IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Niheim Miller, :
:
Petitioner :
:
v. : No. 9 C.D. 2021
: Submitted: July 30, 2021
Pennsylvania Parole Board, :
:
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: December 22, 2021
Niheim Miller (Parolee) petitions for review of the Pennsylvania Parole
Board (Board) order denying his Request for Administrative Review that challenged
the Board’s July 23, 2018 decision, which rescinded the automatic reparole that the
Board had granted in its February 14, 2018 decision, that recommitted Parolee as a
technical parole violator (TPV). We affirm.
In 2009, Parolee received an aggregate 8-year, 6-month to 17-year
sentence of imprisonment based on his guilty pleas to a number of charges in the
Blair County Court of Common Pleas. Certified Record (C.R.) at 1-3. With an
effective date of April 26, 2008, Parolee’s sentence had a minimum expiration date
of October 26, 2016, and a maximum expiration date of April 26, 2025. Id. at 3.
Following an initial grant of parole at the expiration of his minimum sentence, on
April 24, 2017, the Board revoked Parolee’s parole and he was recommitted as a
TPV for a violation of Parole Condition #7 based on his admitted failure to
successfully complete a drug treatment program. Id. at 5-6. On August 16, 2017,
Parolee was released on parole. Id. at 8.
On December 29, 2017, the Board issued a Warrant to Commit and
Detain Parolee. C.R. at 17. On January 4, 2018, the Board issued a Notice of
Charges and Hearing. Id. at 18. The Board alleged that Parolee violated Parole
Condition #5A requiring that he abstain from the unlawful possession or sale of
narcotics and dangerous drugs, and Parole Condition #7 prohibiting direct or indirect
contact or association with any persons who sell or use drugs, outside of a treatment
setting, or possession of drug paraphernalia. Id. That same day, Parolee executed a
Waiver of Violation Hearing and Counsel/Admission Form in which he “knowingly,
voluntarily, and willingly admit[ted] to the violation(s)[.]” Id. at 20.
As a result, the Board mailed its February 14, 2018 decision
recommitting Parolee as a TPV to serve nine months’ backtime pursuant to Section
6138(d)(3)(ii) of the Prisons and Parole Code (Code) for his multiple violations of
the technical conditions of his parole,1 and stating that he would be automatically
1
61 Pa. C.S. §6138(d)(3)(ii). Code Section 6138(d)(3)(ii) states, in relevant part:
(3) Except as set forth in paragraph . . . (5), the parolee shall be
recommitted for one of the following periods, at which time the
parolee shall automatically be reparoled without further action by
the [B]oard:
***
(ii) For the second recommitment under this subsection, a
maximum period of nine months.
(Footnote continued on next page…)
2
paroled on September 28, 2018. C.R. at 37-39. However, the decision also stated,
in relevant part, that pursuant to Code Section 6138(d)(5)(i), he would be “reparoled
automatically without further action of the Board . . . provided [that he did] not . . .
commit a disciplinary infraction involving . . . a weapon or controlled substance[.]”
Id. at 38.
On July 17, 2018, the Board issued an Automatic Reparole Rescission
Report indicating that Parolee committed a disciplinary infraction involving the
possession or use of a controlled substance. C.R. at 51-54. The Board summarized
the documentary evidence relied upon as follows:
Misconduct report from [the Department of Corrections
(DOC)] reflects that [Parolee] violated rule #22 –
Possession or Use of a Dangerous or Controlled Substance
and #35 – Refusing to Obey an Order. The misconducts
occurred on 06/07/2018 when he refused to move away
from items on a counter and staff found a piece of
Suboxone[2] in the cigarette that he was attempting to grab
and smoke. [Parolee] denied the drug-related misconduct,
but DOC found him guilty of both misconducts at his
06/12/2018 disciplinary hearing. DOC sanctioned him to
90 days in disciplinary custody.
Id. at 52.
As a result, the Board decided to rescind Parolee’s initial automatic
parole date, and to issue a new parole date of September 28, 2018, explaining:
In turn, Code Section 6138(d)(5)(i) states, in pertinent part, that “[t]he time limit under paragraph
(3) shall not be applicable to a parolee who . . . [c]ommitted a disciplinary infraction involving . . .
a weapon or controlled substances.” 61 Pa. C.S. §6138(d)(5)(i) (emphasis added).
2
See, e.g., Commonwealth v. Perrone (Pa. Super., No. 1304 WDA 2013, filed September
23, 2014), slip op. at 2 n.1 (“Suboxone Film is a controlled substance that is prescribed to help
manage the physical symptoms and cravings of opioid dependence. See www.suboxone.com (last
visited 9/8/14).”).
3
The Board recommitted [Parolee] to [a State Correctional
Institution (SCI)/Contracted County Jail (CCJ)] for his
technical parole violation by decision recorded
02/14/2018 with an automatic reparole date of 09/28/2018.
While in the SCI, he committed a drug-related misconduct
by possessing a cigarette containing a piece of Suboxone.
He attempted to destroy the cigarette at the time of his
detention and he denied the misconduct at the disciplinary
hearing. DOC found him guilty based on video evidence.
Because he committed a drug-related misconduct, the
Board is authorized to deny him automatic reparole. In
this case, I am voting to deny automatic reparole. I have
set a review date nine months from the date of the
misconduct based on his initial nine-month
recommit[ment] and his failure to take responsibility for
the misconduct.
C.R. at 54. Based on the foregoing, the Board issued its July 23, 2018 and July 27,
2018 decisions rescinding the automatic parole that the Board had granted in its
February 14, 2018 recommitment decision, and directing that Parolee be listed for
parole review on or after March 7, 2019. Id. at 55, 57.
On March 1, 2018, Parolee filed a pro se Administrative Appeal form
challenging the Board’s recommitment decision in which he alleged, in relevant part:
“I’m an addict that needs intensive outpatient as well as 1 on 1 counseling, which I
could [have gotten] going back to my approved home plan. SCI will not provide
what I need! Hopefully this review will be taken into consideration.” C.R. at 61.
On August 28, 2018, Parolee’s counsel filed an Administrative Appeal form, which
alleged, in pertinent part: “The Board lacked sufficient evidence to rescind his
[Section 6138(d)(3)(ii) automatic] reparole date and contravened his due process
rights by failing to provide him with a hearing to contest the allegations.” Id. at 78.
On December 14, 2020, the Board mailed a decision denying the
Administrative Appeals in which it stated the following, in relevant part:
4
[T]he [Code] also provides that the Board may recommit
a [TPV] to an SCI/CCJ to serve up to nine months for a
second violation. 61 Pa. C.S. §6138(d)(3). The Board
previously recommitted [Parolee] as a TPV by decision
recorded April 24, 2017. As such, this was [Parolee’s]
second recommitment as a TPV to an SCI/CCJ since the
automatic reparole provision went into effect and the
Board acted within its discretion by recommitting
[Parolee] to serve nine months.
Finally, as mentioned above, the Board
recommitted [Parolee as] a [TPV] to serve nine months in
a[n SCI/CCJ], followed by automatic reparole no later
than September 28, 2018, by decision mailed February 21,
2018 (recorded 2/14/2018). On June 7, 2018, while in a[n
SCI], [Parolee] incurred a misconduct. The [SCI]
provided him with a misconduct hearing, which resulted
in a misconduct for Possession of a Controlled Substance
and Refusing to Obey an Order, and he received a 90-day
disciplinary custody [sanction].
The [Code] provides that automatic reparole does
not apply to [TPVs] who commit disciplinary infractions
involving possession of controlled substances. 61 Pa. C.S.
§6138(d)(5). Because [Parolee] incurred a qualifying
misconduct under the statute, the Board acted within its
authority by rescinding automatic reparole in this case.
Moreover, the Board acted within its discretion by taking
this action without conducting an additional evidentiary
hearing because [Parolee] was already afforded due
process to challenge the misconduct at issue in the hearing
held in the [SCI]. There is no reason for the Board to re-
litigate those facts.
C.R. at 91-92. Accordingly, the appeal panel affirmed the Board’s parole revocation
and recission decisions. Id. at 93. Parolee filed the instant petition for review,3 again
3
Our review is limited to determining whether constitutional rights were violated, whether
the adjudication was in accordance with law, and whether necessary findings were supported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Miskovitch
v. Pennsylvania Board of Probation and Parole, 77 A.3d 66, 70 n.4 (Pa. Cmwlth. 2013).
5
arguing that the Board’s July 23, 2018 decision rescinding the automatic parole
provision in the February 14, 2018 decision violated his due process rights.
However, as stated above, Code Section 6138(d)(5)(i) states, in relevant
part, that “[t]he [nine-month] time limit under paragraph (3)[(ii)] shall not be
applicable to a parolee who . . . [c]ommitted a disciplinary infraction involving . . .
a weapon or controlled substances.” 61 Pa. C.S. §6138(d)(5)(i) (emphasis added).
Thus, the Board was without authority to apply the nine-month backtime limit and
automatic reparole provisions of Code Section 6138(d)(3)(ii) following Parolee’s
DOC controlled substance disciplinary infraction based upon the mandatory
language of Code Section 6138(d)(5)(i).
Indeed, with respect to credit for the time spent at liberty on parole that
the Board must award a TPV under Code Section 6138(a)(2), this Court has
explained:
Under Pennsylvania law, the Board “can exercise only
those powers conferred upon it by the General Assembly
in clear and unmistakable language.” . . . [Code S]ection
6138(c)(2) positively states that a TPV “shall be given
credit for the time served on parole in good standing.” 61
Pa. C.S. §6138(c)(2) (emphasis added). Through this
directive of the General Assembly, the Board has no
choice over the matter and must grant credit to the parolee
who is recommitted as a TPV.
Penjuke v. Pennsylvania Board of Probation and Parole, 203 A.3d 401, 416 (Pa.
Cmwlth. 2019), appeal denied, 228 A.3d 254 (Pa. 2020) (citations omitted).
Likewise, in this case, the Board was without the authority to grant the
administrative relief that Parolee requested because it was affirmatively prohibited
from doing so by Code Section 6138(d)(5)(i).
6
Moreover, as outlined by the Board, any process that Parolee was due
with respect to his disciplinary infraction that took place at the SCI was provided
through the grievance procedure that Parolee could pursue with respect to those
disciplinary proceedings. See, e.g., DOC Policy Statement DC-ADM 801(4)(C)(1)
(“After the misconduct hearing has concluded the Misconduct and Hearing Record
shall be forwarded to the Facility Manager/designee for review. This review shall
ensure that the hearing was conducted in accordance with procedures and that the
actions taken conform to facility regulations.”); DOC Policy Statement DC-ADM
801(5)(A)(1) (“An inmate who has been found guilty of a misconduct charge(s) may
appeal to the Program Review Committee (PRC) for initial review within 15
calendar days of the hearing. . . .”); DOC Policy Statement DC-ADM 801(5)(B)(1)
(“The inmate may appeal the decision of the PRC to the Facility Manager/designee
within seven calendar days of receipt of the written PRC decision . . . .”); DOC
Policy Statement DC-ADM 801(5)(C)(3) (“The inmate may appeal the decision of
the Facility Manager/designee within seven calendar days of the receipt of the
Facility Manager/designee’s decision. Appeals that are addressed to the Secretary,
Chief Counsel, or other Central Office Staff, are delivered to these individuals first,
and then referred to the Chief Hearing Examiner’s Office.”) (emphasis in original).
Parolee may not collaterally attack the underlying misconduct
determination in the instant Administrative Appeal of the Board’s recission decision
that was mandated by Code Section 6138(d)(5)(i), and no due process hearing was
required before that decision was issued. As Parolee acknowledges in his appellate
brief:
It is well[]settled that under Pennsylvania law a
grant of parole by itself does not vest a prisoner with any
protected liberty interest in that parole. Green [v.
7
Pennsylvania Board of Probation and Parole, 515 A.2d
1006 (Pa. Cmwlth. 1986)]. Cf. Jago v. Van Curen, 454
U.S. 14 [] (1981) (no liberty interest created by a grant of
parole under Ohio law until the prisoner is actually
released on parole). Our case law has consistently held
that a prisoner does not attain the status of a “parolee” until
the grant of parole is actually executed. See, e.g., Dinkins
v. Department of Justice, [523 A.2d 1218 (Pa. Cmwlth.
1987)]; Franklin v. Pennsylvania Board of Probation and
Parole, [476 A.2d 1026 (Pa. Cmwlth. 1984)]; Jones v.
Pennsylvania Board of Probation and Parole, [473 A.2d
247 (Pa. Cmwlth. 1984)]. In Green, we held that a grant
of parole is not executed until the prisoner signs the
acknowledgement of parole conditions, Board form
PBPP-11, and the Board issues its parole release order,
Board form PBPP-10. []515 A.2d at 1008. Here, there is
no allegation that [the inmate] signed the
acknowledgement of parole conditions or that the Board
issued a parole release order and [the inmate] concedes
that they were not completed. Accordingly, [the inmate]
never attained the status of “parolee” with respect to the
parole granted by the [Board’s] order and the Board was
not required to provide him with advance notice and a
hearing before it rescinded its prior grant of parole.
Therefore, the Board did not violate any of his due process
rights when it rescinded its prior grant of parole. . . .
Johnson v. Pennsylvania Board of Probation and Parole, 532 A.2d 50, 52 (Pa.
Cmwlth. 1987). Likewise, in this case, the Board’s recission decision was issued
before Parolee’s automatic parole was executed, so his due process rights were not
violated when the Board issued its recission decision pursuant to Code Section
6138(d)(5)(i) without a counselled hearing. Id.4
4
See also Anderson v. Pennsylvania Parole Board, ___ A.3d ___, ___ n.7 (Pa. Cmwlth.,
No. 1248 C.D. 2020, filed October 20, 2021), slip op. at 7 n.7 (“[P]arole revocation, where a
parolee’s liberty is at stake, carries with it a constitutionally guaranteed right to a hearing, while
parole rescission, where the inmate is still confined, does not. Specifically, a Board’s parole
rescission decision due to prison misconduct is not subject to a hearing. Accordingly, the Board’s
Rescission Report properly reflected: ‘Hearing is not required because: . . . [i]nmate received a
misconduct hearing in SCI[.]’”) (citations omitted).
8
Accordingly, the Board’s order is affirmed.
MICHAEL H. WOJCIK, Judge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Niheim Miller, :
:
Petitioner :
:
v. : No. 9 C.D. 2021
:
Pennsylvania Parole Board, :
:
Respondent :
ORDER
AND NOW, this 22nd day of December, 2021, the order of the
Pennsylvania Parole Board dated December 14, 2020, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge