                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jimmy Shaw,                               :
                           Petitioner     :
                                          :
                     v.                   :
                                          :
Pennsylvania Board                        :
of Probation and Parole,                  :   No. 1853 C.D. 2017
                           Respondent     :   Submitted: December 7, 2018


BEFORE:        HONORABLE ANNE E. COVEY, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                   FILED: March 18, 2019


               Jimmy Shaw (Shaw), pro se, petitions this Court for review of the
Pennsylvania Board of Probation and Parole’s (Board) November 6, 2017 order
denying his request for administrative relief (Request) from the Board’s February 3,
2017 decision that recommitted him to a state correctional institution (SCI) as a
convicted parole violator, and changed his maximum sentence release date from
December 18, 2016 to October 11, 2019. Shaw raises two issues for this Court’s
review: (1) whether the Board erred when it denied him credit for time spent at
numerous halfway houses, treatment centers, and county jails; and (2) whether the
Board violated his due process rights when it failed to state a reason for denying
Shaw credit for time spent at liberty on parole when it recalculated his maximum
sentence release date. After review, we vacate and remand to the Board for further
proceedings.
               Shaw is an inmate currently confined in SCI - Graterford. On March 27,
2002, Shaw was sentenced to 7½ to 15 years of incarceration for drug-related
offenses (Original Sentence). At that time, his maximum sentence release date was
June 25, 2016.
            Between March 23, 2009 and March 8, 2016, Shaw was released on
parole numerous times to community corrections centers (CCC), treatment centers
and county jails, and was repeatedly recommitted for technical parole violations. On
several occasions, Shaw was detained pending the disposition of criminal charges,
which were ultimately dismissed or withdrawn.
            On March 8, 2016, Shaw was unsuccessfully discharged from Self Help
Movement Community Corrections Facility for possessing a urine bottle and
admitting to his use of cocaine and Xanax. As a sanction, Shaw was transferred to
Coleman Hall Parole Violator Center (Coleman PVC). On the same day, Shaw
complained of chest pains and was taken to Temple University Hospital. While in
the emergency room, Shaw fled from PVC staff’s custody, and later the Philadelphia
Police apprehended him, and the Pennsylvania State Police charged him with escape.
The Board filed a warrant to commit and detain Shaw. On March 9, 2016, the
Philadelphia County Common Pleas Court set Shaw’s bail at $100,000.00. Shaw did
not post bail. On March 16, 2016, the Board notified Shaw that it was charging him
with parole violations and it intended to hold a violation/detention hearing. Shaw
waived his right to a hearing and to counsel, and admitted to violating parole
condition 7 (pertaining to unsuccessful discharge from a self-help program). By
Board decision recorded April 21, 2016, the Board recommitted Shaw for nine
months as a technical parole violator and detained him pending disposition of the
escape charge.
            On September 9, 2016, Shaw pled guilty to escape, a second degree
misdemeanor (2016 Conviction), and he was sentenced to two years of probation. On
December 5, 2016, the Board notified Shaw of its charges arising from the 2016
Conviction. On that same date, Shaw waived his right to a hearing and counsel, and
                                         2
admitted to the 2016 Conviction. By Board action recorded January 23, 2017 and
mailed February 3, 2017, the Board recommitted Shaw for 12 months as a convicted
parole violator and denied Shaw credit for his time at liberty on parole. The Board
also recalculated Shaw’s maximum sentence release date from December 18, 2016 to
October 11, 2019 to reflect the loss of 1,127 days of street time.
              On March 13, 2017, Shaw filed the Request challenging the Board’s
maximum sentence release date recalculation. On November 6, 2017, the Board
denied the Request and affirmed the Board’s decision. On December 4, 2017, Shaw
filed a petition for review (Petition) in this Court.1
              Shaw argues that the Board improperly modified his judicially imposed
sentence by changing his maximum sentence release date. Section 6138(a) of the
Prisons and Parole Code (Parole Code) provides:

              (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.

       1
          Shaw’s Petition was postmarked December 12, 2017. In a memorandum opinion filed July
17, 2018, this Court raised the issue of the timeliness of Shaw’s Petition (which it determined was
required to be filed by December 6, 2017), remanded the matter for an evidentiary hearing to afford
Shaw an opportunity to proffer evidence establishing when he placed the Petition in the prison
mailbox or delivered it to prison officials, and directed the Board to make factual findings thereon
and certify the record to this Court, so the Court could determine whether the prisoner mailbox rule
cures the Petition’s facial untimeliness. On August 17, 2018, the Board held a hearing on the
timeliness issue. On October 23, 2018, based upon a certified mailing receipt proving that Shaw
submitted his Petition to Department of Corrections (Department) staff on December 4, 2017, and
proof that Department staff deducted appropriate postage from Shaw’s commissary account on
December 4, 2017, the Board concluded that Shaw timely filed the Petition. See Certified Record at
284. This Court agrees that Shaw’s Petition was timely filed.
        Because this Court’s July 17, 2018 Order erroneously vacated the Board’s November 6,
2017 order when it remanded the matter to the Board, we modify this Court’s July 17, 2018 Order
to strike therefrom the portion vacating the Board’s November 6, 2017 order.
                                                 3
             (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), addressed the same issue Shaw
raises herein and rejected said argument 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, .
                    ...

Young, 409 A.2d at 846 n.5 (emphasis in original) (quoting Commonwealth ex rel.
Ohodnicki v. Pa. Bd. of Parole, 211 A.2d 433 (Pa. 1965)). Accordingly, the Board


                                            4
did not unlawfully extend Shaw’s maximum sentence, but rather, pursuant to its
authority under Section 6138(a) of the Parole Code, required Shaw to serve
backtime.2
              Shaw next contends:

              According to the inaccurate records of the [Board, Shaw]
              was confined to a series of halfway houses, treatment
              centers and county jails from January 25, 2010 through
              September 9, 2016 as a direct result of the [Board]
              repeatedly failing to approve [Shaw’s] ‘home plans’ and
              forcing him to constantly reside in Clinton County Jail CCJ,
              Wernersville CCC, Gaudenzia Concept 90, Gaudenzia West
              Chester Program, Kintock, Siena House, Liberty
              Management, CEC Luzerne, CCC Coleman Hall, Bethesda
              Mission, Self Help [Community Corrections Facility],
              Dauphin County Prison, Philadelphia County Prison, and
              [SCI -] Graterford on a number of different occasions,
              during these periods where the time dates are
              inaccurate/incomplete.

Shaw Br. at 7-8 (footnotes omitted). Shaw cites McMillian v. Pennsylvania Board of
Probation & Parole, 824 A.2d 350 (Pa. Cmwlth. 2003),3 to support his position that
time spent at a community corrections center provides sufficient restraints to
constitute custody.
              The law is well settled that a parolee may be entitled to backtime credit
for time spent in a residential facility if the parolee demonstrates that the residential


       2
              ‘[B]acktime’ is that part of an existing judicially[ ]imposed sentence
              that the Board directs a parolee to complete, following a civil
              administrative hearing and a finding 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.

Hughes v. Pa. Bd. of Prob. & Parole, 179 A.3d 117, 122 (Pa. Cmwlth. 2018) (emphasis added).
        3
          This Court recognizes that in Wagner v. Pennsylvania Board of Probation & Parole, 846
A.2d 187 (Pa. Cmwlth. 2004), the Court limited McMillian’s holding to prisoners in pre-release
status and, thus, under the prison authorities’ control, as opposed to parolees who are under the
Board’s supervision.
                                                5
facility’s characteristics are equivalent to incarceration. Cox v. Pa. Bd. of Prob. &
Parole, 493 A.2d 680 (Pa. 1985); see also Harden v. Pa. Bd. of Prob. & Parole, 980
A.2d 691 (Pa. Cmwlth. 2009); Willis v. Pa. Bd. of Prob. & Parole, 842 A.2d 490 (Pa.
Cmwlth. 2004). The parolee has the burden to prove the restrictions on his liberty
were the equivalent of incarceration. Cox.

                [T]he entitlement to credit based on the restrictions placed
                upon a parolee is very fact-specific.            Notably, an
                individual’s subjective impression of those restrictions is
                not dispositive of the question of whether confinement is
                the equivalent of incarceration. Detar v. P[a.] B[d.] of
                Prob[. &] Parole, 890 A.2d 27, 31 n.10 (Pa. Cmwlth.
                2005). The most important factors are ‘whether the patient,
                or resident, is locked in and whether the patient may leave
                without being physically restrained.’ Id. at 31 (citing Cox).

Figueroa v. Pa. Bd. of Prob. & Parole, 900 A.2d 949, 952 (Pa. Cmwlth. 2006).
                The Cox Court required the Board to provide a record in order for
appellate courts to determine whether a community corrections center is so restrictive
as to constitute custody.4 Here, the Board did not hold an evidentiary hearing on that
issue giving Shaw the opportunity to meet his burden. Accordingly, we remand this
matter to the Board to hold an evidentiary hearing to permit Shaw to present evidence
regarding the nature of his confinement at the various halfway centers, treatment
centers and county jails where he resided while on parole, to consider whether the
restrictions at each were equivalent to incarceration and, if so, to award Shaw credit



       4
           Shaw asserted in his Request:
                The dates of confinement and those of parole and re-parole to a
                community corrections center or other type of confined housing were
                approved by the [B]oard and the [Department] . . . and should count
                as total and continuous confinement on petitioner’s original sentence
                of seven and one half to fifteen (7½ -15) years.
Certified Record at 224.
                                                 6
for any such time. The Board shall thereafter, if necessary, recalculate Shaw’s
maximum sentence date.
                Citing to Pittman v. Pennsylvania Board of Probation & Parole, 159
A.3d 466 (Pa. 2017), Shaw also contends that the Board erred because it failed to
state a reason for denying him credit for time spent at liberty on parole (Pittman
Challenge). In Pittman, the Pennsylvania Supreme Court held that

                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 Subsection 6138(a)(2.1) [of the Parole Code, 61
                Pa.C.S. § 6138(a)(2.1)], . . . the Board must provide a
                contemporaneous statement explaining its reason for
                denying a [convicted parole violator] credit for time spent at
                liberty on parole.

Pittman, 159 A.3d at 475.
                The Board does not respond that it provided the required explanation for
denying credit for time at liberty on parole. Rather, citing to Section 703(a) of the
Administrative Agency Law, 2 Pa.C.S. § 703(a),5 Pennsylvania Rule of Appellate




       5
           Section 703(a) of the Administrative Agency Law provides:
                A party who proceeded before a Commonwealth agency under the
                terms of a particular statute shall not be precluded from questioning
                the validity of the statute in the appeal, but such party may not raise
                upon appeal any other question not raised before the agency
                (notwithstanding the fact that the agency may not be competent to
                resolve such question) unless allowed by the court upon due cause
                shown.
2 Pa.C.S. § 703(a).
                                                  7
Procedure (Rule) 1551(a),6 and case law,7 the Board argues that Shaw waived his
right to challenge the Board’s decision on that basis because he did not raise the issue
in his administrative appeal to the Board.
                 In Plummer v. Pennsylvania Board of Probation & Parole (Pa. Cmwlth.,
No. 1484 C.D. 2017, filed May 14, 2018),8 this Court rejected the Board’s similar
waiver argument, explaining:

                 We . . . reject the Board’s contention that [the prisoner] is
                 precluded from raising a Pittman [C]hallenge on appeal to
                 this Court.       Relevant here, the Board issued its
                 Recommitment Order before the [Pennsylvania] Supreme
                 Court decided Pittman. Since applicable law did not

       6
           Rule 1551(a) states:
                 Review of quasijudicial orders shall be conducted by the court on the
                 record made before the government unit. No question shall be heard
                 or considered by the court which was not raised before the
                 government unit except:
                     (1) Questions involving the validity of a statute.
                     (2) Questions involving the jurisdiction of the government
                         unit over the subject matter of the adjudication.
                     (3) Questions which the court is satisfied that the
                     petitioner could not by the exercise of due diligence have
                     raised before the government unit. If, upon hearing before
                     the court, the court is satisfied that any such additional
                     question within the scope of this paragraph should be so
                     raised, it shall remand the record to the government unit for
                     further consideration of the additional question.
                 The court may in any case remand the record to the government unit
                 for further proceedings if the court deems them necessary.
Pa.R.A.P. 1551(a) (italic and bold emphasis added).
       7
         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); Hughes v. Pa. Bd. of Prob. &
Parole, 534 A.2d 589 (Pa. Cmwlth. 1987); Harper v. Pa. Bd. of Prob. & Parole, 520 A.2d 518 (Pa.
Cmwlth. 1987).
       8
         This Court’s unreported memorandum opinions may 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). Plummer is cited for its persuasive value.
                                                   8
             require the Board to explain its credit decision when [the
             prisoner] filed his administrative appeal, he did not question
             the Board’s lack of explanation.
             [The prisoner] 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. Pittman was
             decided in the interim. Therefore, the petition for review
             was [the prisoner’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.

Plummer, slip op. at 7-8 (citations omitted).
             Here, the Board issued Shaw’s recommitment order on January 23,
2017, and received Shaw’s Request on March 13, 2017. On April 26, 2017, our
Supreme Court issued its Pittman decision. Thus, as in Plummer, Pittman had not
been decided before Shaw filed his Request. Accordingly, for the reasons set forth in
Plummer, Shaw did not waive his Pittman challenge.
             Addressing Shaw’s Pittman Challenge, Shaw is correct that the Board
provided no “statement explaining its reason for denying [him] credit for time spent
at liberty on parole.” Pittman, 159 A.3d at 475. Accordingly, on remand, the Board
shall provide Shaw the required explanation for its denial of credit for his time at
liberty on parole.
             For all of the above reasons, the Board’s order is vacated, and the matter
is remanded to the Board for proceedings consistent with this opinion.




                                       ___________________________
                                       ANNE E. COVEY, Judge




                                           9
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jimmy Shaw,                                  :
                           Petitioner        :
                                             :
                     v.                      :
                                             :
Pennsylvania Board                           :
of Probation and Parole,                     :   No. 1853 C.D. 2017
                           Respondent        :


                                        ORDER

             AND NOW, this 18th day of March, 2019, this Court’s July 17, 2018
order is modified to strike therefrom the portion vacating the Pennsylvania Board of
Probation and Parole’s (Board) order mailed on November 6, 2017 for a timeliness
determination.
             IT IS FURTHER ORDERED that the Board’s November 6, 2017 order
is NOW vacated, and the matter is remanded to the Board for proceedings consistent
with this opinion.
             Jurisdiction is relinquished.



                                        ___________________________
                                        ANNE E. COVEY, Judge
