           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jason E. Williams,                             :
                             Petitioner        :
                                               :
              v.                               :   No. 1243 C.D. 2018
                                               :   Submitted: May 3, 2019
Pennsylvania Board                             :
of Probation and Parole,                       :
                             Respondent        :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE PATRICIA A. McCULLOUGH, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                               FILED: August 21, 2019


              Petitioner Jason E. Williams (Williams) petitions for review of a final
determination of the Pennsylvania Board of Probation and Parole (Board), dated
August 16, 2018. The Board denied Williams’ request for administrative relief,
thereby rejecting his claim that the Board erred (1) by failing to hold a timely
revocation hearing and (2) by failing to grant him credit for all his time served at
liberty on parole. For the reasons set forth below, we affirm.
              Williams pled guilty to a violation of Section 3802(d)(3) of the Vehicle
Code, 75 Pa. C.S. § 3802(d)(3),1 pertaining to driving under the influence of

       1
         Section 3802(d)(3) of the Vehicle Code makes it unlawful for an individual to “drive,
operate or be in actual physical control of the movement of a vehicle” when “[t]he individual is
combined substances (DUI-Combined Substances), and the Court of Common Pleas
of Philadelphia County sentenced him to a period of one to four years’ incarceration
on October 30, 2014. Thereafter, on June 22, 2015, the Court of Common Pleas of
Bucks County (Bucks C.C.P.), as a result of the DUI conviction, revoked Williams’
probation for a 2009 conviction for violating Section 13(a)(30) of The Controlled
Substance, Drug, Device and Cosmetic Act (Drug Act),2 relating to Possession with
the Intent to Deliver (PWID), and sentenced him to a period of one to two years’
incarceration. (Certified Record (C.R.) at 1, 7.) The Department of Corrections
aggregated these sentences, resulting in an original minimum sentence date of
November 3, 2015, and an original maximum sentence date of November 1, 2018.
(Id. at 1-2.) The Board granted Williams parole by Board Decision recorded on
February 9, 2016. (Id. at 4, 7.) He was released on parole on April 19, 2016. (Id.
at 7.)
               The Bristol Township Police Department arrested Williams for the
offense of PWID on March 7, 2017. (Id. at 13.) The Bucks C.C.P. set Williams’
monetary bail on March 7, 2017, but Williams never posted bail. (Id. at 19, 72-73.)
The Board issued a warrant to commit and detain Williams on March 13, 2017. (Id.
at 15.) The Board issued a notice of charges to inform Williams of his upcoming
detention hearing before the Board. (Id. at 20.) Williams subsequently waived his


under the combined influence of alcohol and a drug or combination of drugs to a degree which
impairs the individual’s ability to safely drive, operate or be in actual physical control of the
movement of the vehicle.”
         2
         Act of April 14, 1972, P.L. 233, as amended, 35 P.S. § 780-113(a)(30). Section 13(a)(30)
of the Drug Act prohibits “the manufacture, delivery, or possession with intent to manufacture or
deliver, a controlled substance by a person not registered under this act, or a practitioner not
registered or licensed by the appropriate State board, or knowingly creating, delivering or
possessing with intent to deliver, a counterfeit controlled substance,” unless otherwise authorized
by the Drug Act.

                                                2
rights to representation by counsel and to a detention hearing on March 23, 2017.
(Id. at 16.) By Board Decision recorded on April 27, 2017, the Board detained
Williams pending disposition of his criminal charges. (Id. at 25.)
             On November 13, 2017, Williams pled guilty to PWID, and the Bucks
C.C.P. sentenced him to incarceration at the Bucks County Prison for a minimum
sentence of 11 months, 29 days and a maximum sentence of 23 months, 29 days.
(Id. at 33.) Williams began serving this sentence on that same date. (Id. at 33.) The
Board received official verification of Williams’ new criminal conviction on
December 15, 2017. (Id. at 38.) On February 14, 2018, the Board subsequently
issued a notice of charges based upon Williams’ new criminal conviction, informing
Williams    of   his   upcoming      parole    revocation   hearing   scheduled   for
February 27, 2018. (Id. at 30.) A hearing examiner continued the hearing based
upon Williams’ unavailability. (Id. at 35.) After serving his minimum sentence at
Bucks County Prison, Williams transferred to the State Correctional Institution at
Graterford (SCI-Graterford) on March 15, 2018. (Id. at 75, 81.)
             Williams waived his right to a panel revocation hearing before the
Board and, instead, requested that his revocation hearing be held before a hearing
examiner. (Id. at 37.) A hearing examiner conducted the revocation hearing on
April 9, 2018, during which Parole Agent Mahmoud (Agent) and Williams,
represented by counsel, testified. (Id. at 36, 40.)
             Agent testified that he received the official verification of Williams’
new criminal conviction on December 15, 2017. (Id. at 62.) Counsel objected to
the timeliness of the revocation hearing because Agent offered no documentation
supporting the allegation that agents received official verification of Williams’ new
criminal conviction on December 15, 2017. (Id. at 39, 63.) The hearing examiner,


                                           3
appearing to accept December 15, 2017, as the date of official verification, overruled
Counsel’s timeliness objection because the hearing examiner was conducting the
hearing (on April 9, 2018) within 120 days of the date of the official verification of
Williams’ new criminal conviction (December 15, 2017). (Id. at 61-63.) Williams
testified that he acknowledged his new conviction of PWID and that he completed
his minimum sentence at Bucks County Prison and returned to SCI-Graterford. (Id.
at 64-65.)
             By Board action recorded on April 25, 2018 (mailed May 1, 2018), the
Board recommitted Williams as a convicted parole violator to serve 12 months’
backtime. (Id. at 82.) The Board denied Williams credit for the time spent at liberty
on parole, citing the reason as “new conviction same/similar to original offense.”
(Id. at 82-83.)    The Board recalculated his maximum sentence date to be
September 20, 2020. (Id. at 83.)
             Williams challenged the Board’s decision by filing an administrative
remedies form on May 23, 2018, alleging: (1) the Board violated his Constitutional
due process rights by denying him a timely revocation hearing; and (2) the Board
erred by denying him credit for the entirety of his time spent at liberty on parole
because he did not commit a crime of violence nor a crime requiring his registration
as a sexual offender. (Id. at 84-85.) The Board affirmed its decision that it had held
a timely revocation hearing and that it had properly exercised its discretion to deny
Williams credit for time served at liberty on parole. (Id. at 89.) With regard to the
timeliness of the revocation hearing, the Board reasoned:
             The record reflects that you pled guilty to the new offenses
             on November 13, 2017[,] and you were returned to a state
             correctional institution (“SCI”) for the first time since your
             release on parole on March 15, 2018, after you were
             paroled from your Bucks County sentence. There is no

                                           4
              indication that you waived your right to a panel hearing
              prior to your return to an SCI. Because you were confined
              outside the jurisdiction of the Pennsylvania Department of
              Corrections at the time of your conviction, the Board was
              required to hold the revocation hearing within 120 days of
              the date they received official verification of your return
              to an SCI. 37 Pa. Code § 71.4(1)(i). In this case, you were
              returned to an SCI on March 15, 2018, and the Board
              conducted the revocation hearing 25 days later on
              April 9, 2018.

(Id. at 90.) In support of its decision to deny credit to Williams for the time he spent
at liberty on parole, the Board reasoned:
              Pursuant to the Supreme Court’s ruling in Pittman v.
              [Pennsylvania Board of Probation and Parole,
              159 A.3d 466 (Pa. 2017)], the Board must articulate the
              basis for its decision to grant . . . [or] deny a convicted
              parole violator credit for time spent at liberty on parole.
              The Board action mailed May 1, 2018, articulates that you
              were denied credit for the time you spent at liberty on
              parole because your new conviction was the same/similar
              to your original offense. This is a sufficient reason for
              denying credit for time spent at liberty on parole.
              Colon-Vega v. Pa. [Bd. of Prob. & Parole (Pa. Cmwlth.,
              No. 2496 C.D. 2015, filed August 29, 2016)].

(Id.)
              On appeal to this Court,3 Williams argues that (1) the Board violated
his Constitutional due process rights because it failed to hold his revocation hearing
within the mandated 120-day period after receiving official verification of his return
to a state correctional institution as required by Section 71.4(1)(i) of the Board’s
regulations, 37 Pa. Code § 71.4(1)(i), and that (2) the Board abused its discretion by

        3
         This Court’s standard of review is limited to determining whether constitutional rights
were violated, whether an error of law was committed, or whether necessary findings of fact are
supported by substantial evidence. 2 Pa. C.S. § 704.

                                               5
denying him credit for all time spent at liberty on parole because the Board did not
provide a sufficient contemporaneous statement to explain its decision to deny him
credit for his time spent at liberty on parole.
               We first consider Williams’ claim that the Board erred in concluding
that his April 9, 2018 revocation hearing was timely. Williams argues that his
revocation hearing was untimely, as it occurred outside of the 120-day period to hold
a revocation hearing as mandated by Section 71.4(1)(i) of the Board’s regulations.4
Generally, the Board bears the burden to prove, by a preponderance of the evidence,
that it held a timely revocation hearing for an individual. Saunders v. Pa. Bd. of
Prob. & Parole, 568 A.2d 1370, 1371 (Pa. Cmwlth.), appeal denied, 590 A.2d 760
(Pa. 1990). Pursuant to Section 71.4 of the Board’s regulations, the Board must




       4
          In his brief, Williams references facts that differ from those of record and predate the
November 13, 2017 conviction that resulted in the revocation of parole at issue now before the
Court. For instance, Williams argues in his brief that his “[p]anel revocation hearing [was] held
on March 30, 2016.” (Petitioner’s Br. at 12.) Williams, however, did not have a panel revocation
hearing on March 30, 2016; instead, he elected to proceed before a hearing examiner who
conducted a hearing on April 9, 2018. (C.R. at 37.) We note that as of March 30, 2016, Williams
was awaiting his release to parole following the Board’s Decision recorded on February 9, 2016;
his release occurred on April 19, 2016. (See id. at 4, 7.) Williams also states in his brief that his
hearing was not timely as it was held beyond 120 days of his return to SCI-Graterford on
November 3, 2015. (Petitioner’s Br. at 12.) We note that November 3, 2015, is the minimum
sentence date for the sentences from which Williams was paroled by the Board Decision recorded
on February 9, 2016, but he remained in the custody of the Department of Corrections until his
release on parole on April 19, 2016. Following his 2017 conviction, Williams transferred to
SCI-Graterford on March 15, 2018. (C.R. at 75, 81.) As such, March 15, 2018, is the relevant
date for our analysis. Williams also references February 2, 2016, as the date on which the Board
received “proof of [his] conviction,” which is impossible given that the relevant conviction did not
occur until November 13, 2017. (Petitioner’s Br. at 12; C.R. at 29.) It is unclear the basis on
which Williams advances these dates in his brief, and there is no evidence within the record before
the Board that would support Williams’ factual allegations.


                                                 6
abide by the following procedures before a parolee can be recommitted as a
convicted parole violator:
               (1)     A revocation hearing shall be held within 120 days
               from the date the Board received official verification[5] of
               the plea of guilty . . . except as follows:
                    (i) If a parolee is confined outside the jurisdiction of
                    the Department of Corrections, such as . . . confine[d]
                    in a county correctional institution where the parolee
                    has not waived the right to a revocation hearing[,] . . .
                    the revocation hearing shall be held within 120 days
                    of the official verification of the return of the parolee
                    to a State correctional facility.
                    (ii) A parolee who is confined in a county correctional
                    institution and who has waived the right to a
                    revocation hearing by a panel . . . shall be deemed to
                    be within the jurisdiction of the Department of
                    Corrections as of the date of the waiver.
37 Pa. Code § 71.4 (emphasis added).
               Section 71.4 of the Board’s regulations, therefore, explicitly sets forth
the dates in which the clock begins to run against the Board in order for it to hold a
timely revocation hearing for a parolee. Under Section 71.4(1)(i), time begins to run
when the Board receives “official verification” that the parolee, who has been
convicted on new criminal charges and has not waived his right to a revocation
hearing, has returned to a state correctional institution and is, again, under the
jurisdiction of the Department of Corrections. 37 Pa. Code § 71.4(1)(i). Under
Section 71.4(1)(ii), time begins to run on the date when a parolee, who has been
convicted on new criminal charges and who is outside the jurisdiction of the

       5
         “Official verification” is defined as an “[a]ctual receipt by a parolee’s supervising parole
agent of a direct written communication from a court in which a parolee was convicted of a new
criminal charge attesting that the parolee was so convicted.” 37 Pa. Code § 61.1 (definitions).


                                                 7
Department of Corrections, waives his panel revocation hearing. 37 Pa. Code
§ 71.4(1)(ii).6
               In this case, Section 71.4(1)(i) of the Board’s regulations applies to
Williams. Here, Williams received a new criminal conviction and sentence to be
served at a county correctional institution, Bucks County Prison. Following the
criminal proceedings, Williams remained at the county prison until the completion
of his minimum sentence, and he only returned to a state correctional institution on
March 15, 2018. Williams, therefore, remained outside the jurisdiction of the
Department of Corrections until March 15, 2018. Pursuant to Section 71.4(1)(i), the
Board had 120 days to hold a revocation hearing for Williams from the date of the
official verification of his return to a state correctional institution. The Board held
Williams’ revocation hearing on April 9, 2018. The Board, therefore, held the
revocation hearing only twenty-five days after his return to the state correctional
institution, which is well within the mandated 120-day requirement as set forth under
Section 71.4(1)(i). Thus, the Board did not err in its conclusion that it held a timely
revocation hearing for Williams on April 9, 2018.
               We next consider whether the Board erred by denying Williams credit
for all the time he spent at liberty while on parole. Williams essentially argues that
the Board abused its discretion in denying him credit because the Board did not
provide a sufficient contemporaneous statement to support its decision. In support
of his argument, Williams alleges that his case is similar to Marshall v. Pennsylvania
Board of Probation and Parole, 200 A.3d 643 (Pa. Cmwlth. 2018), because the



       6
         Section 71.4(1)(ii) does not apply to Williams because there are no facts within the record
before the Board to suggest that Williams had waived his panel revocation hearing prior to
April 9, 2018, the actual date of his revocation hearing. (See C.R. at 37-45, 59-68.)

                                                 8
Board failed to consider the individual factual circumstances in his case when
determining whether to grant him credit for time on parole. We disagree.
              When determining whether there has been an abuse of discretion, the
Pennsylvania Supreme Court has held that “an abuse of discretion is not merely an
error of judgment, but occurs only where the law is overridden or misapplied, or the
judgment exercised is manifestly unreasonable, or the result of partiality, prejudice,
bias or ill will.” Zappala v. Brandolini Prop. Mgmt., Inc., 909 A.2d 1272, 1284
(Pa. 2006); see also Moss v. SCI-Mahanoy Superintendent Pa. Bd. of Prob. &
Parole, 194 A.3d 1130, 1133 n.5 (Pa. Cmwlth. 2018), appeal denied, ___ A.3d ___
(Pa., No. 824 MAL 2018, filed June 18, 2019).
              Section 6138(a)(2.1) of the Prisons and Parole Code, 61 Pa. C.S.
§ 6138(a)(2.1), sets forth guidelines for the Board’s discretionary power in granting
and denying credit for parole time and provides:
              The Board may, in its discretion, award credit to a parolee
              recommitted under paragraph (2)[7] for the time spent at
              liberty on parole, unless any of the following apply:
                  (i) The crime committed during the period of
                  parole . . . is a crime of violence . . . or a crime
                  requiring registration [as a sexual offender].

                  (ii) The     parolee    was     recommitted     under
                  [S]ection 6143 [of the Prisons and Parole Code, 61 Pa.
                  C.S. § 6143,] (relating to early parole of inmates
                  subject to Federal removal order).



       7
          Section 6138(a)(2) of Prisons and Parole Code, 61 Pa. C.S. § 6138(a)(2), provides, in
part: “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.” (Emphasis added.)

                                               9
               The Pennsylvania Supreme Court has held that, pursuant to
Section 6138(a)(2.1) of the Prisons and Parole Code, “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
Supreme Court specified, however, that a “single[-]sentence explanation” given by
the Board explaining its decision “is likely sufficient in most instances” to meet the
Pittman standard.        Id. at 475 n.12.      Moreover, this Court has found several
single-sentence explanations given by the Board for its decision to deny a convicted
parole violator credit for time spent at liberty on parole as sufficient to meet the
Pittman standard. See, e.g., Tres v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No.
828 C.D. 2018, filed June 3, 2019) (holding Board’s stated reason “arrested for a
firearms charge” satisfied Pittman standard);8 Bleach v. Pa. Bd. of Prob. & Parole
(Pa. Cmwlth., No. 794 C.D. 2017, filed May 31, 2019) (holding Board’s stated
reason “[r]evoke street time due to second conviction (drugs) while on parole”
satisfied Pittman standard); Lawrence v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth.,
No. 1132 C.D. 2018, filed April 12, 2019) (holding Board’s stated reason “new
conviction same/similar to the original offense” satisfied Pittman standard); Smoak
v. Talaber, 193 A.3d 1160, 1165 (Pa. Cmwlth. 2018) (holding Board’s stated reason
of “unresolved drug and alcohol issues” satisfied Pittman standard).
               This Court in Marshall, however, held that the Board’s one-sentence
explanation for denying a convicted parole violator credit for time spent at liberty
on parole failed to meet the Pittman standard. Marshall, 200 A.3d at 651-52.
Marshall was originally sentenced and incarcerated for murder in the third degree

       8
          Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code
§ 69.414(a), an unreported panel decision issued by this Court after January 15, 2008, may be cited
“for its persuasive value, but not as binding precedent.”

                                               10
and robbery.    After being paroled, Marshall was arrested and convicted of a
Delaware crime similar to the Pennsylvania crime of PWID. The Board denied
Marshall credit for his time spent at liberty on parole, stating only “felony
drug[-]related crimes.” Marshall, 200 A.3d at 647, 650. The Court held that the
Board’s reason to deny Marshall credit failed to satisfy the required Pittman
standard, because “the Board’s articulated reason simply restates the conviction
without an individual assessment of the facts surrounding Marshall’s parole
revocation.” Id. at 651. The Court remanded the case to the Board and ordered the
Board, “[a]t a minimum, . . . [to give a] statement of reasons [that] . . . accurately
reflect[ed] the facts informing its decision.” Id. at 652. The focus of our decision
in Marshall was the lack of explanation offered by the Board, as the Board did not
explain why felony drug-related charges following parole from a murder conviction
warranted a denial of discretionary credit for time spent at liberty on parole.
             Unlike in Marshall, the record now before the Court reveals that the
Board provided Williams with a sufficient contemporaneous statement supporting
its decision to deny him credit for the time served on parole to satisfy the Pittman
standard and, therefore, did not abuse its discretion. (C.R. at 82-83.) Here, the Board
did not merely restate the offense for which Williams was most recently convicted.
Rather, the Board clearly considered the individual circumstances surrounding
Williams’ parole revocation, as the Board compared Williams’ original convictions
and most recent conviction and determined that Williams’ “new conviction [was the]
same/similar to [his] original offense.” (C.R. at 83.) This determination that, despite
being granted parole, Williams was once again convicted of the “same” or “similar”
offense as his earlier offenses is borne out by the record, which demonstrates that
Williams was convicted of three drug-related offenses—PWID (for which he was


                                          11
twice convicted) and DUI-Combined Substances (for which he was once convicted).
The Board, therefore, appropriately applied the Pittman standard by providing its
rationale for its decision, and the rationale given is not “manifestly unreasonable, or
the result of partiality, prejudice, bias or ill will.” Zappala, 909 A.2d at 1284.
Moreover, this Court in Lawrence recently concluded that this same rationale offered
by the Board was sufficient for purposes of Pittman where the convicted parole
violator’s new conviction and original offense were both drug-related.             See
Lawrence, slip op. at 9.      While our decision in Lawrence is not binding, it
nevertheless bolsters our analysis in this matter. Based on the above analysis, we
conclude that the Board did not abuse its discretion by not crediting Williams for his
time spent at liberty on parole.
             Accordingly, we affirm the final determination of the Board.




                                          P. KEVIN BROBSON, Judge




                                          12
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jason E. Williams,                        :
                           Petitioner     :
                                          :
            v.                            :   No. 1243 C.D. 2018
                                          :
Pennsylvania Board                        :
of Probation and Parole,                  :
                           Respondent     :



                                        ORDER


            AND NOW, this 21st day of August, 2019, the final determination of
the Pennsylvania Board of Probation and Parole, dated August 16, 2018, is
AFFIRMED.




                                          P. KEVIN BROBSON, Judge
