Penjuke v. Pa. Bd. of Prob. & Parole ( 2019 )


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  •               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.