            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kalief Regan,                              :
                     Petitioner            :
                                           :
       v.                                  : No. 222 C.D. 2020
                                           : SUBMITTED: July 24, 2020
Pennsylvania Board of                      :
Probation and Parole,                      :
                  Respondent               :

BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                                 FILED: August 27, 2020

       Petitioner Kalief Regan (Regan) petitions for review of the Pennsylvania
Board of Probation and Parole’s (Board) January 31, 2020 ruling,1 in which the
Board affirmed decisions it had issued on November 15, 2019, and December 13,
2019,2 as modified by the Board’s subsequent January 22, 2020 decision. Through
these decisions, the Board mandated that Regan serve 12 months of backtime as a
convicted parole violator (CPV), gave him no credit for time served at liberty on
parole, and recalculated his maximum parole violation date as August 22, 2022. C.R.
at 46-47, 52, 55. Regan claims the Board failed to properly calculate the credit he

       1
        Subsequent to Regan filing his Petition for Review, the Pennsylvania Board of Probation
and Parole was renamed the Pennsylvania Parole Board. See Sections 15, 16, and 16.1 of the Act
of December 18, 2019, P.L. 776, No. 115 (effective February 18, 2020); see also Sections 6101
and 6111(a) of the Prisons and Parole Code, as amended, 61 Pa. C.S. §§ 6101, 6111(a).

       2
          Neither of these decisions is stamped with a mailing date, although the November 15,
2019 decision contains notations indicating that it was personally delivered to Regan by
“institutional parole staff” on November 20, 2019. See Certified Record (C.R.) at 46-47, 52.
was due towards this sentence and, by extension, incorrectly recalculated his
maximum date. Regan’s Br. at 8-12. Upon review, we affirm.
                         I. Facts and Procedural History
      Regan pled guilty in the Court of Common Pleas of Philadelphia County (Trial
Court) to multiple robbery and firearms-related crimes. On April 29, 2013, the Trial
Court sentenced him to a term of three to seven years in state prison. C.R. at 1-2.
The Board paroled Regan on March 16, 2016. At that point, the maximum date on
his April 2013 sentence was November 28, 2019 (i.e., 1352 days). Id. at 3-11.
      On May 18, 2018, Regan was arrested in Philadelphia, Pennsylvania, by
United States Marshals as a fugitive wanted by the Atlanta, Georgia, Police
Department. Id. at 12. On May 22, 2018, Regan was indicted in Fulton County,
Georgia, on multiple robbery, fraud, and firearms-related charges (Fulton County
charges); he was extradited to Fulton County on August 7, 2018. Id. at 14, 32. As a
result, on August 20, 2018, the Board issued a warrant for Regan’s arrest. Id. at 15.
On November 14, 2018, Regan pled guilty to two counts of fraud in relation to the
Fulton County charges and was sentenced to two years’ probation. Id. at 20-24.
      On November 16, 2018, following his release from Fulton County Jail, Regan
was arrested by the DeKalb County, Georgia, Sheriff’s Office and charged with three
additional counts of fraud (DeKalb County charges). Id. at 32. On February 20, 2019,
Regan was released on bail in relation to the DeKalb County charges. Id. On April
26, 2019, Regan notified the Board of his Fulton County guilty plea, as well as the
pending DeKalb County charges. Id.
      On June 11, 2019, Regan was arrested by the Board. Id. On June 24, 2019,
Regan waived his right to a parole revocation hearing, as well as to counsel, and
admitted to the veracity of his Fulton County conviction. Id. at 27-29. On July 23,



                                         2
2019, the Board ordered Regan to serve 12 months of backtime as a CPV, when
available, pending resolution of the DeKalb County charges. The Board also
recalculated the maximum date on Regan’s April 2013 sentence as February 24,
2023. Id. at 41-42.3
       On July 29, 2019, Regan sent an administrative remedies form to the Board,
in which he argued that the Board had unlawfully extended his judicially imposed
sentence through its July 23, 2019 decision. Id. at 56, 66. On August 13, 2019, Regan
sent a letter to the Board challenging the amount of backtime imposed by the Board.
Id. at 57, 66.4 In addition, he claimed that the Board lacked jurisdiction to issue its
July 23, 2019 decision and that the Board had violated his constitutional rights to
due process and against double jeopardy. Id. On September 19, 2019, the Superior
Court of DeKalb County issued a “Dead Docket Order” acknowledging that Regan
was in the Board’s custody and stating that he would not be extradited at that point
in time to face the charges pending against him in DeKalb County. Id. at 43. On
October 24, 2019, Richard Henry, Esquire (Counsel) notified the Board that he was




       3
          This decision is not stamped with a mailing date, but does contain notations indicating
that it was personally delivered to Regan by “institutional parole staff” on July 25, 2019. C.R. at
41.

       4
         This letter, as presented in the record, is a single page, and its substance cuts off abruptly
mid-sentence at the bottom of that page. C.R. at 57. It is not clear whether the record is incomplete
or whether this constitutes the entirety of Regan’s letter. However, as this letter constitutes an
impermissible second administrative challenge to the Board’s July 23, 2019 decision, and the
Board’s January 31, 2020 ruling did not address the July 23, 2019 decision, this issue is immaterial.
See 37 Pa. Code § 73.1(a)(4), (b)(3) (Board regulation barring second or subsequent administrative
appeals and petitions for administrative review).




                                                  3
now representing Regan and was seeking an administrative appeal nunc pro tunc
from the Board’s July 23, 2019 decision. Id. at 58, 65.5
       The Board then issued its November 15, 2019 decision. The Board reiterated
its previous decision imposing 12 months of CPV backtime on Regan. In addition,
the Board declined to award Regan any credit for street time and recalculated the
maximum date on his April 2013 sentence as July 28, 2022. Id. at 46-47. On
November 25, 2019, Regan mailed another administrative remedies form to the
Board, through which he argued, in general terms, that the Board had abused its
discretion in its November 15, 2019 decision by declining to give him credit for
street time. Id. at 60-65.
       On December 13, 2019, the Board modified its November 15, 2019 decision,
explaining its refusal to award Regan any credit for street time: “Inmate does not
deserve [credit for] time [served] at liberty based on prior criminal history.” Id. at
52. On December 24, 2019, Regan sent yet another administrative remedies form to
the Board, in which he challenged the Board’s December 13, 2019 decision and
again argued that the Board had abused its discretion by declining to give him credit
for street time. Id. at 67-70. Regan claimed the Board’s decision to deny him street
time credit based on his “prior criminal history” did not provide a legally permissible
reason for denying such credit. Id. at 68-69.
       On January 24, 2020, the Board modified its December 13, 2019 decision by
restating the maximum date on Regan’s April 2013 sentence as August 22, 2022;




       5
         It is unclear why Counsel thought it necessary to do so, given that the Board had already
received Regan’s timely administrative remedies form on July 31, 2019.



                                                4
according to the Board, it had previously misstated Regan’s maximum date due to
“technician error[.]” Id. at 55.6
       On January 31, 2020, the Board affirmed its November 15, 2019 and
December 13, 2019 decisions.7 Id. at 71-73.
       On February 19, 2020, Regan sent another administrative remedies form to
the Board. Regan argued that the Board had erred in its January 24, 2020 decision
by revoking street time credit that it had previously awarded to him. According to
Regan, the only time period for which the Board could have lawfully declined to
award him street time was between February 20, 2019, the date of his release from
incarceration in DeKalb County, and June 11, 2019, the date the Board arrested him
in Philadelphia. Id. at 75-78. The Board responded via letter on an unspecified date,8
informing Regan that its January 31, 2020 ruling had been final and that his most
recent administrative remedies form was therefore not allowed by law. Id. at 79. The
Board stated that it would take no additional action regarding his February 19, 2020
administrative remedies form and that he could appeal the January 31, 2020 ruling
to this Court. Id.9



       6
          This decision is not stamped with a mailing date and it is unclear from the record when
exactly it was sent to or received by Regan. See C.R. at 55.

       7
          The Board did not address in this ruling either its July 23, 2019 decision or Regan’s
administrative challenges thereto. See C.R. at 70-73. However, Regan does not raise this as an
issue in his Petition for Review.

       8
         We are extremely troubled by how the Board repeatedly failed to provide us with evidence
establishing precisely when certain decisions and rulings were mailed to Regan. We admonish the
Board and direct it to studiously avoid similar mistakes in the future.

       9
           Regan has not indicated whether he petitioned for review of the Board’s undated ruling.



                                                 5
       On March 2, 2020, Regan filed his Petition for Review with this Court.10
                                           II. Discussion
       Regan claims the Board was without the legal authority to deny him street
time credit for the time period between March 16, 2016, and May 18, 2018, i.e.,
between the date when he was originally paroled by the Board from his April 2013
sentence and the date when he was subsequently arrested in Philadelphia on the
Fulton County charges. Regan’s Br. at 8-12. Regan cites Young v. Pennsylvania
Board of Probation & Parole, 225 A.3d 810 (Pa. 2020), in support of his argument.
He maintains that Young bars the Board from “rescind[ing] a previous grant of credit
for time spent at liberty on parole[,]” such that credit toward his April 2013 sentence
for that window of street time is “untouchable[.]” Id. at 11.
       However, Regan failed to raise this specific argument in either of the
administrative remedies forms that the Board addressed in its January 31, 2020
ruling. A party may not assert an issue on appeal unless he has first raised it at the
administrative level.11 2 Pa. C.S. § 703(a); Pa. R.A.P. 1551; McCaskill v. Pa. Bd. of
Prob. & Parole, 631 A.2d 1092, 1094-95 (Pa. Cmwlth. 1993). Though Regan did
administratively challenge through these forms the Board’s denial of street time
credit, he did not argue, either expressly or by implication, that the Board had
unlawfully revoked street time credit it had previously awarded to him. See C.R. at
56, 60-64. Therefore, as Regan did not make this argument until his February 19,
2020 administrative remedies form, he has waived it and cannot raise it now to attack
the Board’s January 31, 2020 ruling. See Headley v. Pa. Bd. of Prob. & Parole (Pa.

       10
           Regan’s appeal was filed 31 days after the Board’s ruling. However, his appeal was
timely, as the final day of the appeal window fell on a Sunday and the appeal was filed on the first
business day thereafter. See Pa. R.A.P. 1512(a); Pa. C.S. § 1908.

       11
            There are several exceptions to this rule, none of which is applicable to this matter.


                                                   6
Cmwlth., No. 2553 C.D. 2015, filed May 2, 2017), slip op. at 5-6, 2017 WL
1629441, at *2-*3 (challenging the Board’s sentence credit determination through
administrative remedies form only preserves for appellate review those issues
expressly or impliedly flowing from the wording used by the parole violator on his
form).12
       Furthermore, had we reached the merits of this argument, we would have
found it meritless. The mere fact that an individual is paroled and then subsequently
arrested again does not, by itself, prevent the Board from denying street time credit
for the intervening time period. Moreover, the Board never awarded Regan street
time credit for the time period between March 16, 2016, and May 18, 2018, so Young
is inapposite.
                                     III. Conclusion
       As Regan has waived the sole issue he raised in his appellate brief, we affirm
the Board’s January 31, 2020 ruling that affirmed its November 15, 2019, and
December 13, 2019 decisions, as modified.

                                          __________________________________
                                          ELLEN CEISLER, Judge




       12
           See Commonwealth Court Internal Operating Procedure § 414(a), 210 Pa. Code §
69.414(a) (unreported Commonwealth Court opinions issued after January 15, 2008, may be cited
for their persuasive value).


                                             7
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kalief Regan,                       :
                  Petitioner        :
                                    :
      v.                            : No. 222 C.D. 2020
                                    :
Pennsylvania Board of               :
Probation and Parole,               :
                  Respondent        :


                                  ORDER


      AND NOW, this 27th day of August, 2020, the January 31, 2020 ruling of the
Pennsylvania Board of Probation and Parole (Board), through which the Board
affirmed its November 15, 2019, and December 13, 2019 decisions, as modified by
the Board’s subsequent January 22, 2020 decision, is AFFIRMED.

                                    __________________________________
                                    ELLEN CEISLER, Judge
