                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Wayne Currie, Jr.,                                    :
                              Petitioner              :
                                                      :
                      v.                              :
                                                      :
Pennsylvania Board of                                 :
Probation and Parole,                                 :       No. 206 C.D. 2019
                              Respondent              :       Submitted: July 12, 2019


BEFORE:        HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                           FILED: August 16, 2019

                Wayne Currie, Jr. (Currie) petitions this Court for review of the
Pennsylvania Board of Probation and Parole’s (Board) January 18, 2019 order
denying his request for administrative relief. Currie presents three issues for this
Court’s review: (1) whether the Board erred by recalculating his maximum sentence
release date to exceed his underlying sentence; (2) whether the Board erred by
unlawfully punishing him pursuant to an illegal contract governing his judicially
imposed sentence; and (3) whether the Board erred by denying Currie credit for time
spent at liberty on parole, and by not giving him a contemporaneous explanation
therefor, in violation of the Supreme Court’s ruling in Pittman v. Pennsylvania Board
of Probation & Parole, 159 A.3d 466 (Pa. 2017).1 After review, we affirm.

      1
          Pittman was decided on April 26, 2017. Therein,
               our Supreme Court explained that, when the [Board] exercises its
               discretion under Section 6138(a)(2.1) [of the Prisons and Parole Code
               (Parole Code)], it ‘must articulate the basis for its decision to grant or
               deny a [convicted parole violator] credit for time served at liberty on
               On April 9, 2014, the Board voted to parole Currie from his 3-year, 5-
month to 13½-year sentence for drug charges (Original Sentence). See Certified
Record (C.R.) at 2, 4-6. Currie was released on parole on July 1, 2014. See C.R. at 6.
At that time, Currie had 3,684 days (i.e., 10 years and 1 month) remaining on his
Original Sentence, and his maximum release date was August 1, 2024. See C.R. at 5-
6, 70. As a condition of his parole, on June 30, 2014, Currie signed and, therefore,
agreed to Conditions of Parole/Reparole (Parole Conditions), including, inter alia:

               If you are arrested on new criminal charges, the Board has
               the authority to lodge a detainer against you which will
               prevent your release from custody, pending disposition of
               those charges, even though you may have posted bail or
               been released on your own recognizance from those
               charges.
               ....
               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 [(i.e., street time)2].

C.R. at 7; see also C.R. at 8-9.




               parole.’ [Pittman,] 159 A.3d at 474. Simply checking ‘no’ on the
               standard hearing report does not suffice. The Supreme Court noted
               that ‘the reason the Board gives does not have to be extensive and a
               single sentence explanation is likely sufficient in most instances.’ Id.
               at 475 n.12. The [Board] must issue a contemporaneous statement of
               reasons as to why it denied a convicted parole violator credit for time
               spent at liberty on parole; where the Board fails to do so, this Court
               will remand for the Board to set forth its reasons.
Smoak v. Talaber, 193 A.3d 1160, 1164 (Pa. Cmwlth. 2018).
       2
         “Street time” refers to “the period of time a parolee spends at liberty on parole.” Dorsey v.
Pa. Bd. of Prob. & Parole, 854 A.2d 994, 996 n.3 (Pa. Cmwlth. 2004).
                                                  2
              On January 21, 2016, a criminal complaint was filed against Currie in
Lackawanna County, and he was again arrested for drug possession (New Charges).
See C.R. at 12-16. On that same day, the Board issued a warrant to commit and
detain him. See C.R. at 11. Currie did not post bail on the New Charges, and he was
incarcerated at Lackawanna County prison. See C.R. at 17. On February 4, 2016,
Currie waived his right to counsel and a detention hearing. See C.R. at 21-24. On
March 11, 2016, the Board voted to continue detaining Currie pending disposition of
his New Charges. See C.R. at 24-25. On March 1, 2017, Currie pled guilty to the
New Charges and was sentenced to incarceration at a State Correctional Institution
(SCI) for 15 months to 2½ years, followed by 4 years of probation. See C.R. at 41-
53, 61, 71. On April 5, 2017, Currie was transferred to SCI-Graterford. See C.R. at
33, 69.
              On May 3, 2017, Currie waived his right to a panel hearing. See C.R. at
27, 60. On May 4, 2017, the Board issued a notice of charges indicating that a
revocation hearing would be held on Currie’s New Charges on May 23, 2017. See
C.R. at 31. On May 23, 2017, the Board conducted the hearing, at which Currie
waived his right to counsel and admitted to the New Charges. See C.R. at 32, 58-59,
64. On June 7, 2017, the second panel member voted to recommit Currie as a
convicted parole violator (CPV).3 See C.R. at 33-40. According to the Hearing
Report, the Board denied Currie credit for time spent at liberty on parole and notated
“see additional info.”        C.R. at 35.       Under the Hearing Report’s “Additional


       3
          Section 6113(b) of the Parole Code states, in relevant part: “The [B]oard may make
decisions on . . . revocation in panels of two persons. A panel shall consist of one board member
and one hearing examiner or of two board members.” 61 Pa.C.S. § 6113(b). “[T]he date that the
revocation and recommitment Hearing Report was signed by the second panel member thereby
effectively revok[ed] [Currie’s] parole . . . .” Wilson v. Pa. Bd. of Prob. & Parole, 124 A.3d 767,
769 n.3 (Pa. Cmwlth. 2015).



                                                3
Information” section, the Board wrote: “This hearing examiner does not recommend
that [Currie] be given credit for time spent on liberty due to [him] being on parole for
[drug charges] and [he] has arrests for [drug charges] dating to his juvenile days.”
C.R. at 40. By decision recorded June 15, 2017 (mailed June 23, 2017), the Board
formally recommitted Currie to an SCI to serve 18 months of backtime. See C.R. at
35, 72-73. The Board recalculated Currie’s Original Sentence maximum release date
to July 9, 2027. See C.R. at 72, 75.
             On July 9, 2017, Currie submitted an Administrative Remedies Form
appealing from the Board’s recommitment decision alleging that the Board lacked the
authority to increase his judicially imposed sentence by changing his maximum
sentence release date from August 1, 2024 to July 9, 2027. See C.R. at 80. Currie
also specifically challenged the Board’s sentence calculation.         He marked the
“Sentence Credit Challenge,” “Order of Service of Sentences” and “Reparole
Eligibility Date” boxes on the form, and specified that the Board’s documents must
be “recalculated . . . so that the current maximum date properly reflect[s] the same
maximum term . . . date which was ordered by the court.” C.R. at 80. In his form
entitled “Legal Argument in Support” attached to the Administrative Remedies Form,
Currie expounded that the Board improperly imposed a new maximum term that
exceeded his judicially imposed sentence, and that the written agreement he executed
for his July 1, 2014 parole constituted an illegal contract. See C.R. at 82-88.
             On January 18, 2019, the Board denied Currie’s request for
administrative relief and affirmed the Board’s decision recorded June 15, 2017
(mailed June 23, 2017). See C.R. at 89-90. By February 1, 2019 letter to the Board,
Currie requested counsel to assist with an appeal, and enclosed a Writ of Mandamus
and Motion to Appeal (Motion) to compel the Board to rule upon his July 9, 2017




                                           4
appeal.4 See C.R. at 92-96. Currie averred in the Motion, inter alia, that the Board’s
failure to credit him with the time he spent in good standing at liberty on parole,
“without conducting any individual assessment of the facts and circumstances
surrounding his parole revocation [was] contrary to [Section] 6138(a)(2.1) citing
PTTIMAN      [sic]. . . .” C.R. at 95. By February 7, 2019 letter, the Board notified Currie
that if he wished to have counsel, he would need to contact the public defender’s
office. The Board did not address the Motion.
                Currie asked the Huntingdon County Public Defender’s Office for
assistance in appealing from the Board’s decision recorded June 15, 2017 (mailed
June 23, 2017). Nicholas E. Newfield, Esquire (Counsel) was appointed to represent
Currie. Counsel filed Currie’s Petition for Review based solely upon correspondence
he received from Currie which included the Motion.5 See Currie Br. at 25; see also
C.R. at 93-95; Petition for Review. In the Petition for Review, Counsel stated that,
without having the benefit of reviewing relevant documentation, Currie’s claims of
error are:

                (a) The Board committed error in its calculation of
                [Currie’s] recalculated maximum date by setting a
                maximum date substantially beyond the time period which
                [a] parolee can be required to serve on the underlying
                sentence. Specifically, the Board committed error by
                failing to comply with the laws of Pennsylvania in certain
                procedures relating to the order in which [Currie] served his
                sentences, and improperly causing [Currie] to serve
                consecutive time.
                (b) Further, the Board failed to properly credit time served
                by [Currie] under the Board’s jurisdiction; subsequently,

       4
         Although it is not clear based on this record, it would appear that Currie had not received
the Board’s January 18, 2019 decision before he sent the February 1, 2019 letter and Motion.
       5
         “Our scope of review of the Board’s decision denying administrative relief is limited to
determining whether necessary findings of fact are supported by substantial evidence, an error of
law was committed, or constitutional rights have been violated.” Fisher v. Pa. Bd. of Prob. &
Parole, 62 A.3d 1073, 1075 n.1 (Pa. Cmwlth. 2013).
                                                 5
              failing to provide a contemporaneous statement explaining
              the rationale behind its decision to deny credit to [Currie]
              under [Section 6138(a)(2.1) of the Prisons and Parole Code
              (Parole Code),] 61 Pa.C.S. § 6138(a)(2.1).

Petition for Review at 2.
              However, Counsel represented in Currie’s brief to this Court:

              [Currie], through pro[]se filings, has averred that [the]
              Board made several errors in relation to his recommitment.
              In reviewing the claims for [Currie’s] first two [issues], it
              became evident such claims have been addressed by the
              courts to no avail. I have included a brief explanation as to
              how these arguments have been ruled on by the [c]ourts.

Currie Br. at 22 n.1. Counsel detailed the Board’s authority to deny Currie street time
credit under Section 6138(a) of the Parole Code. See Currie Br. at 30. Counsel also
described that when Currie agreed to his June 30, 2014 Parole Conditions, he did not
enter into a contract with the Board but, rather, the Board “simply placed [Currie] on
notice of what the Board was legally authorized to do should he violate the terms of
his parole . . . .” Currie Br. at 32.
              Because it is unclear whether Counsel actually withdrew Currie’s claims
that the Board erred by recalculating his maximum sentence release date to exceed
his Original Sentence and by unlawfully punishing him pursuant to an illegal
contract, we will address them herein.
              Relative to Currie’s recalculated maximum sentence date, Section
6138(a) of the Parole Code provides, in pertinent part:

              (1) A parolee under the jurisdiction of the [B]oard 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 [B]oard be
              recommitted as a parole violator.


                                           6
             (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 [B]oard 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 [Section 9714(g) of the Sentencing
                 Code,] 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 [S]ection
                 6143 [of the Parole Code] (relating to early parole
                 of inmates subject to [f]ederal removal order).

61 Pa.C.S. § 6138(a) (emphasis added).
             The Pennsylvania Supreme Court in Young v. Pennsylvania Board of
Probation & Parole, 409 A.2d 843, 846 (Pa. 1979), rejected the same argument
Currie raises herein, stating, in relevant part:

                    It is the Legislature and not the [Board] that
                    has extended the maximum, [expiration] date
                    of his original sentence. . . .
                    It is thus clear that the [Board] has not, as
                    contended by the petitioner, unlawfully
                    extended the term of his maximum sentence,
                    but has merely withdrawn from the petitioner
                    credit for the time he was at liberty on parole, .
                    ...

Id. at 846 n.5 (emphasis in original) (quoting Commonwealth ex rel. Ohodnicki v. Pa.
Bd. of Parole, 211 A.2d 433, 434-35 (Pa. 1965)). Accordingly, the Board did not


                                             7
unlawfully extend Currie’s maximum sentence but, rather, pursuant to its authority
under Section 6138(a) of the Parole Code, required Currie to serve statutorily
prescribed backtime.
             The General Assembly has also authorized the Board to impose general
and special parole conditions. See Section 6141 of the Parole Code, 61 Pa.C.S. §
6141 (“The [B]oard may make general rules for the conduct and supervision of
persons placed on parole and may, in particular cases, as it deems necessary to
effectuate the purpose of parole, prescribe special regulations for particular
persons.”); see also Sections 63.4-63.5, 65.4-65.6, 67.1-67.3 of the Board’s
Regulations, 37 Pa. Code §§ 63.4-63.5, 65.4-65.6, 67.1-67.3.           This Court has
explained:

             The essence of parole is release from prison, before the
             completion of sentence, on the condition that the prisoner
             abide by certain rules during the balance of the sentence.
             Parolees are in a position different from the general
             population because they are still subject to an extant term of
             imprisonment and are the focus of society’s rehabilitative
             efforts. Accordingly, parolees are subjected to certain
             conditions which restrict their activities substantially
             beyond the ordinary restrictions imposed by law on private
             citizens. Although the offender’s freedom may be
             substantially restricted, the [Board] is vested with broad
             powers to fashion appropriate conditions of parole where
             they are intended to effectuate his rehabilitation and
             reintegration into society as a law-abiding citizen.

Hubler v. Pa. Bd. of Prob. & Parole, 971 A.2d 535, 537 (Pa. Cmwlth. 2009) (quoting
Lee v. Pa. Bd. of Prob. & Parole, 885 A.2d 634, 638 (Pa. Cmwlth. 2005) (citations
and quotation marks omitted)).      Accordingly, by signing the Parole Conditions,
Currie did not enter into an illegal contract but, rather, acknowledged he was on
notice of the Board’s authority to lodge a detainer against him if he was arrested on
new criminal charges, and “to recommit [him] to serve the balance of [his] sentence .


                                           8
. . with no credit for time at liberty on parole [(i.e., street time)]” in the event he is
convicted of a new crime. C.R. at 7; see also Jones v. Pa. Bd. of Prob. & Parole (Pa.
Cmwlth. No. 1149 C.D. 2015, filed February 28, 2017).6
              Based on the foregoing, Counsel’s representations regarding Currie’s
first two issues are legally accurate and in accordance with this Court’s precedent.
Therefore, this Court holds that those issues have no merit.
              As for the remaining issue on appeal – that the Board erred by not
awarding him street time credit and by failing to articulate its reason for its denial as
Pittman requires – the Board argues that since Currie did not raise that specific issue
in his Administrative Remedies Form, he waived it. However, when the Board raised
a similar waiver defense in Johnson v. Pennsylvania Board of Probation & Parole,
206 A.3d 88 (Pa. Cmwlth. 2019), this Court held:

              In Anderson v. Talaber, 171 A.3d 355 (Pa. Cmwlth. 2017),
              this Court concluded that a challenge to the Board’s
              discretion to award credit for time spent in good standing on
              parole plus reference to the parolee’s eligibility under
              Section 6138(a)(2.1) of the Parole Code ‘fairly
              encompasse[d] the argument addressed in Pittman.’
              Anderson, 171 A.3d at 361. More recently, this Court ruled
              that a Pittman challenge is fairly subsumed within a
              parolee’s sentence credit challenge. See Cherry v. Pa. Bd.
              of Prob. & Parole (Pa. Cmwlth. No. 623 C.D. 2018, filed
              November 15, 2018)[,] slip op. at 5 n.4, 2018 WL 5986135
              (Timely raising the issue of whether a parolee should
              receive street time credit ‘is sufficient to encompass
              challenges to the Board’s reasons for the denial of credit
              and preserve his right to appeal to this Court.’); see also
              Oliver v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth. No. 1335
              C.D. 2017, filed May 24, 2018), slip op. at 9, 2018 WL
              2341607 (A Pittman challenge ‘is fairly subsumed within
              the issue of credit for time spent at liberty on parole as

       6
         This Court acknowledges that its unreported memorandum opinions may only be cited “for
[their] persuasive value, but not as binding precedent.” Section 414(a) of the Commonwealth
Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a). Jones is cited herein for its
persuasive value.
                                              9
             raised in the administrative appeal forms[]’ and, thus,
             ‘[gives] the Board sufficient notice that [the parolee is]
             questioning the Board’s reasoning for the denial of credit.’);
             Plummer v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth. No.
             1484 C.D. 2017, filed May 14, 2018)[,] slip op. at 8, 2018
             WL 2187872 (In Anderson, this Court ‘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.’).

Johnson, 206 A.3d at 92-93.

             Here, by checking the ‘Sentence Credit Challenge’ box on
             his [A]dministrative [R]emedies [F]orm and [demanding
             that the Board recalculate his maximum sentence release
             date, Currie] clearly took issue with the Board’s sentence
             credit calculation, which necessarily implicated his street
             time. The Court notes that the record is unclear as to
             whether [Currie] received a copy of the Hearing Report[,
             and t]hat explanation was absent from the Board’s [decision
             recorded June 15, 2017 (mailed June 23, 2017),] wherein
             [Currie’s] new sentence calculation was pronounced. . . . It
             was also missing from the Board’s [January 18, 2019]
             decision affirming the Board’s . . . action. In fact, the
             record is devoid of any documentation showing that the
             Board communicated to [Currie] the reason he was denied
             credit for his street time. . . . Finally, because the record
             supports the conclusion that the Board failed to apprise
             [Currie] of its Pittman explanation, the Board was on notice
             that [Currie’s] sentence calculation challenge included a
             Pittman challenge. Under the circumstances, this Court
             holds that [Currie] did not waive his Pittman challenge.

Johnson, 206 A.3d at 93-94 (footnote and internal certified record citations omitted).
             Notwithstanding, the Board clearly specified in its Hearing Report that
Currie was not entitled to credit for time spent at liberty on parole because he had
been “on parole for [drug charges] and [he] has arrests for [drug charges] dating to
his juvenile days.” C.R. at 40. Because the Board supplied a contemporaneous
explanation for its decision not to credit Currie with time he spent at liberty on parole,
it satisfied Pittman and, thus, Currie’s Pittman challenge fails.

                                           10
            For the above reasons, we reject Currie’s arguments on appeal and
affirm the Board’s order.

                                  ___________________________
                                  ANNE E. COVEY, Judge




                                     11
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Wayne Currie, Jr.,                          :
                          Petitioner        :
                                            :
                     v.                     :
                                            :
Pennsylvania Board of                       :
Probation and Parole,                       :     No. 206 C.D. 2019
                          Respondent        :


                                       ORDER

            AND NOW, this 16th day of August, 2019, the Pennsylvania Board of
Probation and Parole’s January 18, 2019 order is affirmed.


                                       ___________________________
                                       ANNE E. COVEY, Judge
