K. Marshal v. PBPP ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Korey Marshal, :
Petitioner :
:
v. : No. 791 C.D. 2019
: SUBMITTED: November 27, 2019
Pennsylvania Board of Probation :
and Parole, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: February 28, 2020
Korey Marshal, Petitioner, petitions for review of an order of the
Pennsylvania Board of Probation and Parole (Board) that (1) recommitted him as a
technical parole violator to serve 6 months and as a convicted parole violator to serve
24 months, concurrently, for a total of 24 months’ backtime; (2) declined to award
him credit for time spent at liberty on parole; and (3) calculated his new parole
violation maximum date as August 23, 2021. We affirm.
The relevant facts are as follows. In December 2009, Petitioner pled
guilty to four drug-related charges for which he received a prison sentence of one to
four years. (Certified Record “C.R.” at 1.) In April 2011, the Board paroled
Petitioner subject to numerous conditions. One of the conditions was that he “refrain
from owning or possessing any firearms or other weapons[.]” (C.R. at 8.) In July
2012, the Board issued a decision detaining Petitioner pending disposition of new
charges from a May 2012 arrest. (C.R. at 10.) In August 2014, Petitioner pled guilty
to illegally purchasing/possessing a firearm for which offense he received a prison
sentence of three to six years. (C.R. at 43.) In January 2015, the Board issued a
decision recommitting Petitioner as a convicted parole violator to serve his
unexpired term of one year and six days for his firearms conviction, with a maximum
sentence date of December 11, 2015. (C.R. at 13.) In October 2016, the Board
issued a decision granting Petitioner reparole on or after December 15, 2016. (C.R.
at 46.) On December 18, 2016, Petitioner was released on parole. (C.R. at 48.) In
September 2017, the Board issued a decision stating that its reason for not awarding
any credit to Petitioner for his time at liberty on parole as a convicted parole violator
was because his “conviction involved a weapon.” (C.R. at 56.)
Following a November 2017 arrest on new drug charges and a May
2018 conviction for those charges, Petitioner was sentenced to 18-to 36-months’
imprisonment. Subsequently, Petitioner waived attending the August 2018
revocation hearing and admitted to all of the information contained in the notice of
charges. (C.R. at 87.) Following the hearing, the designated Board member declined
to award Petitioner credit for time spent at liberty on parole due to “new conviction
same/similar to the original offense.” (C.R. at 86 and 88.)
In a decision mailed November 28, 2018, the Board imposed a total of
24 months’ backtime and exercised its discretion not to award Petitioner credit for
time spent at liberty on parole due to “new conviction same/similar to original
offense.” (C.R. at 116.) In addition, it calculated a new parole violation maximum
date of August 23, 2021. (Id.) In Petitioner’s administrative remedies form, which
the Board received on January 3, 2019, Petitioner alleged a myriad of issues in
support of his position but did not challenge the Board’s reason for denying him
credit. (C.R. at 119-24.) The Board affirmed and Petitioner’s petition for review
followed.
On appeal, Petitioner argues that the Board abused its discretion by
denying him credit for time spent at liberty on parole because it did not provide a
2
sufficient contemporaneous statement to explain its decision in accordance with
Pittman v. Pennsylvania Board of Probation and Parole, 159 A.3d 466 (Pa. 2017).
Specifically, he maintains that the Board’s single-sentence explanation was
insufficient to meet the Pittman standard because “[t]he ‘original offense’ in this
case must refer to the offense [Petitioner] actually violated, a weapons offense, not
a drug offense he once served a sentence for and maxed out on December 11, 2015.”
(Petitioner’s Brief at 12.) In addition, Petitioner asserts that the “new conviction
same/similar to original offense” reason is misguided and inappropriate when he was
no longer subject to the terms of the supervision associated with any drug offense.
(Id. at 12-13.) However, he failed to raise this issue in his request for administrative
relief. (C.R. at 119-24.) Accordingly, even though he made a general reference to
Pittman in paragraph 21 of his petition for review, he waived his right to raise the
issue on appeal. Pa. R.A.P. 1551(a); McCaskill v. Pa. Bd. of Prob. & Parole, 631
A.2d 1092, 1094-95 (Pa. Cmwlth. 1993).
Accordingly, we affirm.1
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge
1
Even if we were to consider Petitioner’s argument, his position lacks merit. In a recent non-
binding case interpreting the sufficiency of the Board’s single-sentence “new conviction
same/similar to the original offense” rationale, we held that the Board did not abuse its discretion
in proffering that reason where the record reflected the petitioner once again was convicted of the
same or similar offense as his earlier offenses. Williams v. Pa. Bd. of Prob. & Parole, (Pa.
Cmwlth., No. 1243 C.D. 2018, filed August 21, 2019), 216 A.3d 1227, 2019 Pa. Commw. Unpub.
LEXIS 492. The fact that Williams involved all drug offenses is of no moment. In the present
case, a review of the certified record reveals that Petitioner had a history of both drug and weapons
offenses such that either type of offense would have been “earlier.” Accordingly, we would not
have concluded that the Board’s rationale was “manifestly unreasonable, or the result of partiality,
prejudice, bias or ill will” under the abuse of discretion standard set forth in Zappala v. Brandolini
Property Management., Inc., 909 A.2d 1272, 1284 (Pa. 2006).
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Korey Marshal, :
Petitioner :
:
v. : No. 791 C.D. 2019
:
Pennsylvania Board of Probation :
and Parole, :
Respondent :
ORDER
AND NOW, this 28th day of February, 2020, the order of the
Pennsylvania Board of Probation and Parole is hereby AFFIRMED.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge