           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Thomas Lee Plummer,                              :
                              Petitioner         :
                                                 :
               v.                                :   No. 1260 C.D. 2018
                                                 :   Submitted: May 31, 2019
Pennsylvania Board of Probation                  :
and Parole,                                      :
                        Respondent               :

BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE ELLEN CEISLER, Judge

OPINION
BY JUDGE SIMPSON                                 FILED: August 16, 2019


               This matter returns to us after our remand in Plummer v. Pennsylvania
Board of Probation & Parole (Pa. Cmwlth., No. 1484 C.D. 2017, filed May 14,
2018), 2018 WL 2187872 (unreported) (Plummer I).                       Thomas Lee Plummer
(Plummer), through appointed counsel, petitions for review from the post-remand
order of the Pennsylvania Board of Probation and Parole (Board), that affirmed its
decision to deny credit for time spent at liberty on parole.1 Plummer argues the Board
failed to provide a contemporaneous statement explaining its reason for denying
credit pursuant to Pittman v. Pennsylvania Board of Probation & Parole, 159 A.3d
466 (Pa. 2017). He also challenges the legal sufficiency of the Board’s reason for
denying credit. Upon review, we affirm.


                                        I. Background

       1
         The time a parolee spends at liberty on parole is also referred to as “street time.” Dorsey
v. Pa. Bd. of Prob. & Parole, 854 A.2d 994, 996 n.3 (Pa. Cmwlth. 2004).
                                      A. Plummer I2
              Plummer was originally sentenced to a term of four to eight years for
firearm possession. Two months after his July 2012 release on parole, Plummer was
arrested on drug-related charges. He remained in custody for approximately one
year until the charges were dropped in September 2013.


              In 2015, Plummer was arrested on other drug charges and detained in
lieu of bail. He pled guilty to the charges and was sentenced to 30 months to 5 years
in prison with credit for 378 days for time served. A hearing examiner recommended
recommitting Plummer as a convicted parole violator (CPV), as not amenable to
supervision, and denying him credit for street time.


              In May 2016, the Board recommitted Plummer as a CPV to serve his
unexpired term of one year, eight months and eight days (Recommitment Order I).
Relevant here, the Board made no reference to exercising discretion in forfeiting or
awarding credit for Plummer’s street time.


              Plummer, then unrepresented by counsel, filed an administrative appeal
arguing the Board erred in recalculating his maximum sentence because
Recommitment Order I stated he did not forfeit street time. The Board denied
Plummer’s appeal, noting it acted within its discretion to forfeit street time when
recommitting a CPV. The Board did not state a reason for denying Plummer credit
for his street time. Plummer petitioned this Court for review of the Board’s order.

       2
       For a full factual history, see Plummer v. Pennsylvania Board of Probation & Parole (Pa.
Cmwlth., No. 1484 C.D. 2017, filed May 14, 2018), 2018 WL 2187872 (unreported) (Plummer I).



                                              2
               On Plummer’s first appeal to this Court, we remanded this matter to the
Board to explain its reason for denying credit under Pittman.3 Plummer I. We also
directed the Board to issue a corrected recommitment order, if necessary, to clarify
the amount of time Plummer forfeited as a result of his conviction. Id.


                                            B. Remand
               On remand, the Board reconsidered the issue of whether to award or to
deny Plummer credit for his street time. In June 2018, the Board affirmed its
decision to recommit Plummer as a CPV to serve a total of one year, eight months,
and eight days (Recommitment Order II). Certified Record (C.R.) at 29. Relevant
here, the Board explained it denied Plummer credit for time spent at liberty on parole
due to his “prior history of supervision failures.” Id.; see also C.R. at 15.


               Plummer        filed    an    administrative      appeal,     which      the    Board
denied. Plummer timely petitions for review to this Court.


                                            II. Discussion
               On appeal,4 Plummer argues the Board failed to provide a legally
sufficient reason for denying his time spent at liberty on parole under Pittman.5

       3
          Notably, Pittman was issued in April 2017, before Plummer filed his first appeal, but
almost a year after the Board issued Recommitment Order I in May 2016.
       4
         Our review of the Board’s decision is limited to determining whether constitutional rights
were violated, whether the adjudication is in accordance with the law, and whether necessary
findings were supported by substantial evidence. Jordan v. Pa. Bd. of Prob. & Parole, 206 A.3d
655 (Pa. Cmwlth. 2019).
       5
           Plummer also asserts the Board failed to provide a contemporaneous reason for denying
credit, i.e., “prior parole/probation failure” in its May 2016 decision. Pet’r’s Br. at 7. Essentially,



                                                  3
               Section 6138(a)(2.1) of the Prisons and Parole Code, 61 Pa. C.S.
§6138(a)(2.1), “unambiguously grants the Board discretion to award credit to a CPV
recommitted to serve the remainder of his sentence.” Pittman, 159 A.3d at 473.
There are two enumerated exceptions to the Board’s discretion to award credit, neither
of which apply here. See 61 Pa. C.S. §6138(a)(2.1)(i)-(ii).


               When exercising its discretion to deny credit for time spent at liberty
on parole, the Board must provide a contemporaneous statement explaining its
reason. Pittman. This allows the appellate court reviewing the matter to have a
method to assess the Board’s exercise of discretion. Marshall v. Pa. Bd. of Prob. &
Parole, 200 A.3d 643 (Pa. Cmwlth. 2018).


               Our Supreme Court did not establish criteria to govern the Board’s
stated reason. Marshall. Rather, it noted the Board’s explanation need not be
extensive, and “a single sentence [] is likely sufficient in most instances.” Pittman,
159 A.3d at 475 n.12.


               Here, the Board denied Plummer’s street time credit due to a “prior
history of supervision failures.” C.R. at 29. This Court has accepted similarly brief
statements as sufficient under Pittman.


Plummer’s challenge regarding the timing pertains to Recommitment Order I. However, the Board
issued Recommitment Order I in May 2016, almost a year before our Supreme Court decided
Pittman. Before the Pittman decision, there was no contemporaneity requirement; the Board may
not be faulted for not complying with a decision that had not yet been issued.
        As to our review here, the Board reconsidered the issue of awarding or denying street time
credit pursuant to our remand order in Plummer I. The Board’s cited reason for denying credit
corresponds to its June 2018 Recommitment Order II, not its May 2016 Recommitment Order I.
Only Recommitment Order II is before us. As to Recommitment Order II, the Board’s explanation
was offered contemporaneously with its credit decision as Pittman requires.

                                                4
               In Smoak v. Pennsylvania Board of Probation & Parole, 193 A.3d 1160
(Pa. Cmwlth. 2018), we considered the adequacy of the Board’s five-word reason
for denying street time credit. Following the parolee’s respective drug-related and
firearm convictions, he was sentenced to one year of probation for attempting to
furnish drug-free urine. In recalculating his maximum sentence date, the Board
denied the parolee street time credit due to his “unresolved drug and alcohol issues.”
Id. at 1163. This Court recognized Pittman does not require the Board’s stated
reason to be extensive; however, the Board’s statement was “not a full sentence” and
failed to “identify the incidents that created these ‘issues.’”                    Id. at 1165.
Nevertheless, we held the Board’s statement legally sufficient, though “just barely
sufficient.” Id. (emphasis added).


               Moreover, we recently recognized this precise reason satisfied Pittman.
We reasoned, in dicta,6 that “[e]ven if [the parolee] had preserved his challenge to
the Board’s denial of credit” the Board “complied with [the Pittman] mandate . . .
by stating that it was not crediting [the parolee] for his street time due to his ‘prior
history of supervision failures.’”7 Baxter v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth.,

       6
         In the context of counsel’s withdrawal request, we noted the parolee waived his challenge
to the Board’s credit decision by failing to raise it on appeal. Baxter v. Pa. Bd. of Prob. & Parole
(Pa. Cmwlth., No. 1059 C.D. 2017, filed Apr. 16, 2018), 2018 WL 1788515 (unreported).
       7
          Notably, in Vann v. Pennsylvania Board of Probation & Parole (Pa. Cmwlth., No. 1067
C.D. 2017, filed April 10, 2018), slip op. at 6, 2018 WL 1722658, at *3 (unreported), appeal
denied, 186 A.3d 574 (Pa. 2019), we held “prior history of supervision failure” and “unresolved
drug and alcohol issues” were adequate reasons. Additionally, in Vieldhouse v. Pennsylvania Board
of Probation & Parole (Pa. Cmwlth., No. 803 C.D. 2018, filed March 1, 2019), slip op. at 4, 2019
WL 994157, at *2, (unreported), we concluded that “prior supervision failure” and “multiple
arrests/convictions during the release period” sufficed.
        In both matters, the Board’s denial of street time credit was based on two reasons, one of
which involved the parolee’s prior supervision failures. Both decisions upheld the parolee’s failed



                                                 5
No. 1059 C.D. 2017, filed Apr. 16, 2018), slip op. at 6-7, 2018 WL 1788515, at *3-
4 (unreported) (emphasis added) (citation omitted).8


               In exercising its discretion in a credit determination, “the Board’s
statement of reasons should be informed by aggravating and mitigating
circumstances and account for the parolee’s individual circumstances.” Marshall,
200 A.3d at 652. For example, the Board’s given reason must be “accurate” and
“relate[d] to the parolee’s offenses.” Id. at 650.


               In both Marshall and Baldwin v. Pennsylvania Board of Probation &
Parole (Pa. Cmwlth., No. 907 C.D. 2018, filed April 2, 2019), 2019 WL 1458967
(unreported), there was a clear discrepancy between the record and the Board’s
stated reason, which necessitated correction on remand. In Marshall, the Board
denied a parolee street time credit for nearly nine years due to “felony drug[-]related
crimes.” Id. at 650 (emphasis added). However, a review of the record revealed the
existence of only one felony drug conviction, not several. In Baldwin, we held the
Board’s three-word reason of “poor supervision history” was inconsistent with the
parole officer’s report and the parolee’s “spotless record” of compliance with parole
supervision. Id., slip op. at 2, 6, 2019 WL 1458967, at *3. This included a review
of the parolee’s nine years on reparole without incident, in which he secured stable
housing and employment, complied with curfew, and tested negatively for drugs.


supervision history as a stated reason for denying credit. Although we recognized the Board cited
an additional reason in those cases, these holdings are not contrary to our current opinion because
the law only mandates the Board provide one reason for a credit determination. Pittman.
       8
         This case 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).

                                                  6
               Citing Marshall, Plummer argues the Board’s stated reason is
inadequate because “the [r]ecord refers to no such [poor supervision] history[,] only
false arrests.” Pet’r’s Br. at 12. We disagree.


               Unlike in Marshall and Baldwin, there is no question as to the accuracy
of the Board’s provided reason here. Our review of the record reflects a number of
supervision failures. According to the Board’s “Supervision History,” Plummer
became less receptive to supervision in 2013 and 2014. C.R. at 17. For example, a
June 2014 entry indicates Plummer’s “adjustment to supervision continue[d] to be
poor” and he continued to show “poor judgment;” “that he is not amenable to
supervision;” and “that he does not think before he reacts.” Id. According to a
March 2015 entry, Plummer was unemployed, and his only interest was “committing
crimes and selling drugs.” Id. Therefore, in contrast to Marshall and Baldwin, the
record supports the Board’s articulated reason for denying credit.


               In addition to accuracy, we have also considered whether the Board’s
stated reason is documented in the record and affords the parolee notice of the
specific acts being referenced.9 See Vann v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth.,
No. 1067 C.D. 2017, filed Apr. 10, 2018), 2018 WL 1722658 (unreported), appeal
denied, 186 A.3d 574 (Pa. 2019). In Vann, we rejected the parolee’s argument that
he had no idea which conduct the Board relied on in making its credit determination.
In holding the Board’s stated reasons were sufficient, we noted the parolee’s

       9
          The Board’s stated reason may also consider the severity of the crime compared to
forfeiture of street time credit. See Marshall v. Pa. Bd. of Prob. & Parole, 200 A.3d 643, 650 (Pa.
Cmwlth. 2018) (stating “it remains unclear how a drug-related conviction warrants denying credit
for almost nine years of street time, which is more than the sentence [the parolee] received in his
new conviction”).

                                                7
difficulty with supervision and drug and alcohol problems were supported in the
record.


             Our Supreme Court reasoned that to simply check a box “No” on a
standard hearing form fails to comport with a parolee’s right to due process and
“renders appellate review a mere empty formality.” Pittman, 159 A.3d at 474. Here,
Plummer acknowledges that in support of the recommendations in 2016, the hearing
examiner’s report stated that he was “not amenable to parole supervision.” Pet’r’s
Br. at 7. Thus, Plummer had notice.


             Because Plummer had notice of the rationale behind the Board’s credit
decision, and there is record evidence to support the Board’s reason, we hold that its
stated reason complied with Pittman. However, as in Smoak, we recognize the
Board’s given explanation was not a full sentence and failed to identify the particular
incidents that created the failed supervision history cited. Accordingly, the Board’s
stated reason, while sufficient, is “just barely” so. Id. at 1165.


                                   III. Conclusion
             For the foregoing reasons, we affirm the Board’s order.




                                        ROBERT SIMPSON, Judge




                                           8
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Thomas Lee Plummer,                    :
                       Petitioner      :
                                       :
           v.                          :   No. 1260 C.D. 2018
                                       :
Pennsylvania Board of Probation        :
and Parole,                            :
                       Respondent      :


                                    ORDER

           AND NOW, this 16th day of August 2019, the order of the Pennsylvania
Board of Probation and Parole is AFFIRMED.




                                     _________________________
                                     ROBERT SIMPSON, Judge
