              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Shaun Edwards,                           :
                   Petitioner            :
                                         :    No. 1625 C.D. 2014
             v.                          :
                                         :    Submitted: January 15, 2016
Pennsylvania Board of Probation          :
and Parole,                              :
                 Respondent              :



BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                       FILED: May 25, 2016


             Shaun Edwards (Petitioner) petitions for review of the August 20, 2014
order of the Pennsylvania Board of Probation and Parole (Board), affirming its April
7, 2014 decision to recommit Petitioner for the remaining term of his unexpired
sentence without awarding him credit for the time he spent at liberty on parole.


                           Facts and Procedural History
             Petitioner is an inmate currently incarcerated at the State Correctional
Institution at Graterford (SCI-Graterford).    On January 17, 2002, Petitioner was
sentenced to four to eight years’ imprisonment for the manufacture, sale, delivery, or
possession of a controlled substance with intent to deliver (PWID).1 Petitioner’s
minimum sentence expiration date was January 17, 2006, and his maximum sentence
expiration date was January 17, 2010. (Certified Record (C.R.) at 1-2.)
              Petitioner was most recently released to parole on November 16, 2009.
Before his release, Petitioner signed conditions governing his parole, advising that,
“[i]f 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.” (C.R. at 18.)
              On December 11, 2009, the Board declared Petitioner delinquent while
he was on parole. On May 4, 2010, Petitioner was arrested by the United States
Marshal Service and charged with multiple counts of conspiracy, bank fraud,
aggravated identity theft, and aiding and abetting.2 The following day, the Board
issued a warrant to commit and detain Petitioner. On December 2, 2011, Petitioner
was convicted and subsequently sentenced to fifty-one months’ incarceration on the
federal charges.     On January 15, 2014, Petitioner completed his federal prison
sentence and was returned to SCI-Graterford. (C.R. at 21-26, 33-50.)
              On January 31, 2014, Petitioner was provided with a notice of charges
and hearing relating to the revocation of his parole. The same day, Petitioner waived
his right to a hearing, and his right to counsel at that hearing, and admitted that he had
been convicted of bank fraud, aggravated identity theft, and aiding and abetting. By

       1
         See Section 13(a)(30) of 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).

       2
          See 18 U.S.C. §371 (conspiracy); 18 U.S.C. §1344 (bank fraud); 18 U.S.C. §§1028A(a)(1),
(c)(5) (aggravated identity theft); 18 U.S.C. §2 (principals).




                                               2
order recorded April 7, 2014, the Board recommitted Petitioner as a technical parole
violator and a convicted parole violator (CPV) to serve his unexpired term of two
years, six months, and six days and did not award him credit for time spent at liberty
on parole. The Board also recalculated Petitioner’s maximum sentence expiration to
July 24, 2016. (C.R. at 51-62, 67-68.)
                On April 25, 2014, Petitioner filed a pro se administrative appeal with
the Board, arguing that the recommitment term the Board imposed was beyond the
guideline range for his offenses. Specifically, Petitioner checked the box marked
“Recommitment Challenge (Time/term given by Board, automatic reparole, return to
custody, etc.)” and asserted that:

                I was recommitted to serve the unexpired term of 2 yrs
                [sic], 6 months, 6 days. Violation time for a “CPV” for bad
                checks is 6-12 months. I am not a violent offender nor do
                [I] have a violent record. The decision that was made was a
                [harsh] one and way out of the guideline range for my
                violation. I ask and pray for a[n] administrative review.
(C.R. at 69.)
                On August 20, 2014, the Board affirmed its decision to recommit
Petitioner to serve his unexpired term of two years, six months, and six days. It
reasoned that, pursuant to 37 Pa. Code §§75.1-75.2, the presumptive recommitment
range for his offenses were: six to twelve months for bank fraud; six to twelve
months for each aggravated identity theft offense (eight counts); and six to twelve
months for each aiding and abetting offense (nine counts). The Board reasoned that
Petitioner’s maximum recommitment term was 216 months and, accordingly, the
recommitment term it issued was within the presumptive range and not subject to
challenge. Moreover, the Board stated that:




                                            3
                To the extent you are requesting that the Board grant you
                credit for time at liberty on parole, your request cannot be
                accepted. The decision on whether to grant or deny a
                convicted parole violator credit for time at liberty on parole
                is purely a matter of discretion. The Prisons and Parole
                Code [Parole Code] authorizes the Board to grant or deny
                credit for time at liberty on parole for certain criminal
                offenses. 61 Pa. C.S. § 6138(a)(2.1). The fact that the
                Board chose to deny you this credit is not subject to appeal.
(C.R. at 75.)
                On appeal to this Court,3 Petitioner argues that: the Board’s exercise of
discretion to deny a CPV credit for time spent at liberty while on parole is subject to
judicial review; due process requires the Board to provide its reasons for denying a
CPV credit for time spent at liberty on parole; and Petitioner is entitled to credit for
the time he spent in pre-sentence confinement awaiting trial and sentencing for his
federal charges.
                Conversely, the Board argues that Petitioner waived the issue whether he
is entitled to credit for time spent in pre-sentence confinement because he failed to
raise it in his administrative appeal.4 The Board also argues that it did not abuse its
discretion when it did not explain its reasons for denying Petitioner credit for time
spent at liberty on parole because the Parole Code’s express language does not
require it to do so.

       3
         In reviewing a recommitment decision, this Court’s review is limited to determining
whether the necessary findings of fact are supported by substantial evidence, whether the decision is
in accordance with the law, and whether the Board violated any of the parolee’s constitutional
rights. Smith v. Pennsylvania Board of Probation and Parole, 81 A.3d 1091, 1093 n.1 (Pa.
Cmwlth. 2013).

       4
         The Board acknowledges that, if this Court determines that Petitioner did not waive his
argument regarding credit for time spent in pre-sentencing confinement, then a remand is warranted
to determine whether any credit is due for the time he spent confined from May 4, 2010, to
November 13, 2012.



                                                 4
                                           Discussion
               Initially, we address whether the Board’s decision to deny Petitioner
credit for time spent at liberty on parole is subject to judicial review. In our recent
decision in Pittman v. Pennsylvania Board of Probation and Parole, 131 A.3d 604,
608 (Pa. Cmwlth. 2016) (en banc), appeal granted, ___ A.3d ___ (Pa., No. 56 MAP
2016, filed May 23, 2016), we addressed this precise issue and determined that this
Court possesses jurisdiction to review a challenge to the Board’s denial of credit for
time spent at liberty on parole pursuant to section 763 of the Judicial Code.5
Accordingly, we are authorized to address the arguments that Petitioner raises in this
appeal.
               Petitioner argues that due process requires that the Board explain its
reasons for denying credit for time spent at liberty on parole. Specifically, Petitioner
relies on Morrissey v. Brewer, 408 U.S. 471 (1972), for support. Petitioner notes that
Morrissey mandates that the minimum due process requirements for a parole
revocation include a written statement by the factfinders as to the evidence relied on
and the reasons for revoking parole. Id. at 489. Petitioner argues that the Board’s
decision to deny a CPV sentence credit for time spent at liberty on parole is “part and
parcel of the parole revocation process” and, accordingly, its decision is subject to the
same due process requirements articulated in Morrissey. (Petitioner’s brief at 18.)
               To determine whether a due process violation has occurred, “a
determination must initially be made that a protected liberty interest exists and, if so,
what process is due.” Chem v. Horn, 725 A.2d 226, 229 (Pa. Cmwlth. 1999). A state
may create a protected liberty interest if it places “substantive limitations on official
discretion.” Story v. Morgan, 786 F. Supp. 523, 525 (W.D. Pa. 1992). In that case,

      5
          42 Pa.C.S. §763 (direct appeals from government agencies).



                                                 5
an inmate must show that “particularized standards or criteria guide the State’s
decisionmakers.” Id. However, “the state does not create a constitutionally protected
liberty interest if the state decisionmaker is not ‘required to base its decisions on
objective and defined criteria,’ but instead ‘can deny the requested relief for any
constitutionally permissible reason or for no reason at all.’” Id.
             The determination whether to award credit for time spent at liberty on
parole pursuant to section 6138(a)(2.1) is purely discretionary and distinct from the
determination whether to revoke parole. Accordingly, each determination implicates
different liberty interests and different standards of due process protection.
             Section 6138(a) of the Parole Code provides as follows:

             (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 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


                                            6
                   Subch. H[42 Pa.C.S. §9791 et seq.] (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).
             Initially, we note that Petitioner is not challenging the revocation of his
parole; rather, he is challenging the Board’s decision not to award him credit for time
spent at liberty on parole pursuant to section 6138(a)(2.1) of the Parole Code.
Contrary to Petitioner’s assertion, the Board’s decision to calculate a parolee’s
recommitment sentence is not “part and parcel of the revocation process.”           The
determination whether to revoke a parolee’s parole and order recommitment is a
threshold inquiry. 61 Pa.C.S. §6137(a)(2) (“Parole shall be subject in every instance
to the Commonwealth’s right to immediately retake and hold in custody without
further proceedings any parolee charged after his parole with an additional offense
until a determination can be made whether to continue his parole status.”); see also
61 Pa.C.S. §§6138(a)(1). Once the determination to revoke parole is made and
recommitment is ordered, the Board may, in its discretion, award credit for time spent
at liberty on parole. 61 Pa.C.S. §6137(h); 61 Pa.C.S. §§6138(a)(1), (2.1). These
distinct determinations do not implicate the same liberty interests and, therefore, are
not afforded the same constitutional protections.
             We distinguish Morrissey as the Supreme Court of the United States
recognized a cognizable and constitutionally protected interest in the conditional
liberty offered by parole when an inmate challenged the revocation of parole. Here,
Petitioner’s parole has already been revoked and he is challenging the Board’s failure
to award him credit under section 6138(a)(2.1) of the Parole Code.              Section
6138(a)(2.1) of the Parole Code is a purely discretionary mechanism the Board uses


                                           7
to calculate an inmate’s recommitment term and does not require the Board to base its
decision on objective and defined criteria. The prospect of a discretionary award of
credit for time spent at liberty on parole does not create a cognizable liberty interest
sufficient to trigger due process protections. See also Young v. Pennsylvania Board
of Probation and Parole, 409 A.2d 843, 847-48 (Pa. 1979); Pittman, 131 A.3d at 616
n.12. Notably, Petitioner waived his right to a revocation hearing and admitted that
he was convicted of the federal offenses of bank fraud, aggravated identity theft, and
aiding and abetting. (C.R. at 59-62.)      Accordingly, Petitioner’s argument that the
Board’s decision to deny a CPV sentence credit for time spent at liberty while on
parole is “part and parcel of the parole revocation process” is unpersuasive. Whether
parole is revoked is separate from the Board’s decision whether to award credit for
time spent at liberty on parole. See also Pittman, 131 A.3d at 609 (“Hence, the
Board’s exercise of discretion under section 6138(a) of the Parole Code is two-fold.
First, the Board must determine whether to recommit a parole violator. Second, when
recommitment is so ordered, the parolee shall be reentered to serve the remainder of
the term, but the Board may, in its discretion, award the parolee credit.”).
             Finally, Petitioner argues that he is entitled to credit against his sentence
for the time that he spent in confinement awaiting sentencing on his federal charges
pursuant to section 6138(a)(5.1) of the Parole Code, 61 Pa.C.S. §6138(a)(5.1).
Conversely, the Board argues that Petitioner waived this argument because it was not
raised during his administrative appeal.
             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



                                            8
before the government unit.” Pa. R.A.P. 1551(a). Hence, an issue not raised before
the Board will not be considered by this Court on appeal. McCaskill v. Pennsylvania
Board of Probation and Parole, 631 A.2d 1092, 1094-95 (Pa. Cmwlth. 1993),
petition for allowance of appeal denied, 644 A.2d 739 (Pa. 1994).
                 Here, in his administrative appeal before the Board, Petitioner checked
the box marked “Recommitment Challenge (Time/term given by Board, automatic
reparole, return to custody, etc.)” and explained that:

                 I was recommitted to serve the unexpired term of 2 yrs
                 [sic], 6 months, 6 days. Violation time for a ‘CPV’ for bad
                 checks is 6-12 months. I am not a violent offender nor do
                 [I] have a violent record. The decision that was made was a
                 [harsh] one and way out of the guideline range for my
                 violation. I ask and pray for a[n] administrative review.6
(C.R. at 69.)
                 Petitioner submitted with his administrative appeal a copy of the Board’s
warrant requesting that he be returned to its jurisdiction after his release from
custody, a letter from the Board indicating that Petitioner may lose credit for his
“street time”7 based on the date his warrant was issued, and his response to the
Board’s letter acknowledging that he may lose credit for his street time. Notably
absent from Petitioner’s administrative appeal is any claim that he is entitled to
sentence credit for time spent in pre-sentence confinement awaiting trial and


       6
          Although there are marks in the boxes labeled “Sentence Credit Challenge” and “Reparole
Eligibility Date,” they are much different than the checkmark Petitioner used to indicate his
“Recommitment Challenge.” Rather, the marks appear to be a result of the photocopying process.
Moreover, there is nothing in the “Explanation” section of the administrative form notwithstanding
its instruction to “Check the Reason(s) for Relief and Explain” and Petitioner’s written explanation
in the space provided for a recommitment challenge. (C.R. at 69) (emphasis in original).

       7
           Time spent at liberty on parole is commonly referred to as “street time.”



                                                    9
sentencing for his federal charges. Therefore, because Petitioner failed to raise the
issue in his administrative appeal, the issue is waived for purposes of this Court’s
review. McCaskill, 631 A.2d at 1094-95.
            Accordingly, the Board’s order is affirmed.



                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge




                                          10
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Shaun Edwards,                          :
                  Petitioner            :
                                        :    No. 1625 C.D. 2014
            v.                          :
                                        :
Pennsylvania Board of Probation         :
and Parole,                             :
                 Respondent             :


                                    ORDER


            AND NOW, this 25th day of May, 2016, the August 20, 2014 order of
the Pennsylvania Board of Probation and Parole is affirmed.



                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge
