        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Thomas Lee Plummer,                      :
                         Petitioner      :
                                         :
            v.                           :   No. 1484 C.D. 2017
                                         :   Submitted: April 6, 2018
Pennsylvania Board of Probation          :
and Parole,                              :
                        Respondent       :

BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE ROBERT SIMPSON, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                         FILED: May 14, 2018

            Thomas Lee Plummer (Plummer), through appointed counsel, petitions
for review from an order of the Pennsylvania Board of Probation and Parole (Board)
that denied his administrative appeal. Plummer challenges the Board’s recommitment
order that extended his maximum sentence date by forfeiting any credit for street
time. He argues the Board erred in denying him credit for his time spent at liberty
on parole, and in failing to explain its credit decision pursuant to Pittman v.
Pennsylvania Board of Probation & Parole, 159 A.3d 466 (Pa. 2017). Upon review,
we vacate the Board’s order, and remand for the Board to address the credit issue.


                                  I. Background
            Plummer was sentenced for firearm possession to a term of four to eight
years in state prison (Original Sentence). Plummer was released on parole on July
10, 2012. At that time, his maximum sentence date was October 23, 2015.
               Following his arrest in Philadelphia for drug offenses, Plummer was
detained by the Board on September 20, 2012. The charges were quashed by the
Philadelphia County Court of Common Pleas in September 2013, and Plummer was
released from custody.1


               Thereafter, on March 6, 2015, Plummer was arrested on other drug
charges. He was detained in lieu of bail on May 27, 2015. Certified Record (C.R.)
at 99. On April 15, 2015, he was recommitted as a technical parole violator (TPV)
to serve six months of backtime.2


               Plummer entered a guilty plea on March 17, 2016. He was sentenced
to 30 months to 5 years in prison, with credit for 378 days for time served (New
Sentence). C.R. at 101. The Board issued its detainer related to this conviction the
same day. C.R. at 114.


               In April 2016, Plummer waived his parole revocation hearing. C.R. at
121.    In the waiver, he admitted his conviction of possession with intent to
manufacture/deliver a controlled substance.




       1
         The Board’s order to recommit reflects Plummer’s period of confinement corresponding
to the Philadelphia charges (370 days). Plummer was also confined related to an arrest in New
Jersey from February 2014 until September 2014 (211 days), with no recommitment from the
Board.
       2
          Backtime corresponds to “that part of an existing judicially imposed sentence that a parole
violator is required to serve as a result of violating the terms and conditions of parole ….” Santiago
v. Pa. Bd. of Prob. & Parole, 937 A.2d 610, 616 n.2 (Pa. Cmwlth. 2007).

                                                  2
             The hearing examiner recommended recommitting Plummer as a
convicted parole violator (CPV). Relevant here, the hearing examiner, without any
explanation, recommended denying credit to Plummer for time spent at liberty on
parole. C.R. at 125 (showing the box checked “No” as to crediting such 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). It
also extended Plummer’s maximum sentence date to November 26, 2017.
Inconsistently, however, the Board’s Recommitment Order stated there were zero
days of “prior parole liberty forfeited.” C.R. at 133. Further, the Board decision
made no reference to exercising discretion in forfeiting or awarding credit for time
spent at liberty on parole. These problems are significant to our discussion below.


             Plummer, then unrepresented by counsel, filed a timely administrative
appeal asking the Board to reinstate the maximum date on his Original Sentence.
Specifically, he challenged the recommitment as exceeding the presumptive range.
Plummer also asserted the Board erred in recalculating his maximum sentence date
because it did not correspond to the Recommitment Order, which stated he did not
forfeit time at liberty on parole. He also noted his time spent at liberty on parole was
less than the time added to his maximum sentence date. In addition, he claimed the
Board illegally detained him beyond his court-imposed sentences.


             On October 5, 2017, the Board denied his administrative appeal, stating
that it was within its discretion to forfeit parole liberty time when recommitting a




                                           3
CPV. However, the Board did not state why it denied credit for the period Plummer
was at liberty on parole. C.R. at 145.


              Plummer, through his appointed counsel, petitioned for review,
alleging the Board failed to credit him with the time to which he was entitled. He
also asserted the Board erred in failing to provide reasons for exercising its discretion
regarding the denial of credit for time spent at liberty on parole pursuant to Pittman.


                                      II. Discussion
              On appeal,3 Plummer challenges the Board’s extension of his maximum
sentence date on his Original Sentence. He argues the Board erred in failing to
account for his time spent at liberty on parole on its Recommitment Order. He
asserts the Board did not comply with its statutory mandate to explain its exercise of
discretion when denying credit for time spent at liberty on parole.4


              The Board counters that Plummer waived his claim regarding the award
of discretionary credit because he did not raise it in his administrative appeal. The
Board does not address the alleged inaccuracy of its Recommitment Order as to the
forfeiture of credit for time spent at liberty on parole.




       3
         “Our review of the Board’s decision is limited to determining whether constitutional
rights were violated, whether the decision is in accordance with the law, or whether necessary
findings are supported by substantial evidence.” Kerak v. Pa. Bd. of Prob. & Parole, 153 A.3d
1134, 1138 n.9 (Pa. Cmwlth. 2016).
       4
          The Board’s Recommitment Order did not specify the time Plummer spent at liberty on
parole. Thus, the Recommitment Order did not notify Plummer about the Board’s decision to deny
credit to Plummer for the time he spent at liberty on parole.

                                              4
              Section 6138(a)(1) of the Prisons and Parole Code (Parole Code)
provides that any parolee who commits a crime punishable by imprisonment while on
parole, and is convicted or found guilty of that crime, may be recommitted as a CPV.
61 Pa. C.S. §6138(a)(1). Pursuant to the 2012 amendment, if a parolee is recommitted,
he must serve the remainder of the term on his original sentence that he would have
been compelled to serve had parole not been granted, with no credit for time spent at
liberty on parole, unless the Board exercises its discretion to award credit. 61 Pa. C.S.
§6138(a)(2), (2.1).


              Section 6138(a)(2.1) of the 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,” except when he is recommitted for the
reasons stated in subsections 6138(a)(2.1)(i) and (ii), not present here.5 Pittman, 159
A.3d at 473. Our Supreme Court recently held that the Board’s failure to explain its
exercise of discretion, and provide reasons for awarding or denying credit, violates
its statutory mandate and denies constitutional due process to the parolee. Id.




       5
           Specifically, Section 6138(a)(2.1) provides credit may be awarded for time spent at
liberty on parole unless:

              (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. H (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).

61 Pa. C.S. §6138(a)(2.1).

                                               5
                                     A. Waiver
             First, we consider the Board’s waiver argument. The Board asserts
Plummer did not raise the Board’s denial of credit for time spent at liberty on parole
in his uncounseled administrative appeal. As a result, the Board contends his
argument regarding the application of Pittman to the credit issue is waived.


             Section 703(a) of the Administrative Agency Law states that a party
“may not raise upon appeal any other question not raised before the agency.” 2 Pa.
C.S. §703(a). Similarly, Pennsylvania Rule of Appellate Procedure 1551(a) states
that “[n]o question shall be heard or considered by the court which was not raised
before the government unit.” Pa. R.A.P. 1551(a). Accordingly, an issue not raised
before the Board will not be considered by this Court on appeal. McCaskill v. Pa.
Bd. of Prob. & Parole, 631 A.2d 1092 (Pa. Cmwlth. 1993); Newsome v. Pa. Bd. of
Prob. & Parole, 553 A.2d 1050 (Pa. Cmwlth. 1989).


             We are unpersuaded by the Board’s waiver argument. To support its
waiver argument, the Board cites McCaskill, Newsome, and two unreported
decisions, Heady v. Pennsylvania Board of Probation & Parole (Pa. Cmwlth., No.
2553 C.D. 2015, filed May 2, 2017) (unreported), 2017 WL 1629441, and Fryer v.
Pennsylvania Board of Probation & Parole (Pa. Cmwlth., No. 145 C.D. 2014, filed
October 10, 2014) (unreported). In each of these cases, the parolee did not allege
the error the Board committed in his administrative appeal. McCaskill, 631 A.2d at
1095 (“merely stat[ing] [parolee’s] opinion as to what the maximum term expiration
date should be” without further detail did not place Board on notice of issue raised);
Heady (checking box stating “Sentence Credit Challenge” did not preserve credit



                                          6
issue when no credit period alleged, and no documents attached indicating type of
credit challenge); Fryer (alleging Board erred in improperly crediting time spent in
custody did not preserve credit challenge as to time spent at liberty on parole,
resulting in waiver of that type of credit challenge).


             Here, unlike the parolees in McCaskill, Heady and Fryer, Plummer
challenged in his administrative appeal the specific type of credit at issue. C.R. at
139. That credit corresponded to the period when he was at liberty on parole. Id.


             Also of significance here, the Board recognized that Plummer’s
administrative appeal objected to “the Board’s credit allocation and … [its] authority
to recalculate [his] max date … to reflect that [Plummer] received no credit for the
period [he] [was] at liberty on parole.” C.R. at 145. Accordingly, it was clear that
the issue before the Board was its decision to recommit Plummer as a CPV without
granting him credit for the time he spent at liberty on parole.


             We conclude Plummer’s administrative appeal put the Board on notice
that he challenged its credit calculation for his time spent at liberty on parole.
Therefore, Plummer sufficiently preserved the improper credit issue for our review.
See Anderson v. Talaber, 171 A.3d 355 (Pa. Cmwlth. 2017); Smith v. Pa. Bd. of Prob.
& Parole (Pa. Cmwlth., No. 992 C.D. 2015, filed Aug. 8, 2017) (unreported).


             We also reject the Board’s contention that Plummer is precluded from
raising a Pittman challenge on appeal to this Court. Anderson. Relevant here, the Board
issued its Recommitment Order before the Supreme Court decided Pittman. Since



                                           7
applicable law did not require the Board to explain its credit decision when Plummer
filed his administrative appeal, he did not question the Board’s lack of explanation.


             Plummer challenged the Board’s failure to explain its exercise of
discretion in denying credit for his time spent at liberty on parole in his petition for
review. Cf. Chesson v. Pa. Bd. of Prob. & Parole, 47 A.3d 875 (Pa. Cmwlth. 2012).
Pittman was decided in the interim.         Therefore, the petition for review was
Plummer’s earliest opportunity to question the denial of credit for time spent at
liberty on parole based on the Board’s failure to explain its credit decision.


             Further, this Court rejected similar waiver arguments when the parolee
challenged the Board’s denial of credit for time spent at liberty on parole. Anderson.
We reasoned a parolee did not need to specifically argue an abuse of discretion under
Pittman as long as he challenged the Board’s denial of street time. Id.; see Smith.


             Because Plummer sufficiently raised the issue that the Board did not
properly credit him for his time spent at liberty on parole in his administrative appeal,
we discern no merit in the Board’s waiver argument.


             Moreover, the Board offers no explanation for the inaccuracy of its
Recommitment Order, which stated that the Board ordered zero street time forfeited.
C.R. at 141. There is no dispute that Plummer spent time at liberty on parole. It is
equally clear the Recommitment Order did not account for that time. Nonetheless,
the Board did not explain this omission when it denied Plummer’s appeal. Id. at 145.
Plummer’s administrative appeal questioned this discrepancy.            Thus, Plummer



                                           8
preserved a due process challenge to the Board’s failure to account for the discrepancy
between the Recommitment Order (stating there was zero time forfeited), and the
extension of his maximum sentence date based on time forfeited.


                                   B. Due Process
             Next, we consider this appeal on the merits. Plummer challenges the
Board’s extension of his maximum sentence date based on the forfeiture of his time
spent at liberty on parole. Crucially, the Recommitment Order did not reflect that
the Board denied him credit for time spent at liberty on parole. Further, the Board
did not explain the reasons for its credit decision as required by Pittman.


             Here, the Recommitment Order stated “00Y 00M 00D” corresponded
to forfeiture for Plummer’s time spent at liberty on parole. C.R. at 141. It also stated
619 days of “backtime owed.” Id. The Board added that time to Plummer’s original
maximum sentence date, for a recomputed maximum date of November 26, 2017.


             At a minimum, due process required the Board to articulate a reason for
its adverse decisions. Pittman. Here, the Board provided no notice to Plummer in
its Recommitment Order that it was forfeiting his time spent at liberty on parole.


             At the time Plummer filed his administrative appeal, it was unclear
whether the Board was crediting or denying his time spent at liberty on parole. The
Recommitment Order, on its face, did not address his time at liberty on parole. So the
Board erred either by stating zero time was forfeited, or adding time to the maximum
sentence date. Plummer had no notice as to the Board’s intention until he received



                                           9
the Board’s order denying his administrative appeal, 15 months later. Only then did
the Board inform Plummer that it was forfeiting his time spent at liberty on parole.


             The Supreme Court decided Pittman on April 26, 2017. The Board
affirmed its Recommitment Order almost six months later, on October 5, 2017. In
that decision, it advised Plummer that his new maximum sentence date was
calculated by forfeiting his time spent at liberty on parole. C.R. at 145. Plummer
had no prior notice as to this denial of credit for his street time. Nonetheless, the
Board did not explain its reasons for denying credit for the time Plummer spent at
liberty on parole.


             Pursuant to Pittman, the Board must explain its reasons for denying
credit in a contemporaneous statement issued when credit is denied. Specifically,
our Supreme Court reasoned such a statement is necessary “in order to effectuate the
dictates of the Pennsylvania Constitution, to honor the basic notions of due process,
and to comport with the intent of the General Assembly in enacting [S]ection
6138(a)(2.1).” Id. at 474-75. A parolee is entitled to know the reason for a credit
decision so he may challenge it on appeal. Id.


             Although the Board issued its decision six months after the Supreme
Court issued Pittman, the Board did not explain its decision to deny credit. Rather,
the Board merely stated it had the authority to recalculate Plummer’s sentence to
reflect that he received no credit for the period he was at liberty on parole, citing 61
Pa. C.S. §6138(a)(2). C.R. at 145. It also stated Plummer’s due process rights were
satisfied because he had “the ability to challenge the recalculation decision after it



                                          10
was imposed.” Id.      Thus, the Board did not acknowledge the recent holding in
Pittman that it was a denial of due process for the Board to deny credit for time spent
at liberty on parole without explaining its reasons for so exercising its discretion.


             Accordingly, we vacate the Board’s order and remand to the Board to
explain its credit decision regarding Plummer’s time spent at liberty on parole.
See, e.g., Anderson (remanding to Board to articulate reasons for denying street
time credit in accordance with Pittman); Smith (same). On remand, the Board shall
address the error in its Recommitment Order. If necessary, the Board shall issue a
corrected Recommitment Order stating the amount of time, if any, Plummer
forfeited as a result of his conviction. In the event the amended Recommitment
Order shows a forfeiture of time spent at liberty on parole, the Board shall explain
the reason for exercising its discretion to deny credit to Plummer in accordance with
Pittman.


                                   III. Conclusion
             For the foregoing reasons, we vacate the order of the Board and remand
this matter to the Board for further proceedings consistent with this opinion.




                                        ROBERT SIMPSON, Judge




                                          11
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Thomas Lee Plummer,                         :
                         Petitioner         :
                                            :
            v.                              :   No. 1484 C.D. 2017
                                            :
Pennsylvania Board of Probation             :
and Parole,                                 :
                        Respondent          :


                                      ORDER

            AND NOW, this 14th day of May, 2018, the order of the Pennsylvania
Board of Probation and Parole is VACATED, and this matter is REMANDED in
accordance with the foregoing opinion.


            Jurisdiction is relinquished.



                                       ROBERT SIMPSON, Judge
