          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Chasity Williams,                     :
                    Petitioner        :
                                      :
             v.                       : No. 739 C.D. 2017
                                      : Submitted: December 8, 2017
Pennsylvania Board of                 :
Probation and Parole,                 :
                  Respondent          :


BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                              FILED: January 4, 2018


             Chasity Williams (Parolee), an inmate currently incarcerated at the
State Correctional Institution at Muncy, petitions for review of the decision of the
Pennsylvania Board of Probation and Parole (Board) denying her request for
administrative relief from the Board’s order recalculating her maximum sentence
following her recommitment as a convicted parole violator, with no credit for her
time spent at liberty on parole. Because the parties agree that the Board abused its
discretion when failing to provide a contemporaneous statement explaining the
rationale for denying Parolee credit for time spent at liberty on parole, we vacate
the Board’s decision and remand the matter to the Board for further proceedings
consistent with this decision.
              In 2008, Parolee was sentenced to three years, six months and eight
days to twelve years of imprisonment, with a minimum release date of February
24, 2013, and a maximum release date of January 15, 2020. On November 25,
2013, Parolee was released on parole and, per special conditions, was to report
directly to Conewago Pottsville (CCC) and remain there until discharged.1
Because Parolee failed to meet her parole agent at her registered residence, on
September 15, 2014, the Board declared her delinquent. Two days later, she was
arrested by the Manheim Township Police Department for new criminal charges as
well as technical parole violations. The Board lodged its detainer on the same day.
Bail was eventually set on October 8, 2014, but Parolee did not post bail.


              Following a violation hearing, on January 14, 2015, the Board voted
“preponderance NOT found” for the technical parole violations. (Certified Record
(C.R.) at 86.) Notwithstanding, Parolee remained detained pending the disposition
of her new criminal charges. On October 23, 2015, Parolee pled guilty to four
felony counts of Acquiring or Obtaining Possession of a Controlled Substance by
Misrepresentation and was sentenced to one to two years of imprisonment with
credit for time served.


              On November 5, 2015, the Board issued a Notice of Charges and
Hearing for a revocation hearing pertaining to Parolee’s new convictions, after

       1
         The parole conditions that the Parolee signed also state, in pertinent part, “If 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.” (Certified
Record (C.R.) at 44.)




                                               2
which Parolee waived her right to a hearing and counsel. On January 29, 2016, the
Board issued a decision revoking Parolee’s parole as a convicted parole violator
and sentenced her to serve 24 months backtime and recalculated her maximum
expiration date as February 14, 2022. The Board did not offer any explanation for
denying Parolee credit for time spent at liberty on parole.


             Parolee then filed a request for administrative relief, contending that
the Board erred when recalculating her maximum sentence expiration date. The
Board denied that request, explaining:

             The Board paroled you from your sentence imposed to be
             served at a state correctional institution (“SCI”) on July
             3, 2012 with a max date of May 28, 2019. This left you
             with 2520 days remaining on your sentence (from
             07/03/2012 to 05/28/2019 = 2520 days). The Board’s
             decision to recommit you authorized the recalculation of
             your sentence to reflect that you received no credit for
             time you were at liberty on parole. 61 Pa.C.S. §
             6138(a)(2). The Board did not grant you credit for time
             at liberty on parole in this instance. This means you still
             had 2520 days remaining on your sentence.

             On September 17, 2014, you were detained by the Board
             for technical parole violations. On October 8, 2014,
             authorities detained you for criminal charges docketed in
             the Court of Common Pleas of Lancaster County at OP#
             5367-2014. There is no indication that you posted bail
             from the new criminal charges and you do not claim that
             you posted bail. You pled guilty to the criminal charges
             on October 23, 2015 and the court sentenced you to a
             new term of imprisonment to be served in an SCI.

             Based on the aforementioned facts, the Board gave you
             21 days of credit for the period you were confined solely
             on the Board warrant from September 17, 2014 to
             October 8, 2014. The Board did not give you any credit


                                          3
               on your original sentence for the period you were
               incarcerated from October 8, 2014 to January 16, 2016
               because you were confined on both the new criminal
               charges and the board detainer or solely on the new
               criminal charges during this period. As such, credit for
               that time must apply to your new sentence when it is
               calculated. Gaito v. Board of Probation and Parole, 412
               A.2d 568 (Pa. 1980). Subtracting the 21 days of credit
               from the 2520 days you had remaining on the original
               sentence, left you with 2499 days to serve on your
               original sentence.


(C.R. at 150.) Once again, the Board did not explain the rationale for denying
Parolee credit for time spent at liberty on parole.


               After Parolee filed this petition for review, on April 26, 2017, our
Supreme Court issued the decision, Pittman v. Pennsylvania Board of Probation
and Parole, 159 A.3d 466 (Pa. 2017). Significantly, in Pittman, our Supreme
Court held that, except in certain explicitly excluded categories of crimes, Section
6138(a) of the Prisons and Parole Code (Code)2 requires the Board to “provide a

      2
          61 Pa.C.S. §§ 101 – 6309. Section 6138(a) of the Code provides, in pertinent part:

               (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
(Footnote continued on next page…)

                                                4
contemporaneous statement explaining its reason for denying a [convicted parole
violator] credit for time spent at liberty on parole.” 159 A.3d at 475. As the Court
explained:

              [W]e recognize that the Board has the broadest of
              discretion over many decisions regarding parolees and
              that the Board’s description of the statute is accurate in
              so far as there is no explicit requirement that the Board
              must provide a contemporaneous statement explaining its
              decision in Subsection 6138(a)(2.1). However, Article
              V, Section 9 of the Pennsylvania Constitution grants all
              persons the right to appeal from an administrative agency
              to a court of record. Pa. Const. Art. 5, § 9 (“. . . there
              shall also be a right of appeal from a court of record or
              from an administrative agency to a court of record or to
              an appellate court, the selection of such court to be as

(continued…)

              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. 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)(1)-(2.1) (emphasis added).




                                               5
               provided by law[.]”). This is consistent with inherent
               notions of due process. To the extent Appellant has a
               right to appeal, an appellate court hearing the matter must
               have method to assess the Board’s exercise of discretion.
               Accordingly, we hold that the Board must articulate the
               basis for its decision to grant or deny a [convicted parole
               violator] credit for time served at liberty on parole.


Id. at 474.3


               On appeal, both parties agree that the Board abused its discretion by
failing to articulate the basis for denying Parolee credit for her time spent at liberty
on parole.4 Accordingly, in light of the Board’s admitted failure and our Supreme
Court’s holding in Pittman, we vacate the Board’s order and remand the matter to
the Board for the sole purpose of articulating its reason for denying Parolee credit
for her time served at liberty on parole.



                                            ___________________________________
                                            DAN PELLEGRINI, Senior Judge




       3
         Our scope of review is limited to determining whether the Board's decision is supported
by substantial evidence, whether an error of law was committed, or whether constitutional rights
were violated. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704; Moroz v.
Pennsylvania Board of Probation and Parole, 660 A .2d 131, 132 (Pa. Cmwlth. 1995).

       4
         Parolee’s counsel now submits that all other issues raised in Parolee’s petition for
review lack merit. (See Parolee’s Brief at 14.)



                                               6
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Chasity Williams,                      :
                    Petitioner         :
                                       :
             v.                        : No. 739 C.D. 2017
                                       :
Pennsylvania Board of                  :
Probation and Parole,                  :
                  Respondent           :




                                      ORDER


             AND NOW, this 4th day of January, 2018, it is hereby ordered that the
order of the Pennsylvania Board of Probation and Parole (Board), dated February 13,
2017, is vacated and the matter is remanded to the Board to articulate the reasons for
denying Chasity Williams credit for time at “liberty on parole.” The Board shall
forward its reasons for the denial to this court within forty-five (45) days of the date
of this order.



                                       ___________________________________
                                       DAN PELLEGRINI, Senior Judge
