M. Moffitt v. PPB ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael Moffitt, :
:
Petitioner :
:
v. : No. 706 C.D. 2021
: Submitted: April 1, 2022
Pennsylvania Parole Board, :
:
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: February 3, 2023
Michael Moffitt (Moffitt) petitions for review from an order of the
Pennsylvania Parole Board (Board) that denied his request for administrative review
challenging the calculation of his parole violation maximum date. Also before us is
a petition to withdraw as counsel filed by Moffitt’s court-appointed attorney, Jessica
A. Fiscus, Esquire (Attorney Fiscus), on the ground that Moffitt’s appeal is without
merit. For the reasons that follow, we grant Attorney Fiscus’s petition to withdraw
as counsel, and we affirm the Board’s order.
I. Background
In March 2013, Moffitt pleaded guilty to two counts of possession with
the intent to deliver, and he was sentenced to an aggregate term of two to four years
in prison (C.P. York, No. CP000115 CT1/2012 and CT2/2012). Certified Record
(C.R.) at 1. Moffitt also pleaded guilty to one count of persons not to possess, use,
manufacture, control, sell, or transfer firearms, and one count of possession of a
weapon on school property, and he was sentenced to an aggregate term of four to
eight years in prison (C.P. York, No. CP0008828 CT1/2012 and CT16/2012). C.R.
at 1. Moffitt was ordered to serve his sentences at both dockets concurrently, for an
aggregate sentence of 4 to 8 years in prison. Id. Moffitt’s original maximum
sentence date was March 4, 2020. Id. at 2.
On March 6, 2016, the Board released Moffitt on parole. C.R. at 7. On
December 8, 2017, the Board recommitted Moffitt as a technical parole violator
(TPV) and ordered him to serve six months of backtime due to his failure to comply
with all laws. Id. at 16. Moffitt was automatically re-paroled on January 3, 2018.
Id. at 19. On June 1, 2018, the Board issued a warrant to commit and detain Moffitt
for parole violations, and took Moffitt into custody. Id. at 25, 29. On June 4, 2018,
the Board charged Moffitt as a TPV, alleging that he had tested positive for and
admitted to cocaine use on May 30, 2018, and admitted that he had contact with a
prohibited individual. Id. at 26. Moffitt signed a waiver of his revocation hearing
and a counsel/admission form relative to the charges. Id. at 28. A hearing examiner
issued a hearing report determining that Moffitt should remain in a parole violator
center (PVC) until completion of programming. Id. at 34. On June 4, 2018, the
Board adopted the hearing examiner’s recommendation and held the violation in
abeyance pending completion of recommended programming. Id. at 35. The Board
2
cancelled the warrant, and Moffitt was released from the PVC on August 2, 2018.
Id. at 36-37.
In September and October 2018, the Board imposed several special
conditions on Moffitt, including a requirement that Moffitt schedule a drug and
alcohol evaluation. C.R. at 38-40. On November 27, 2018, the Board imposed
another special condition, which required Moffitt to enter another PVC. Id. at 41.
That same day, the Board issued a warrant to commit and detain Moffitt for parole
violations. Id. at 42.
On November 27, 2018, the Board charged Moffitt as a TPV, alleging
that he tested positive for and admitted to cocaine use on November 24, 2018. C.R.
at 43. Moffitt signed a waiver of revocation hearing and a counsel/admission form
relative to the charges, in which he admitted to three technical violations. Id. at 45.
A hearing examiner issued a hearing report determining that Moffitt should remain
in a PVC until completion of programming. Id. at 53. On December 21, 2018, the
Board adopted the hearing examiner’s recommendation. Id. at 55. The Board
paroled Moffitt on January 26, 2019, and cancelled the warrant. Id. at 56-57. On
February 6, 2019, the Board imposed a special condition that required Moffitt to
schedule a drug and alcohol evaluation. Id. at 58. On February 25, 2019, the Board
issued a warrant to commit and detain Moffitt for parole violations. Id. at 59.
On February 20, 2019, while on parole, Moffitt was charged with
burglary, theft by unlawful taking, and criminal mischief stemming from an incident
on February 16, 2019, and he was arrested on February 21, 2019. C.R. at 63, 77-81,
138. The York County Court of Common Pleas (sentencing court) set bail at
$50,000, which Moffitt did not post. Id. at 101. On February 27, 2019, Moffitt was
charged with simple assault and strangulation, stemming from an incident on
3
February 17, 2019. Id. at 72-75. Moffitt was confined at the York County Prison
pending disposition of the new criminal charges. Id. at 101.
On March 6, 2019, the Board charged Moffitt as a convicted parole
violator (CPV) and requested to detain him as a result of both sets of new charges.
C.R. at 60. Moffitt signed a waiver of his detention hearing and to representation by
counsel. Id. at 62. A hearing examiner issued a hearing report determining that
Moffitt should be detained pending the disposition of the new criminal charges. Id.
at 85. On April 17, 2019, the Board adopted the hearing examiner’s
recommendation and directed that Moffitt be detained pending resolution of the new
criminal charges. Id. at 87.
On January 23, 2020, Moffitt pleaded no contest to one count of
burglary, and the remaining charges from that incident were nolle prossed. C.R. at
102. The sentencing court sentenced Moffitt to 1 year minus 1 day to 2 years minus
2 days of confinement, and gave him credit for 340 days. Id. at 102, 105. The
sentencing court paroled Moffitt from this sentence on February 23, 2020. Id. at
156. Also on January 23, 2020, Moffitt pleaded no contest to one count of simple
assault, and the other charge from that incident was nolle prossed. Id. at 110, 113.
The sentencing court sentenced Moffitt to two years’ probation on that charge. Id.
The Board charged Moffitt as a CPV based on his new convictions.
C.R. at 88. Moffitt signed a waiver of his revocation hearing and a
counsel/admission form relative to the charges, in which he admitted to the new
convictions. Id. at 90. A hearing examiner issued a report recommending that
Moffitt’s parole be revoked based on the new convictions, and that he serve his
backtime in a State Correctional Institution (SCI). Id. at 120-21. The hearing
examiner based this determination on Moffitt’s poor adjustment under supervision,
4
his new charges that were both serious and assaultive, his prior parole failure, his
failure to comply with sanctions, and the threat that he poses to the community. Id.
at 122. The hearing examiner recommended that Moffitt not receive credit for the
time that he spent at liberty on parole due to his new convictions for burglary and
assault while on parole. Id. at 118-19. On March 4, 2020, the Board adopted the
hearing examiner’s recommendation. Id. at 123.
By revocation decision dated March 6, 2020, the Board recommitted
Moffitt as a CPV to serve 791 days’ backtime. C.R. at 160. The Board calculated
Moffitt’s new maximum sentence date as April 24, 2022. Id. The Board did not
award credit for time spent at liberty on parole, citing Moffitt’s commission of a new
offense that was assaultive in nature. Id. at 161.
Moffitt, representing himself, requested administrative review of the
Board’s March 6, 2020 decision on the basis that the Board erred in calculating his
time credit. C.R. at 170. On August 7, 2020, the Board issued a decision modifying
its prior action of March 6, 2020. Id. at 164-65. The Board awarded Moffitt credit
for the period of confinement in a PVC between June 1, 2018, and August 2, 2018
(62 days), and between November 27, 2018, and January 26, 2019 (60 days). Id. at
162. The Board then calculated that Moffitt had 669 days remaining to serve on his
maximum sentence, and the Board recalculated Moffitt’s maximum sentence date as
December 23, 2021. Id. at 162, 164-65. Moffitt sent another administrative review
form and additional correspondence to the Board, again challenging the Board’s
recalculation of his maximum sentence date in the August 7, 2020 decision. Id. at
175-76, 177-78, 180, 182, 185, 187.
By a decision dated May 11, 2021, the Board responded to Moffitt’s
requests for administrative relief. C.R. at 189. The Board indicated that Moffitt
5
received confinement credit of 122 days in its most recent calculation. Id. at 189-
90. The Board also indicated that all of the time that Moffitt served at the York
County Prison was credited to his county sentence, which had to be served first. Id.
The Board then affirmed its August 7, 2020 decision. Id. at 190.
From the May 11, 2021 decision, Attorney Fiscus filed a petition for
review on Moffitt’s behalf asserting that the Board miscalculated Moffitt’s
maximum sentence by failing to award him credit for time that he spent at liberty on
parole, or that it offered an insufficient reason to do so. Moffitt also asserted that
the Board erred when it failed to award him credit for the time that he served in the
York County Prison, and for the time that he was held on the Board’s detainer.
Shortly thereafter, Attorney Fiscus filed a petition to withdraw as counsel along with
a no-merit letter on her belief that Moffitt’s appeal is without merit. This matter is
now before us for disposition.1
II. Petition to Withdraw
Counsel seeking to withdraw as appointed counsel must conduct a
zealous review of the case and submit a no-merit letter to this Court explaining the
nature and extent of counsel’s diligent review of the case, listing the issues that the
petitioner wants to have reviewed, explaining why and how those issues lack merit,
and requesting permission to withdraw. Commonwealth v. Turner, 544 A.2d 927,
928 (Pa. 1988); Hughes v. Pennsylvania Board of Probation and Parole, 977 A.2d
1On January 12, 2022, this Court issued a rule to show cause as to why Moffitt’s appeal
should not be dismissed as moot because Moffitt had served his maximum sentence as of
December 23, 2021, and had been released from custody. Attorney Fiscus filed a timely response,
averring that the appeal was not moot because Moffitt still had to serve the balance of his new
county sentence through a period of parole and consecutive probation, and that the outcome of his
appeal could affect the maximum sentence at the new docket. On February 15, 2022, this Court
considered Attorney Fiscus’s response and discharged the rule to show cause.
6
19, 24-26 (Pa. Cmwlth. 2009); Zerby v. Shanon, 964 A.2d 956, 960 (Pa. Cmwlth.
2009).2 The no-merit letter must include “‘substantial reasons for concluding that a
petitioner’s arguments are meritless.’” Zerby, 964 A.2d at 962 (quoting Jefferson v.
Pennsylvania Board of Probation and Parole, 705 A.2d 513, 514 (Pa. Cmwlth.
1998)).
In addition, court-appointed counsel who seeks to withdraw
representation must: (1) notify the petitioner of the request to withdraw; (2) furnish
the petitioner with a copy of a brief or no-merit letter; and (3) advise the petitioner
of his right to retain new counsel or raise any new points that he might believe to be
worthy of consideration. Turner, 544 A.2d at 928; Hughes, 977 A.2d at 25. If this
Court determines that the petitioner’s claims are without merit, counsel will be
permitted to withdraw, and the petitioner will be denied relief. Turner, 544 A.2d at
928; Hughes, 977 A.2d at 27.
Upon review, Attorney Fiscus’s no-merit letter satisfies the technical
requirements of Turner. Attorney Fiscus states that she conducted a thorough review
of the record, applicable statutes, regulations, and case law. She sets forth the
primary issue that Moffitt raised in his petition for review, that the Board
miscalculated his maximum sentence date by not crediting his original sentence with
all the confinement time to which he is entitled, including time spent at liberty on
2
Where there is a constitutional right to counsel, court-appointed counsel seeking to
withdraw must submit a brief in accord with Anders v. California, 386 U.S. 738 (1967), referred
to as an Anders brief that: (i) provides a summary of the procedural history and facts, with citations
to the record; (ii) refers to anything in the record that counsel believes arguably supports the appeal;
(iii) sets forth counsel’s conclusion that the appeal is frivolous; and (iv) states counsel’s reasons
for concluding that the appeal is frivolous. Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.
2009); Hughes, 977 A.2d at 25-26. Where, as here, the petitioner has only a statutory, rather than
a constitutional, right to counsel, appointed counsel may submit a no-merit letter instead of an
Anders brief. Id.
7
parole. Attorney Fiscus also sets forth the subsidiary issues that Moffitt raised in his
administrative appeal. Attorney Fiscus provides a thorough procedural history of
the case and a thorough analysis as to why these issues lack merit, and she cites
applicable statutes, regulations, case law, and the certified record in support.
Attorney Fiscus explains that the Board properly calculated Moffitt’s
maximum date. First, the Board has the authority to recommit Moffitt as a CPV
when his new convictions were based on a plea of no contest (nolo contendere).
Section 6137(h)(1) of the Prisons and Parole Code (Parole Code), 61 Pa. C.S.
§6137(h)(1), provides that the Board may recommit a parolee for violations of the
terms and conditions of his parole. Section 6138(a)(1) of the Parole Code, 61
Pa. C.S. §6138(a)(1), provides that a parolee may be recommitted as a CPV if he
pleads guilty or nolo contendere to a crime committed while on parole. The Board
has the authority to deem Moffitt a CPV even when his new convictions are based
on a plea of no contest, according to the plain language of Section 6138(a)(1) of the
Parole Code.
Attorney Fiscus further explains that the Board did not err when it
awarded Moffitt credit for the time that he served in the York County Prison and
applied it to his new county sentence rather than to his original sentence. Section
6138(a)(5)(i) of the Parole Code, 61 Pa. C.S. §6138(a)(5)(i), provides that if a new
sentence is imposed on the parolee, the service of the balance of the original term
shall precede the new sentence if the individual is paroled from an SCI and the new
sentence imposed is to be served in an SCI. However, Section 6138(a)(5)(iii)
provides that “in all other cases, the service of the new term for the latter crime shall
precede commencement of the balance of the term originally imposed.” 61 Pa. C.S.
§6138(a)(5)(iii). Further, if a parolee is detained both on a Board detainer and for
8
new charges for which the individual did not satisfy bail requirements, the time spent
in custody is to be credited to the sentence imposed for the new charges. Smith v.
Pennsylvania Board of Probation and Parole, 171 A.3d 759, 761 n.7 (Pa. 2017).
Based on the record, Attorney Fiscus explains that Moffitt was arrested on the
burglary charges on February 21, 2019, and that he did not post bail. The Board
issued a warrant to commit and detain Moffitt on February 25, 2019. Moffitt was
sentenced on the new charges on January 23, 2020, at which time the sentencing
court awarded Moffitt credit for 340 days on his new sentence. Attorney Fiscus
explains that the sentencing court correctly credited the time that Moffitt served from
arrest to sentencing to his new sentence rather than to his original sentence because
Moffitt did not satisfy bail requirements for his new charges. Attorney Fiscus further
explains that Moffitt did not receive credit for the time that he served in jail from
sentencing to parole because Moffitt had to serve his county sentence first.
Attorney Fiscus next addresses whether the Board erred when it failed
to award Moffitt credit for the time that he spent in two PVCs, totaling 122 days,
and she concluded that the issue is essentially moot. Although the Board did not
award Moffitt credit for these periods of confinement in its first recommitment order,
the Board issued a modified order in which it credited Moffitt with the time that he
spent confined in two PVCs, and recalculated Moffitt’s maximum sentence date as
December 23, 2021.
Attorney Fiscus next addresses whether the Board erred when it denied
Moffitt credit for the time that he spent at liberty on parole before he was confined
at a PVC, based on the Board’s failure to formally revoke his parole as a TPV. The
record reflects that the Board held its revocation action in abeyance pending
Moffitt’s completion of additional programming. Attorney Fiscus avers that the
9
Court recently rejected a similar argument in Looney v. Pennsylvania Parole Board
(Pa. Cmwlth., No. 128 C.D. 2021, filed October 4, 2021), appeal denied, (Pa., No.
326 WAL 2021, filed March 29, 2022), when we held that a parolee shall be given
credit for time served on parole in good standing only if the parolee is recommitted
as a TPV.
Attorney Fiscus last addresses whether the Board erred in denying
Moffitt credit for all of the time that he spent at liberty on parole because he was
recommitted for a “non-violent” offense. Attorney Fiscus cites to Section 6138(a)(2)
of the Parole Code, 61 Pa. C.S. §6138(a)(2), which provides that a CPV shall be
recommitted to serve the remainder of his original sentence, and except as provided
in subsection (2.1), shall not receive credit for time spent at liberty on parole. In
relevant part, Section 6138(a)(2.1) of the Parole Code, 61 Pa. C.S. §6138(a)(2.1),
gives the Board discretion to award credit for time spent at liberty on parole unless
the crime committed while on parole is a crime of violence as defined in Section
9714(g) of the Sentencing Code, 42 Pa. C.S. §9714(g), or is a crime requiring
registration under the Sex Offender Registration and Notification Act. 42 Pa. C.S.
§§9799.10-9799.75. When this exception applies, the Board must provide a
contemporaneous statement explaining its reasons to deny a CPV credit for the time
spent at liberty on parole. Pittman v. Pennsylvania Board of Probation and Parole,
159 A.3d 466, 475 (Pa. 2017). In this regard, Attorney Fiscus explains that Moffitt’s
new convictions for burglary and simple assault do not constitute crimes of violence
under Section 9714(g) of the Sentencing Code. As such, the Board must offer a
contemporaneous reason to explain why it denied credit, as an exercise of its
discretion. Attorney Fiscus explains that here, the hearing examiner offered the
following reason to deny Moffitt credit, i.e., that he was convicted for burglary and
10
assault while he was on parole. C.R. at 119. The Board adopted the hearing
examiner’s recommendation and further provided that Moffitt did not receive credit
because the new offense “was assaultive in nature.” Id. at 67-68. Attorney Fiscus
also notes that Moffitt overlooks that he was recommitted as a CPV, receiving
convictions that are punishable by imprisonment that are governed directly by
Section 6138(a) of the Parole Code.
Based on her review, Attorney Fiscus concludes that Moffitt’s appeal
to this Court is without merit, and she requests permission to withdraw. Attorney
Fiscus provided Moffitt with a copy of the no-merit letter and her request to
withdraw. Attorney Fiscus advised Moffitt of his right to retain new counsel or
proceed by representing himself.3 Because we are satisfied that Attorney Fiscus has
discharged her responsibility in complying with the technical requirements to
withdraw from representation, we shall conduct an independent review to determine
whether Moffitt’s petition for review lacks merit.4
III. Independent Review
Moffitt claims that the Board miscalculated his new parole violation
maximum date when it failed to credit his original sentence with all of the
confinement time to which he is entitled, including the time that he spent at liberty
on parole. First, Moffitt argues that the Board erred when it recommitted him as a
CPV based on his convictions by a plea of no contest rather than a guilty plea.
3
Moffitt did not retain new counsel or file a brief in support of his petition to review.
4
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).
11
Section 6137(h)(1) of the Parole Code provides generally that the Board may
recommit a parolee for violations of the terms and conditions of his parole. Section
6138(a)(1) of the Parole Code directly provides that a parolee may be recommitted
as a CPV if he pleads guilty or nolo contendere to a crime committed while on
parole. Based on the plain language of Section 6138(a)(1) of the Parole Code, the
Board has the authority to deem Moffitt a CPV even when his new convictions are
based on a plea of no contest. Therefore, on this issue, we discern no error in the
Board’s decision.
Moffitt next claims that the Board erred when it awarded him credit for
the time that he served in the York County Prison and applied it to his new county
sentence rather than to his original sentence. Section 6138(a)(5)(i) of the Parole
Code provides that if a new sentence is imposed on the parolee, the service of the
balance of the original term shall precede the new sentence if the individual is
paroled from an SCI and the new sentence imposed is to be served in an SCI.
However, Section 6138(a)(5)(iii) further provides that “in all other cases, the service
of the new term for the latter crime shall precede commencement of the balance of
the term originally imposed.” 61 Pa. C.S. §6138(a)(5)(iii).
Further, it is well settled that “where an offender is incarcerated both
on a Board detainer and new criminal charges, all time spent in confinement must
be credited to either the new sentence or to the original sentence.” Martin v.
Pennsylvania Board of Probation and Parole, 840 A.2d 299, 309 (Pa. 2003); accord
Gaito v. Pennsylvania Board of Probation and Parole, 412 A.2d 568, 571 n.6 (Pa.
1980); see Smith, 171 A.3d at 769 (holding Martin and Gaito remain the rule in this
Commonwealth for how credit is applied). As our Supreme Court held in Gaito:
[I]f a defendant is being held in custody solely because
of a detainer lodged by the Board and has otherwise met
12
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 at 571.
On February 21, 2019, Moffitt was arrested on the burglary charges.
C.R. at 138. On February 27, 2019, Moffitt was arrested on the assault charges. Id.
at 72-75. The sentencing court set bail at $50,000, which Moffitt did not post. Id.
at 101. Moffitt was confined at the York County Prison pending disposition of the
new criminal charges. Id. at 101. On February 25, 2019, the Board issued a warrant
to commit and detain Moffitt. Id. at 59. Moffitt was sentenced on the new charges
on January 23, 2020, at which time the sentencing court awarded Moffitt credit for
340 days on his new sentence. Because Moffitt did not post bail on the new criminal
charges, he was not detained solely on the Board’s warrant. This period of detention
applies to his new sentence, not to his original sentence. See Martin. The Board did
not err on this issue.
Moffitt next claims that the Board erred when it failed to award him
credit for the time he spent in two PVCs, totaling 122 days. Although the Board did
not award Moffitt credit for these periods of confinement in its first recommitment
order, the Board issued a modified order dated August 7, 2020, in which it credited
Moffitt with the time he spent confined in two PVCs, and recalculated Moffitt’s
maximum sentence date as December 23, 2021. C.R. at 162, 164-65. Because the
Board’s modified order credited 122 days to Moffitt’s original sentence for the time
he spent in two PVCs, the Board did not err on this issue.
13
Moffitt next claims that the Board erred when it denied him credit for
the time that he spent at liberty on parole before he was confined at a PVC, based on
the Board’s failure to formally revoke his parole as a TPV. Moffitt’s argument is
not supported by the record or by the applicable case law. The record reflects that
the Board held its revocation action in abeyance pending Moffitt’s completion of
additional programming. C.R. at 55. Therefore, Moffitt was not recommitted as a
TPV, and he was not entitled to credit for the time that he spent at liberty on parole
before he was committed to a PVC. The Court recently considered the same
argument and rejected it in Looney, slip op. at 10-11.5 See also Pittman v.
Pennsylvania Parole Board (Pa. Cmwlth., No. 1075 C.D. 2020, filed August 19,
2021), slip op. at 9 (rejecting the same argument).
Lastly, Moffitt claims that the Board erred when it refused to credit him
for all of the time that he spent at liberty on parole when he committed what he
describes as a “non-violent” offense. Section 6138 of the Parole Code generally
governs parole violations for CPVs. Of particular relevance here, Section 6138(a)(2)
of the Parole Code authorizes the Board to reenter CPVs into SCIs to serve the
remainder of the term that they would have been required to serve had they not been
paroled, except as under subsection (2.1). 61 Pa. C.S. §6138(a)(2). Subsection (2.1)
grants the Board discretion to award credit to a CPV recommitted to serve the
remainder of his sentence, except when the CPV is recommitted for the reasons
stated in subsections 6138(a)(2.1)(i) and (ii). 61 Pa. C.S. §6138(a)(2.1); Pittman,
159 A.3d at 473.
5
See Pa. R.A.P. 126(b) (“As used in this rule, ‘non-precedential decision’ refers to . . . an
unreported memorandum opinion of the Commonwealth Court filed after January 15, 2008. []
Non-precedential decisions . . . may be cited for their persuasive value.”).
14
In the exercise of this discretion, the Board must conduct an “individual
assessment of the facts and circumstances surrounding [a parolee’s] parole
revocation.” Pittman, 159 A.3d at 474. Further, the Board must “articulate the basis
for its decision to grant or deny a CPV credit for time served at liberty on parole.”
Id. Although the Board has broad discretion to grant or deny such credit, its decision
is subject to appellate review and must be reversed or vacated as an abuse of
discretion where the Board has based its denial of credit on an erroneous premise.
Id. at 474-75 and n.12. Where the Board denies credit for time served at liberty on
parole, this time is applied to the original maximum expiration date to create a new
maximum date. Armbruster v. Pennsylvania Board of Probation and Parole, 919
A.2d 348, 351 (Pa. Cmwlth. 2007).
Here, Moffitt correctly argues that he was not convicted of a crime of
violence, did not commit a crime requiring sex offender registration, and was not
subject to a federal removal order. See Section 6138(a)(2.1)(i) and (ii). However,
Moffitt fails to appreciate that, as a result, the Board had discretion to deny him
credit for the time he spent at liberty on parole, provided it articulated a reason for
its denial. 61 Pa. C.S. §6138(a)(2.1); Pittman. The hearing examiner declined to
credit Moffitt with time that he spent at liberty on parole citing Moffitt’s convictions
for simple assault and burglary for events that occurred while he was on parole. C.R.
at 119. The Board approved the hearing officer’s decision and emphasized that
Moffitt did not receive credit because he committed a new offense “that was
assaultive in nature.” Id. at 67-68. See Pittman, 159 A.3d at 475 n.12 (“the reason
the Board gives does not have to be extensive and a single sentence explanation is
likely sufficient in most instances”). Upon review, we discern no error or abuse of
discretion in the Board’s denial of street time credit on this basis.
15
IV. Conclusion
Upon review, we agree with Attorney Fiscus that Moffitt’s claims are
without merit. Accordingly, we grant Attorney Fiscus’s petition to withdraw as
counsel, and we affirm the Board’s decision denying Moffitt’s request for
administrative review.
MICHAEL H. WOJCIK, Judge
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael Moffitt, :
:
Petitioner :
:
v. : No. 706 C.D. 2021
:
Pennsylvania Parole Board, :
:
Respondent :
ORDER
AND NOW, this 3rd day of February, 2023, the petition to withdraw as
counsel filed by Jessica A. Fiscus, Esquire, is GRANTED, and the order of the
Pennsylvania Parole Board, dated May 11, 2021, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge