M. Smagalski v. PPB

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael Smagalski, :
Petitioner :
: No. 959 C.D. 2020
v. :
: Submitted: March 5, 2021
Pennsylvania Parole Board, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: April 23, 2021
Michael Smagalski (Petitioner) petitions for review from an order of the
Pennsylvania Parole Board (Board), mailed on September 4, 2020, which affirmed in
part and reversed in part his petition for administrative review from the Board’s
decision mailed on June 12, 2020, and recalculated his maximum sentence date to
March 9, 2024.1 Petitioner contends that the Board, in recommitting him as a
convicted parole violator (CPV), provided a legally insufficient explanation for
denying him credit for time spent while at liberty on parole and, therefore, abused its
discretion. We affirm.
1
In its September 4, 2020 order, the Board reversed its previous decision to the limited
extent that it had calculated Petitioner’s maximum sentence date as March 10, 2024, and granted
Petitioner pre-sentence credit for one day, thereby recalculating his new maximum sentence date as
March 9, 2024. In all other respects, the Board affirmed its prior decision.
The facts germane to the legal issue presented are as follows. On
September 13, 2013, Petitioner pled guilty to two felony counts of possession with
intent to manufacture or deliver a controlled substance. A court of common pleas
sentenced Petitioner to three years and four months to eight years’ imprisonment at a
State Correctional Institution (SCI). Petitioner’s original minimum and maximum
sentence dates were May 7, 2016, and January 7, 2021, respectively. (Certified
Record (C.R.) at 1-3.)
By decision recorded August 4, 2016, the Board granted Petitioner
parole, and he was paroled to an approved home plan on September 29, 2016. While
on parole, the Norristown Police Department arrested Petitioner for attempting to
alter the results of his drug test, and Petitioner was charged with a criminal offense
and detained at the Montgomery County Prison. During his incarceration, Petitioner
was also charged with drug-related offenses arising from an incident that occurred on
September 19, 2019, when he was arrested by the Towamencin Township Police. By
Board decision recorded November 4, 2019, the Board detained Petitioner pending
the disposition of his criminal charges. On January 16, 2020, Petitioner pled guilty to
one count of furnishing a drug-free urine—use or attempt, a misdemeanor offense,
and one count of possession of a controlled substance, also a misdemeanor offense.
That same day, a trial judge from the Court of Common Pleas of Montgomery
County sentenced Petitioner to an aggregate term of 3 months to 23 months’
imprisonment, to be followed by 1 year of probation. (C.R. at 4-8, 14-17, 26, 47-51.)
On March 11, 2020, the Board held a revocation hearing. Following the
hearing, the Board’s hearing examiner and a member of the Board voted to recommit
Petitioner as a CPV with no credit for time spent at liberty on parole. In a decision
mailed on June 12, 2020, the Board formally recommitted Petitioner as a CPV, to
2
serve 12 months of backtime, and with no credit for time spent at liberty on parole.
Reiterating the reasons set forth by the Board’s hearing examiner and member, the
Board stated that it did not award Petitioner any credit because he (1) “committed a
new conviction that [was] the same or similar to the original offense”; and (2)
“continues to demonstrate unresolved drug and/or alcohol issues.” (C.R. at 90-91,
119-20.)
Thereafter, Petitioner filed a petition for administrative review with the
Board. In a decision mailed on September 4, 2020, the Board recalculated
Petitioner’s maximum sentence date to March 9, 2024. In so doing, the Board
concluded that it had articulated sufficient reasons not to award Petitioner any credit
for time spent at liberty on parole.
Before this Court,2 Petitioner argues that when deciding whether to
award credit for time spent at liberty on parole, the Board “should be required to treat
[] parolees in a fair and reasonable manner balancing both their progress in being
rehabilitated and the nature and type of any new conviction.” (Petitioner’s Br. at 13-
14.) Petitioner asserts that the Board did not adequately consider his mitigating
circumstances, including the fact that he suffers from alcoholism and mental health
issues, and that a review of his personal history “would reveal enough positive
progress to enable him to be awarded all or partial credit for the period of his parole.”
Id. at 14. Petitioner further contends that his most recent convictions “were not
similar to” and were “substantially less serious than his original conviction,” and that
2
Our scope of review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, or whether necessary findings of fact are supported by
substantial evidence. McCloud v. Pennsylvania Board of Probation and Parole, 834 A.2d 1210,
1212 n.6 (Pa. Cmwlth. 2003).
3
the Board abused its discretion “by arbitrarily and unreasonably treating minor
misdemeanors in the exact same manner as a felony.” Id. at 14, 18.
Section 6138(a)(2.1) of the Prisons and Parole Code (Parole Code) vests
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). This provision states, in relevant part: “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).3 In Pittman, our Supreme Court concluded that if the Board
exercises its discretion pursuant to section 6138(a)(2.1) and denies credit, it “must
provide a contemporaneous statement explaining its reason for denying a CPV credit
for time spent at liberty on parole.” Id. at 475. The Supreme Court observed that the
Board’s statement need not “be extensive and a single sentence explanation is likely
sufficient in most instances.” Id. at 475 n.12.
Although our Supreme Court in Pittman did not prescribe criteria for a
sufficient reason for a credit denial under section 6138(a)(2.1) of the Parole Code,
this Court has explained that, as a general matter, the Board’s given reason(s) must be
“accurate and related to the parolee’s offenses,” Marshall v. Pennsylvania Board of
Probation and Parole, 200 A.3d 643, 650 (Pa. Cmwlth. 2018), and “documented by
the record.” Plummer v. Pennsylvania Board of Probation and Parole, 216 A.3d
1207, 1212 (Pa. Cmwlth. 2019). In Smoak v. Talaber, 193 A.3d 1160 (Pa. Cmwlth.
2018), this Court determined that the Board’s five-word reason for denying credit for
3
The present convictions giving rise to Petitioner’s recommitment as a CPV do not fit
within the categories of offenses that bar an award of credit and, thus, the Board was obligated to
exercise its discretion and decide whether Petitioner should receive credit for time spent at liberty
on parole.
4
street time—“unresolved drug and alcohol issues”—was “just barely sufficient” to
satisfy Pittman’s contemporaneous statement requirement. Id. at 1164-65. In other
cases, we have concluded that the following reasons provided by the Board,
individual and/or conjointly, were adequate and complied with Pittman: “conviction
involved possession of a weapon”; “extensive history of illegal drug involvement”
plus “new drug-related conviction,” Marshall, 200 A.3d at 650-51; “[n]ew conviction
same/similar to the original offense” plus “poor adjustment under supervision,”
Faircloth v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No. 796
C.D. 2019, filed January 27, 2020) (unreported), slip op. at 7; and “new conviction
same/similar to the original offense,” by itself and standing alone. Lawrence v.
Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No. 1132 C.D. 2018,
filed April 12, 2019) (unreported), slip op. at 9.4
In Williams v. Pennsylvania Board of Probation and Parole (Pa.
Cmwlth., No. 1243 C.D. 2018, filed August 21, 2019) (unreported), this Court
reviewed the sufficiency of the Board’s single-sentence reason for denying credit,
“new conviction same/similar to the original offense,” and concluded that the Board
did not abuse its discretion in proffering that reason where the record reflected the
petitioner, while on parole, was convicted of the same or similar offense as his earlier
offenses. In that case, the petitioner was originally convicted of possession with
intent to deliver a controlled substance and was convicted of the same offense while
he was on parole. In affirming the Board’s decision to deny the petitioner credit, we
reasoned as follows:
4
We cite Faircloth and Lawrence, both unreported decisions, and any other unreported
decision, for their persuasive value in accordance with section 414(a) of the Commonwealth Court’s
Internal Operating Procedures, 210 Pa. Code §69.414(a).
5
[T]he record now before the Court reveals that the Board
provided [the petitioner] with a sufficient contemporaneous
statement supporting its decision to deny him credit for the
time served on parole to satisfy the Pittman standard and,
therefore, did not abuse its discretion. Here, the Board did
not merely restate the offense for which [the petitioner] was
most recently convicted. Rather, the Board clearly
considered the individual circumstances surrounding [the
petitioner’s] parole revocation, as the Board compared [the
petitioner’s] original convictions and most recent conviction
and determined that [the petitioner’s] “new conviction [was
the] same/similar to [his] original offense.” This
determination that, despite being granted parole, [the
petitioner] was once again convicted of the “same” or
“similar” offense as his earlier offenses is borne out by the
record . . . . The Board, therefore, appropriately applied
the Pittman standard by providing its rationale for its
decision, and the rationale given is not manifestly
unreasonable, or the result of partiality, prejudice, bias or ill
will.
Moreover, this Court in Lawrence recently concluded that
this same rationale offered by the Board was sufficient for
purposes of Pittman where the [CPV’s] new conviction and
original offense were both drug-related. While our decision
in Lawrence is not binding, it nevertheless bolsters our
analysis in this matter. Based on the above analysis, we
conclude that the Board did not abuse its discretion by not
crediting [the petitioner] for his time spent at liberty on
parole.
Williams, slip op. at 11-12 (internal citations omitted).
Here, the Board denied Petitioner credit because he “committed a new
conviction that [was] the same or similar to the original offense” and “continues to
demonstrate unresolved drug and/or alcohol issues.” (C.R. at 90-91, 119-20.)
Consistent with our case law above, the Board articulated sufficient reasons for
denying Petitioner credit. The Board’s reasons were also accurate, related to
Petitioner’s current offenses, and find support in the record. As part of his original
6
sentence, Petitioner pled guilty to two felony counts of possession with intent to
manufacture or deliver a controlled substance. While on parole, Petitioner was
convicted of a crime for unlawfully attempting to alter a drug test and a misdemeanor
count of possession of a controlled substance. Although the drug charges for which
Petitioner was originally convicted were arguably more severe than his most recent
drug conviction, in terms of the statutory grading of criminal offenses, the
convictions were nevertheless “similar” offenses because, as in Lawrence, they were
all “drug-related offenses,” id., slip op. at 1-2, and specifically involved the unlawful
act of possessing a controlled substance. Moreover, Petitioner’s history of drug-
related convictions, combined with his recent conviction of a crime for attempting to
alter a drug test and his admitted problems with alcohol, support the Board’s
determination that Petitioner has unresolved drug and/or alcohol-related issues.
The Court expressly acknowledges the statements in Petitioner’s brief
that seek to demonstrate that he suffers from hardship and that he is behaving to the
best of his ability, considering his individual circumstances. However, these are
arguments that are best presented to and considered by the Board because the
decision to grant or award credit to a CPV necessitates the Board’s exercise of
administrative discretion and its unique “expertise in the area.” Penjuke v.
Pennsylvania Board of Probation and Parole, 203 A.3d 401, 413 (Pa. Cmwlth. 2019)
(en banc), appeal denied 228 A.3d 254 (Pa. 2020). As such, “we presume that the
Board will act in good faith in discharging [its] statutory duties, awarding credit to a
CPV when the circumstances merit it,” id., and it is the petitioner’s burden to
demonstrate that the Board abused its discretion. As previously stated, “an abuse of
discretion is not merely an error of judgment, but occurs only where the law is
overridden or misapplied, or the judgment exercised is manifestly unreasonable, or
7
the result of partiality, prejudice, bias or ill will.” Zappala v. Brandolini Property
Management, Inc., 909 A.2d 1272, 1284 (Pa. 2006). On the current record, and in
light of our case law that has emerged since Pittman, we simply cannot conclude that
the Board abused its discretion in denying Petitioner credit for time spent at liberty on
parole.
Accordingly, we affirm the Board’s order.
________________________________
PATRICIA A. McCULLOUGH, Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael Smagalski, :
Petitioner :
: No. 959 C.D. 2020
v. :
:
Pennsylvania Parole Board, :
Respondent :
ORDER
AND NOW, this 23rd day of April, 2021, the order of the
Pennsylvania Parole Board, mailed on September 4, 2020, is hereby affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge