time to Petitioner’s original
sentence.
8
It is unclear whether the multiplicity of Board decisions issued here was the reason for
the delay in processing Petitioner’s parole violation case, resulting in insufficient time for
participation in the SIP program, or whether the multiplicity of orders resulted from the
procedural posture given Petitioner’s consideration for, sentencing to, and removal from the SIP
program. In any event, we are troubled by the number of decisions issued by the Board in this
matter.
15
Turning to the Board’s actual recalculation of Petitioner’s maximum date, at
the time of his reparole, Petitioner had 788 days remaining on his original
sentence. The Board’s calculation that Petitioner had 788 days remaining on his
original sentence reflects that it gave Petitioner credit for his time spent at liberty
on parole from April 14, 2014, and July 15, 2014.9 Pursuant to Section
6138(a)(5)(i) of the Code, when Petitioner was resentenced on the new charges to
incarceration in an SCI, Petitioner was required to serve “the balance of the term
originally imposed . . .” before serving the new sentence. 61 Pa.C.S.
§ 6138(a)(5)(i). Therefore, Petitioner became available to serve the remainder of
his original sentence as a CPV upon his resentencing on November 20, 2018.
Adding 788 days to November 20, 2018, with no credit for Petitioner’s most recent
street time, results in a new maximum date of January 16, 2021. Accordingly, we
discern no error in the Board’s recalculation.
Petitioner also contends that the Board erred because it did not provide a
contemporaneous reason for denying Petitioner credit for his street time. Section
6138(a)(2), (2.1) of the Code provides that:
(2) If a [CPV’s] recommitment is so ordered, the [CPV] shall be
reentered to serve the remainder of the term which the [CPV] 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.
9
While in its May 1, 2018 Order to Recommit, the Board indicated that Petitioner
forfeited these 92 days, making Petitioner’s backtime owed 880 days, the Board’s subsequent
recommitment orders did not reflect this and used 788 days as the remaining backtime.
Therefore, to the extent that Petitioner challenges the forfeiture of these days, it is moot because
the Board ultimately gave Petitioner credit for those days in its recalculation of the new
maximum date.
16
(2.1) The [B]oard may, in its discretion, award credit to a [CPV]
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 . . . or a
crime requiring registration under 41 Pa.C.S. Ch. 97
Subch. H (relating to registration of sexual offenders).
(ii) The [CPV] was recommitted under [S]ection 6143 [of
the Code] (relating to early parole of inmates subject to
Federal removal order).
61 Pa.C.S. § 6138(a)(2), (2.1). Our Supreme Court held in Pittman that Section
6138(a)(2) “clearly and unambiguously grants the Board discretion to award credit
to a CPV recommitted to serve the remainder of his sentence,” other than in the
enumerated exceptions. 159 A.3d at 473. The Supreme Court further held that
“the Board must articulate the basis for its decision to grant or deny a CPV credit
for time served at liberty on parole.” Id. at 474. However, “the reason the Board
gives does not have to be extensive and a single sentence explanation is likely
sufficient in most instances.” Id. at 475 n.12.
This Court has held that the Board complies with Pittman and no remand is
required where the Board fails to give a contemporaneous reason for denying street
time but later corrects the error. Smoak v. Talaber, 193 A.3d 1160, 1164 (Pa.
Cmwlth. 2018). In Smoak, the Board issued an order recommitting a CPV and not
awarding credit for street time, but did not provide the reason for doing so until its
response to the petitioner’s request for administrative review. We held that while
it was error for the Board not to record a reason for denying credit in its decision
recommitting the petitioner, the “matter [did] not need to be remanded to the []
Board to correct the error because the [] Board, after receiving [the petitioner’s]
administrative appeal, corrected its omission by modifying the recommitment
17
order to include its reason for denying [the petitioner] credit for his street time.”
Id.
Here, in the Board decision recorded December 1, 2017, the Board
recommitted Petitioner as a CPV to be reparoled upon acceptance into the SIP
program and otherwise to recommit him to serve the remainder of his original
sentence. The Board stated “in its discretion[, it] did not award credit to
[Petitioner] for the time spent at liberty on parole,” reasoning that this matter
involved “split credit; not recommended to award credit for time at liberty on
parole since last release of 08/31/2016.” (C.R. at 57.) Therefore, the Board
provided reasoning in that decision for not to awarding street time credit. When
Petitioner’s eligibility for the SIP program expired, the Board, by decision
recorded June 25, 2018, ordered Petitioner to serve his “unexpired maximum
sentence, 06/18/2019.” (Id. at 87.) This decision did not include a
contemporaneous explanation for denying Petitioner credit for street time, which
was in error. But, the Board subsequently provided a reason for denying credit,
which it memorialized in the October 19, 2018 decision modifying the Board’s
initial decision of December 1, 2017, to “add[] the following reason the Board did
not award credit for time spent at liberty on parole: 1. new conviction same/similar
to the original offense.” (Id. at 95-96.) When the Board issued its subsequent
decisions, including the October 15, 2019 decision currently on appeal, the Board
did not modify or rescind its prior denial of street time credit or reasons for that
denial. (Id. at 125-27.)
Thus, while the Board had the discretion not to award Petitioner credit for
street time when it first recommitted him as a CPV, it erred when it did not provide
a contemporaneous reason for denying that credit. Smoak, 193 A.3d at 1164.
18
However, no remand is necessary because the Board corrected this error in later
decisions and documents. See id. Further, to the extent Petitioner’s arguments can
be read to challenge the Board’s reason, the reason given is sufficient and
supported by the record, as Petitioner’s original sentence was for drug charges and
his new conviction in Cumberland County also arose from drug charges. See
Barnes, 203 A.3d at 390-91 (finding sufficient under Pittman the Board’s decision
to deny a CPV street time credit in part because the new conviction was
“same/similar to the original offense”). Therefore, the Board did not abuse its
discretion by denying Petitioner street time credit nor did it fail to provide a
sufficient reason for so doing.
IV. Conclusion
The Board did not fail to give Petitioner credit on his original sentence for
any time he was incarcerated solely on the Board’s warrant nor did it abuse its
discretion when it did not give Petitioner credit for the time he spent at liberty on
parole. Furthermore, the Board did not abuse its discretion by not awarding street
time credit and provided a sufficient reason to support that decision. Therefore, we
discern no error in the Board’s decision recommitting Petitioner as a CPV and
recalculating his maximum date. Accordingly, we affirm.
_____________________________________
RENÉE COHN JUBELIRER, Judge
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Benther J. Michael, :
Petitioner :
:
v. : No. 1564 C.D. 2019
:
Pennsylvania Board of Probation :
and Parole, :
Respondent :
ORDER
NOW, September 17, 2020, the Order of the Pennsylvania Board of
Probation and Parole recorded October 15, 2019, is hereby AFFIRMED.
_____________________________________
RENÉE COHN JUBELIRER, Judge