J. Duzicky v. PPB

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John Duzicky, :
Petitioner :
: No. 945 C.D. 2021
v. :
: Submitted: February 11, 2022
Pennsylvania Parole Board, :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: June 14, 2022
John Duzicky (Duzicky) petitions for review of the order of the
Pennsylvania Parole Board (Board), mailed on July 28, 2021, which determined that
he was afforded a timely revocation hearing, that he was properly denied time spent at
liberty on parole, and that his maximum sentence date was properly recalculated. Upon
review, we affirm the Board’s decision.
Background
The issues regarding Duzicky’s parole stem from his 2011 guilty plea in
Beaver County to four counts of the manufacture, sale, or delivery, or possession with
intent to deliver a controlled substance (PWID), two counts of criminal attempt –
PWID, one count of corrupt organizations, and one count of conspiracy to commit
corrupt organizations. (Certified Record (C.R.) at 1-4.) At the time of sentencing,
Duzicky’s minimum sentence date was April 24, 2017, and his maximum sentence date
was April 24, 2023. (C.R. at 2, 4.) Duzicky was paroled and released to an approved
home plan on April 24, 2017. (C.R. at 9-10.)
On March 14, 2019, the Pittsburgh Police Department arrested Duzicky
and charged him with possession of a controlled substance (cocaine) by a person not
registered and PWID. (C.R. at 16, 21-25, 65-70.) On March 15, 2019, the Board
lodged a detainer against Duzicky, and, on the same day, Duzicky was confined at the
Allegheny County Jail. (C.R. at 15, 17.) Bail was set at $40,000, which Duzicky did
not post. (C.R. at 19, 54.)
The Board issued a Notice of Charges and Hearing on April 3, 2019,
indicating that a detention hearing was scheduled for April 9, 2019. (C.R. at 25.)
Following the hearing, at which Duzicky was represented by a public defender, the
Board issued an order (recorded on May 23, 2019) detaining Duzicky pending
disposition of the new criminal charges. (C.R. at 34.)
On February 6, 2020, Duzicky pled guilty before the Allegheny County
Court of Common Pleas (trial court) to one count of possession of a controlled
substance by a person not registered and one count of PWID. (C.R. at 55.) The Board
received official verification of Duzicky’s new conviction on February 10, 2020. 1
(C.R. at 38, 42.) Duzicky’s sentencing was originally scheduled to be held on May 11,
2020, but was subsequently continued,2 by Allegheny County Court Administration, to
September 16, 2020, presumably due to the then-recent onset of the COVID-19
1
According to Duzicky’s Criminal Arrest and Disposition Report and Supervision History, a
unit supervisor and deputy district director concurred with pursuing a revocation hearing. (Certified
Record (C.R.) at 41-43.)
2
Duzicky’s sentencing was continued three times. See C.R. at 60-61.
2
pandemic. (C.R. at 60-61.) Duzicky was sentenced on the new criminal charges, as
scheduled, to one to five years of incarceration in a state correctional institution (SCI)
and a concurrent 10-year state probation sentence, with 552 days of credit for time
served in the Allegheny County Jail from March 15, 2019, to September 16, 2020.
(C.R. at 51-52, 55, 61.) On October 9, 2020, Duzicky retained different counsel, who
requested a parole revocation hearing before the Board. (C.R. at 36.)
Duzicky remained confined in the Allegheny County Jail until January 27,
2021, when he was returned to the Department of Corrections’ custody at SCI-Greene.
(C.R. at 38, 54, 122, 130.) A revocation hearing was initially scheduled for February
25, 2021, but was continued due to Duzicky’s unavailability. (C.R. at 37, 121
(indicating “[i]nmate transferred prior to hearing”).) On March 1, 2021, the Board
issued another Notice of Charges and Hearing, notifying Duzicky that a panel
revocation hearing was scheduled for March 9, 2021, due to his new convictions in
Allegheny County. (C.R. at 39.)
The Board held the parole revocation hearing as scheduled, via
videoconference, during which Duzicky was represented by counsel. (C.R. at 85-120.)
A parole agent, Joseph Link (Agent Link), testified during the hearing regarding
Duzicky’s new convictions in Allegheny County of the underlying crimes which
occurred while Duzicky was on parole, and submitted the trial court’s sentencing order,
secure docket entries indicating Duzicky’s guilty plea, and the criminal complaint from
the Pittsburgh Police Department into evidence. (C.R. at 92-94, 98-100.) Duzicky also
admitted to his new convictions. (C.R. at 93.) Duzicky’s counsel then explained three
documents he submitted to parole staff: a mitigation memorandum, two letters in
support of Duzicky, and the trial court’s sentencing transcript, all of which were
admitted into evidence for mitigation purposes. (C.R. at 101-04.) Prior to questioning
3
Duzicky, his counsel explained that he needed to correct some things stated in the
mitigation memorandum due to him not being able to talk to “Duzicky for about the
last six weeks because he went from Allegheny [County Jail] to [SCI-]Smithfield and
was in quarantine, and then he came to [SCI-]Houtzdale and was in quarantine.” (C.R.
at 104.)
Counsel then questioned Duzicky about his recent whereabouts in the
prison system, to which Duzicky responded that he had been in jail since March 15,
2019, and that he went from Allegheny County Jail to SCI-Smithfield, and that he was,
at the time of the hearing, incarcerated at SCI-Houtzdale. (C.R. at 106-07.) Duzicky
testified that he was “in quarantine” and “[c]omplete lockdown” at all three locations
due to the COVID-19 pandemic, and specifically, at Allegheny County Jail since
March 16, 2020. (C.R. at 106-07.) Duzicky then testified about his family history,
including how he grew up watching his family sell illegal drugs to earn money. (C.R.
at 107-08.) He also explained that he found out about his mental health issues once he
got to Allegheny County Jail, and that he became involved in the Hope Program; he
also admitted to having a gambling problem. (C.R. at 108-11.) Duzicky also testified
that he worked every day while he was on parole, never had supervision issues, and
earned a GED. (C.R. at 112, 114.) Duzicky confirmed that he reached out to his parole
agent once he pled guilty to the new charges and requested a hearing “to see if [he]
could, you know, get out on an ankle bracelet or something . . . before [his] sentencing”
to see his stepdad who was ill. (C.R. at 114-15.) Agent Link made a closing statement,
noting that Duzicky’s new convictions were the same or similar to his previous offenses
and that he posed a threat and risk to public safety. (C.R. at 117-18.) The hearing then
concluded.
4
In a decision mailed on April 14, 2021 (recorded on April 12, 2021), the
Board recommitted Duzicky to an SCI as a convicted parole violator (CPV) to serve
18 months of backtime for his Allegheny County convictions of possession of a
controlled substance by a person not registered and PWID. (C.R. at 145-46.) In so
doing, the Board, in its discretion, denied Duzicky credit for his time spent at liberty
on parole because his new convictions were “the same or similar to the original
offense[,]” and recalculated Duzicky’s maximum sentence date as March 15, 2027.
(C.R. at 143-46.)
On May 4, 2021, the Board received Duzicky’s counseled administrative
appeal, in which Duzicky alleged that the Board failed to hold a timely revocation
hearing, incorrectly recalculated his maximum sentence date, and improperly denied
Duzicky credit for time he spent at liberty on parole, including credit for time Duzicky
spent incarcerated in Allegheny County Jail, and also failed to consider Duzicky’s
mitigation evidence. (C.R. at 147-85.)
In its response mailed on July 28, 2021, the Board affirmed its April 14,
2021 decision. (C.R. at 187-89.) In so doing, the Board explained that Duzicky’s
revocation hearing was, in fact, timely held because Duzicky chose not to waive his
right to a revocation hearing while being held at the Allegheny County Jail. (C.R. at
187.) Further, because Duzicky was then being held outside the jurisdiction of the
Department of Corrections, the Board’s regulations required that the Board hold a panel
revocation hearing within 120 days of the official verification of Duzicky’s return to
an SCI. (C.R. at 187 (citing section 71.4(1)(i) of the Board’s regulations, 37 Pa. Code
§ 71.4(1)(i)).) Because Duzicky was returned to an SCI on January 27, 2021, and his
hearing was held 41 days later on March 9, 2021, the Board determined that Duzicky’s
panel revocation hearing was timely. Id.5
Regarding its decision to deny Duzicky credit for time spent at liberty on
parole, the Board explained that the issue is purely a matter of discretion under the
Prisons and Parole Code (Parole Code),3 which authorizes the Board to grant or deny
credit to a CPV for time spent at liberty on parole for certain offenses and requires only
that the Board give a reason for its decision to deny credit, which it did here. (C.R. at
187 (citing section 6138(a)(2.1) of the Parole Code, 61 Pa. C.S. § 6138(a)(2.1)).) The
Board also determined that the reason it gave for denying Duzicky credit for time spent
at liberty on parole was sufficient pursuant to Pittman v. Pennsylvania Board of
Probation and Parole, 159 A.3d 466 (Pa. 2017), as it articulated that Duzicky was
denied such credit because his new conviction was the same or similar to the original
offense. (C.R. at 187-88.)
Finally, the Board explained Duzicky’s recalculated maximum sentence
date as follows:
The Board paroled [] Duzicky on April 24, 2017[,] with a
maximum date of April 24, 2023[,] leaving him with 2[,]191 days
remaining on his original sentence the day he was released. The
Board’s decision to deny [] Duzicky credit for the time spent at
liberty on parole based on his recommitment as a CPV authorized
the recalculation of his maximum date to reflect the same. 61 Pa.
C.S. § 6138(a)(2). This means that [] Duzicky owed 2[,]191 days
on his original sentence based on the recommitment.
The record indicate[s] that Allegheny [C]ounty authorities
arrested [] Duzicky on March 15, 2019[,] for new criminal charges,
he did not post bail, and the Board lodged its detainer that day. On
September 16, 2020, [] Duzicky was sentenced to a new term of
incarceration to be served in an SCI. Following the March 9, 2021
revocation hearing, the Board voted to revoke [Duzicky’s] parole
on March 15, 2021. Based on these facts, because [] Duzicky failed
3
61 Pa. C.S. §§ 101-7301.
6
to post bail, the Board applied no pre[]sentence credit because the
Board did not hold him solely on its warrant following the March
15, 2019 arrest. Gaito v. [Pennsylvania] Board of Probation and
Parole, 412 A.2d 568 (Pa. 1980). Such credit must be applied to
the new sentence and [] Duzicky still owed 2[,]191 days on his
original sentence.
The . . . Parole Code provides that a CPV who was released
from an SCI and receives a new sentence to be served in an SCI
must serve the original sentence first. 61 Pa. C.S. § 6138(a)(5).
However, that provision does not take effect until the Board revokes
the offender’s parole. Campbell v. [Pennsylvania] Board of
Probation and Parole, 409 A.2d 980 (Pa. 1980). This means that
[] Duzicky became available to commence service of his original
sentence on March 15, 2021. Adding 2[,]191 days to that
availability date yields a recalculated maximum date of March 15,
2027. Thus, the Board properly recalculated his maximum date.
Again, please note that credit not applied to the original sentence
will be calculated by the Department of Corrections and allocated
toward the new state sentence upon commencement of that term.
(C.R. at 187-88.) The Board thus affirmed its April 14, 2021 decision. Duzicky,
through counsel, now petitions this Court for review of the Board’s decision.4
Discussion
On appeal, Duzicky raises three issues. First, he argues that the Board
failed to hold a timely revocation hearing, in that it failed to hold the hearing within
120 days of Duzicky’s sentencing on September 16, 2020, at which time he became
available to the Board. Duzicky’s Brief at 7, 12-16. Second, Duzicky claims that the
4
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).
7
Board abused its discretion in denying Duzicky credit for the time he spent at liberty
on parole and disregarding his mitigation evidence in doing so. Duzicky’s Brief at 7,
16-20. Finally, Duzicky argues that he was unduly prejudiced by the Board’s failure
to interview him for parole after he served the first year of his new one- to five-year
sentence. Duzicky’s Brief at 7, 20-25. Duzicky requests that this Court reverse the
Board’s decision with respect to its revocation of Duzicky’s parole. Duzicky’s Brief
at 26.
We begin with Duzicky’s claim that the Board failed to timely hold a
panel revocation hearing in this case. Citing Mack v. Pennsylvania Board of Probation
and Parole, 654 A.2d 129 (Pa. Cmwlth. 1995), Duzicky argues that, when he was
sentenced on September 16, 2020, he was confined at the Allegheny County Jail solely
on the Board’s warrant, and that the 120-day period began to run as of that date. He
further claims that he essentially began serving two state sentences upon his sentencing,
all while being held at the county jail. Because he was within the Board’s jurisdiction
as of the date of his sentencing, Duzicky argues that the revocation hearing held on
March 9, 2021, nearly 174 days after his sentencing, was untimely. Duzicky’s Brief at
12, 14.
The Board responds that it conducted a timely revocation hearing in this
case, as it held the hearing within 120 days of Duzicky’s return to an SCI, as per the
regulation. Board’s Brief at 6-7. The Board appears to admit that “the record is silent
as to a return verification date,” and surmises that “the actual return date is the standard
that must be used.” Board’s Brief at 7. The Board then distinguishes Mack from the
instant matter, stating that Duzicky was not being held solely on the Board’s warrant
after his sentencing on September 16, 2020, but, rather, he was awaiting the trial court’s
commitment of him to be transferred to an SCI to begin serving his backtime. Board’s
8
Brief at 8. Further, the Board explains, unlike other cases cited by Duzicky, there is
nothing in the record showing that Duzicky was being held at the Allegheny County
Jail at the Board’s request, or that the Board was even made aware that Duzicky was
available on the date of his sentencing. Board’s Brief at 8-9. The Board suggests, in a
footnote, that this Court “should take judicial notice of the impact [COVID-19] . . . had
on the ability of county correctional administrators and the local courts to effectively
run their respective systems.” Board’s Brief at 9 n.2. The Board therefore requests
that this Court defer to the Board’s regulation and hold that the revocation hearing was
timely held in this matter. Board’s Brief at 9.
Essentially, the issue in this case boils down to whether the Board
conducted its hearing in a timely manner 41 days after Duzicky’s return to an SCI or
in an untimely manner 174 days after Duzicky was sentenced on September 16, 2020.
Section 71.4(1) of the Board’s regulations, 37 Pa. Code § 71.4(1), provides that:
(1) A revocation hearing shall be held within 120 days from the date
the Board received official verification of the plea of guilty or nolo
contendere or of the guilty verdict at the highest trial court level
except as follows:
(i) If a parolee is confined outside the jurisdiction of the
Department of Corrections, such as confinement out-of-
State, confinement in a Federal correctional institution or
confinement in a county correctional institution where the
parolee has not waived the right to a revocation hearing by a
panel in accordance with Commonwealth ex rel. Rambeau v.
Rundle, . . . 314 A.2d 842 ([Pa.] 1973), the revocation
hearing shall be held within 120 days of the official
verification of the return of the parolee to a State
correctional facility.
(ii) A parolee who is confined in a county correctional
institution and who has waived the right to a revocation
hearing by a panel in accordance with the Rambeau decision
9
shall be deemed to be within the jurisdiction of the
Department of Corrections as of the date of the waiver.
(Emphasis added.)
This regulation is based upon the well-established principle that the 120-
day period does not begin to run until the Board acquires jurisdiction over the parolee.
Williams v. Pennsylvania Board of Probation and Parole, 579 A.2d 1369, 1371 (Pa.
Cmwlth. 1990). Where a parolee asserts that the Board held a revocation hearing
beyond the 120-day period, the Board bears the burden of proving, by a preponderance
of the evidence, that the hearing was timely. Koehler v. Pennsylvania Board of
Probation and Parole, 935 A.2d 44, 50 (Pa. Cmwlth. 2007).
Here, it is undisputed that Duzicky did not waive his right to a panel
revocation hearing at any time. The Board’s record establishes that Duzicky’s
convictions were officially verified on February 10, 2020, and that he was returned to
an SCI on January 27, 2021. (C.R. at 38, 42, 122, 130.) Therefore, the revocation
hearing held on March 9, 2021, 41 days after Duzicky’s return to an SCI, was timely
under a plain reading of section 71.4(1)(i) of the Board’s regulations.
Duzicky contends, however, that the 120-day period began to run on
September 16, 2020, when he was sentenced on his new Allegheny County convictions,
as the Board never lifted its detainer against Duzicky. Thus, according to Duzicky, the
revocation hearing held on March 9, 2021, nearly 174 days after he was sentenced, was
untimely.
We recognize that “[u]nreasonable and unjustifiable delays which are not
attributable to the parolee or his counsel do not toll the running of the 120 days.” Mack,
654 A.2d at 131. Further, “[w]here a parolee is held at the county institution solely as
a result of the Board’s action, the Board is not warranted in delaying a revocation
hearing until 120 days after the parolee’s return to [an SCI].” Id. “Furthermore, a
10
parolee being held at a county institution as a result of Board action in the form of a
detainer places the parolee within the Board’s jurisdiction, and the Board must conduct
a hearing within 120 days from the date which it acquires jurisdiction.” Id.Upon his sentencing on September 16, 2020, Duzicky remained confined
in Allegheny County Jail solely on the Board’s March 15, 2019 warrant until he was
returned to an SCI by county authorities on January 27, 2021. (C.R. at 38, 122, 130.)
Thus, it appears Duzicky is correct that the Board would have obtained jurisdiction
over him on September 16, 2020, immediately following his sentencing, and that the
exception in section 71.4(1)(i) would therefore not apply under these circumstances.
See Murray v. Jacobs, 512 A.2d 785, 789 (Pa. Cmwlth. 1986); see also Griffin v.
Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No. 762 C.D. 2018, filed
April 12, 2019), slip op. at 3.5 It further appears that the Board was required to hold a
revocation hearing within 120 days from September 16, 2020, or by January 14, 2021,
for it to be considered timely. Therefore, the panel revocation hearing held on March
9, 2021, appears to have been untimely held.
However, section 71.5(c) of the Board’s regulations, 37 Pa. Code §
71.5(c), provides additional guidance, as follows:
(c) In determining the period for conducting hearings under this
chapter, there shall be excluded from the period, a delay in any
stage of the proceedings which is directly or indirectly
attributable to one of the following:
(1) The unavailability of a parolee or counsel.
....
5
Griffin, an unreported opinion of this Court issued after January 15, 2008, is cited for its
persuasive value in accordance with Section 414(a) of this Court’s Internal Operating Procedures,
210 Pa. Code § 69.414(a).
11
(5) An event which could not be reasonably anticipated
or controlled by the Board, including, but not limited to,
illness, injury, acts of nature and prison or civil disorder.
Although the Board has not provided much detail regarding its suggestion,
set forth in a footnote in its brief, that this Court “should take judicial notice of the
impact [COVID-19] . . . had on the ability of county correctional administrators and
the local courts to effectively run their respective systems[,]” as it relates to Duzicky’s
case specifically, see Board’s Brief at 9 n.2, we nevertheless will take judicial notice
of the historic and novel COVID-19 pandemic and the Governor’s response thereto,6
as well as the effect the pandemic had on prison operations at both the county and state
levels.7 See Wiley v. Pennsylvania Board of Probation and Parole, 801 A.2d 644, 645
6
On March 6, 2020, Governor Wolf issued a Proclamation of Disaster Emergency regarding
the novel COVID-19 pandemic. Thereafter, the Governor issued numerous orders designed to
mitigate and stop the spread of COVID-19, which orders, inter alia, closed non-essential businesses
and directed citizens to stay at home. The Proclamation was renewed multiple times through May
2021. See Corman v. Acting Secretary of Pennsylvania Department of Health, 267 A.3d 561, 567-
68 (Pa. Cmwlth.), aff’d, 268 A.3d 1080 (Pa., No. 83 MAP 2021, December 10, 2021) (per curiam
order); 266 A.3d 452 (Pa. 2021) (opinion explaining Court’s reasoning for affirming).
7
On March 16, 2020, the Supreme Court declared a general statewide judicial emergency.
County courts thereafter declared judicial emergencies in their respective districts, including in the
Fifth Judicial District. See In Re: Fifth Judicial District Emergency Operations (No. AD - 2020 - ___
- PJ, order filed March 16, 2020) (declaring judicial emergency in Fifth Judicial District of
Pennsylvania through April 14, 2020, pursuant to Pennsylvania Supreme Court’s March 16, 2020
order). The judicial emergency in the Fifth Judicial District was extended numerous times through
March 2021. See Allegheny County Court Orders (dated April 2, 2020 (extending through May 8,
2020), May 6, 2020 (extending through June 1, 2020), August 31, 2020 (extending through December
31, 2020), and December 3, 2020 (extending through March 31, 2021)), available at
https://www.pacourts.us/ujs-coronavirus-information (last visited June 13, 2022).
Additionally, throughout the duration of the judicial emergency in the Fifth Judicial District,
various orders were entered by the President Judge of the Allegheny County Court of Common Pleas
directing that “no inmates . . . will be transported from state correctional facilities, county jails or
prisons, . . .” until further order of the court. See Allegheny County Court Orders (dated March 18,
22, 23, & 26, 2020; May 6, 2020; May 28, 2020 (extending directive regarding transportation of
inmates through August 31, 2020); and August 31, 2020 (extending non-transfer of certain inmates
(Footnote continued on next page…)
12
n.3 (Pa. Cmwlth. 2002) (Court took judicial notice of the historic events of September
11, 2001, and the Governor’s response thereto, citing Fatemi v. Fatemi, 537 A.2d 840(Pa. Super. 1988) (matters of history, if sufficiently notorious to be subject to general
knowledge, will be judicially noticed)). Moreover, Duzicky himself testified at the
panel revocation hearing held on March 9, 2021, that he was on complete lockdown in
quarantine while incarcerated at the Allegheny County Jail, as well as at SCI-
Smithfield and SCI-Houtzdale. (C.R. at 106-07.)8 Further, the Board apparently
scheduled a revocation hearing for February 23, 2021; however, due to Duzicky’s
unavailability, the hearing was continued. (C.R. at 37.)
Therefore, we conclude that the period of September 16, 2020, through
January 27, 2021, during which Duzicky remained in county custody on a Board
warrant awaiting transfer to an SCI to begin serving the backtime on his original
sentence, should be excluded from the 120-day period because it was directly the result
of the COVID-19 pandemic’s effect on prison operations and the lockdowns attendant
thereto. Thus, under the circumstances of this case, we deem the March 9, 2021 panel
revocation hearing timely held pursuant to the Board’s regulations, as it was held only
41 days following Duzicky’s return to an SCI.
through December 31, 2020)), available at https://www.pacourts.us/ujs-coronavirus-information (last
visited June 13, 2022).
8
The transcript of Duzicky’s sentencing, entered into evidence at the panel revocation hearing
for purposes of mitigation, also reveals details about COVID-19’s effect on court and prison
operations during the relevant timeframe: “THE COURT: . . . the pandemic occurred and there were
a lot of issues related to the logistics of having the defendant sentenced . . . from May 11th the case
was continued again at various times. There was no transport from the jail due to lockdowns related
to quarantine, court closures, you know, basically, a lot of reasons. So I just wanted to make the
record as to why the defendant was not sentenced within 90 days of his plea, and it was all really
pandemic-related.” (C.R. at 153-54.)
13
Next, we address Duzicky’s claim that the Board abused its discretion in
denying him credit for the time he spent at liberty on parole. Section 6138(a)(2), (2.1)
of the Parole Code provides that:
(2) If a [CPV’s] recommitment is so ordered, the [CPV] shall
be reentered to serve the remainder of the term which the
[CPV] would have been compelled to serve had the parole
not been granted and, except as provided under paragraph
(2.1), shall be given no credit for the time at liberty on parole.
(2.1) The [B]oard may, in its discretion, award credit to a
[CPV] recommitted under paragraph (2) for the time spent at
liberty on parole, unless any of the following apply:
(i) The crime committed during the period of
parole or while delinquent on parole is a crime
of violence . . . or a crime requiring registration
under 41 Pa.C.S. Ch. 97 Subch. H (relating to
registration of sexual offenders).
(ii) The [CPV] was recommitted under
[S]ection 6143 [of the Code] (relating to early
parole of inmates subject to Federal removal
order).
61 Pa. C.S. § 6138(a)(2), (2.1).9 Our Supreme Court held in Pittman that Section
6138(a)(2) “clearly and unambiguously grants the Board discretion to award credit to
a CPV recommitted to serve the remainder of his sentence,” other than in the
enumerated exceptions. Pittman, 159 A.3d at 473. The Supreme Court further held
that “the Board must provide a contemporaneous statement explaining its reason for
denying a CPV credit for time spent at liberty on parole.” Id. at 475.
9
We note that various sections of the Parole Code, including Section 6138, have recently been
amended by the Act of June 30, 2021, P.L. 260, effective immediately. While the substance of the
pertinent statutory section both prior to and after the amendments is essentially the same, we
nevertheless reference the version of the Parole Code that was in effect at the time the Board rendered
its decision in this matter.
14
Duzicky’s argument related to this issue appears to imply that he thinks
he is eligible to receive credit for his time at liberty on parole because the crimes for
which he was convicted are not crimes of violence and do not require him to register
as a sex offender, and further because the Board failed to consider mitigating factors
related to his convictions in determining the amount of backtime owed. Duzicky’s
Brief at 16-20. This Court notes, however, that section 6138(a)(2.1) of the Parole Code
does not give Duzicky the right to receive credit for time spent at liberty on parole.
Rather, section 6138(a)(2.1) gives the Board complete discretion, as Duzicky
acknowledges in his brief, see Duzicky’s Brief at 19-20, to award a CPV credit for time
spent at liberty on parole unless the CPV committed a crime of violence or a crime
requiring sex offender registration, in which case, the Board is given no discretion and
is required to take away the CPV’s time spent at liberty on parole. Upon Duzicky’s
recommitment as a CPV, he was required to serve the remainder of the term that he
would have been compelled to serve had he not been granted parole, with no credit for
time spent at liberty on parole, unless the Board, in the exercise of its sole discretion,
chose to award credit. Section 6138(a)(2), (2.1) of the Parole Code, 61 Pa. C.S. §
6138(a)(2), (2.1). Because Duzicky did not commit a crime of violence or a crime
requiring that he register as a sex offender, the Board was empowered to exercise its
discretion under section 6138(a)(2.1) and determine whether to grant Duzicky credit
for the time that he spent at liberty on parole. The Board chose not to do so in this case
and explained its reason for denying Duzicky credit for his street time by noting on the
revocation hearing report that it would deny Duzicky credit because his new conviction
(PWID) is the same or similar to his original offense (PWID). (C.R. at 124, 145.) We
have previously held that “same or similar to the original offense” is a sufficient reason
15
for denying credit under Pittman. See Barnes v. Pennsylvania Board of Probation and
Parole, 203 A.3d 382, 391 (Pa. Cmwlth. 2019).
We also note that the Board’s stated reason is amply supported by the
record in this matter, which reflects that Duzicky’s parole stemmed from his 2011
convictions for multiple counts of PWID, criminal attempt – PWID, corrupt
organizations, and conspiracy to commit corrupt organizations, and that his subsequent
conviction for PWID was obviously similar to his original convictions because all of
the convictions involved drugs. (C.R. at 1-4.) Furthermore, although Duzicky was
generally compliant with supervision up until he was arrested on the new charges, (see
C.R. at 16, 30, 123), the revocation hearing report in this matter indicates that Duzicky
“has continued to deal drugs”; his “new conviction involved 2.2 pounds of cocaine”;
and “[h]is drug dealing continues to generate new victims.” (C.R. at 123.)
We also reject Duzicky’s claim that the Board failed to consider his
mitigation evidence. The revocation hearing report clearly acknowledges his
mitigation evidence presented at and admitted into evidence at the hearing, stating that
Duzicky offered documentation and testimony regarding his “rough upbringing,” his
completion of the Hope Program in Allegheny County Jail, his work history, and his
positive adjustment up until his arrest. (C.R. at 123.) While we are sympathetic to
Duzicky and applaud his efforts to better his life following his most recent arrest, it is
well settled that the Board has been given broad discretion in parole matters and is not
required to accept justifying or mitigating evidence to excuse the commission of parole
violations and, therefore, does not abuse its discretion where it determines that
mitigating evidence presented by a parolee does not excuse the commission of parole
violations. Pitch v. Pennsylvania Board of Probation and Parole, 514 A.2d 638, 641
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(Pa. Cmwlth. 1986). We therefore reject Duzicky’s claim that the Board abused its
discretion in denying him credit for the time that he spent at liberty on parole.
Finally, we address Duzicky’s claim that he was unduly prejudiced by the
Board’s failure to interview him for parole after he served the first year of his new one-
to five-year sentence. Duzicky’s argument in this regard is not entirely clear. See
Duzicky’s Brief at 20-25. However, we glean his argument to be that the Board should
have granted him a parole interview between the time he was sentenced on September
16, 2020, and his recommitment as a CPV on April 12, 2021. We disagree.
“[I]t is axiomatic that, in Pennsylvania, the decision to parole, or . . . re-
parole, is discretionary with the Board, . . . and that there is no right to be paroled or
re-paroled.” White v. Pennsylvania Board of Probation and Parole, 833 A.2d 819 (Pa.
Cmwlth. 2003) (citing Reider v. Pennsylvania Board of Probation and Parole, 514
A.2d 967 (Pa. Cmwlth. 1986)). Here, Duzicky has not been unduly prejudiced by the
Board’s decision not to interview him for parole during the alleged timeframe because
Duzicky had not yet been recommitted as a CPV or begun serving his backtime, but,
rather, he remained in county custody following his sentencing while awaiting transfer
to an SCI. Moreover, because Duzicky was released from an SCI and received a new
sentence to be served in an SCI, he was required to serve the backtime on his original
sentence prior to serving his new sentence pursuant to section 6138(a)(5) of the Parole
Code, 61 Pa. C.S. § 6138(a)(5). That provision does not take effect, however, until the
Board revokes the parolee’s parole and the remainder of the original sentence becomes
due and owing. Campbell. Here, Duzicky did not become available to commence
service of his backtime until March 15, 2021, when the final Board member signed the
revocation hearing report. (C.R. at 128-29.) Further, according to the Board’s April
14, 2021 decision, Duzicky was not even determined to be eligible for reparole until
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September 15, 2022. (C.R. at 145.) Duzicky’s allegation of prejudice is therefore
without merit.
Accordingly, for the foregoing reasons, we affirm the Board’s July 28,
2021 order.
________________________________
PATRICIA A. McCULLOUGH, Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John Duzicky, :
Petitioner :
: No. 945 C.D. 2021
v. :
:
Pennsylvania Parole Board, :
Respondent :
ORDER
AND NOW, this 14th day of June, 2022, the July 28, 2021 order of the
Pennsylvania Parole Board is AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge