M. Penjuke v. PBPP , 203 A.3d 401 ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Martin Penjuke, :
Petitioner :
: No. 1304 C.D. 2017
v. :
: Argued: November 14, 2018
Pennsylvania Board of Probation :
and Parole, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION BY
JUDGE McCULLOUGH FILED: February 1, 2019
Martin Penjuke (Penjuke) petitions for review of the August 18, 2017
order of the Pennsylvania Board of Probation and Parole (Board) denying his request
for administrative relief and affirming its May 5, 2017 decision to recommit Penjuke
as a convicted parole violator (CPV) for the remaining term of his unexpired
sentence. In this decision, the Board revoked, or at least failed to honor, sentencing
credit that Penjuke received for days he spent in good standing at liberty on parole,
also known as “street time,”1 during a prior period of parole that resulted in his
1
Dorsey v. Pennsylvania Board of Probation and Parole, 854 A.2d 994, 996 n.3 (Pa.
Cmwlth. 2004).
recommitment as a technical parole violator (TPV). For authoritative support, the
Board cited an established line of case law from this Court.
Upon deliberation, we have convened en banc to reevaluate whether the
precedent the Board relied upon remains viable or “good law” after, and in light of, a
statutory amendment and our recent decision in Young v. Pennsylvania Board of
Probation and Parole, 189 A.3d 16 (Pa. Cmwlth. 2018) (en banc), appeal granted,
__ A.3d __ (Pa., No. 455 MAL 2018, filed January 2, 2019).
The pertinent facts of this case are uncontested and are as follows. In
connection with three separate criminal incidents occurring in 2012, Penjuke pleaded
guilty to two charges of driving under the influence and was convicted of simple
assault. A trial court sentenced Penjuke to an aggregate term of imprisonment of one
year and nine months to nine years, and his minimum and maximum sentence dates
were March 28, 2013, and June 28, 2020, respectively. Penjuke is incarcerated at the
State Correctional Institution at Coal Township. (Certified Record (C.R.) at 1, 24-
26.)
By decision recorded April 20, 2013, the Board granted Penjuke parole.
Prior to his release, Penjuke signed conditions governing his parole advising that,
“[i]f you are convicted of a crime committed while on parole/reparole, the Board has
the authority, after an appropriate hearing, to recommit you to serve the balance of
the sentence or sentences which you were serving when paroled/reparoled, with no
credit for time at liberty on parole.” (C.R. at 32.) On June 26, 2013, Penjuke was
released, and he spent 793 days (or approximately 2 years and 3 months) on parole in
good standing, until August 28, 2015, when the Board declared him delinquent.
Thereafter, Penjuke waived his rights to a revocation hearing and the assistance of
counsel, and admitted that he violated the conditions of his parole for changing his
2
residence without permission and failing to maintain regular contact with parole
supervisors. On March 28, 2016, the Board recommitted Penjuke as a TPV and
extended his maximum sentence date from June 28, 2020, to December 12, 2021, to
account for 167 days that he spent in delinquency. Consistent with the applicable
statutory provision,2 the Board did not add the 793 days that Penjuke spent in good
standing to his maximum sentence date. (C.R. at 42, 47-62.)
On July 20, 2016, the Board reparoled Penjuke, and he again signed
conditions governing his parole including the advisement concerning credit for street
time mentioned above. On July 20, 2016, the Board released Penjuke. Shortly
thereafter, on July 28, 2016, the police arrested Penjuke and he was charged with
simple possession of a controlled substance, possession of drug paraphernalia,
loitering and prowling at night, public drunkenness, and disorderly conduct. On
February 6, 2017, Penjuke pleaded guilty to simple possession, and a trial court
sentenced him to one year of probation on February 28, 2017. The Board then
provided Penjuke with a notice of charges and, on March 13, 2017, Penjuke waived
his rights to a revocation hearing and the assistance of counsel, and admitted that he
was convicted of a crime. In a hearing report dated March 13, 2017, the Board
accepted Penjuke’s waivers and admission to being a CPV. (C.R. at 94-100, 109-
117). In the “dispositional” section located on page two of the hearing report, the
Board provided a notation: “The offender’s adjustment was poor. He incurred a new
criminal arrest a week after his release.” (C.R. at 110.) On page three of the hearing
report, the Board checked the box labeled “No” and declined to award Penjuke credit
for time spent at liberty on parole. (C.R. at 111.)
2
“If the parolee is recommitted under this subsection [as a TPV], the parolee shall be given
credit for the time served on parole in good standing . . . .” 61 Pa.C.S. §6138(c)(2).
3
On April 27, 2017, the Board recommitted Penjuke as a CPV, and
recalculated his maximum sentence date, extending it to February 22, 2023. In
making this computation, the Board credited Penjuke with 214 days that he spent in
confinement on the criminal charges but, due to his status as a CPV, the Board did
not provide him with credit for any of the days that he spent on reparole. Further, and
at issue here, the Board effectively rescinded the 793 days of street time that Penjuke
spent in good standing when he served his prior parole and added that amount in
increasing the maximum sentence date. (C.R. at 66-78, 82-103.)
On May 22, 2017, Penjuke submitted a request for administrative relief,
challenging, among other things, the Board’s authority to forfeit or revoke the 793
days of credit that he acquired for the street time that he spent in good standing
during the parole period that led to his recommitment as a TPV. Penjuke also
questioned the accuracy of and statutory basis for the Board’s recalculation of his
maximum sentence.
On August 18, 2017, the Board denied the request. Citing dispositive
case law from this Court, the Board concluded that when Penjuke was recommitted as
a CPV, he automatically forfeited all of his street time, including credit for the days
that he previously accumulated during the original parole period. (Board’s decision
at 1.)
Penjuke then filed a petition for review. During the pendency of the
appeal, this Court rendered its decision in Young. By per curiam order dated July 9,
2018, we entered an order directing the parties to file supplemental briefs addressing
the effect, if any, that Young may have on the issues presented.3 The parties have
3
Although our Supreme Court granted allowance of appeal in Young, that decision remains
binding on this Court, and under stare decisis, we are obligated to apply Young and its rationale,
(Footnote continued on next page…)
4
complied, and, on October 10, 2018, we entered an order listing the case for oral
argument before the Court en banc.
Statutory and Legal Background
In 2009, our General Assembly codified and essentially reenacted
former section 21.1 of the Parole Act4 in nearly identical language in what became
section 6138 of the Prisons and Parole Code (Parole Code). 61 Pa.C.S. §6138.5
Under both versions of the statute, collectively referred to as the Parole Statutes, the
Board could recommit a parolee to prison in two distinct situations: where the
parolee violated the terms and conditions of parole, legally termed a TPV, or where
the parolee committed and was convicted of a crime punishable by imprisonment,
legally termed a CPV.6 In the event the parolee was recommitted as a TPV, the
Parole Statutes dictated that the parolee “shall be given credit for the time served on
parole in good standing . . . and may be reentered to serve the remainder of the
original sentence or sentences.” 61 Pa.C.S. §6138(c)(2); former 61 P.S. §331.21a(b).
On the other hand, if a parolee was recommitted as a CPV, the Parole Statutes
(continued…)
unless or until it is overruled by our Supreme Court. See Pries v. Workers’ Compensation Appeal
Board (Verizon Pennsylvania), 903 A.2d 136, 144 (Pa. Cmwlth. 2006).
4
Act of August 6, 1941, P.L. 861, as amended, added by the Act of August 24, 1951, P.L.
1401, formerly 61 P.S. §331.21a. The Parole Act was repealed by the Act of August 11, 2009, P.L.
147, when the statute was codified into the Parole Code, 61 Pa.C.S. §§101-6309.
5
See Young, 189 A.3d at 20 nn.8-9; Richards v. Pennsylvania Board of Probation and
Parole, 20 A.3d 596, 598 n.3 (Pa. Cmwlth. 2011) (en banc).
6
See Wile, PENNSYLVANIA LAW OF PROBATION AND PAROLE §16:15 (3rd ed. 2010).
5
mandated, without exception, that the parolee “shall be reentered to serve the
remainder of the term which the parolee would have been compelled to serve had the
parole not been granted and shall be given no credit for the time at liberty on parole.”
61 Pa.C.S. §6138(a)(2); former 61 P.S. §331.21a(a).
As documented in our case law, and by the facts of this case, there have
been instances where a parolee was released on parole and recommitted as a TPV,
and the Board provided the parolee with credit for days spent in good standing in
accordance with the plain language of section 6138(c)(2) of the Parole Code or its
prior version, former section 21.1(b) of the Parole Act. Subsequently, the parolee
was reparoled and was later recommitted as a CPV, and the Board did not provide the
parolee with credit for the time spent on reparole, due to the parolee’s status as a
CPV, pursuant to the verbiage of section 6138(a)(2) of the Parole Code or its
predecessor, former section 21.1(a) of the Parole Act. In this situation, a legal issue
emerged concerning the Board’s statutory authority: could the Board, in
recommitting a parolee as a CPV, also take away the credit that the parolee
previously accumulated during the parole period where the parolee was recommitted
as a TPV?
In 1984 and 1986, this Court issued two foundational opinions that
answered the question in the affirmative, Anderson v. Pennsylvania Board of
Probation and Parole, 472 A.2d 1168 (Pa. Cmwlth. 1984), and Andrews v.
Pennsylvania Board of Probation and Parole, 516 A.2d 838 (Pa. Cmwlth. 1986).
Since then, Anderson and Andrews have been followed and relied upon by this Court
in numerous cases. See, e.g., Richards v. Pennsylvania Board of Probation and
Parole, 20 A.3d 596, 599 (Pa. Cmwlth. 2011) (en banc) (collecting cases). In
summarizing the proposition of law that developed, the revered then-Senior Judge
6
Kelley, writing for the panel in Armbruster v. Pennsylvania Board of Probation and
Parole, 919 A.2d 348 (Pa. Cmwlth. 2007), stated:
Section 21.1(a) . . . provides that a [CPV] “shall be given no
credit for the time at liberty on parole.” 61 P.S. §331.21a.
Upon recommitment as a [CPV], the parolee must serve the
remainder of the term which he would have been compelled
to serve had he not been paroled with no credit given for
street time. While Section 21.1(b) . . . provides that a
[TPV] will be given credit for street time served in good
standing, time spent in good standing prior to
recommitment for technical violations is not shielded from
forfeiture where the parolee subsequently commits a new
crime and is recommitted as a [CPV]. Thus, upon
recommitment as a [CPV], in addition to losing all time
spent at liberty during the current parole, a parolee will also
forfeit all credit received for time spent in good standing
while on parole prior to his previous recommitment as a
[TPV].
919 A.2d at 351.
In our decisional law, this Court has generally emphasized that as a
matter of legislative intent and, to a lesser extent, statutory language, former section
21.1(a) of the Parole Act and/or section 6138(a)(2) of the Parole Code necessitated
the conclusion that a CPV forfeit credit for all the time spent on parole, even time
that was credited for a prior parole period where the parolee was recommitted as a
TPV. In notable measure, we have supported our conclusion with the fact that the
Board did not have any discretion to grant or otherwise award sentencing credit to a
CPV, and loss of all street time was, therefore, of an automatic and mandatory nature.
See, e.g., Young, 189 A.3d at 20-21; Melendez v. Pennsylvania Board of Probation
and Parole, 944 A.2d 824, 825-26 (Pa. Cmwlth. 2008); Palmer v. Pennsylvania
Board of Probation and Parole, 704 A.2d 195, 197 (Pa. Cmwlth. 1997); Houser v.
7
Pennsylvania Board of Probation and Parole, 682 A.2d 1365, 1367-68 (Pa. Cmwlth.
1996).
For example, in the genesis case of Anderson, the parolee was
recommitted as a CPV, and the Board recalculated his maximum sentence date to
include the preceding periods that he spent at liberty on parole and was recommitted
as a TPV. The parolee argued that former section 21.1(a) of the Parole Act required a
CPV to forfeit only that time on parole he accumulated since the date of the most
recent release on parole. The parolee further argued that the Board had no power to
revoke street time that he spent in good standing and acquired during previous
instances of parole that led to recommitment as a TPV.
Unable to locate any precedent that was on point, this Court considered
and focused upon the legislative intent behind former section 21.1, noting that “the
General Assembly intended [s]ection 21.1(a) to be a strong deterrent to prevent
parolees from returning to criminal behavior while enjoying the conditional liberty on
parole.” Anderson, 472 A.2d at 1171. We rejected the parolee’s proposed
construction of former section 21.1(a) because, “[u]nder this interpretation, a parolee
with one or more prior recommitments as a TPV faces a substantially reduced period
of confinement should he subsequently be recommitted as a CPV and the intended
deterrent effect would be weakened accordingly.” Id. In so determining, this Court
in Anderson agreed with the Board that if the parolee’s position were adopted, an
absurd result could possibly occur in the application of the statute, namely where two
identical parolees are released on parole on the same date; one parolee sustains an
intermittent recommitment as a TPV years into the future and is then released on
reparole one month later; and, shortly thereafter, both parolees are recommitted as
CPVs on the same date. In these circumstances, we determined, “the individual with
8
the better parole record would receive the harsher treatment” and concluded that the
General Assembly could not have intended such a result. Id. at 1172.
Ultimately, this Court based our holding on perceived legislative intent,
underscoring the differential treatment between a TPV, who loses no street time for
the parole period at issue, and a CPV, who automatically forfeits all street time for
the parole period at issue. According to the Anderson Court, a grave inequity would
transpire if a parolee recommitted as a CPV served a comparatively lengthy period of
parole, and another parolee served the same amount of time on parole but is
recommitted as a TPV and then as a CPV. On this basis, we determined that the
policy of deterrence would be best served if a parolee who is recommitted as a CPV,
aside from not receiving credit for any days during that parole period, also forfeited
all credit earned for days spent in good standing during the prior parole period(s)
where the parolee was recommitted as a TPV. This Court ended up affirming the
Board on the ground that its action “was consonant with the legislative intent of
[s]ection 21.1(a).” 472 A.2d at 1172.
In Andrews, we faced a state of facts similar to those in Anderson.
While the Court in Anderson clutched onto legislative intent, the Court in Andrews
offered a critique of the plain language of section 21.1(a) of the Parole Act to validate
the same conclusion:
Where the Board determines that a parolee who has been
convicted of a crime committed while on parole should be
recommitted to prison, the General Assembly has given
the Board no discretion with respect to the credits to
which a [CPV] is entitled against the sentence’s
maximum term. Section 21.1(a) clearly mandates that a
[CPV] shall serve the “remainder of the term” originally
imposed that the parolee would have been required to serve
“had he not been paroled” with the parolee receiving “no
credit for the time at liberty on parole.” . . . The language
9
of the statute clearly shows the General Assembly intended
to deny [CPVs] credit against their sentences’ maximum
terms for any street time accumulated while on parole.
516 A.2d at 842 (emphasis added).
In Richards, decided by the Court en banc in 2011, the parolee argued
that under section 6138 of the Parole Code, he was entitled to retain credit for time
served in good standing during the period of parole prior to his recommitment as a
TPV, and that he did not forfeit this time when he was later recommitted as a CPV.
This Court found no merit in the argument. Citing the Anderson/Andrews line of
cases that came to fruition over the years, we reiterated:
It is clear from a plain reading of the statute, that while
[TPVs] are entitled to credit for time served while on
parole in good standing, such that they may only be
recommitted for the remainder of their original
sentences, [CPVs], on the other hand, are not entitled to
any credit for street[]time. Consequently, when a parolee
is recommitted due to criminal conviction, his maximum
sentence date may be extended to account for all
street[]time, regardless of good or delinquent standing.
20 A.3d at 598-99 (emphasis added).
This Court also rejected the parolee’s contention that the statute was
ambiguous, requiring application of the rule of lenity, and again highlighted what we
thought would be an absurd result if a contrary conclusion were reached:
[M]aking a ruling that would favor parolees . . . would
benefit no one, except for those parolees recommitted as
[CPVs] who have had at least one prior recommitment as
[TPVs]. While [CPVs] with no prior recommitments as
[TPVs] would forfeit all street[]time from their original
parole date, those [CPVs] who do have prior
recommitments as [TPVs] would only forfeit street[]time
from their most recent reparole date. Clearly, the
General Assembly could not have intended such an absurd
result.
10
Id. at 600 (emphasis added).
Thus, in Richards, we reaffirmed the Anderson/Andrews line of cases
and verified their continued applicability to the codified version of the Parole Code.
However, subsequent to our decision in Richards, our General Assembly
amended the Parole Code and added section 6138(a)(2.1) in 2012.7 In doing so, the
General Assembly, for the first time in the history of the Parole Statutes, vested the
Board with discretion to grant a CPV with credit for time spent at liberty on parole.
See Pittman v. Pennsylvania Board of Probation and Parole, 159 A.3d 466, 469 (Pa.
2017). In relevant part, this provision states: “The [B]oard may, in its discretion,
award credit to a parolee recommitted [as a CPV] for the time spent at liberty
on parole,” unless the parolee commits a crime enumerated in the statute. 61 Pa.C.S.
§6138(a)(2.1) (emphasis added).8 As such, and in stark contrast to former section
21.1(a) of the Parole Act and former section 6138(a)(2) of the Parole Code, a parolee
who is recommitted as a CPV no longer forfeits, automatically and unconditionally,
credit for days spent during the parole period in which the crime was committed.
In Pittman, which involved a single instance of parole, the parolee
committed and was convicted of a crime and the Board recommitted him as a CPV.
In declining to award the parolee credit, the Board informed him in its adjudication
7
61 Pa.C.S. §6138(a)(2.1), added by the Act of July 5, 2012, P.L. 1050 (Act 122). Section
6138(a)(2.1) became effective on September 4, 2012, and applies to any CPV recommitment
decisions on or after that date. Young, 189 A.3d at 19 n.5.
8
The Board is deprived of this discretion when “(i) [t]he 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 42
Pa.C.S. Ch. 97 Subch. H (relating to registration of sexual offenders)” or “(ii) [t]he parolee was
recommitted under section 6143 (relating to early parole of inmates subject to Federal removal
order).” 61 Pa.C.S. §6138(a)(2.1)(i)-(ii). Neither of these provisions applies to Penjuke.
11
that “as a [CPV] you automatically forfeited credit for all of the time that you spent
on parole.” 159 A.3d at 469. The Supreme Court determined that this statement
conflicted with section 6138(a)(2.1), which “clearly and unambiguously grants the
Board discretion to award credit to a CPV recommitted to serve the remainder
of his sentence.” Id. at 473 (emphasis added). Furthermore, the Supreme Court
concluded that “the Board must provide a contemporaneous statement explaining its
reason for denying a CPV credit for time spent at liberty on parole” in order “to honor
the basic notions of due process” and effectuate the intent of the General Assembly in
enacting section 6138(a)(2.1). Pittman, 159 A.3d at 475.
In Young, the Board recommitted the parolee as a CPV in 2013 based
upon his commission of and conviction for retail theft. However, the Board, acting
pursuant to section 6138(a)(2.1), decided to grant the parolee credit for 1,918 days for
time he spent at liberty on parole before committing retail theft. The parolee was
reparoled in 2014, a court later convicted him of burglary, and the Board again
recommitted him as a CPV. In calculating the new maximum sentence date, the
Board revoked the credit of 1,918 days that it had previously awarded the parolee in
2013 and added these days to extend the maximum sentence date.
On appeal, the Board argued that it possessed the statutory authority to
rescind the 1,918 days of credit and cited, among other cases, Anderson and Andrews.
An en banc panel of this Court rejected the Board’s reliance on these cases as
“misplaced” because they were decided under the Parole Statutes that were in effect
prior to the addition of section 6138(a)(2.1). Young, 189 A.3d at 20. We explained
that when the General Assembly codified section 21.1 of the Parole Act into section
6138 of the Parole Code in 2009, the General Assembly did not intend “to affect prior
judicial construction of that section.” Young, 189 A.3d at 21 n.10; see id. at 24-25
12
(Simpson, J., dissenting, joined by Covey, J.). However, we emphasized that this
edict does not apply to our interpretation of section 6138(a)(2.1), reasoning that the
provision was an amendment in its own right that occurred after the statutory
codification in 2009. Therefore, we determined that the statutory provision was
entitled to be interpreted and considered by the Court on a clean slate. Young, 189
A.3d at 21 n.10.
This Court in Young proceeded to address an issue that we documented
as one of statutory construction and construed subsection (a)(2.1) in the context of
section 6138(a) as a whole. Concluding that the Board lacked the necessary statutory
authority, we reasoned:
Under the current statutory regime, the [] Board must now
decide whether to award or deny credit for street time upon
a parolee’s recommitment as a [CPV]. See 61 Pa.C.S.
§6138(a)(2.1). Once the [] Board grants sentence credit
for street time, it is gone. The only extant “time spent at
liberty on parole” will be that time that falls between the
parolee’s most recent reparole and his recommitment.
Id.
Young, 189 A.3d at 21 (footnote omitted) (emphasis added).
We further likened the case to those involving the creation of “penal
checking accounts” and determined that, “[e]ffectively, the [] Board seeks to do the
obverse by placing the sentence credit it awards to a parolee into an escrow account
for later forfeiture.” 189 A.3d at 21. We continued, “[t]he Parole Code does not
authorize the Board to establish a ‘sentence escrow account’ any more than it
authorizes criminal defendants to establish a ‘penal checking account.’” Id.
Ultimately, the Young Court concluded:
When [the parolee] was recommitted in 2015 as a [CPV],
the [] Board lacked the statutory authority to revoke the
1,918 days of credit it had awarded him in 2013. Those
13
1,918 days had already been applied to his original
sentence. Just as the [] Board lacks the power to revoke
days served on a sentence in prison, it lacks the power to
revoke days served on a sentence by reason of the []
Board’s express award of credit in the course of a prior
recommitment.
189 A.3d at 21 (emphasis added). As a staple point, the Young Court looked at
section 6138(a)(2.1) and observed that although the General Assembly granted the
Board “the discretion to award sentence credit to a [CPV] it decides to recommit,” the
General Assembly “has not given the [] Board the concomitant power to revoke this
decision, under any circumstances.” 189 A.3d at 21 n.10.
In Brady v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth.,
No. 262 C.D. 2018, filed August 7, 2018) (unreported), the Board recommitted a
parolee as a CPV and took away the credit he accumulated in a prior parole period
where he was recommitted as a TPV. Seeking to withdraw from representation,
court-appointed counsel cited Richards as authority that the parolee’s issue on appeal
lacked arguable merit. In an unpublished decision authored by our esteemed and
venerable colleague, then-Senior Judge Pellegrini, this Court disagreed, denied
counsel’s petition to withdraw, and remanded for additional briefing. We noted that
Young specifically dealt with the situation where a CPV was awarded credit by the
Board for time on parole, and that this credit was revoked by the Board when it
subsequently recommitted the parolee again as a CPV. Nonetheless, this Court
expressed the view that our decision in Young placed cases like Richards, and its
originating precursors Anderson and Andrews, “into question.” Slip op. at 9. We
said:
While the Board did not exercise its discretion one way or
another in forfeiting street time, Young raises the issue of
whether the Board can reach back and force a now
[CPV] to forfeit credit for time spent at liberty in good
14
standing that was previously credited to the parolee
after a prior technical parole violation pursuant to 61
Pa.C.S. §6138(c)(2). This section provides that a
recommitted [TPV] “. . . shall be given credit for time
spent on parole in good standing . . . .” (Emphasis added.)
Slip op. at 9 (bold emphasis added, italics original).9
Discussion
On appeal,10 Penjuke cites Young and argues that the rationale in that
case naturally and necessarily extends to his case because street time credit,
regardless of how it is granted, cannot be taken away after it has been granted.
Therefore, Penjuke contends, the Board erred in revoking 793 days of credit that he
received when recommitted as a TPV. Penjuke further asserts that the Board failed
to articulate a sufficient reason for declining to award him credit pursuant to Pittman.
In response, the Board distinguishes Young on the ground that it did not
exercise discretion and actively award Penjuke with street time credit. As such, the
Board submits, this Court should reassert the validity of our precedent holding that a
CPV forfeits all prior time spent in good standing for parole periods where the
parolee was recommitted as a TPV. In addition, the Board candidly states that
Penjuke was recommitted a few days before the Pennsylvania Supreme Court handed
down Pittman, and the Board does not ardently oppose a remand for it to issue a new
9
The Brady case was argued seriately with this case on November 14, 2018.
10
Our scope of review is limited to determining whether constitutional rights were violated,
whether the adjudication was in accordance with the law, and whether necessary findings were
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704;
Hughes v. Pennsylvania Board of Probation and Parole, 179 A.3d 117, 119 n.1 (Pa. Cmwlth.
2018).
15
statement explaining its reasons for denying Penjuke credit for time spent at liberty
on parole.
Legal Analysis
After reviewing the 2012 statutory amendment to the Parole Code, 61
Pa.C.S. §6138(a)(2.1) (the 2012 Amendment), the Supreme Court’s decision and
analysis in Pittman, and our decision in Young, and upon reexamining the plain
language of the statute, as well as due process concerns that currently arise as a result
of the 2012 Amendment, we conclude that the Anderson/Andrews line of cases is no
longer applicable precedent and now decline to apply the proposition of law that it
formulated.
As with most matters that involve or implicate a statute, we begin by
viewing and analyzing the express words of the statute itself. See Kmonk-Sullivan v.
State Farm Mutual Automobile Insurance Co., 788 A.2d 955, 959 (Pa. 2001).
In relevant part, section 6138(a) of the Parole Code, governing the CPV
scenario, states, with the 2012 Amendment highlighted in bold:
(a) Convicted violators.
(1) A parolee under the jurisdiction of the board released
from a correctional facility who, during the period of parole
or while delinquent on parole, commits a crime punishable
by imprisonment, for which the parolee is convicted or
found guilty by a judge or jury or to which the parolee
pleads guilty or nolo contendere at any time thereafter in a
court of record, may at the discretion of the board be
recommitted as a parole violator.
(2) If the parolee’s recommitment is so ordered, the parolee
shall be reentered to serve the remainder of the term which
the parolee would have been compelled to serve had the
parole not been granted and, except as provided under
16
paragraph (2.1),[11] shall be given no credit for the time at
liberty on parole.
(2.1) The board may, in its discretion, award credit to a
parolee recommitted under paragraph (2) for the time
spent at liberty on parole . . . .
61 Pa.C.S. §6138(a)(1)-(2.1) (emphasis added).
Section 6138(c), pertaining to the TPV situation, provides in pertinent
part:
(c) Technical violators.
(1) A parolee under the jurisdiction of the board who
violates the terms and conditions of his parole, other than
by the commission of a new crime of which the parolee is
convicted or found guilty by a judge or jury or to which the
parolee pleads guilty or nolo contendere in a court of
record, may be . . . recommitted after a hearing before the
board or a waiver of the hearing.
* * *
(2) If the parolee is recommitted under this subsection, the
parolee shall be given credit for the time served on parole in
good standing but with no credit for delinquent time and
may be reentered to serve the remainder of the original
sentence or sentences.
61 Pa.C.S. §6138(c)(1)-(2).
To begin with, it is evident from the above recitation of our case law that
this Court has embraced three key interrelated points to sustain our conclusion in
Anderson and Andrews and their progeny. First, the General Assembly intended the
loss of all street time for a CPV to be a deterrent effect and this goal would be
11
From here on out, we refer to section 6138(2) of the Parole Code as former section
6138(2) of the Parole Code to describe the statutory provision as it existed without being modified
by the additional language of the 2012 Amendment.
17
undermined if a CPV with prior recommitment(s) as a TPV was able to retain credit
for time spent in good standing. Second, an absurd result may occur because it was
conceivable that a parolee with a better parole record would be the recipient of
harsher treatment, for example, when a parolee remains on a lengthy stretch of parole
and is later recommitted as a CPV, in comparison to a parolee who is recommitted as
a TPV and also as a CPV during that same amount of time. Third, the language of
the Parole Statutes indicated that the General Assembly intended to deny a CPV any
credit for street time accumulated during any period of parole as reflected
predominately by the fact that the Board had no discretion to award a parolee with
credit following recommitment as a CPV.
On a fundamental level, a legal rule can only go so far as the reason that
carries it; hence, “[w]here stops the reason, there stops the rule.” U.S. National Bank
Association v. United Hands Community Land Trust, 129 A.3d 627, 636 (Pa.
Cmwlth. 2015) (citation omitted). Here, the concerns, justifications, and underlying
analysis that comprised the scaffold of this Court’s previous interpretation and
construction of the Parole Statutes have all been severely eroded by the 2012
Amendment.
At the outset, a distinction can be made regarding the severity of the
infraction that gives rise to the status of a TPV—violation of the terms and conditions
of parole—when compared to a CPV—commission and conviction of a crime. For
this reason, it makes complete sense that in devising the Parole Statutes, the General
Assembly would not place a CPV on par with a TPV or deem the two as one and the
same. With the 2012 Amendment, though, the General Assembly, in clear and
unmistakable language, decided to give a CPV a chance to receive credit for street
time, while, at the same time, preserving the grant of full credit it had always
18
bestowed upon a TPV. In apparent recognition of the dissimilarity intrinsic to the
CPV vis-à-vis the TPV, the General Assembly readjusted the level, so to speak, when
it enacted the 2012 Amendment, attempting to alleviate the harsh results that occur
when a CPV has served a relatively long and successful period of parole but cannot
obtain any street time credit.
Now that the 2012 Amendment provides the Board with discretion to
grant a CPV with credit for time he spent at liberty during the parole period that
resulted in recommitment as a CPV, the apprehension that encouraged this Court in
Anderson and other cases to resort to legislative intent and depend heavily on the
concept of a deterrent effect is unwarranted. This is because the parolee recommitted
as a CPV, despite having committed and been convicted of a crime while on parole,
unlike in the past, is presently able to obtain credit for street time at the discretion of
the Board. Since the decision to grant or award credit to a CPV will be made on a
case-by-case basis by the Board, utilizing its expertise in the area, see Johnson v.
Pennsylvania Board of Probation and Parole, 532 A.2d 50, 53-54 (Pa. Cmwlth.
1987), we presume that the Board “will act in good faith in discharging [its] statutory
duties,” Office of Governor v. Donahue, 98 A.3d 1223, 1239 (Pa. 2014), awarding
credit to a CPV when the circumstances merit it. Consequently, the fear expressed in
our case law that a policy of deterrence would be eviscerated and an absurd or
inequitable result promoted, based upon the difference in treatment the General
Assembly previously afforded to the CPV (the grant of no credit) and the TPV (the
grant of total credit), is no longer founded or defensible.
Currently, by virtue of the 2012 Amendment, the Board can provide a
CPV with partial and, conceivably, even full credit, for the days spent at liberty on
the parole. A CPV will be eligible to receive credit during the period of parole in
19
which the crime was committed, regardless of whether there have been any prior
recommitments as a TPV. Succinctly stated, because the CPV has attained the right
and possibility to acquire credit for street time, there is no cause for the Court to
retain the concern in Anderson that “the individual with the better parole record
would receive the harsher treatment,” 472 A.2d at 1172, and we need not fret over
whether or not a CPV could theoretically receive a “windfall” based upon the fact
that the parolee has a history of recommitment(s) as a TPV. Relatedly, because the
CPV, at present, does not forfeit all credit in an unconditional and automatic fashion,
the Court has no occasion to base or preserve its interpretation of section 6138 of the
Parole Code upon consideration of whether or not a CPV should, as an added form of
retribution, forfeit time accumulated as a TPV as well. Cf. Anderson, 472 A.2d at
1171 (“[A] parolee with one or more prior recommitments as a TPV faces a
substantially reduced period of confinement should he subsequently be recommitted
as a CPV and the intended deterrent effect would be weakened accordingly.”); cf.
also Richards, 20 A.3d at 600 (“While [CPVs] with no prior recommitments as
[TPVs] would forfeit all street[]time from their original parole date, those [CPVs]
who do have prior recommitments as [TPVs] would only forfeit street[]time from
their most recent reparole date.”).
As a final matter, this Court, in cases such as Andrews and Richards, has
discussed the “plain language” of the Parole Statutes to support our disposition by
primarily highlighting the mandatory language of former section 21.1(a) of the Parole
Act and former section 6138(a)(2) of the Parole Code, which states, “shall be given
no credit for the time at liberty on parole,” and stressing the Board’s lack of
discretion to award credit to a CPV. However, as noted above, the 2012 Amendment
now specifically provides the Board with such discretion, see Pittman, 159 A.3d at
20
473, thereby undercutting the basis for our previous interpretation of the Parole
Statutes. Cf. Andrews, 516 A.2d 842 (“[T]he General Assembly has given the Board
no discretion with respect to the credits to which a [CPV] is entitled against the
sentence’s maximum term . . . . The language of the statute clearly shows the
General Assembly intended to deny [CPVs] credit against their sentences’ maximum
terms for any street time accumulated while on parole.”); cf. also Richards, 20 A.3d
at 598-99 (“It is clear from a plain reading of the statute, that while [TPVs] are
entitled to credit for time served while on parole in good standing, such that they may
only be recommitted for the remainder of their original sentences, [CPVs], on the
other hand, are not entitled to any credit for street[]time.”).
To advance sound statutory interpretation, this Court “must accept that
when the General Assembly selects words to use in a statute, it has chosen them
purposefully.” Commonwealth v. Scolieri, 813 A.2d 672, 673 (Pa. 2002). “We
cannot change [statutory] words to reflect our own public policy concerns, nor can we
edit them based on the supposition that we know what the General Assembly meant
to say when it said something different.” Id. Thus, as a matter of statutory
construction, our determination that the rationale of Anderson and Andrews is no
longer applicable holds its weight irrespective of whether the General Assembly
intended the 2012 Amendment to accomplish such a result, or overlooked the ensuing
effect that the clear language it utilized would have on our preexisting judicial
interpretation of section 6138 of the Parole Code as a whole. See Young, 189 A.3d at
21 n.10 (“Precedent interpreting [s]ection 6138(a)(2) prior to the 2012 amendment is
not binding and has little value to the proper construction of Section 6138(a)(2.1).”).
Simply put: the 2012 Amendment destabilizes the raison d'être that once constituted
and sustained the considered judgment of our precedent.
21
“A rule becomes dry when its supporting reason evaporates.”
Commonwealth v. Ladd, 166 A.2d 501, 506 (Pa. 1960). Since the 2012 Amendment
has undermined the rationale reinforcing the Anderson/Andrews line of cases, we start
anew and take a fresh review of the language and organizational composition of
section 6138 of the Parole Code as it currently exists with the 2012 Amendment.
By its very structure, the statute creates two classes of parole violators,
and the General Assembly clearly delineated a separate sphere between a CPV and a
TPV. This is evidenced, among other ways, in the particular statutory subheadings,
see 61 Pa.C.S. §§6138(a) (Convicted violators); 6138(c) (Technical violators),12 and
in section 6138(c) with the express designation of a TPV in terms of being a parolee
who is not a CPV. See 61 Pa.C.S. §6138(c)(1). Within this dual classification
system, our General Assembly created a clear-cut, distinctive framework for each
group with respect to credit for street time following recommitment. For a parolee
who is recommitted as a TPV, that “parolee shall be given credit for the time served
on parole in good standing.” 61 Pa.C.S. §6138(c)(2). With this credit added to the
sentence, the parolee recommitted as a TPV then serves the remainder of the time that
is left on the original sentence, i.e., the original sentence minus the credit for the days
in good standing and the days actually served in confinement. By contrast, the
parolee who is recommitted as a CPV “shall be given no credit for the time at liberty
on parole,” unless the Board, “in its discretion,” decides to “award credit to [the]
parolee . . . for the time spent at liberty on parole.” 61 Pa.C.S. §6138(a)(2)-(2.1).
Regardless of how the Board exercises its discretion for a CPV, the amount of days
that are not credited for the parole period will be added to the maximum sentence
12
“[W]hile titles and headings of statutory provisions are not controlling, they may be
considered as an aid to construction.” Commonwealth v. Smith, 186 A.3d 397, 404 (Pa. 2018).
22
date, but the parolee recommitted as a CPV will only serve “the remainder of the
term” of his sentence, i.e., the original sentence plus the days that the Board did not
grant credit and minus the days actually served in confinement.
This interpretation of section 6138(a) and (c) is simple enough. The
issue then becomes whether a legitimate basis exists to collapse the statutory
dichotomy of a TPV and a CPV, intermingle the two conceptually in the
circumstances of reparole, and construe section 6138(a)(2) as authorizing the Board,
in recommitting a CPV, to revoke street time that was previously awarded to a TPV.
As this Court has recognized, former section 21.1(a) of the Parole Act,
former section 6138(a)(2) of the Parole Code, and current section 6138(a) of the
Parole Code “do[] not specifically address the sanction for new criminal actions
committed while on re-parole.” Dorsey, 854 A.2d at 998 (emphasis in original).
Based upon our evaluation, the clauses “had the parole not been granted” and “at
liberty on parole” in section 6138(a)(2) cannot reasonably be interpreted to permit the
Board to go beyond the “parole period” mentioned in that section, which is couched
solely in relation and reference to the “parolee’s recommitment” as a CPV. 61
Pa.C.S. §6138(a)(2); see 61 Pa.C.S. §6138(a)(1). Similarly, these same clauses in
section 6138(a)(2) are incapable of generating a modifying or expounding effect onto
the associative phrase “shall be given no credit” in a manner that would authorize the
Board to apply a precept of forfeiture to all prior instances of parole that led to
recommitment as a TPV. This is especially true considering that section 6138(c)(2)
unequivocally states that the parolee will receive credit for time spent in good
standing “[i]f the parolee is recommitted under this subsection,” and the principle
enunciated therein pertains exclusively and specifically to a TPV and without regard
or connection to a CPV.
23
As such, we find that the language “shall be given no credit” is
circumscribed and intended to apply only to the single and specific period of parole
that led to recommitment as a CPV. After all, under section 6138(c)(2), the TPV who
has spent time in good standing “shall be given credit,” 61 Pa.C.S. §6138(c)(2),
while, pursuant to section 6138(a)(2), the CPV who was at liberty on parole “shall be
given no credit.” 61 Pa.C.S. §6138(a)(2). Significantly, in both instances, the
concept of “credit” is described by the verb “give,” which means “to grant or bestow
by formal action” or “to convey to another.” WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY 1192 (1986). Whereas the TPV situation requires the affirmative act of
“giving,” the CPV situation involves the refraining of such action by “not giving”;
comparing the two side by side, they do not operate to cancel each other out and
section (a)(2) does not negate section (c)(2). Put differently, although the CPV is
“given no credit,” the withholding of credit is passive conduct and cannot create a
foundation to imply a confirmatory power to engage in active conduct and take away
credit that was previously “given” to the TPV. Moreover, considering section
6138(a)(2) in conjunction with its counterpart provision, the 2012 Amendment,
section 6138(a)(2.1), a harmonious relationship is created and internal consistency
achieved within the CPV scheme: the CPV “shall be given no credit” except when
the Board, in its discretion, decides to “award credit” to the CPV. In this regard, the
2012 Amendment is meaningful in that it tends to confirm that the concept of “credit”
in section 6138(a) is confined to the CPV scenario only and strongly suggests that the
notion of “credit” for a CPV is sealed off from the idea of “credit” for a TPV, with
there being no correlation between the two.
This said, to uphold the Board’s position, it would be necessary for
section 6138(a) to contain language that invests the Board with the positive and
24
affirmative power to “take away” the credit that was already given to the TPV.
Although our General Assembly has used words that would suffice to accomplish
such a result, terms like “revoke,” “rescind,” and “forfeit” in a replete manner
elsewhere in the Parole Code,13 it did not employ terminology to this effect in section
6138(a). Under Pennsylvania law, the Board “can exercise only those powers
conferred upon it by the General Assembly in clear and unmistakable language.”
Young, 189 A.3d at 22 (internal quotation marks and alterations omitted). Viewing
section 6138(a) and section 6138(c) in a cohesive manner, we are unable to locate,
much less vindicate, an express power in the Board to divest credit from a TPV for
street time spent in good standing when recommitting a parolee as a CPV. And,
absent such express authority, we lack the tools necessary to infer such an authority.
As instructed in Young, this Court cannot “add words to [the Parole Code] that the
legislature chose to omit” in order to provide the Board with “authorization to revoke
sentence credit.” 189 A.3d at 22.
Our plain language interpretation and understanding of section 6138 of
the Parole Code is concordant with, and draws inspiration from, our recent decision
in Young. Whether or not foreshadowed by the Young Court, the rationale espoused
in that case applies here with compelling force.
13
See, e.g., sections 5902(e)(1)(iii), 6113(2), 6122(b)(2), 6143(c) of the Parole Code, 61
Pa.C.S. §§5902(e)(1)(iii) (stating that, with respect to an employee of a state correctional institution,
the chief administrator may “revoke the ability of the employee . . . to carry or store a firearm and
ammunition”); 6113(2) (“[N]o person shall be paroled or discharged from parole or have his parole
revoked, except by a majority of the entire membership of the board.”); 6122(b)(2) (“Any person
who violates any of the provisions of this section . . . [s]hall forfeit that person’s office or
employment, as the case may be.”); 6143(c) (“If the United States Immigration and Customs
Enforcement is unable to or does not deport the inmate, the inmate shall be returned to the custody
of the department and the board shall rescind the inmate’s parole.”)
25
As noted by this Court in Brady, section 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. While in Young the case involved a CPV who
was later recommitted as a CPV, the Board exercised its discretion under the 2012
Amendment, awarded credit to the parolee, and thereafter sought to take it away
relying on its authority under section 6138(a). Here, the Board previously granted
Penjuke credit per section 6138(c)(2) and is presently attempting to take that credit
away based upon its authority under section 6138(a). No material distinction can be
made from the situation where the credit is granted by the Board through the exercise
of discretion, as in Young, to the situation where credit is granted through statutory
mandate, as with Penjuke. Indeed, the two are analogous—actually duplicative and
transposable—because the bottom line is that, in both events, credit has been granted,
and once credited is awarded, “the street time is gone.” 189 A.3d at 21.
In Young, we admonished that the grant of credit is “not a decision to
defer the forfeiture of street time to a later time,” id. at 19, and the Board cannot place
sentencing credit “into an escrow account for later forfeiture.” Id. at 21. The
principles formulated and stated in Young are no less pertinent here. Akin to Young,
a scenario where the “[t]he General Assembly has not granted the [] Board the power
to revoke sentence credit it has decided to award,” id. at 22, here the General
Assembly has not entrusted the Board with the authority to revoke sentence credit
granted by section 6138(c)(2) of the Parole Code. Therefore, pursuant to Young, the
only time that remains eligible for forfeiture for a parolee recommitted as a CPV is
the limited period of “time that falls between the parolee’s most recent reparole and
26
his recommitment.” Id. at 21. Stated otherwise, in recommitting Penjuke as a CPV,
the Board could not “reach back,” Brady, slip op. at 9, into the past periods of parole
and also take away or revoke credit that was previously granted to Penjuke as a
TPV—credit which, we stated in Young, should have “already been applied to his
original sentence.” 189 A.3d at 21.
At this point, we believe that the 2012 Amendment, as discussed in
Pittman and our decision in Young, has altered the legal landscape and precludes this
Court from continuing to adhere to the Anderson/Andrews line of cases as binding
precedent. Our conclusion is underscored by application of the Statutory
Construction Act of 1972 (SCA).14 Perhaps above all else, section 1922(3) of the
SCA provides a presumption that the General Assembly does not intend to enact laws
that are unconstitutional, 1 Pa.C.S. §1922(3), “and statutes are to be construed
whenever possible to uphold their constitutionality.” In re William L., 383 A.2d
1228, 1231 (Pa. 1978). “Therefore, if one interpretation results in . . . violation of the
Federal or State Constitution, such interpretation cannot be accepted.” Department of
Transportation, Bureau of Driver Licensing v. McFarren, 525 A.2d 1185, 1188 (Pa.
1987).
In his brief, Penjuke argues that if the Anderson and Andrews progeny
are reaffirmed, and the Board possesses the authority to revoke credit for street time
accumulated as a TPV, then the Board must exercise its discretion under the 2012
Amendment in making the determination. Therefore, Penjuke contends, procedural
protections are required to ensure that the Board does not exercise its discretion in an
arbitrary, capricious, or unlawful manner.
14
1 Pa.C.S. §§1501-1991.
27
We agree. If this Court were to continue to endorse the
Anderson/Andrews line of cases, serious questions would arise as to whether section
6138 is constitutional under the Due Process Clause.15
In Wolff v. McDonnell, 418 U.S. 539 (1974) , the State of Nebraska had
a statutory regime that provided prisoners with a right to good-time credits and stated
that the credits would be forfeited for certain types of misconduct. The United States
Supreme Court determined:
It is true that the Constitution itself does not guarantee
good-time credit for satisfactory behavior while in prison.
But here the State itself has not only provided a statutory
right to good time but also specifies that it is to be forfeited
only for serious misbehavior . . . . [T]he State having
created the right to good time and itself recognizing that its
deprivation is a sanction authorized for major misconduct,
the prisoner’s interest has real substance and is sufficiently
embraced within Fourteenth Amendment “liberty” to entitle
him to those minimum procedures appropriate under the
circumstances and required by the Due Process Clause to
insure that the state-created right is not arbitrarily
abrogated.
Wolff, 418 U.S. at 557.
As explained by one commentator: “Typically, good time is credited in
a lump sum at the beginning of the sentence . . . or credited month by month as it is
earned . . . . Thereafter, prison officials use the threat of revoking good time as a
strategy for maintaining institutional order and discipline.” James B. Jacobs,
Sentencing by Prison Personnel: Good Time, 30 UCLA L. Rev. 217, 225 & 234
(1982). “In most jurisdictions, good time can be revoked for any violation of the
prison rules,” id., and “[g]ood time can [also] be revoked, often automatically, for
15
U.S. Const. amend. XIV, §1.
28
violation of parole or conditional release conditions.” id. at 236. Pennsylvania,
however, does not have a traditional good-time credit system because the concept
was declared unconstitutional by our Supreme Court as an infringement upon the
judicial power of sentencing in Commonwealth ex rel. Johnson v. Halloway, 42 Pa.
446, 448 (1862). Nonetheless, street time credit under section 6138 of the Parole
Code and the good-time credit schemes are substantially similar on a practical and
functional level. Both are creatures of statutes, which are the means by which credit
is conferred to a prisoner/parolee; both have a direct effect on the length of time a
prisoner will spend incarcerated behind bars; and both, in theory, threaten forfeiture
of earned credit to motivate good behavior while on parole. See Jacobs, supra, at
218, 237, and compare with Young v. Pennsylvania Board of Probation and Parole,
409 A.2d 843, 846-47 (Pa. 1979); Anderson, 472 A.2d at 1171; see also Cardona v.
Bledsoe, 681 F.3d 533, 537 n.8 (3d Cir. 2012); State ex rel. Hauser v. Carballo, 261
N.W.2d 133, 140-42 (Wis. 1978).
As just stated, section 6138(c)(2) clearly declares that the TPV “shall be
given credit for the time served on parole in good standing.” 61 Pa.C.S. §6138(c)(2)
(emphasis added). Given the mandatory and unqualified nature of the language the
General Assembly has used, the Parole Code has vested a TPV with a statutory
entitlement to street time credit sufficient to constitute a right deserving of protection
under the Due Process Clause and the procedural safeguards necessary to ascertain
and confirm “that the state-created right is not arbitrarily abrogated.” Wolff, 418 U.S.
at 557; see Ponte v. Real, 471 U.S. 491, 495 (1985); Goss v. Lopez, 419 U.S. 565,
573 (1975) (reiterating that “the procedural protections of the Due Process Clause
[are] triggered by official cancellation of a prisoner’s good-time credits accumulated
under state law”). To comport with due process, before a state may deprive a
29
prisoner of accumulated sentencing credits or revoke sentencing credits that have
already been earned, the state must afford the prisoner with notice and the
opportunity to be heard at a hearing. See Wolff, 418 U.S. at 563-72.
Under former section 21.1(a) of the Parole Act and former section
6138(a)(2) of the Parole Code, the procedural mechanisms of notice and a hearing
were unnecessary, or, in other words, would serve no purpose because the Board had
no discretion to award credit to a CPV and forfeiture of credit for all street time was
automatic and mandatory. As this Court explained in Palmer:
[A] parolee who is recommitted as a [CPV] automatically
forfeits the time spent on parole. Since the loss of street
time is statutorily mandated, due process does not require
the [B]oard to provide notice to the parolee because there is
nothing the parolee can say on his behalf or in mitigation at
the hearing to prevent the loss of time at liberty on parole.
704 A.2d at 197; see Munguia v. United States Parole Commission, 871 F.2d 517,
519 (5th Cir. 1989). In different words, when the decision to forfeit street time or
good time credits is automatic and nondiscretionary, procedural deficiencies like lack
of notice and/or a hearing amount to harmless error because the parolee does not
suffer any discernable prejudice. See D’Amato v. United States Parole Commission,
837 F.2d 72, 77 (2d Cir. 1988); see also Grossman v. Bruce, 447 F.3d 801, 804-05
(10th Cir. 2006).
However, by virtue of the 2012 Amendment, the Board possesses
discretion to award credit for street time in connection with any recommitment of a
parolee as a CPV. As a result, the parolee must receive a hearing, independent of the
revocation and recommitment proceeding for the CPV, that is devoted to the issue of
whether the parolee should receive or retain credit for the prior parole periods that
resulted in recommitment as a TPV. See Carballo, 261 N.W.2d at 144-45
30
(concluding that because the statutes “call for the Department’s exercise of discretion
as to the forfeiture of good time,” “the Department must conduct an individual good
time forfeiture determination for each discretionary parole violator”); id. at 142 n.25
(recognizing that “due process rights attach to the actual decision on forfeiture, apart
from the decision on revocation”); see also Teague v. Quarterman, 482 F.3d 769,
774-75 & 777-80 (5th Cir. 2007).
Here, neither the Parole Code nor the Board’s regulations provide a
parolee with the right to a hearing in which the parolee can present evidence and/or
advance argument to sway the Board that the parolee should be able to keep, or
should not lose, credit that was earned when previously recommitted as a TPV. The
regulation at 37 Pa. Code §71.4, governing the procedure for recommitment as a
CPV, merely creates a right to a parole revocation hearing and states that “[t]he
purpose of the hearing is to determine whether to revoke parole.” 37 Pa. Code
§71.4(2)(v). In this proceeding, the Board bears the burden of proving that the
parolee was convicted of a new crime, and the Board can satisfy this standard, among
other ways, by adducing documentary evidence establishing that the conviction had
occurred. In response, the parolee may rebut the Board’s evidence by showing that it
inaccurately reflects that he was convicted of a new crime. See Sanchez v.
Pennsylvania Board of Probation and Parole, 616 A.2d 1097, 1101-02 (Pa. Cmwlth.
1992), Pierce v. Pennsylvania Board of Probation and Parole, 500 A.2d 181, 183
(Pa. Cmwlth. 1985). This is the gist and full extent of the revocation hearing.
Critically, if the Board ultimately decides to recommit the parolee as a
CPV after the revocation hearing, the regulation states that “the parolee will receive
no credit for time spent at liberty on parole.” 37 Pa. Code §71.4(2)(v).
Consequently, the revocation hearing and recommitment decision is limited in scope
31
and does not afford a parolee with a meaningful opportunity to submit information
and argument necessary for the Board to make a reasoned decision as to whether the
parolee should be awarded, or otherwise be able to retain, credit for the prior
period(s) of parole that resulted in recommitment as a TPV. See Carballo, 261
N.W.2d at 144-45. In fact, the regulation at 37 Pa. Code §71.4(2)(v) prohibits the
Board from awarding credit in connection with the revocation hearing and, consistent
with the Anderson/Andrews line of cases, effectively revokes any and all credit that
was awarded or granted to the parolee earlier, including credit granted as a TPV
under section 6138(c)(2).
Given the nature of the revocation hearing for a CPV, the determination
that the Board must make to exercise its discretion and authority under the 2012
Amendment must happen at some point after the recommitment decision. The record
does not disclose the process through which the Board exercises its discretionary
decision pursuant to the 2012 Amendment. But wherever or however the Board
postulates and renders that determination, the decision is not preceded by a hearing
that is conferred by statute or regulation—one that is specifically committed to the
issue of whether the parolee should be “re-awarded,” or able to keep, the credit that
the parolee previously accumulated as a TPV. Under Pennsylvania law, this Court
“may not usurp the province of the legislature by rewriting the [Parole Code] to add
hearing and evidentiary requirements . . . as that is not our proper role under our
constitutionally established tripartite form of governance.” In Re Fortieth Statewide
Investigating Grand Jury, __ A.3d __, __ (Pa., Nos. 75, 77-82, 84, 86-87, 89 WM
2018, filed December 3, 2018), slip op. at 12-13. Hence, based on the defects of the
procedure embodied in 37 Pa. Code §71.4, and the facts that the Parole Code and the
Board’s regulations do not vest a parolee with a hearing to safeguard the credit
32
bestowed by section 6138(c)(2), the CPV who was once a TPV is deprived of the
credit he or she previously earned as a TPV without due process of law. Cf. Edwards
v. Balisok, 520 U.S. 641, 646-67 (1997) (discussing the circumstances where a
“procedural defect” would “necessarily imply the invalidity of the deprivation of []
good-time credits”).
In the light of this day, it is highly questionable whether the
interpretation adopted in the Anderson/Andrews line of cases, if continued onward,
would be a constitutional construction of the current version of section 6138 of the
Parole Code. If this Court were to preserve the interpretation from our precedent, we
would most likely sanction a reading of section 6138 that would authorize the Board
to deprive a parolee of his or her accumulated and entitled credits for time spent in
good standing under section 6138(c)(2), without affording that parolee the procedural
requisites that the constitution requires. Because we presume the General Assembly
did not intend to violate the constitution, we conclude that the Anderson/Andrews line
of cases must yield out of constitutional necessity. As a matter of statutory
construction, our reading of section 6138 proffered above is preferred over that of
Anderson and its successors. Therefore, we conclude that when the Board recommits
a CPV, it cannot revoke the credit that a parolee has been granted in a previous parole
that resulted in recommitment as a TPV.
Conclusion
For the above-stated reasons, we decline to adopt the Anderson/Andrews
line of cases and conclude that the Board lacks the statutory authority to revoke street
time credit previously granted to a parolee as a TPV when it subsequently recommits
the parolee as a CPV. As such, the Board erred when it revoked the 793 days of good
33
standing street time that Penjuke acquired in the parole period that led to his
recommitment as a TPV and we reverse this portion of the Board’s order. We
remand to the Board with direction to reinstate the 793 days of credit to Penjuke and
issue a new adjudication that makes the necessary adjustment to the maximum
sentence date. Because credit is being restored to Penjuke for his recommitment as a
TPV, and the Board’s purported reasons for denying Penjuke an award of credit
under the 2012 Amendment were based on the erroneous assumption that it could
deprive Penjuke of this credit, the Board shall also issue a new statement of reasons
under Pittman with respect to, and accounting only for, the time that he spent at
liberty on parole and was recommitted as a CPV.
________________________________
PATRICIA A. McCULLOUGH, Judge
Judge Brobson concurs in result only.
34
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Martin Penjuke, :
Petitioner :
: No. 1304 C.D. 2017
v. :
:
Pennsylvania Board of Probation :
and Parole, :
Respondent :
ORDER
AND NOW, this 1st day of February, 2019, the August 18, 2017 order
of the Pennsylvania Board of Probation and Parole (Board) is reversed in part and
this matter is remanded. On remand, the Board shall issue a new adjudication and
statement of reasons, pursuant to Pittman v. Pennsylvania Board of Probation and
Parole, 159 A.3d 466 (Pa. 2017), in accordance with this opinion.
Jurisdiction relinquished.
________________________________
PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Martin Penjuke, :
Petitioner :
:
v. : No. 1304 C.D. 2017
: Argued: November 14, 2018
Pennsylvania Board :
of Probation and Parole, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
DISSENTING OPINION
BY JUDGE SIMPSON FILED: February 1, 2019
For the reasons I set forth in my dissenting opinion in Young v.
Pennsylvania Board of Probation and Parole, 189 A.3d 16 (Pa. Cmwlth. 2018) (en
banc), appeal granted, ___ A.3d ___ (Pa., No. 455 MAL 2018, filed January 2,
2019), I respectfully dissent here. Summarizing, I believe that the majority in
Young failed to follow the General Assembly’s express pronouncement of intent,
and that under prior binding decisions of this Court, the Pennsylvania Board of
Probation and Parole had the authority upon recommitment of a parolee as a
convicted parole violator to withdraw sentence credit it previously provided. I fear
the majority in this case continues that error by relying on the Young decision here.
ROBERT SIMPSON, Judge
Judges Covey and Wojcik join in this dissent.