          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Ricki Pinkins,                            :
                           Petitioner     :
                                          :
           v.                             :   No. 793 C.D. 2019
                                          :   Submitted: February 7, 2020
Pennsylvania Board of                     :
Probation and Parole,                     :
                           Respondent     :


BEFORE:         HONORABLE MARY HANNAH LEAVITT, President Judge
                HONORABLE MICHAEL H. WOJCIK, Judge
                HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CROMPTON                                     FILED: May 11, 2020


                Ricki Pinkins (Pinkins), who is represented by a public defender,
petitions for review of an order of the Pennsylvania Board of Probation and Parole
(Board) that denied his request for administrative relief. Pinkins argues that the
Board erred by relying on the language of his commutation charter as a basis to
deviate from the presumptive recommitment range for his new offense and as a basis
for not establishing a new parole eligibility date. Pinkins also asserts that the Board
erred by refusing to award credit for his time spent at liberty on parole. Upon review,
we affirm the Board’s order and advise the Board to notify the Pennsylvania Board
of Pardons (Board of Pardons) of Pinkins’ Ohio conviction.
                           I.       Background
              On June 2, 1983, Pinkins was sentenced to life imprisonment for second
degree murder and a concurrent term of five to ten years’ imprisonment for robbery
and criminal conspiracy to commit robbery. Certified Record (C.R.) at 1-3; Pet’r’s
Br. at 9. On January 9, 2003, Pennsylvania Governor Mark Schweiker commuted
Pinkins’ life sentence after the Board of Pardons recommended commutation. C.R.
at 1; Pet’r’s Br. at 9. The commutation reads, in pertinent part:

              Therefore, know ye, That in consideration of the premises and by
              virtue of the authority vested in me by the Constitution, I have
              commuted the sentence of the said Ricki D. Pinkins from a term
              of life imprisonment to a term of 22 [years] to life upon the
              following conditions: (1) that Ricki D. Pinkins shall not be
              released on parole until after he has served at least one year in a
              prerelease center unless he cannot be appropriately transferred to
              a prerelease center due to a certified terminal illness; and (2) in
              the event Ricki D. Pinkins is ever convicted of any criminal
              offense or has violated the terms and conditions of his parole
              after …[January 9, 2003], this grant of clemency will thereby
              automatically be rendered null and void.

Pet’r’s Br. at 9.

              On February 18, 2004, Pinkins was released on parole from the Sharon
Community Corrections Center to an approved residence. In 2011, the Board
permitted Pinkins to transfer his supervision to Youngstown, Ohio to reside with his
wife. C.R. at 8-9, 11-19; Pet’r’s Br. at 9. Progress reports from Ohio indicate that
Pinkins was compliant with his supervision from 2012 to 2015.              C.R. at 55.
However, on June 9, 2016, Pinkins’ supervising officer in Ohio advised the Board
that Pinkins had been arrested by the Mahoning County Drug Task Force for the
offense of trafficking in cocaine. C.R. at 20. A secret indictment revealed that



                                           2
Pinkins had six separate charges for trafficking in cocaine for offenses allegedly
occurring between March 5, 2016, and May 18, 2016. Four of the charges were
graded as first-degree felonies and two were graded as third-degree felonies, and
Pinkins was incarcerated at the Mahoning County Justice Center on an unposted
bond of $100,000. C.R. at 21-25.


               On September 5, 2017, Pinkins pled guilty to one count of trafficking
in cocaine, a felony of the third degree. C.R. at 21, 26. In exchange for his plea, the
State of Ohio agreed to seek dismissal of the remaining five charges. C.R. at 26.
The court agreed, and on October 9, 2017, the judge in Pinkins’ case sentenced
Pinkins to 30 months in prison with credit for 145 days for time spent in custody.
Pinkins was directed to report to the Mahoning County Justice Center to serve his
sentence on December 1, 2017. C.R. at 49, 55.


               On November 1, 2017, the Board filed a “Warrant for Arrest of a
Paroled Prisoner,” and on November 8, 2017, Pinkins waived extradition to
Pennsylvania. C.R. at 43, 46-47. On November 21, 2017, Pinkins signed his “Notice
of Charges and Hearing” in conjunction with his revocation hearing. C.R. at 52-53.
He waived his hearing and right to counsel and admitted to his Ohio conviction.
C.R. at 51. In the Board’s hearing report, two panel members1 recommended that
Pinkins be recommitted, as a convicted parole violator (CPV), to a state correctional
institution to serve the remainder of his unexpired life sentence. The panel members


       1
          Section 6113(b) of the Prisons and Parole Code states, in pertinent part: “The board may
make decisions on parole, reparole, return or revocation in panels of two persons. A panel shall
consist of one board member and one hearing examiner or of two board members.” 61 Pa.C.S.
§6113(b).


                                                3
further recommended that the Board not award Pinkins any credit for his time spent
at liberty on parole for two reasons: (1) poor supervision; and (2) the language of
his commutation. C.R. at 59, 64. On January 23, 2018, the Board issued a “Notice
of Board Decision and Order to Recommit,” recommitting Pinkins as a CPV and
directing Pinkins to serve his unexpired life term. C.R. at 69-72; Pet’r’s Br. at 12
and A-2, A-3.


              On March 2, 2018, Pinkins, proceeding pro se, filed an “Administrative
Remedies Form” challenging the imposition of backtime and challenging the
Board’s decision not to award him any credit for his time spent at liberty on parole.
Pinkins also sought additional time to secure an attorney to assist with his appeal.
C.R. at 73. On May 20, 2019, the Board affirmed its decision, citing the language
of the commutation as the basis for Pinkins’ recommitment. C.R. at 78; Pet’r’s Br.
at 12 and A-1. Pinkins now petitions this Court for review.


                             II.       Contentions
              On appeal,2 Pinkins argues the Board erred by (1) relying on the
language of his commutation “as a basis to deviate from the presumptive
recommitment range for [his] new offense and to not establish a new parole
eligibility date” and (2) by refusing to award credit for time at liberty on parole
“where the reasons were either legally insufficient and/or unsupported by the
evidence of record.” Pet’r’s Br. at 8.


       2
          Our review of a Board decision is limited to determining whether necessary findings of
fact are supported by substantial evidence, whether an error of law was committed, or whether the
constitutional rights of the parolee were violated. Detar v. Pa. Bd. of Prob. & Parole, 890 A.2d
27 (Pa. Cmwlth. 2006).


                                               4
                      A. Presumptive Recommitment Range
             Pinkins argues that the Board erred when it relied upon the language of
his commutation to deviate from the presumptive recommitment range for his
conviction of trafficking in cocaine in Ohio. Pinkins asserts that his Ohio conviction
would be graded as a felony, punishable by 10 years in prison in Pennsylvania, and
that the presumptive range for recommitment is 18 to 24 months. See 35 P.S. §780-
113(a)(30), (f)(1.1);3 37 Pa. Code §75.2; see also Abrams v. Pa. Bd. of Prob. &
Parole, 935 A.2d 604 (Pa. Cmwlth. 2007); Pet’r’s Br. at 16.


             In support of his position, Pinkins cites 37 Pa. Code §75.1(a), which
states: “[p]resumptive ranges of parole backtime to be served will be utilized if a
parolee is convicted of a new criminal offense while on parole and the Board orders
recommitment as a CPV after the appropriate revocation hearing.” Pinkins further
relies on 37 Pa. Code §75.1(c), which states: “[t]he Board may deviate from the
presumptive range or determine that recommitment should not occur, provided
written justification is given” to assert that the presumptive range for a felony drug
law violation, for which the statutory maximum sentence is 10 years, is 18 to 24
months. See 61 Pa.C.S. §6137(i); Pet’r’s Br. at 15-16 (also citing 37 Pa. Code
§75.2).


             Pinkins explains that two panel members identified the correct
presumptive range in the Board’s hearing report but that the members recommended
he serve the balance of his unexpired life term because his Ohio conviction voided

      3
         The Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972,
P.L.233, as amended, 35 P.S. §780-113(a)(30),(f)(1.1).



                                           5
the 2003 commutation order. C.R. at 59; Pet’r’s Br. at 16. Pinkins submits that the
Board cannot cite the language of the commutation order as the basis for (1)
departing from the presumptive range of 18-24 months, (2) not establishing a parole
minimum date, and (3) recommitting him to his unexpired life sentence. Pet’r’s Br.
at 16.


              Further, Pinkins argues that, in instances in which an inmate’s sentence
is commuted from life to life on parole,4 it becomes the Board’s duty to (1) supervise
the parolee on a weekly basis for the first six months of parole; and (2) “to have any
violations of a condition of parole immediately made known to the Board of
Pardons.” 61 Pa.C.S. §6137(a)(4), (5). Pinkins adds that the Board of Pardons “will
then decide, on a case-by-case basis, whether to hold a public hearing regarding the
suspected violation of the conditional pardon or commutation. After public hearing,
a majority of the Board may recommend to the Governor that clemency be revoked.”
37 Pa. Code §81.301(f).


              Pinkins concedes that his commutation was conditioned on him never
being convicted of a new criminal offense or violating the terms of his parole.
However, he asserts that in the immediate situation, the Board had an obligation to
notify the Board of Pardons in order to permit it to follow the procedure outlined in
its (i.e., the Board of Pardons) regulations. Pinkins further asserts that nothing in
Section 6137 of the Prisons and Parole Code suggests that the Board has the statutory


         As Pinkins states, and we acknowledge: “The Pennsylvania Constitution places the
         4

power to pardon or commute a life sentence solely within the province of the Governor upon the
unanimous recommendation in writing of the Board of Pardons after full hearing in open session,
upon due public notice.” Pet’r’s Br. at 17 (citing Pa. Const. art. IV, §9(a)).


                                              6
authority to depart from the guideline ranges automatically and to re-impose a life
sentence based on its interpretation of the language of his commutation.


               B. Denial of Credit for Time Spent at Liberty on Parole
             Pinkins acknowledges that Section 6138(a)(2) of the Prisons and Parole
Code provides that parolees who are recommitted as CPVs “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
[(a)(2.1)], shall be given no credit for time at liberty on parole.” 61 Pa.C.S.
§6138(a)(2). Pinkins further acknowledges that under paragraph (a)(2.1), the Board
has discretion to award credit to a parolee recommitted as a CPV unless “[t]he 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)…or a crime requiring registration [under
SORNA].” Pet’r’s Br. at 18; See 61 Pa.C.S. §6138(a)(2.1)(i). However, citing
Pittman v. Pennsylvania Board of Probation & Parole, 159 A.3d 466, 475 (Pa.
2017), Pinkins asserts that when said exception applies, “the Board must provide a
contemporaneous statement explaining its reason for denying a CPV credit for time
spent at liberty on parole.” Pet’r’s Br. at 18-19.


             Pinkins   contends that the        Board   should have     provided a
contemporaneous reason for its determination to deny him time spent at liberty on
parole. Pinkins further maintains that his new conviction for trafficking in cocaine,
and its Pennsylvania equivalent of possession with intent to deliver, does not
constitute a violent offense, and as such, the Board should have provided a
contemporaneous reason for its decision to deny him credit for time spent at liberty



                                           7
on parole. Pinkins also notes that the Board’s hearing report indicated that two panel
members recommended denying him credit for time spent at liberty on parole and
stated “poor supervision” as the justification. See C.R. at 59; Pet’r’s Br. at 19.
However, Pinkins acknowledges that, in the “Additional Information” section of the
hearing report, the two panel members stated, in pertinent part, that “Mr. Pinkins’
new drug conviction and [his] parole revocation both qualify as a basis to render the
grant of clemency null and void per the commutation order. Therefore, I do not
recommend that the Board award him any credit for time at liberty on parole.” C.R.
at 64; Pet’r’s Br. at 19. Pinkins states that, in the “Notice of Board Decision,” the
Board wrote “poor supervision” as the reason for not awarding any credit for time
spent at liberty on parole, but Pinkins denies that the record supports he had a history
of “poor supervision,” where he spent over 13 years without any reported issues.
Pinkins argues that the Board’s reliance on “poor supervision” to deny him credit
represents an abuse of the Board’s discretion. C.R. at 55; Pet’r’s Br. at 20.


             Based on the foregoing, Pinkins contends that the Board had an
obligation to advise the Board of Pardons of his parole violation and then to proceed
to exercise its typical discretion in parole matters until the Board of Pardons
followed its regulatory procedures.        Thus, Pinkins asserts that the Board’s
conclusions are not supported by substantial evidence and that it abused its
discretion. Consequently, Pinkins contends that the Board’s determination should
be reversed. Pet’r’s Br. at 21.




                                           8
                      C. Collateral Attack on Commutation
             In response to Pinkins’ contentions on appeal, the Board argues that
Pinkins wants this Court “to ignore the conditions placed on the grant of clemency
by the Board of Pardons as well as the consequences of his breach.” Resp’t’s Br. at
5. The Board notes that Pinkins’ arguments concerning the establishment of a
review date and the award of time credit are important issues in many similar
appeals. However, the Board maintains that this case is different because Pinkins’
commutation charter specifically states that his grant of clemency is to be
automatically rendered null and void if he is convicted of a new criminal offense.
C.R. at 1; Resp’t’s Br. at 5-6. In addition, the Board notes that “per the terms of his
commutation charter, Pinkins is now an inmate serving a life sentence, such that the
Board no longer has the authority to release him on parole.” Resp’t’s Br. at 6; see
61 Pa.C.S. §6137(a). Thus, the Board argues that it would serve no purpose for it to
review Pinkins for parole because it has no authority to release him. The Board
further maintains that the issue of not awarding Pinkins credit for time spent at
liberty on parole has no “real world impact” on his situation in that his maximum
sentence when he was released was life, and his parole violation maximum is life.
Thus, even if Pinkins was eligible for parole, a Board determination on whether he
should be awarded credit under 61 Pa.C.S. §6138(a)(2.1) of the Prisons and Parole
Code will have no impact on when his life sentence will expire, i.e., a Board
determination on this issue will neither shorten nor lengthen his term of life. Resp’t’s
Br. at 6.


             The Board further asserts that there is nothing in the record to support
Pinkins’ contention that the Board did not notify the Board of Pardons about his



                                           9
violation as required by 61 Pa.C.S. §6137(a)(5)(ii)5 so that it can proceed to follow
the procedure in its regulations at 37 Pa. Code §81.301(f). Resp’t’s Br. at 6-7.
Further, the Board posits that it does not appear this section of the regulation even
applies in the present case. The Board of Pardons’ regulations state:

                      If it is the [Board of Pardons’] desire that the commutation
               or pardon be conditional, any recommended Warrant of
               Commutation or Charter of Pardon presented to the Governor
               shall include the following language:

                     Subsequent to this date, if it is determined, upon public
               hearing by the Board of Pardons that (name) has committed a
               probation or parole violation or has been convicted of a new
               criminal offense, this grant of clemency may be rendered null
               and void by myself or by my successors in office.

37 Pa. Code §81.301(e).6

                      When notified of a subsequent criminal offense
               conviction, or probation or parole violation, the Secretary will
               inform the Board. The Board will then decide, on a case-by-case
               basis, whether to hold a public hearing regarding the suspected
               violation of the conditional pardon or commutation. After public
               hearing, a majority of the Board may recommend to the
               Governor that clemency be revoked.

37 Pa. Code §81.301(f).


       5
         This provision states, in pertinent part, that “a parolee subject to paragraph (4) shall have
any violations of a condition of parole immediately known to the Board of Pardons.” (Emphasis
added.)

       6
         Although we are mindful that some of the most recent gubernatorial commutations of life
sentences have included language less restrictive than the language contained in Pinkins’
commutation, as permitted by the Board of Pardons’ regulations, the commutation language in the
instant case is wholly lawful. As noted in Case of Flavell, 8 Watts & Serg. 197 (Pa. 1844): “the
governor may annex to a pardon any condition whether precedent or subsequent not forbidden by
law, and it lies upon the grantee to perform the condition.”


                                                 10
             The Board argues that the Pinkins’ commutation charter does not
contain the language specified in 37 Pa. Code §81.301(e). Instead, the charter in
Pinkins’ case makes it clear that the grant of clemency was to “automatically be
rendered null and void” by a new conviction, and as such, it strongly indicates that
the Board of Pardons did not intend for the procedure in 37 Pa. Code §81.301(f) to
apply. Resp’t’s Br. at 7-8.


             The Board contends that Pinkins could possibly have addressed the
language of his clemency prior to committing another crime. However, he did not,
and by this appeal he is, in effect, arguing that his commutation charter, which was
signed and duly effectuated by the Governor, is flawed “or should be modified by
the [Board], or this Court, in the context of a parole violation proceeding.” Resp’t’s
Br. at 8. Thus, it is “a collateral attack on the terms of his grant of clemency.” Id.
The Board notes that it is not aware of any other case in which any court has made
a determination on the validity of a Board of Pardons’ order in the context of a parole
revocation appeal. However, the Board points out that our Supreme Court and this
Court have both held that “an action against the [Board] is not a valid means to
collaterally attack a conviction.” Id.; See Com. ex rel. Davis v. Pa. Bd. of Prob. &
Parole, 398 A.2d 992 (Pa. 1979).


             The Board asserts that, if Pinkins believes it has not carried out its duty
of reporting his violation to the Board of Pardons, he can file an action in mandamus
to compel it to do so. Further, the Board maintains that if Pinkins believes the Board
of Pardons is required to rehear his case, he should be required to address his claim
to the Board of Pardons. Resp’t’s Br. at 9.



                                          11
              In sum, the Board concludes that its decision is supported by substantial
evidence of record, is in accordance with the law, and does not violate Pinkins’
constitutional rights, and, thus, should be affirmed. Resp’t’s Br. at 10.


                             III.       Analysis
              On the whole, we deem the Board’s argument more compelling than
Pinkins’ position. We agree with the Board that Pinkins’ claim may be more
appropriately addressed to the Board of Pardons than to the Board. It is indisputable
that Pinkins’ 2003 commutation order from Governor Schweiker states that a
subsequent violation would render his grant of clemency null and void. Given this
clear language, it is warranted that the Board believed itself to be constrained in its
options once Pinkins re-offended. This belief is not unfounded.


              In addition to the explicit language of our Commonwealth’s
Constitution, the concept of the executive’s power to grant pardons and
commutations is a hallowed part of our history as a state and as a nation.7

       7
        The history of the executive’s power to grant pardons and commutations was eloquently
addressed in a 1937 article in the Fordham Law Review:

                     In America, the pardoning prerogative has not only been written into
              the national Constitution, but almost every state, by constitutional
              provisions and statutory enactments, has established the exercise of
              executive clemency as a principle of democratic government….

                     At the time of the adoption of the Federal Constitution, American
              statesmen were most familiar with the prerogatives exercised by the king,
              so that obviously when the words “to grant pardon” were used in the
              Constitution of the United States, they conveyed to mind the authority as



                                              12
Accordingly, the Board ascribed the proper weight and solemnity to the wording of
the Governor’s commutation order. Further, and as the Board accurately points out,
once Pinkins’ commutation was voided, he, once again, became an inmate serving a
life sentence. Thus, the Board no longer retained any authority to release him on
parole. See 61 Pa.C.S. §6137(a). In addition, we agree that it does not readily appear
that the Board of Pardons’ regulations apply where 37 Pa. Code §81.301(e) requires
that a conditional commutation contain the discretionary language “this grant of
clemency may be rendered null and void by myself or by my successors in office,”
where Pinkins’ commutation order stated specifically that “this grant of clemency
will thereby automatically be rendered null and void” should Pinkins ever be
convicted of any criminal offense or violate the terms and conditions of his parole.
C.R. at 1 (emphasis added). In light of the foregoing, the remainder of Pinkins’




              exercised by the English crown. Hence, it may be truly stated that we
              adopted their principles respecting the operation and effect of a pardon, and
              relied on the early writing of the common law for rules prescribing the
              manner in which it is to be employed….

                     The general power to pardon criminal offenses against the
              sovereignty also includes the power to pardon conditionally, and to
              commute sentence. This extension is logically sound for the plenary power
              must necessarily embrace the lesser power…. But both the president and
              the governor are vested, by express grant, with the right to issue reprieves….

                      In short, then, it may be fairly stated that the pardoning power
              granted by our national and state constitutions is a symbol of enlightened
              civilization, and that its wise and judicious exercise by presidents and
              governors has raised the standard of our democracy toward the end that
              justice is finally administered in mercy, according to the highest ideals
              of…jurisprudence.

The Pardoning Power of the Chief Executive, 6 Fordham L. Rev. 255 (1937).


                                               13
arguments appear wanting in that they are contingent on him establishing that the
Board had latitude, in contrast to the facts in the present matter.


             Nonetheless, we next address Pinkins’ assertion that the Board erred by
not giving him credit for his time spent at liberty on parole. Although Pinkins takes
issue with the Board’s contention that the reason for his recommitment may have
been “poor supervision,” we see this as merely one component of the justification
relative to Pinkins’ violation of the terms of his commutation. While Pinkins notes
that he spent many years under supervision without incident, it is an inescapable
conclusion that at some point, he did re-offend. To the extent that the term “poor
supervision” was provided by the Board as a reason, we do not believe it obfuscates
the Board’s ultimate decision to revoke Pinkins’ parole, nor does it detract from the
justification for it. This is especially true in light of the Board’s consistent position
that the commutation order itself nullified the grant of clemency upon conviction for
a subsequent criminal offense, as noted in two separate sections of the Board’s
hearing report and in its “Response to Administrative Remedies Form” mailed to
Pinkins on May 20, 2019. C.R. at 59, 64, and 78.


             Further, to Pinkins’ contention that he should have been granted credit
for his time spent at liberty on parole, we concur with the Board’s position that
“[e]ven if Pinkins was parole eligible, a Board determination on whether he should
be awarded credit under Section 6138(a)(2.1) of the Prisons and Parole Code will
have no impact on when his life sentence will expire. A determination by the Board
on this issue will neither shorten nor lengthen his life.” Resp’t’s Br. at 6. What




                                           14
Pinkins is asking for is form over substance, since the concept of subtraction from a
life sentence is meaningless.


             Pinkins further argues that his conviction for a drug offense in Ohio
should carry a presumptive range of 18-24 months of recommitment in
Pennsylvania. However, here again, this position has little to no meaning in the
context of the violation of the terms of the commutation order at issue in the present
matter which, by its very language, terminated Pinkins’ parole.


                          IV.     Conclusion
             Because the Board based its decision on the substantial competent
evidence of record and did not commit an error of law, abuse its discretion, or violate
the constitutional rights of Pinkins when it revoked his parole, we affirm the Board’s
order.


             Although we affirm the Board’s order, we acknowledge it is unclear
from the record whether the Board notified the Board of Pardons in regard to
Pinkins’ Ohio conviction. While it does not have a material impact on the Board’s
determination, we note that the Prisons and Parole Code, 61 Pa.C.S. §6137(a)(5)(ii)
states, in pertinent part: “[u]pon parole, a parolee…shall have any violations of a
condition of parole immediately made known to the Board of Pardons.” Thus, to the
extent that Pinkins’ appeal may be liberally read as a request for the provision of
such notification to the Board of Pardons, and to the extent such notification may
not have occurred, we advise the Board to notify the Board of Pardons of Pinkins’




                                          15
Ohio conviction, and to provide a copy of this opinion and order to the Board of
Pardons, within 30 days.




                                              ______________________________
                                              J. ANDREW CROMPTON, Judge


Judge Cohn Jubelirer did not participate in the decision in this case.




                                         16
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ricki Pinkins,                            :
                           Petitioner     :
                                          :
           v.                             :   No. 793 C.D. 2019
                                          :
Pennsylvania Board of                     :
Probation and Parole,                     :
                           Respondent     :


                                        ORDER

                AND NOW, this 11th day of May 2020, the order of the Pennsylvania
Board of Probation and Parole (Board) is AFFIRMED.
                FURTHER, in accordance with the foregoing Opinion, we advise the
Board to notify the Board of Pardons of Petitioner’s Ohio conviction, and to provide
a copy of this Opinion and Order to the Board of Pardons within 30 days of the date
of this Order.


                                              ______________________________
                                              J. ANDREW CROMPTON, Judge
