          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Eric J. Papp,                       :
                                    :
                         Petitioner :
                                    :
                   v.               : No. 884 C.D. 2017
                                    : Submitted: December 15, 2017
Pennsylvania Board                  :
of Probation and Parole,            :
                                    :
                         Respondent :


BEFORE:         HONORABLE MARY HANNAH LEAVITT, President Judge
                HONORABLE MICHAEL H. WOJCIK, Judge
                HONORABLE J. WESLEY OLER, Jr., Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                           FILED: April 17, 2018



                Eric J. Papp petitions for review of the June 2, 2017 order of the
Pennsylvania Board of Probation and Parole (Board) denying his request for
administrative relief and affirming the Board’s parole revocation decision of April
5, 2016. We vacate and remand.
                On May 17, 2002, Papp was sentenced to an aggregate term of 7 to 14
years confinement. Certified Record (C.R.) at 1-2. His original minimum release
date was May 17, 2009, and his original maximum release date was May 17, 2016.
Id. On March 13, 2009, the Board granted Papp parole and he was released on
September 10, 2009, with 2,441 days remaining on his sentence. C.R. at 5-11.
                On March 23, 2015, Papp was arrested on new criminal charges. C.R.
at 13-15. That same day, the Board issued a warrant to commit and detain Papp.
C.R. at 26. On May 28, 2015, Papp posted bail on his new charges and remained
confined solely under the Board’s detainer. C.R. at 23.
                On July 23, 2015, Papp pled guilty to the new charges and received a
sentence of three to six months confinement in a county institution. C.R. at 22-23.
The Board scheduled a parole revocation hearing, but Papp waived his right to
representation by counsel and his right to a detention hearing. C.R. at 32-33, 41-43.
By decision with a mailing date of April 5, 2016, the Board referred to its decision
from September 16, 2015, where it voted to revoke Papp’s parole and determined
that he should be recommitted to a state correctional institution as a convicted parole
violator (CPV) in order to serve 12 months of backtime1 when available. C.R. at
53-54, 56. The Board awarded Papp credit for the time he was confined from March
23, 2015, through June 8, 2015. C.R. at 57. The Board recalculated his maximum
release date as August 28, 2022. Id.
                Papp filed a request for administrative relief of the Board’s revocation
decision on April 21, 2015. C.R. at 60. In his request, Papp argued that the Board
erred in failing to award him credit for the time he was confined from June 9, 2015,
through September 8, 2015, when he began serving his county sentence, towards his

       1
           This Court has previously defined the term backtime as:

                [T]hat part of an existing judicially-imposed sentence which the
                Board directs a parolee to complete following a finding after a civil
                administrative hearing that the parolee violated the terms and
                conditions of parole, which time must be served before the parolee
                may again be eligible to be considered for a grant of parole.

Krantz v. Pennsylvania Board of Probation and Parole, 483 A.2d 1044, 1047 (Pa. Cmwlth. 1984)
(emphasis in original).
                                                 2
original sentence, in general, and towards the 12 months backtime imposed by the
Board, specifically. C.R. at 62. Additionally, he argued that the Board erred in not
awarding him credit for the time he spent at liberty prior to his March 23, 2015 arrest.
C.R. at 63. In a decision mailed June 2, 2017, the Board denied Papp’s request for
administrative relief and affirmed its decision. Papp then filed a petition seeking
this Court’s review.
              On appeal,2 Papp argues that the Board erred in failing to credit his
original sentence from the date he posted bail on May 28, 2015, until September 8,
2015, when he began his new county sentence. Our Supreme Court in Gaito v.
Pennsylvania Board of Probation and Parole, 412 A.2d 568, 571 (Pa. 1980), held
that

              if a defendant is being held in custody solely because of a
              detainer lodged by the Board and has otherwise met the
              requirements of bail on the new criminal charges, the time
              which he spent in custody shall be credited against his
              original sentence.

              Here, the Board awarded Papp credit for the time he was held in custody
on its detainer from March 23, 2015 through June 8, 2015. However, the Board did
not award Papp credit for the time he was held in custody solely under the Board’s
detainer from June 9, 2015, until he began serving his new county sentence on
September 8, 2015. In its brief, the Board admits that it should have awarded Papp
credit for that time. Upon review, we agree that the Board should have awarded
Papp credit for the 92 days he was held solely on the Board’s detainer from June 9,

       2
          Our scope of review is limited to determining whether necessary findings of fact are
supported by substantial evidence, whether an error of law was committed, or whether
constitutional rights were violated. McNally v. Pennsylvania Board of Probation and Parole, 940
A.2d 1289, 1292 (Pa. Cmwlth. 2008).
                                              3
2015, through September 8, 2015, in addition to the 77 days for which it awarded
him credit for the time he was detained from March 23, 2015, through June 8, 2015,
for a total of 169 days of credit against his original sentence.
             Papp next argues that the Board erred by not awarding him credit for
the time he spent at liberty on parole prior to his March 23, 2015 arrest and by failing
to give a reason for the denial.
             Section 6138(a)(1) of the Prisons and Parole Code (Parole Code)
provides that any parolee who, during the period of parole, commits a crime
punishable by imprisonment and is convicted or found guilty of that crime may be
recommitted as a CPV. 61 Pa. C.S. §6138(a)(1). Section 6138(a)(2), (2.1) of the
Parole Code further states that a parolee recommitted as a CPV must serve the
remainder of the term that he would have been compelled to serve had parole not
been granted, with no credit for the time spent at liberty on parole, unless the Board
exercises its discretion to award credit. 61 Pa. C.S. §6138(a)(2), (2.1).
             Our Supreme Court in Pittman v. Pennsylvania Board of Probation and
Parole, 159 A.3d 466, 473 (Pa. 2017), held that Section 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). Additionally, the Pittman
Court held that whether the Board decides to award or deny credit to a CPV, a
contemporaneous statement explaining the rationale behind its decision 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.




                                           4
               The Board argues that it provided Papp a reason for its decision because
on the same page of the Hearing Report where it indicated that Papp would be denied
credit for time spent at liberty on parole, it stated that he committed his new “DUI
while on supervision for DUI homicide.” C.R. at 47. In support of its argument, the
Board relies on Colon-Vega v. Pennsylvania Board of Probation and Parole (Pa.
Cmwlth., No. 2496 C.D. 2015, filed August 26, 2016).3 In Colon-Vega, the Board
explicitly noted on the Hearing Report that it “does not recommend that the inmate
be given credit for time under supervision” because “[h]e suffered 2 new convictions
for Drug Sales while on parole for Drug Sales.” Id. slip op. at 1.
               Here, however, the Board provided no explicit statement explaining
why it denied credit for Papp’s time spent at liberty. On the Hearing Report, the
statement the Board identifies as its reason for denying credit is not made in
reference to the Board’s decision to deny credit. Instead, it is made in reference to
whether circumstances of the new conviction provided aggravating factors for
Papp’s CPV recommitment term. C.R. at 47. In fact, there is no place on the Hearing
Report form where the Board could unambiguously provide a statement explaining
its decision to grant or deny credit to a CPV.
               The Board further argues that it provided its reasoning again in its
decision from September 16, 2015, but this, too, only references its reasoning as it
applies to why Papp was recommitted as a CPV and the recommitment term he
received for the violation. C.R. at 53. At no point in that decision does the Board
address the issue of denying Papp credit, let alone provide a reason for doing so.
Pursuant to the Supreme Court’s holding in Pittman, without such a statement, we

       3
          See Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code
§69.414(a) (“Parties may . . . cite an unreported panel decision of the court issued after January
15, 2008, for its persuasive value, but not as binding precedent.”).
                                                5
are unable to determine whether the Board acted arbitrarily or misinterpreted and
misapplied the law. Consequently, though the law is clear that the Board has the
discretion to grant or deny credit, we agree with Papp that the Board erred in failing
to provide a reason for its decision.
             Accordingly, we vacate the decision of the Board and remand this
matter to the Board for further proceedings consistent with this opinion.




                                        MICHAEL H. WOJCIK, Judge




                                          6
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Eric J. Papp,                       :
                                    :
                         Petitioner :
                                    :
                   v.               : No. 884 C.D. 2017
                                    :
Pennsylvania Board                  :
of Probation and Parole,            :
                                    :
                         Respondent :

                                      ORDER


                AND NOW, this 17th day of April, 2018, the order of the Pennsylvania
Board of Probation and Parole, dated June 2, 2017, is VACATED and this matter is
REMANDED for further proceedings consistent with this opinion.
                Jurisdiction is RELINQUISHED.




                                        __________________________________
                                        MICHAEL H. WOJCIK, Judge
