                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jose Garcia,                                 :
                     Petitioner              :
                                             :   No. 1152 C.D. 2014
               v.                            :
                                             :   Argued: October 7, 2015
Pennsylvania Board of Probation              :
and Parole,                                  :
                 Respondent                  :



BEFORE:        HONORABLE DAN PELLEGRINI, President Judge1
               HONORABLE BERNARD L. McGINLEY, Judge
               HONORABLE ROBERT SIMPSON, Judge
               HONORABLE MARY HANNAH LEAVITT, Judge2
               HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE ANNE E. COVEY, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                            FILED: January 8, 2016


               Jose Garcia (Garcia) petitions for review of the June 20, 2014 order of
the Pennsylvania Board of Probation and Parole (Board), affirming its January 21,
2014 decision to recommit Garcia as a convicted parole violator (CPV) for the
remaining term of his unexpired sentence without awarding him credit for the time he

       1
        This case was assigned to the opinion writer before December 31, 2015, when President
Judge Pellegrini assumed the status of senior judge.

       2
        This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt
became President Judge.
spent at liberty on parole.3 After considering the parties’ briefs, the record, and our
decision in Pittman v. Board of Probation and Parole, __ A.3d __ (Pa. Cmwlth., No.
978 C.D. 2014, filed January 8, 2016) (en banc), we affirm.
              On February 4, 1997, Garcia was sentenced to ten to twenty years’
imprisonment following his guilty plea to attempted murder and aggravated assault.
Garcia’s minimum sentence date was October 3, 2006, and his maximum sentence
date was October 3, 2016. (Certified Record (C.R.) at 1-3.)
              On September 10, 2007, the Board granted Garcia parole and he was
released on April 1, 2008. Prior to his release, Garcia signed conditions governing
his parole advising that, “[i]f you are convicted of a crime committed while on
parole/reparole, the Board has the authority, after an appropriate hearing, to recommit
you to serve the balance of the sentence or sentences which you were serving when
paroled/reparoled, with no credit for time at liberty on parole.” (C.R. at 10.)
              On June 11, 2013, the police arrested Garcia and charged him with
criminal offenses. The Board lodged a warrant and detainer on that same day. On
October 25, 2013, Garcia entered a negotiated guilty plea to driving under the
influence (DUI) and criminal mischief, and the trial court sentenced him to seventy-
two hours to six months’ imprisonment along with a consecutive term of nine
months’ probation. (C.R. at 21, 36-37.) Thereafter, Garcia signed a waiver form
prepared by the Board, waiving his right to a parole revocation hearing and his right
to counsel and admitting that he violated his parole by committing DUI and criminal
mischief. (“Waiver of Revocation Hearing and Counsel/Admission Form,” C.R. at
26.)

       3
          By per curiam order dated July 16, 2014, this Court appointed counsel to represent Garcia
in this appeal.



                                                2
              In a hearing report dated December 27, 2013, the Board accepted
Garcia’s waivers and admission to being a CPV. On page 3 of the hearing report
appeared the line: “BOARD ONLY – Credit time spent at liberty on parole: [ ] No
[ ] Yes (excluded offenses on pg. 8).” In turn, page 8 of the hearing report lists
offenses that are automatically excluded from street time credit pursuant to section
9714(g) of the Judicial Code, 42 Pa.C.S. §9714(g), and DUI and criminal mischief
are not enumerated as one of those offenses. The Board checked “No” and denied
Garcia credit. (C.R. at 29; Supplemental Record (S.R.) at 1a.)
              By decision recorded on February 13, 2014, the Board recommitted
Garcia as a CPV and recalculated his maximum sentence date to September 12, 2014,
which constituted the entire balance remaining on his original sentence. (C.R. at 51.)
              On March 13, 2014, Garcia submitted a request for administrative relief,
arguing, among other things, that the Board improperly extended his maximum
sentence date.       On June 20, 2014, the Board denied Garcia’s request for
administrative relief. In doing so, the Board cited section 6138(a)(2) of the Prison
and Parole Code (Parole Code), 61 Pa.C.S. §6138(a)(2), and determined that as a
CPV, Garcia was not entitled to credit for time he spent at liberty on parole. (C.R. at
53-54, 59.)
              On appeal to this Court,4 Garcia does not dispute that the Board can deny
him credit for time spent at liberty on parole under section 6138(a)(2) of the Parole
Code. Instead, Garcia argues that the Board overlooked section 6138(a)(2.1) of the
Parole Code, 61 Pa.C.S. §6138(a)(2.1), added by the Act of July 5, 2012, P.L. 1050

       4
        Our scope of review is limited to determining whether constitutional rights were violated,
whether the adjudication was in accordance with the law, and whether necessary findings were
supported by substantial evidence. 2 Pa.C.S. §704; Adams v. Board of Probation and Parole, 885
A.2d 1121, 1122 n.1 (Pa. Cmwlth. 2005).



                                                3
(Act 122), which grants the Board discretion to determine whether to award a CPV
credit for time spent on parole. Garcia contends that the Board failed to exercise its
discretion under section 6138(a)(2.1) of the Parole Code and that its failure to
exercise discretion, in and of itself, constitutes an abuse of discretion.
             In addition, Garcia argues that the Board erred in failing to state its
reasons for denying him credit.
             Section 6138(a) of the Parole Code in pertinent part states:

             §6138. Violation of terms of parole.

             (a) Convicted violators.

             (1) A parolee under the jurisdiction of the board released
             from a correctional facility who, during the period of parole
             or while delinquent on parole, commits a crime punishable
             by imprisonment, for which the parolee is convicted or
             found guilty by a judge or jury or to which the parolee
             pleads guilty or nolo contendere at any time thereafter in a
             court of record, may at the discretion of the board be
             recommitted as a parole violator.

             (2) If the parolee’s recommitment is so ordered, the parolee
             shall be reentered to serve the remainder of the term
             which the parolee 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 board may, in its discretion, award credit to a
             parolee 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 as defined
             in 42 Pa.C.S. §9714(g) (relating to sentences for second and
             subsequent offenses) or a crime requiring registration under



                                             4
              42 Pa.C.S. Ch. 97 Subch. H (relating to registration of
              sexual offenders).

61 Pa.C.S. §6138(a)-(2.1)(i) (emphasis added).
              In the companion case, Pittman, this Court addressed identical facts and
rejected the same arguments that Garcia now advances.5 In Pittman, we concluded
that the Board exercised discretion when it denied Pittman credit for time spent at
liberty on parole by checking “no” on the hearing report. We further concluded that
section 6138 of the Parole Code does not require the Board to state its reasons for
denying credit. Id., slip op. at 6-20. We incorporate that opinion by reference and
reach the same conclusions in this case.
              Because our decision in Pittman is indistinguishable from the present
scenario, Pittman mandates that we affirm the Board’s order.
              Accordingly, we affirm.



                                               ________________________________
                                               PATRICIA A. McCULLOUGH, Judge




       5
         On October 7, 2015, Garcia’s case and Pittman were both argued before the Court en banc.
The attorney representing Garcia also represented Pittman, and the arguments contained in the
appellate briefs are virtually identical.



                                               5
               IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jose Garcia,                             :
                     Petitioner          :
                                         :    No. 1152 C.D. 2014
               v.                        :
                                         :
Pennsylvania Board of Probation          :
and Parole,                              :
                 Respondent              :


                                     ORDER


               AND NOW, this 8th day of January, 2016, the June 20, 2014 order of
the Pennsylvania Board of Probation and Parole is affirmed.



                                             ________________________________
                                             PATRICIA A. McCULLOUGH, Judge
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jose Garcia,                            :
                     Petitioner         :
                                        :
               v.                       : No. 1152 C.D. 2014
                                        : Argued: October 7, 2015
Pennsylvania Board of Probation         :
and Parole,                             :
                 Respondent             :


BEFORE:        HONORABLE DAN PELLEGRINI, President Judge
               HONORABLE BERNARD L. McGINLEY, Judge
               HONORABLE ROBERT SIMPSON, Judge
               HONORABLE MARY HANNAH LEAVITT, Judge
               HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE ANNE E. COVEY, Judge


OPINION NOT REPORTED


DISSENTING OPINION BY
PRESIDENT JUDGE PELLEGRINI                    FILED: January 8, 2016


               For the reasons set forth in my dissenting opinion in Kevin Pittman v.
Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No. 978 C.D 2014, filed
January 8, 2016), I respectfully dissent.



                                        ______________________________________
                                        DAN PELLEGRINI, President Judge


Judge Leavitt joins in this dissenting opinion.
