R.F. Shaffer v. PPB

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Richard F. Shaffer, :
Petitioner :
:
v. :
:
Pennsylvania Parole Board, : No. 700 C.D. 2020
Respondent : Submitted: June 11, 2021
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: July 15, 2021
Richard F. Shaffer (Shaffer) petitions this Court for review of the
Pennsylvania Parole Board’s (Board) July 1, 2020 decision granting his petition for
administrative relief from the Board’s decision recorded July 16, 2019 (mailed
August 16, 2019).1 Shaffer presents one issue for this Court’s review: whether the
Board violated Pittman v. Pennsylvania Board of Probation & Parole, 159 A.3d 466(Pa. 2017), and Penjuke v. Pennsylvania Board of Probation & Parole, 203 A.3d
401 (Pa. Cmwlth. 2019), appeal denied, 228 A.3d 254 (Pa. 2020), by revoking
previously granted credit for time spent at liberty on parole (i.e., street time) without
giving a reason therefor. After review, this Court affirms.
On October 31, 2016, Shaffer was convicted of
Manufacture/Sale/Deliver or Possess with Intent to Deliver a Controlled Substance
1
The Board granted Shaffer’s request for administrative relief by recalculating his
maximum sentence release date. Shaffer’s appeal concerns the portion of the decision which
denied him credit for his time spent at liberty on parole, which remained after the Board’s grant of
relief.
and sentenced to 2 to 5 years of incarceration (Original Sentence). His Original
Sentence maximum release date was December 9, 2020. On December 9, 2017, the
Board paroled Shaffer from his Original Sentence. On May 8, 2018, Shaffer was
taken into custody for failing to report to the Board. On August 29, 2018, the Board
cancelled the Warrant to Commit and Detain Shaffer without holding a violation
hearing. See Certified Record (C.R.) at 28.
On November 13, 2018, the Board lodged a detainer against Shaffer
and, on November 14, 2018, a Pennsylvania State Police Trooper arrested Shaffer
on new criminal charges (New Charges). On November 29, 2018, Shaffer posted
bail on the New Charges; however, the Board’s detainer remained in effect. On June
28, 2019, Shaffer pled guilty to Driving Under the Influence - high rate of alcohol -
2nd offense (DUI), for which the Indiana County Common Pleas Court (trial court)
sentenced him to 30 days to 6 months of incarceration (New Sentence). On July 11,
2019, the trial court granted Shaffer parole from his New Sentence. On July 16,
2019, the Board recommitted Shaffer as a convicted parole violator (CPV),
sentenced him to 6 months of backtime, denied Shaffer credit for the time he spent
at liberty on parole, and recalculated his Original Sentence maximum release date to
March 19, 2022. See C.R. at 72-73. Shaffer filed an Administrative Remedies Form
appealing from the Board’s July 16, 2019 decision.
On July 1, 2020, the Board granted Shaffer’s request for administrative
relief. See C.R. at 103-04. The Board recalculated Shaffer’s Original Sentence
maximum release date to August 20, 2021 (providing credit for the one day from
November 13 to November 14, 2018, and 211 days from November 29, 2018 to June
28, 2019). See id. The Board’s denial of credit for time spent at liberty on parole
2
(December 9, 2017 to May 8, 2019) remained. See id. Shaffer appealed to this
Court.2
Shaffer first argues that the Board erred by failing to provide a
statement explaining why it revoked his time spent at liberty on parole, as Pittman
requires.3 This issue was raised for the first time in Shaffer’s brief, which his counsel
prepared.4 However, because Shaffer objected to the Board’s revocation of his street
time in his pro se Administrative Remedies Form, his Petition for Review, and his
Amended Petition for Review, this Court will address the issue.
The law is well established that Pittman requires the Board to provide
a contemporaneous statement explaining its reason for denying a CPV credit for time
spent at liberty on parole. See id. Here, the Board specified its reason for denying
Shaffer credit for time spent at liberty on parole as follows: “[U]nresolved drug and
alcohol issues.” C.R. at 67 (Board Hearing Report); 73 (Board Dec.). Given that
Shaffer’s Original Sentence was for drug charges and his New Sentence was for a
DUI, Shaffer’s history fully supported the Board’s reason for denying him credit for
street time. See Plummer v. Pa. Bd. of Prob. & Parole, 216 A.3d 1207 (Pa. Cmwlth.
2019); Smoak v. Talaber, 193 A.3d 1160 (Pa. Cmwlth. 2018). Accordingly, the
Board satisfied Pittman’s requirements.
Shaffer next contends that the Board violated Penjuke by denying him
credit for street time as a CPV after granting him credit for that street time as a
2
“Our scope of review of the Board’s decision denying administrative relief is limited to
determining whether necessary findings of fact are supported by substantial evidence, an error of
law was committed, or constitutional rights have been violated.” Kazickas v. Pa. Bd. of Prob. &
Parole, 226 A.3d 109, 115 n.9 (Pa. Cmwlth. 2020) (quoting Fisher v. Pa. Bd. of Prob. & Parole,
62 A.3d 1073, 1075 n.1 (Pa. Cmwlth. 2013)).
3
The Board did not respond to this argument in its brief.
4
Indiana County Public Defender Michael P. Smith, Esquire entered his appearance for
Shaffer on October 14, 2020, and filed the instant brief.
3
technical parole violator (TPV). The Board responds that Penjuke does not apply
because Shaffer was not committed as a TPV.
In Penjuke, this Court held: “[T]he 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.” Id. at 420. Here, the Board is correct
that Shaffer was never committed as a TPV. Rather, after detaining Shaffer for
violating his parole conditions by failing to report to the Board, the Board cancelled
its Warrant to Commit and Detain Shaffer. See C.R. at 28. As a result, Shaffer was
not committed as a TPV, and the Board neither credited nor denied his street time.5
Accordingly, Penjuke does not apply.
For all of the above reasons, the Board’s decision is affirmed.
_________________________________
ANNE E. COVEY, Judge
5
Even if Shaffer was committed as a TPV, “[b]ecause the criminal conduct that led to
[Shaffer’s] CPV recommitment occurred during the same parole period as the violation that led to
his TPV recommitment, Penjuke does not control in this case.” Kazickas, 226 A.3d at 116.
4
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Richard F. Shaffer, :
Petitioner :
:
v. :
:
Pennsylvania Parole Board, : No. 700 C.D. 2020
Respondent :
ORDER
AND NOW, this 15th day of July, 2021, the Pennsylvania Parole
Board’s July 1, 2020 decision is affirmed.
_________________________________
ANNE E. COVEY, Judge