          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John Baldwin,                             :
                            Petitioner    :
                                          :
             v.                           :   No. 907 C.D. 2018
                                          :   Submitted: February 8, 2019
Pennsylvania Board of Probation           :
and Parole,                               :
                        Respondent        :

BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE ROBERT SIMPSON, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                          FILED: April 2, 2019

             John Baldwin (Baldwin) petitions for review from an order of the
Pennsylvania Board of Probation and Parole (Board) that denied his administrative
appeal from a Board recommitment and recalculation order. Baldwin argues the
Board abused its discretion and failed to provide an adequate explanation when it
denied him credit for his time spent at liberty on parole. We vacate the Board’s order
in part and remand to the Board to issue a new decision explaining its credit
determination so as to sufficiently enable appellate review and to correct any error
in exercising its discretion that it may discern based on the facts and Baldwin’s
individual circumstances.


                                    I. Background
             In 1990, Baldwin received a sentence of 5-to-20-years in prison for
murder in the third degree and possession with intent to deliver a controlled
substance. He was released on parole in June 1995. However, in September 1996,
Baldwin was arrested on new charges of possession with intent to deliver, for which
he received a 5-to-10-year sentence in March 1997. He was constructively reparoled
in February 2000, but remained in prison serving the second sentence.


            Baldwin was reparoled again in October 2003. From that time until
August 2012, Baldwin was on parole without incident. During that time, he
maintained stable housing with his wife and children. He held steady gainful
employment, attaining union membership as an electrician and also serving as a
safety inspector. He complied with his curfew, underwent a successful drug and
alcohol evaluation, and obtained consistent negative drug screenings. His parole
officer reported Baldwin incurred no infractions of any kind throughout that period.
Certified Record (C.R.) at 71.


            Baldwin was arrested in 2010 for suspicion of possessing marijuana,
but that charge was dismissed. Notably, his parole officer concluded at that time
that Baldwin should be allowed to continue on parole because he was “amenable to
supervision” and “involved in counseling,” and because he had a “stable residence”
and “steady employment.” C.R. at 25 (emphasis added).


            In August 2012, Baldwin voluntarily surrendered to federal authorities
following his indictment on charges of possession with intent to deliver oxycodone,
arising from incidents that occurred in March and April 2012. In May 2013, Baldwin
pleaded guilty to three federal charges. He received a federal sentence of 66 months
in prison followed by 5 years of supervised release.




                                         2
              In June 2017, Baldwin was transferred from federal custody to the State
Correctional Institution at Graterford. Following a recommitment hearing, the
Board issued a notice of decision and a recommitment order, recalculating Baldwin’s
maximum parole date to June 13, 2030. In its recalculation, the Board denied credit
for the nearly nine years Baldwin spent on parole from 2003 to 2012. The Board’s
explanation for denying credit was “poor supervision history.” C.R. at 90.


              Baldwin filed an administrative appeal raising a number of issues,
including the Board’s denial of sentence credit for his time on parole. The Board
affirmed its prior decision.


              Baldwin filed a timely petition for review to this Court. He seeks an
order vacating the Board’s decision and remanding to the Board for recalculation of
his maximum parole date to reflect credit for the nearly nine years he spent at liberty
on parole from 2003 to 2012.1


                                      II. Discussion
              On appeal,2 Baldwin asserts the Board abused its discretion by denying
him credit for the time he spent at liberty on parole, without an adequate and accurate
statement of the reason for denying credit. We discern merit in this argument.



       1
        In his petition for review, Baldwin raised additional issues. However, he expressly
abandoned the other issues in his brief. See Pet’r’s Br. at 6 n.1.

       2
         “Our review of the Board’s decision is limited to determining whether constitutional
rights were violated, whether the decision is in accordance with the law, or whether necessary
findings are supported by substantial evidence.” Kerak v. Pa. Bd. of Prob. & Parole, 153 A.3d
1134, 1138 n.9 (Pa. Cmwlth. 2016).


                                              3
              When a parolee commits a new crime punishable by imprisonment,
Section 6138(a)(1) of the Prisons and Parole Code (Code), 61 Pa. C.S. §6138(a)(1),
empowers the Board to recommit the parolee as a convicted parole violator (CPV)
to serve the remainder of his original sentence. Section 6138(a)(2.1) of the Code,
61 Pa. C.S. §6138(a)(2.1), confers discretion on the Board, upon recommitment, to
award sentence credit for some or all time spent at liberty on parole, except when
the recommitment involves enumerated offenses not at issue here.


              While on parole, Baldwin was convicted of three federal drug offenses
related to possession with intent to deliver oxycodone. Thus, the Board was
empowered to recommit him as a CPV. The Board also had discretion to award or
deny credit for the time Baldwin spent on parole from 2003 to 2012.


              However, when the Board exercises its discretion to deny credit for
time spent at liberty on parole, it must state its reasons for doing so. Pittman v. Pa.
Bd. of Prob. & Parole, 159 A.3d 466 (Pa. 2017). The Board’s statement of reasons
need not be extensive; “a single sentence explanation is likely sufficient in most
instances.” Id. at 475 n.12. Nonetheless, the explanation must be sufficient to enable
a reviewing court to assess the Board’s exercise of discretion. Id. at 474. This Court
is able to perform such an assessment where the Board’s stated reason is accurate
and relates to the parolee’s conduct. See Marshall v. Pa. Bd. of Prob. & Parole (Pa.
Cmwlth., No. 172 M.D. 2018, filed August 24, 2018), 2018 Pa. Commw. LEXIS
746 (unreported).3 “There must be safeguards to ensure against arbitrary decision-


       3
         We cite this Court’s unreported decision in Marshall as persuasive authority pursuant to
210 Pa. Code §69.414(a).


                                               4
making.” Id., slip op. at 11 (citing Peak v. Unemployment Comp. Bd. of Review,
5015 A.2d 1383 (Pa. 1985)).


             The facts in this case closely parallel those in Marshall. Marshall
received a sentence of 11 to 22 years for third degree murder and robbery. He was
paroled 10 years later and remained at liberty for almost 9 years before he was
arrested and charged with drug-related offenses. The Board recommitted Marshall
as a CPV, and denied credit for his time at liberty on parole.


             The Board’s stated reason for denying credit was Marshall’s “‘felony
drug[-]related crimes.’” Id., slip op. at 2 (quoting record). Marshall, like Baldwin
here, challenged the adequacy and accuracy of the Board’s explanation. Marshall
argued the Board abused its discretion and violated the constitutional requirements
of Pittman by denying credit for time on parole “‘without conducting any individual
assessment of the facts and circumstances surrounding his parole revocation.’”
Marshall, slip op. at 8 (quoting Pittman, 159 A.3d at 474) (emphasis in Marshall).
This Court agreed.


             In Marshall, this Court cataloged a number of prior decisions where
brief statements by the Board were sufficient to enable assessment of the Board’s
exercise of discretion. See id., slip op. at 10. We distinguished those cases, however,
because “in none of the prior cases has the Board used as few words that have no
apparent relationship to the parolee.” Id., slip op. at 11 (emphasis added). Cf.
Vieldhouse v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 803 C.D. 2018, filed
March 1, 2019), slip op. at 2, 8-9, 2019 Pa. Commw. Unpub. LEXIS 116



                                          5
(unreported) (Board’s stated reason that “‘adjustment to supervision [was] poor’”
was sufficient where Board also “noted that [parolee] failed to inform his parole
agent that he changed residences, was laid off from his job, and was released from
an inpatient rehabilitation center, and that he did not attend a scheduled meeting with
the agent”; and additionally, parolee “went on a crime spree during his latest release
on parole” involving “a multitude of offenses” under four criminal dockets in two
counties, including “driving under the influence, forgery, home improvement fraud,
theft by unlawful taking, terroristic threats, and flight to avoid apprehension”).


             This Court in Marshall compared and distinguished Smoak v.
Pennsylvania Board of Probation & Parole, 193 A.3d 1160 (Pa. Cmwlth. 2018). In
Smoak, the Board denied credit for time on parole because of “unresolved drug and
alcohol issues.” Id. at 1163. That reason was adequate to enable assessment of the
Board’s exercise of discretion, because it “was accurate and related to the parolee’s
offenses.” Marshall, slip op. at 10. By contrast, in Marshall, we concluded “it
remains unclear how a drug-related conviction warrants denying credit for almost
nine years of street time, which is more than the sentence Marshall received for his
new conviction.” Id., slip op. at 9.


             We find the reasoning of Marshall persuasive here. The Board’s reason
for denying Baldwin credit for time on parole was stated in three words, “poor
supervision history.” C.R. at 90. This explanation is facially inconsistent with
Baldwin’s spotless record of compliance with parole supervision for almost nine
years, as documented by his parole supervisor, as well as the parole supervisor’s
express conclusion that Baldwin was “amenable to supervision.” C.R. at 25, 71. As



                                          6
in Marshall, the Board’s explanation “involve[s] an unexplained inaccuracy in the
stated reason,” in that it has “no apparent relationship to the parolee.” Marshall, slip
op. at 11. Without further individualized explanation, the Board’s stated reason for
denying credit is inadequate because it does not enable this Court to assess the
propriety of the Board’s exercise of discretion.


             Here, as in Marshall, a remand is necessary in order for the Board to
provide a statement of reasons that will “accurately reflect the facts informing its
decision.” Id., slip op. at 13. An accurate statement of reasons by the Board will
“ensure this Court has a proper decision, capable of review, before it.” Id., slip op.
at 12 (citing Newman Dev. Grp. of Pottstown, LLC v. Genuardi’s Family Mkts.,
Inc., 52 A.2d 1233 (Pa. 2012)). Therefore, we remand to allow the Board to explain
its exercise of discretion in its credit determination, as well as to correct any error in
exercising that discretion based on the facts and Baldwin’s individual circumstances.


                                    III. Conclusion
             Based on the foregoing, we vacate the Board’s order in part and remand
to the Board for the limited purpose of articulating the reasons for its credit
determination, based on the facts and Baldwin’s circumstances, and in accordance
with the requirements of Pittman.




                                         ROBERT SIMPSON, Judge




                                            7
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John Baldwin,                                :
                           Petitioner        :
                                             :
             v.                              :   No. 907 C.D. 2018
                                             :
Pennsylvania Board of Probation              :
and Parole,                                  :
                        Respondent           :


                                        ORDER

             AND NOW, this 2nd day of April, 2019, the portion of the order of the
Pennsylvania Board of Probation and Parole (Board) revoking parole is
AFFIRMED. The portion of the Board’s order denying credit for time spent at
liberty on parole is VACATED. This matter is REMANDED to the Board to issue
a new decision in order to explain its exercise of discretion in its credit determination
as to the time Petitioner John Baldwin spent at liberty on parole from October 2003
to August 2012, as well as to correct any error in exercising that discretion the Board
may discern based on the facts and Baldwin’s individual circumstances.


             Jurisdiction is relinquished.




                                         ROBERT SIMPSON, Judge
