S. Brady v. PBPP ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Shawn Brady, :
Petitioner :
: No. 262 C.D. 2018
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 NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: February 1, 2019
This case is a companion to, and is controlled by our disposition in,
Penjuke v. Pennsylvania Board of Probation and Parole, __ A.3d __ (Pa. Cmwlth.,
No. 1304 C.D. 2017, filed February 1, 2019) (en banc).
In Brady v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth.,
No. 262 C.D. 2018, filed August 7, 2018) (unreported), we set forth the pertinent facts
and procedural history as follows:
On May 22, 2003, [Shawn Brady (Brady)] pled guilty to one
count each of robbery of a motor vehicle, driving under the
influence, accident involving death or personal injury while
not properly licensed, reckless endangerment, and disorderly
conduct. He was sentenced to serve three to ten years’
incarceration with a minimum release date of February 12,
2006, and a maximum release date of February 12, 2013. On
January 25, 2009, Brady was paroled with a parole violation
maximum date of February 28, 2014.
On May 24, 2010, after his urine sample tested positive for
morphine and heroin, the [Pennsylvania Board of Probation
and Parole (Board)] recommitted Brady as a technical parole
violator (TPV) and his parole violation maximum date
remained at February 28, 2014. Brady was again paroled on
September 19, 2011, with a parole violation maximum date
of February 28, 2014.
After he relocated to Michigan without permission on March
12, 2013, the Board declared Brady delinquent on September
21, 2015, and recommitted him as a TPV. Brady lost time
for the period of delinquency but did not lose credit at that
time for the period from his release date of September 19,
2011, to March 12, 2013, the date of his declared
delinquency.
Brady again was released on parole to reside in Michigan on
February 1, 2016, with a parole violation maximum date of
July 19, 2016. However, due to multiple failures to report,
on May 9, 2016, the Board declared him delinquent as of
May 2, 2016.
On August 28, 2016, the Troy, Michigan Police Department
charged him with possession of drug paraphernalia. The
Board issued a warrant that same day. Brady pled guilty to
the charge and was sentenced to eight days with credit for
time served in jail, completing his Michigan sentence on
September 5, 2016. He remained incarcerated from
September 5, 2016, to October 5, 2016, in Michigan, solely
on the Board’s warrant, prior to his return to Pennsylvania.
Brady subsequently submitted waivers of counsel and
hearing for the parole violation and new criminal conviction.
On December 14, 2016, the Board recommitted Brady for
nine months as a TPV and six months as a [convicted parole
violator (CPV)], concurrently, for a total of nine months’
backtime, thereby making him eligible for re-parole on May
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29, 2017. The Board listed the new parole violation
maximum date as December 4, 2019. Even though the Board
did not explicitly order forfeiture of street time, the
December 4, 2019 maximum release date reflects a loss of
all street time while at liberty on parole.
Brady, acting pro se, filed an administrative appeal on
January 3, 2017. On August 23, 2017, the Board modified
its December 14, 2016 order by indicating that Brady’s
maximum parole date had changed to December 12, 2019,
due to the recent discovery of a technician’s error. Under the
Board’s decision, Brady would not receive credit for time at
liberty for the 169 days he was on parole beginning February
1, 2016. Furthermore, the Board indicated that Brady
forfeited credit for the periods of time he spent on parole
prior to his February 1, 2016 release date, adding up to a total
of 1,024 days for the periods from January 25, 2009, to May
24, 2010, and the period from September 19, 2011, to March
12, 2013.
Brady appealed the Board’s decision, arguing that the Board
did not have the authority to take away previous backtime
periods occurring prior to his last re-parole in calculating his
new maximum date. The Board affirmed its decision by
response dated February 2, 2018. This Court appointed
[Richard C. Shiptoski (Counsel)] to represent Brady in his
appeal and Counsel filed a petition for review on Brady’s
behalf.
Brady, slip op. at 2-4.
On appeal, Brady argued that the Board erred in ordering forfeiture of the
1,024 days he spent in good standing during the periods of parole (484 days from
January 25, 2009, to May 24, 2010, and 540 days from September 19, 2011, to March
12, 2013) that eventually led to his recommitments as a TPV. Brady asserted that when
the Board recommitted him as a CPV on December 14, 2016, the Board lacked the
authority to additionally forfeit the 1,024 days of credit that he accumulated as street
time during the parole periods where he was recommitted as a TPV.
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In Brady, this Court acknowledged our decisions holding that when a
parolee is recommitted as a CPV, “the forfeiture of street time extends to all time spent
on parole from the sentence, rather than just the street time from his latest parole during
which he committed the criminal act for which he was convicted,” including the days
spent in good standing and credited prior to recommitment as a TPV. Slip op. at 8
(emphasis in original). See Richards v. Pennsylvania Board of Probation and Parole,
20 A.3d 596, 599 (Pa. Cmwlth. 2011) (en banc) (collecting cases). Nonetheless, this
Court expressed the view that 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), placed cases like Richards
“into question.” Brady, slip op. at 9. In relevant part, we stated:
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 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 . . . .”
Id., slip op. at 9 (emphasis in original).
As such, this Court in Brady denied Counsel’s application to withdraw
and directed that Counsel file a brief within 30 days addressing this issue. On August
30, 2018, Counsel filed a brief.
On October 10, 2018, we entered a per curiam order directing that Brady
be argued before the Court en banc and seriately with Penjuke.
The issues and the arguments advanced by Counsel, on behalf of Brady,
and the Board in this appeal are nearly identical to those set forth and disposed of by
this Court in Penjuke. In that case, we concluded that “the Board lacks the statutory
authority to revoke street time credit previously granted to a parolee as a TPV when it
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subsequently recommits the parolee as a CPV.” Penjuke, __ A.3d __, slip op. at 33-
34. Accordingly, for the reasons set forth in Penjuke, we reverse the Board’s order in
part and remand with direction that the Board reinstate the 1,024 days of credit to Brady
for time he accumulated during the parole periods that led to his recommitments as a
TPV and to issue a new adjudication that makes the necessary adjustment to the
maximum sentence date. In addition, based upon our evaluation of the record, it does
not appear that the Board issued a statement of reasons for denying Brady, as a CPV,
credit for time spent at liberty on parole in accordance with Pittman v. Pennsylvania
Board of Probation and Parole, 159 A.3d 466, 469 (Pa. 2017). See Hearing Report,
12/14/2016, Certified Record at 39-41. In any event, because credit is being restored
to Brady for his recommitment periods as a TPV, even had the Board issued a statement
of reasons, it would have been based on the erroneous assumption that it could deprive
Brady of this credit. Therefore, on remand, the Board shall issue a 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
Judges Simpson, Covey and Wojcik dissent.
Judge Brobson concurs in result only.
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Shawn Brady, :
Petitioner :
: No. 262 C.D. 2018
v. :
:
Pennsylvania Board of Probation :
and Parole, :
Respondent :
ORDER
AND NOW, this 1st day of February, 2019, the February 2, 2018 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