        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Terry Lee Anderson,                      :
                                         :
                   Petitioner            :
                                         :
             v.                          :   No. 321 C.D. 2017
                                         :   Submitted: July 28, 2017
John Talaber, Esq., Secretary            :
and the Pennsylvania Board of            :
Probation and Parole,                    :
                                         :
                   Respondents           :


BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE JULIA K. HEARTHWAY, Judge1
             HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION BY
SENIOR JUDGE COLINS                                  FILED: September 20, 2017

             Terry Lee Anderson petitions this Court for review of the February
17, 2017 determination of the Pennsylvania Board of Probation and Parole
(Board), which denied his administrative appeal of a Board order that recommitted
him as a convicted parole violator to serve 18 months backtime. For the reasons
set forth below, we vacate the Board’s order and remand this matter to the Board
for further proceedings.
             On December 3, 2012, Anderson was released on parole from the
State Correctional Institution at Chester; at the time of his release, Anderson had
1,371 days remaining on his original sentence and a parole violation maximum

1
  This decision was reached before Judge Hearthway’s service with the Court ended on
September 1, 2017.
date of September 4, 2016. (Certified Record (C.R.) 4-6, 48.) On August 12,
2014, the Coatesville Police Department arrested Anderson on new charges. (C.R.
10-12.) Bail was set on these new charges on August 14, 2014, which Anderson
failed to post. (C.R. 15-16.) The Board issued a warrant to commit and detain
Anderson on August 18, 2014. (C.R. 21.)
              On March 3, 2015, Anderson pleaded guilty in the Court of Common
Pleas of Chester County to one count of manufacture, delivery or possession of a
controlled substance with intent to deliver.2 (C.R. 15, 17.) On the same date as his
guilty plea, Anderson was sentenced to 11 and ½ months to 23 months
incarceration in Chester County Prison. (C.R. 22, 24.)
              On March 16, 2015, the Board notified Anderson that it intended to
hold a revocation hearing based on his conviction on new charges. (C.R. 27.)
Anderson waived his right to a revocation hearing and counsel, and admitted his
conviction on new charges. (C.R. 28-31.) By a decision mailed July 24, 2015, the
Board recommitted Anderson to serve 18 months backtime when available
following his release of his county sentence. (C.R. 40-41.) Following Anderson’s
completion from his county sentence, Anderson was released into the Board’s
custody on July 14, 2016. (C.R. 45, 48.)
              By a decision mailed September 8, 2016, the Board referred to its
previous recommitment of Anderson to serve 18 months backtime and set
Anderson’s new parole violation maximum date at April 15, 2020. (C.R. 46-47.)
Petitioner, acting pro se, submitted an Administrative Remedies Form, including
an attached Administrative Appeal form, dated September 27, 2016 challenging
the Board’s September 8, 2016 decision (the September 27, 2016 appeal); this

2
 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
document was stamped as received by the Board on September 30, 2016. (C.R.
53-61.) Petitioner submitted a subsequent Administrative Appeal of the Board’s
decision dated September 28, 2016, which was stamped as received by the Board
on October 3, 2016 (the September 28, 2016 appeal). (C.R. 62-66.) The Board
affirmed its earlier deterimination in a February 17, 2017 letter, stating that it had
the authority to recalculate his parole violation maximum date and that, as a
convicted parole violator, he was not entitled to credit for any period he was at
liberty on parole. (C.R. 67.) Anderson filed a timely petition for review of the
Board’s decision.
              Anderson, now represented by counsel, presents one issue on appeal
to this Court, arguing that the Board erred in its recalculation of his parole
violation maximum date and failure to state any reason for denying him credit for
the time he spent at liberty on parole, or “street time.”3 Anderson cites our
Supreme Court’s recent decision in Pittman v. Pennsylvania Board of Probation
and Parole, 159 A.3d 466 (Pa. 2017), in which the Court held that, except in
certain explicitly excluded categories of crimes, Section 6138(a) of the Prisons and
Parole Code (Code), 61 Pa. C.S. § 6138, requires the Board to articulate the basis
for its decision to grant or deny a convicted parole violator credit for street time.4
              It is clear from our review that this case squarely falls under Pittman.
In Pittman, the Court addressed the effect of a 2012 amendment to Section 6138(a)
of the Code; prior to this amendment, recommitment without credit for street time

3
 See Dorsey v. Pennsylvania Board of Probation and Parole, 854 A.2d 994, 996 n.3 (Pa.
Cmwlth. 2004).
4
  Our scope of review is limited to determining whether constitutional rights were violated,
whether the adjudication was in accordance with law, and whether necessary findings were
supported by substantial evidence. 2 Pa. C.S. § 704; Davidson v. Pennsylvania Board of
Probation and Parole, 33 A.3d 682, 684 n.3 (Pa. Cmwlth. 2011).

                                             3
was mandatory. However, pursuant to the Act of July 5, 2012, P.L. 1050, language
was added to paragraph 2 and a new paragraph 2.1 was added to Section 6138(a)
giving the Board the discretion to give credit for time spent at liberty on parole
except where a parolee commits a crime of violence or a crime that requires
registration as a sexual offender under the Sexual Offender Registration and
Notification Act5 or where paroled subject to a federal removal order. The relevant
provisions of Section 6138 now read as follows:

                (a) Convicted violators.--
                (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

5
    Sections 9799.10 to 9799.41 of the Sentencing Code, 42 Pa. C.S. §§ 9799.10–9799.41.

                                                4
                    requiring registration under 42 Pa. C.S. Ch.
                    97 Subch. H (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) (emphasis added).
             In Pittman, the parolee, Kevin Pittman, was serving a two-to-four year
sentence with a maximum date of December 9, 2013 when he was paroled on
December 12, 2011. 159 A.3d at 468. In 2013, prior to the expiration of his
maximum date, Pittman was arrested and charged with various criminal offenses
and ultimately pleaded guilty to one count. Id. Pittman waived his right to a
parole revocation hearing, and the Board recommitted Pittman as a convicted
parole violator with no credit provided for street time. Id. at 468-69. On the
hearing report form, which is used by the Board to detail the circumstances
surrounding a parolee’s parole revocation, a line states “Credit time spent at liberty
on parole” with boxes for “Yes” and “No.” Id. at 469. The Board checked the
“No” box on Pittman’s hearing report form and the Board provided no further
explanation for its reason to deny him credit for street time. Id. Pittman filed a
petition for administrative review of the decision, and the Board affirmed,
concluding that “as a convicted parole violator [Pittman] automatically forfeited
credit for all of the time that [he] spent on parole.” Id.
             On appeal to the Supreme Court, the Court concluded that Section
6138(a)(2.1) of the Code clearly and unambiguously grants the Board discretion to
award a parolee recommitted as a convicted parole violator credit for street time,
except when the parolee is recommitted for the reasons stated in subparagraphs (i)
and (ii) of that provision. Id. at 473. Because Pittman was not recommitted under

                                           5
subparagraphs (i) or (ii), the Supreme Court held that the Board abused its
discretion when it stated in response to Pittman’s petition for administrative review
that it lacked discretion to give credit for street time. Id. at 473-74. Furthermore,
the Board concluded that, though Section 6138(a)(2.1) does not contain an explicit
requirement that the Board state its reasoning for granting or denying credit for
street time, the guarantee in the Pennsylvania Constitution of a right to appeal from
an administrative agency to a court of record6 and basic notions of due process
require that an appellate court hearing an administrative appeal must have a
method to assess the Board’s exercise of discretion.                 Id. at 474.      The Court
determined that checking “No” on the standard hearing report form was not
sufficient and would render appellate review an empty formality. Id. Instead, the
Court held that the Board must provide a contemporaneous statement explaining its
reason for denying street time credit to a parolee recommitted as a convicted parole
violator.7    Id. at 474-75.      The Supreme Court therefore vacated the Board’s
decision and remanded for further proceedings. Id. at 475.
               In this matter, the Board recommitted Anderson as a convicted parole
violator for the entire 1,371 days remaining on his original sentence as of his
December 3, 2012 parole with no credit given for the time he spent at liberty from
the date of his parole until his arrest on new charges in August 2014. The Board
did not provide any contemporaneous explanation for its decision to not provide

6
 Pa. Const. art 5, § 9 (“...there shall also be a right of appeal from a court of record or from an
administrative agency to a court of record or to an appellate court, the selection of such court to
be as provided by law....”).
7
  The Court explained in a footnote that its holding does not limit the Board’s broad discretion in
making decisions affecting parolees, including whether to grant credit for street time, and the
reason that the Board gives for its decision need not be lengthy, with a single sentence of
explanation often being sufficient. Pittman, 159 A.3d at 475 n.12.

                                                6
him credit and instead merely checked the “No” box on the section of the hearing
report form that asks if credit should be given for street time.                       (C.R. 34.)
Furthermore, Anderson did not commit a crime of violence or a crime requiring
registration as a sexual offender and therefore the disqualifying categories in
subparagraphs (i) or (ii) of Section 6138(a)(2.1) do not apply. Accordingly, the
Board was empowered with the discretion to award Anderson credit on his
recommitment for street time, and the Board abused its discretion by stating in its
February 17, 2017 denial of Anderson’s administrative appeal that he was not
entitled to credit for street time as a result of his recommitment as a convicted
parole violator. Pittman, 159 A.3d at 473-74. Furthermore, pursuant to Pittman,
the Board’s failure to issue a contemporaneous statement of its decision to deny
Anderson credit for street time constitutes an abuse of discretion. Id. at 475.
               Nevertheless, the Board argues that Anderson is not entitled to the
relief under Pittman for two reasons. First, the Board contends that Anderson
waived his right to challenge its failure to exercise discretion in recommitting him
without credit for street time by not raising the issue in his petition for
administrative relief. Issues that are not raised before the Board either at the
revocation hearing or in the parolee’s administrative appeal are waived and cannot
be considered for the first time on appeal. Section 703(a) of the Administrative
Agency Law, 2 Pa. C.S. § 703(a); Pa. R.A.P. 1551(a); Chesson v. Pennsylvania
Board of Probation and Parole, 47 A.3d 875, 878 (Pa. Cmwlth. 2012). In his
September 27, 2016 appeal,8 Anderson asserted that the Board made a reversible

8
  The Board asserts that Anderson waived his Pittman argument because he did not argue that the
Board abused its discretion by not providing credit for street time in the second September 28,
2016 appeal. (C.R. 62-66.) While Anderson’s second appeal does not contain an argument that
the Board failed to provide him credit for the time spent at liberty on parole, there was no finding
by the Board that this second appeal document was controlling and the Board stated in its
February 17, 2017 denial of Anderson’s appeal that it was responding to both his first and second
                                                 7
error in its “failure to credit time-spent in good-standing while on parole from
December 3, 2012, until his arrest and/or being taken into custody on new charges
on August 14, 2014.” (C.R. 57 (emphasis in original).) Anderson’s appeal further
argued that “the record does not show that Parolee had any...new nonviolent Act
122 of 2012 eligible charges to make him not in good-standing while on parole and
not entitled to credit for his street time spent in good-standing from the time of his
parole until the time of his new arrest.” (C.R. 58.) We conclude that this appeal
fairly encompasses the argument addressed in Pittman. While Anderson did not
specifically argue that the Board committed an abuse of discretion by failing to
give him credit for street time, Anderson argued that he was entitled to credit for
the period he spent in good standing while at liberty on parole, citing the 2012
amendment to the Code that added paragraph (2.1) and noting that he was not
recommitted for a criminal conviction of a criminal offense that would exclude
him from eligibility for credit. Furthermore, the fact that Anderson raised the issue
is evidenced by the Board’s February 17, 2017 denial of his appeal, in which it
explained that Anderson could not be given credit for street time because of the
fact that he was recommitted as a convicted parole violator. (C.R. 67.)
              The Board’s second argument is that the holding of the Supreme
Court in Pittman should not be applied retroactively to Anderson’s case. As the
Board acknowledges, the general rule when an appellate court recognizes a new
rule of law is that the decision is applied retroactively so that a party whose case is
pending on direct appeal is entitled to the benefit of the change in the law. In the
Interest of L.J., 79 A.3d 1073, 1087 (Pa. 2013); Walnut Street Associates, Inc. v.


appeals. (C.R. 67.) Furthermore, to the extent that the Board were to elect to reject one appeal
document over another, the Board maintains a procedural rule that authorizes it to ignore second
and subsequent appeals and related correspondence. 37 Pa. Code § 73.1(a)(4), (b)(3).

                                               8
Brokerage Concepts, Inc., 20 A.3d 468, 479 (Pa. 2011); Commonwealth v. Cabeza,
469 A.2d 146, 148 (Pa. 1983).        Whether a new rule is applied retroactively,
however, is a matter of judicial discretion that may be exercised on a case-by-case
basis. L.J., 79 A.3d at 1087; Walnut Street Associates, 20 A.3d at 479. In
considering whether to deviate from the general rule and only apply a new rule of
law prospectively, a court must consider: (i) the purpose of the new rule, (ii) the
extent of reliance by courts and litigants upon the old rule, and (iii) the effect the
new rule of law will have on the fair administration of justice. L.J., 79 A.3d at
1087; Kendrick v. District Attorney of Philadelphia County, 916 A.2d 529, 536
(Pa. 2007).
              However, prior to determining whether the Pittman ruling should be
limited to prospective application, we first must address as a threshold matter
whether the Supreme Court announced a new rule of law in that case.               The
Supreme Court announces a new rule of law when it “issues a ruling that overrules
prior law, expresses a fundamental break from precedent, upon which litigants may
have relied, or decides an issue of first impression not clearly foreshadowed by
precedent.” L.J., 79 A.3d at 1087 (quoting Fiore v. White, 757 A.2d 842, 847 (Pa.
2000)). In cases where the Supreme Court is construing a statute, a new rule of
law is not created where the decision “adopts a view of the statute which was not
wholly without precedent” or it involves the Court’s first opportunity to construe
the provision at issue. Kendrick, 916 A.2d at 537 (quoting Commonwealth v.
Eller, 807 A.2d 838, 844 (Pa. 2002)); see also Fiore, 757 A.2d at 847-48. In cases
where the Supreme Court is issuing its first ruling interpreting the specific statute,
the Court’s “first pronouncement on the substance of a statutory provision is purely
a clarification of existing law” and the construction of the statute by the Court
becomes a part of that statute from its enactment. Kendrick, 916 A.2d at 537
                                          9
(quoting Eller, 807 A.2d at 844); see also Fiore, 757 A.2d at 848. Furthermore,
the fact that the Supreme Court decision overrules established intermediate
appellate court precedent is irrelevant; as the Supreme Court has explained, if the
decision in question “did not overrule, modify, or limit any previous case from
this Court on the question,” then the decision did not announce a new rule of law.
Kendrick, 916 A.2d at 538 (quoting Eller, 807 A.2d at 844) (emphasis in original).
             In Pittman, the Supreme Court addressed the statutory language of
Section 6138(a)(2.1) of the Code which provides that the Board “may, in its
discretion, award credit to a parolee recommitted under paragraph (2) for the time
spent at liberty on parole” except where a parolee commits a crime of violence, a
crime that requires registration as a sexual offender or where he is paroled subject
to a federal removal order. The Supreme Court had never before interpreted
paragraph 2.1 of Section 6138(a), which was added to the Code in 2012. While the
Supreme Court’s decision in Pittman overruled an en banc decision of this Court,
see Pittman v. Pennsylvania Board of Probation and Parole, 131 A.3d 604 (Pa.
Cmwlth. 2016) (en banc), and implicitly overruled other decisions of this Court
that had arrived at the same result, see, e.g., Torres v. Pennsylvania Board of
Probation and Parole, (Pa. Cmwlth., No. 1090 C.D. 2014, filed Apr. 10, 2015), the
prior precedent of this Court is irrelevant to the issue of whether the Supreme
Court announced a “new rule of law” in Pittman. Because our Supreme Court’s
ruling in Pittman was the Court’s first ruling on the issue, it was not a new rule of
law which could be applied only prospectively for cases brought after the date of
that decision and instead clarified the legislative meaning of paragraph 2.1 existing
from the date it was first added to the Code in 2012. See Kendrick, 916 A.2d at
535-39 (holding that an earlier Supreme Court decision interpreting the term
“enterprise” from the Pennsylvania Corrupt Organizations Act (Pa. C.O.A.) was
                                         10
the first instance in which the Court had addressed that question at issue and
therefore the earlier ruling did not announce a new rule of law and “must be
deemed to have merely explicated the meaning and scope of the term from the Pa.
C.O.A.’s original enactment in 1973”); Fiore, 757 A.2d at 846-49 (holding that
earlier Supreme Court decision which interpreted a criminal provision in the Solid
Waste Management Act for the first time did not create a new rule of law but only
clarified the meaning of that statute and furnishes the proper statement of law for
the conviction under review in the latter case).
             Accordingly, we conclude that the Board erred in determining that it
lacked discretion to award credit for time spent at liberty on parole and abused its
discretion under Section 6138(a)(2.1) of the Code by failing to conduct an
individualized assessment of the facts related to Anderson’s recommitment and
failing to provide a contemporaneous statement describing its reason for denying
his street time credit. We therefore remand this matter to the Board for further
proceedings consistent with the Supreme Court’s opinion in Pittman.




                                     __________ ___________________________
                                     JAMES GARDNER COLINS, Senior Judge




                                         11
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Terry Lee Anderson,                      :
                                         :
                  Petitioner             :
                                         :
            v.                           :   No. 321 C.D. 2017
                                         :
John Talaber, Esq., Secretary            :
and the Pennsylvania Board of            :
Probation and Parole,                    :
                                         :
                  Respondents            :



                                   ORDER


            AND NOW, this 20th day of September, 2017, the order of the
Pennsylvania Board of Probation and Parole (Board) in the above-captioned matter
is VACATED and this matter is REMANDED to the Board to consider whether
Petitioner should receive credit for time at liberty on parole in conformity with
Pittman v. Pennsylvania Board of Probation and Parole, 159 A.3d 466 (Pa. 2017).
            Jurisdiction relinquished.



                                    __________ ___________________________
                                    JAMES GARDNER COLINS, Senior Judge
