            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Thomas Stephan Thompson,                   :
                     Petitioner            :
                                           :
              v.                           :   No. 118 C.D. 2015
                                           :   Submitted: April 1, 2016
Pennsylvania Board of                      :
Probation and Parole,                      :
                           Respondent      :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE JAMES GARDNER COLINS, Senior Judge



OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                               FILED: May 24, 2016

              Petitioner Thomas Stephan1 Thompson (Thompson) petitions for
review of an order of the Pennsylvania Board of Probation and Parole (Board).
The Board denied Thompson’s request for administrative relief from the
revocation of his parole and his recommitment as a convicted parole violator, in
which Thompson argued that the Board failed to exercise its discretion in
considering whether to grant him credit for time spent at liberty on parole. We
now affirm.



      1
       Although the caption in this matter identifies the Petitioner as Thomas “Stephan”
Thompson, it is apparent from the record that his name is Thomas “Stephen” Thompson.
            In 1987, Thompson was convicted of three counts of robbery,
18 Pa. C.S. § 3701, and he received three five-to-ten year sentences, which were to
be served consecutively.    (Certified Record (C.R.) at 1.)    The Board granted
Thompson parole on April 11, 2001, but the Board recommitted Thompson to a
state correctional institution on August 10, 2001, as a technical parole violator.
(Id. at 8, 12.)    On September 26, 2003, the Board re-paroled Thompson.
(Id. at 16.) Thompson was arrested on November 20, 2003, and the Board lodged
a warrant to detain Thompson pending disposition of the theft by receiving stolen
property, 18 Pa. C.S. § 3925, and unauthorized use of a motor vehicle, 18 Pa. C.S.
§ 3928, charges stemming from his arrest. (Id. at 23.) On February 12, 2004, the
Board recommitted Thompson as a technical parole violator, and, on
August 2, 2004, Thompson was convicted of the new criminal charges, for which
he received a sentence of three-to-six years. (Id. at 26, 46.) On August 3, 2005,
the Board recommitted Thompson as a convicted parole violator due to his
conviction. (Id. at 26.) The Board re-paroled Thompson on November 30, 2007,
but Thompson was immediately recommitted to a state correctional institution to
begin serving his three-to-six year sentence. (Id. at 37, 62.) The Board ultimately
granted Thompson parole as to both of his sentences on June 18, 2013. (Id. at 46.)
            On October 15, 2013, Thompson was arrested and charged with
criminal mischief, 18 Pa. C.S. § 3304; criminal trespass, 18 Pa. C.S. § 3503;
disorderly conduct, 18 Pa. C.S. § 5503; loitering and prowling at night time,
18 Pa. C.S. § 5506; possessing instruments of crime, 18 Pa. C.S. § 907; theft by
receiving stolen property; and unauthorized use of a motor vehicle. (Id. at 52.)
The Board lodged a warrant to commit and detain Thompson pending disposition
of his new charges, and Thompson waived his detention hearing. (Id. at 51.)


                                        2
Thompson pled guilty to the charges of possessing instruments of crime and
unauthorized use of a motor vehicle, and the remaining charges were dismissed.
(Id. at 93.) On April 8, 2014, Thompson waived his right to a revocation hearing
and admitted to his conviction. (Id. at 71.) A hearing examiner issued a report
recommending that Thompson be recommitted as a convicted parole violator, and
on May 23, 2014, the report received the second panel member signature necessary
to recommit Thompson. (Id. at 80.) In the section of the report concerning
whether Thompson would receive credit for time spent at liberty on parole, the
Board checked “no,” thus denying Thompson credit. (Id. at 75.) The Board
determined that Thompson owed 2,903 days of backtime, and it calculated his new
maximum sentence date as June 11, 2022. (Id. at 84.)
            Thompson filed a request for administrative relief from the Board’s
decision to revoke his parole and recommit him as a convicted parole violator. In
so doing, Thompson argued that the Board erroneously failed to exercise its
discretion under Section 6138(a)(2.1) of the Prisons and Parole Code (Code),
61 Pa. C.S. § 6138(a)(2.1). Thompson alleged that there was no indication that the
Board considered granting him credit against his maximum sentence, and, even if
it did consider granting him credit, the Board failed to provide an explanation for
denying such credit. On January 22, 2015, the Board dismissed Thompson’s
request for administrative relief as unauthorized. The Board explained that the
decision to deny Thompson credit for time at liberty on parole was discretionary
and, thus, not appealable. Thompson petitioned this Court for review.




                                        3
              On appeal,2 Thompson contends that the Board abused its discretion
under Section 6138(a)(2.1) of the Code by failing to consider granting him credit
for time spent at liberty on parole. Thompson acknowledges that nothing in the
Code entitles him to credit, but he maintains that Section 6138(a)(2.1) of the Code
requires the Board to consider whether to grant a parolee credit unless the parolee
has been convicted of a crime of violence or a crime requiring registration pursuant
to 42 Pa. C.S. § 9799.13. Thompson argues that his convictions did not warrant an
automatic denial of credit, and, therefore, the Board abused its discretion in failing
to consider granting him credit as required by Section 6138(a)(2.1) of the Code.
Further, in denying him credit against his maximum sentence, the Board failed to
issue a statement of reasons as to why Thompson was not granted credit, as
required by the Due Process Clause of the Fourteenth Amendment to the United
States Constitution, U.S. CONST. amend. XIV, § 1 (hereinafter, Due Process
Clause).    Thompson requests that we remand this matter to the Board for
consideration of whether to grant Thompson credit for time at liberty on parole.
              Section 6138(a) of the Code provides:
              (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

       2
         Our standard of review of a Board order denying administrative relief is limited to
considering whether necessary factual findings are supported by substantial evidence, whether
the Board erred as a matter of law, and whether constitutional rights were violated. 2 Pa. C.S.
§ 704.



                                              4
                     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 42 Pa. C.S.
                            Ch. 97 Subch. H1 (relating to registration of
                            sexual offenders).
                            (ii) The parolee was recommitted under
                            section 6143 (relating to early parole of
                            inmates subject to Federal removal order).

              In Pittman v. Pennsylvania Board of Probation and Parole, 131 A.3d
604 (Pa. Cmwlth. 2016) (en banc),3 the Board revoked a parolee’s parole and
recommitted him as a convicted parole violator. In so doing, the Board denied the
parolee credit for time spent at liberty on parole. The Board’s decision to deny the
parolee credit was reflected in the hearing report, wherein the Board checked “no”
on the line concerning whether to grant a parolee credit. The parolee filed a


       3
         We note that a petition for allowance of appeal has been filed with the Supreme Court
of Pennsylvania regarding this Court’s decision in Pittman. See Pittman v. Pa. Bd. of Prob. and
Parole, (Pa., 90 MAL 2016).



                                              5
request for administrative relief, which the Board denied. On appeal to this Court,
the parolee contended “that the Board completely failed to exercise its discretion
under [S]ection 6138(a)(2.1) of the . . . Code by checking a box denying credit and
that this alleged failure to exercise discretion, in and of itself, constitutes an abuse
of discretion.” Pittman, 131 A.3d at 609. In affirming the Board’s decision, we
explained that the hearing report provided the Board with the choice to award or
deny credit, and there were no other instructions in the report with respect to credit.
“Consequently, the completed hearing report, alone, establishes that the Board
exercised discretion pursuant to [S]ection 6138(a)(2.1) [of the Code] by checking
‘no’ and denying [the parolee] credit for time spent at liberty on parole.”
Id. Additionally, there are no statutory standards in Section 6138(a)(2.1) of the
Code pertaining to the manner in which the Board must exercise its discretion in
granting credit. This absence of standards demonstrates “that the Board fully
exercised the discretion that the legislature afforded to it.” Id. at 611. We further
concluded “that the Board was not legally required to provide [the parolee] with a
statement of reasons for denying him credit for time spent at liberty on parole.”
Id. at 616. Specifically, we explained that although the parolee did not raise a
procedural due process argument, the Due Process Clause does not require the
Board to provide a statement of reasons, because a parolee has no constitutionally
protected liberty or property interest in receiving credit for time spent at liberty on
parole.
             The instant matter is indistinguishable from Pittman. Here, the Board
denied Thompson credit for time spent at liberty on parole by checking “no” on the
hearing report. Despite Thompson’s arguments to the contrary, this was sufficient
to demonstrate that the Board exercised its discretion under Section 6138(a)(2.1) of


                                           6
the Code.     Further, although Thompson raises a procedural due process
requirement as to a parolee’s entitlement to a statement of reasons concerning the
denial of his or her credit, we explained in Pittman that the Due Process Clause
does not require the Board to provide a statement of reasons in denying a parolee
credit for time spent at liberty on parole. Because Thompson raises the same
arguments that we rejected in Pittman, Pittman mandates that we affirm.
            Accordingly, we affirm the Board’s order.




                               P. KEVIN BROBSON, Judge




                                        7
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Thomas Stephan Thompson,             :
                     Petitioner      :
                                     :
           v.                        :   No. 118 C.D. 2015
                                     :
Pennsylvania Board of                :
Probation and Parole,                :
                        Respondent   :


                                  ORDER


           AND NOW, this 24th day of May, 2016, the order of the
Pennsylvania Board of Probation and Parole is hereby AFFIRMED.




                             P. KEVIN BROBSON, Judge
