              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Cole J. Kazickas,                          :
                     Petitioner            :
                                           :
              v.                           :
                                           :
Pennsylvania Board                         :
of Probation and Parole,                   :      No. 214 C.D. 2019
                   Respondent              :      Submitted: October 18, 2019


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION BY
JUDGE COVEY                                       FILED: February 7, 2020


              Cole J. Kazickas (Kazickas) petitions this Court for review of the
Pennsylvania Board of Probation and Parole’s (Board) January 30, 2019 order
denying his request for administrative relief.1 The sole issue before this Court is
whether the Board erred by denying Kazickas credit for time served on parole in good
standing when recommitting him as a convicted parole violator (CPV) after
previously recommitting him as a technical parole violator (TPV) with street time
credit during the same parole period. After review, we affirm.
              Kazickas is currently an inmate incarcerated at the State Correctional
Institution (SCI) at Dallas. On August 2, 2012, Kazickas was sentenced to 1 year, 5
months and 8 days to 3 years and 11 months for violating his drug certification


       1
         Kazickas filed his petition for review pro se; however, on March 22, 2019, William E.
Moore, Esquire (Counsel) entered his appearance on Kazickas’ behalf and filed an appellate brief.
Counsel also filed the Board’s Certified Record as the Reproduced Record. Because the proposed
Reproduced Record is not numbered in accordance with Pennsylvania Rule of Appellate Procedure
2173 (relating to pagination), references herein are made to the Certified Record.
program and possessing drug paraphernalia (Original Sentence).                       See Certified
Record (C.R.) at 2, 7.          On November 30, 2012, Kazickas was sentenced to a
concurrent term of 11 months and 8 days to 2 years and 11 months for drug
possession and escape from detention. See C.R. at 2, 7.
                On November 6, 2013, the Board voted to parole Kazickas from his
Original Sentence. See C.R. at 4-6. He was released on parole on January 13, 2014.
See C.R. at 8. At that time, his maximum release date was July 2, 2016. See C.R. at
170.       As a condition of his parole, Kazickas signed and, therefore, agreed to
Conditions of Parole/Reparole (Parole Conditions), including, inter alia:

                2. Your approved residence . . . may not be changed without
                the written permission of the parole supervision staff.
                ....
                7. . . . If you are arrested on new criminal charges, the
                Board has the authority to lodge a detainer against you
                which will prevent your release from custody, pending
                disposition of those charges, even though you may have
                posted bail or been released on your own recognizance from
                those charges.
                If you violate a condition of your parole/reparole and, after
                the appropriate hearing(s), the Board decides that you are in
                violation of a condition of your parole/reparole[,] you may
                be recommitted to prison for such time as may be specified
                by the Board.
                If you are convicted of a crime committed while on
                parole/reparole, the Board has the authority, after an
                appropriate hearing, to recommit you to serve the balance of
                the sentence or sentences which you were serving when
                paroled/reparoled, with no credit for time at liberty on
                parole [(i.e., street time)2].




       2
         “Street time” refers to “the period of time a parolee spends at liberty on parole.” Dorsey v.
Pa. Bd. of Prob. & Parole, 854 A.2d 994, 996 n.3 (Pa. Cmwlth. 2004).
                                                  2
C.R. at 9; see also C.R. at 9-11. The Parole Conditions also prohibited Kazickas
from consuming or possessing alcohol and/or controlled substances. See C.R. at 10.
             On October 7, 2015, Kazickas was arrested in Bucks County and
charged with driving under the influence of a controlled substance (Bucks County
Charges). See C.R. at 14-18. On October 8, 2015, the Board lodged a 48-hour
detainer against Kazickas, and he was placed in Bucks County Prison. See C.R. at
12. On October 13, 2015, Kazickas was released from Bucks County Prison with
instructions to report to his parole agent at the Allentown District Office. See C.R. at
52.
             On October 29, 2015, the Board declared Kazickas delinquent effective
October 27, 2015 because he did not report to his parole agent. See C.R. at 13. That
same day, Kazickas reported to the Allentown District Office, tested positive for
controlled substances and was taken to Lackawanna County Prison for
detoxification.3 See C.R. at 52. Kazickas was transferred to an in-patient treatment
center on November 10, 2015. See C.R. at 52. On January 22, 2016, Kazickas was
moved to the Allentown Community Corrections Center (CCC). See C.R. at 52.
After Kazickas absconded from the CCC, the Board declared Kazickas delinquent
effective February 19, 2016. See C.R. at 22, 52.
             On April 13, 2016, the Hellertown Police Department arrested Kazickas
on charges of corruption of a minor, endangering the welfare of a child, recklessly
endangering another person, and possession of controlled substances and drug
paraphernalia (Northampton County Charges). See C.R. at 41-45. He did not post
bail on his Northampton County Charges. See C.R. at 46. On April 20, 2016, the
Board issued a warrant to commit and detain Kazickas, and he was placed in Lehigh
County Prison. See C.R. at 23, 46. On April 25, 2016, the Board ordered that

      3
         The Board cancelled the delinquency when Kazickas reported to the Allentown District
Office on October 29, 2015. See C.R. at 13.
                                             3
Kazickas be detained at Lehigh County Prison pending disposition of his
Northampton County Charges. See C.R. at 24.
               On April 27, 2016, the Board served Kazickas with a Notice of Charges
for violating his Parole Conditions by absconding from his approved residence at the
CCC. See C.R. at 36. That same day, Kazickas admitted to the parole violation and
waived his right to counsel and panel and detention hearings. See C.R. at 25-27. On
May 27, 2016, the second panel member voted to recommit Kazickas as a TPV.4 See
C.R. at 25-52.
               By decision recorded June 1, 2016 (mailed June 8, 2016), the Board
formally recommitted Kazickas as a TPV to serve his unexpired term, and
recalculated Kazickas’ Original Sentence as follows: “PAROLE VIOLATION MAX DATE
[(i.e., JULY 2, 2016)] WITH DELINQUENCY TIME [(i.e., 61 DAYS FROM FEBRUARY 19 TO
APRIL 20, 2016)]     ADDED IS    [SEPTEMBER 1,] 2016,       SUBJECT TO CHANGE IF CONVICTED

OF PENDING CRIMINAL CHARGES.”5            C.R. at 54; see also C.R. at 55-57. The Board’s
June 1, 2016 Order to Recommit reflected that Kazickas forfeited “0[] D[ays]” of
prior parole liberty. C.R. at 56. Thus, Kazickas lost time for the period he was
delinquent, but did not lose credit at that time for the period he spent on parole in
good standing between his January 13, 2014 parole release date and when he was
confined on the Bucks County Charges on October 7, 2015. See C.R. at 170.


       4
          Section 6113(b) of the Prisons and Parole Code states, in relevant part: “The [B]oard may
make decisions on . . . revocation in panels of two persons. A panel shall consist of one board
member and one hearing examiner or of two board members.” 61 Pa.C.S. § 6113(b). “[T]he date
that the revocation and recommitment Hearing Report was signed by the second panel member
thereby effectively revok[ed] [Kazickas’] parole . . . .” Wilson v. Pa. Bd. of Prob. & Parole, 124
A.3d 767, 769 n.3 (Pa. Cmwlth. 2015).
        5
          “It is well-settled law that the Board retains jurisdiction to recommit an individual as a
parole violator after the expiration of the maximum term, so long as the crimes that lead [sic] to the
conviction occurred while the individual is on parole.” Miskovitch v. Pa. Bd. of Prob. & Parole, 77
A.3d 66, 73 (Pa. Cmwlth. 2013); see also Reavis v. Pa. Bd. of Prob. & Parole, 909 A.2d 28, 34 (Pa.
Cmwlth. 2006).
                                                  4
            The Board released Kazickas from his detainer upon reaching his
maximum sentence date on September 1, 2016. See C.R. at 86. On September 2,
2016, Kazickas’ parole supervisors executed a Criminal Arrest and Disposition
Report for the Board to declare Kazickas delinquent for control purposes. See C.R. at
58-62. On September 8, 2016, the Board declared Kazickas delinquent for control
purposes as of October 7, 2015, when he was arrested on the Bucks County Charges.
See C.R. at 63.
            On September 23, 2016, Kazickas entered into a negotiated plea
regarding his Northampton County Charges, pleading guilty to endangering the
welfare of a child, possession of a controlled substance and making false reports. See
C.R. at 64-80. On October 6, 2016, the Board re-lodged its warrant to commit and
detain Kazickas, stating: “Although [Kazickas’] original maximum sentence was
[September 1,] 2016, the maximum sentence is being extended due to a new
conviction. The new maximum sentence will be computed upon recording of the
Board’s final action.” C.R. at 75.
            On October 20, 2016, the Board served Kazickas with a Notice of
Charges based upon his Northampton County Charges conviction.         See C.R. at 81.
That same day, Kazickas admitted to the conviction and waived his right to counsel
as well as panel and detention hearings. See C.R. at 81-89. On November 8, 2016,
the second panel member voted to recommit Kazickas as a CPV to serve his
unexpired term, without credit for time spent at liberty in good standing on parole,
because Kazickas “was involved in a relationship with the minor victim of the CPV
offense[,] . . . [the minor] overdosed on heroin, and was unresponsive[] at the time
police responded.” C.R. at 97; see also C.R. at 90-97. On November 9, 2016,
Kazickas was sentenced to 12 to 24 months of incarceration in an SCI for the
Northampton County Charges, followed by 12 months of supervision, with credit for
time served. See C.R. at 98-113.
                                          5
               On October 26, 2016, Kazickas pled guilty to the Bucks County Charges
and was sentenced to one year and six months of probation. See C.R. at 114-130. On
November 22, 2016, the Board served Kazickas with a Notice of Charges based upon
his Bucks County Charges conviction.                See C.R. at 131. That same day, Kazickas
admitted to the conviction and waived his right to a panel hearing. See C.R. at 132,
140. On December 12, 2016, the panel voted to recommit Kazickas as a CPV to
serve his unexpired term, without credit for time spent at liberty on parole, because
Kazickas “has an additional conviction for [e]ndangering the [w]elfare of [c]hildren,
[p]ossession of a [c]ontrolled substance and [f]alse [r]eports. . . . These reasons also
explain why the presumptive range of 3-12 m[onths] is not recommended and [an]
unexpired term is recommended.”                C.R. at 148; see also C.R. at 141-150. On
November 30, 2016, Kazickas was transferred to SCI-Graterford.
               By decision recorded December 27, 2016 (mailed February 21, 2017),
the Board referred to and modified its June 1, 2016 action (mailed June 8, 2016;
recommitting Kazickas as a TPV) as previously specified to also formally recommit
Kazickas as a CPV to serve his unexpired term (i.e., “2                       YEARS,   4      MONTHS

CONCURRENTLY         FOR    A   TOTAL     OF    2    YEARS   [AND] 4     MONTHS      BACKTIME.”)

(Recommitment Decision). C.R. at 152; see also C.R. at 149-153. The Board
recalculated Kazickas’ Original Sentence maximum release date to March 12, 2019.6
See C.R. at 149, 152.
               On March 10, 2017, Kazickas submitted an Administrative Remedies
Form appealing from the Recommitment Decision alleging, inter alia, that: (1)
although he maxed out his sentence, new criminal convictions resulted in the Board
rescinding his street time and recalculating his maximum sentence release date; (2)
the Board erred by exceeding the presumptive ranges; and (3) the Board abused its


      6
          According to the parties, Kazickas nevertheless remains in custody at SCI-Dallas.
                                                    6
discretion by failing to credit his sentence for time he spent at liberty on parole.7 See
C.R. at 154-155.
               By decision recorded January 11, 2019 (mailed January 16, 2019), the
Board referred to its Recommitment Decision and recommitted Kazickas as a TPV to
serve his unexpired term, and stated that “THE         BOARD IN ITS DISCRETION DID NOT

AWARD CREDIT TO YOU FOR THE TIME SPENT AT LIBERTY ON PAROLE FOR THE

FOLLOWING REASON:       -- UNRESOLVED DRUG AND ALCOHOL ISSUES.” C.R. at 163; see
also C.R. at 164. By January 30, 2019 letter, the Board responded to Kazickas’
administrative appeal as follows:

              First, the Board recalculated your maximum sentence date
              to March 12, 2019, based on your recommitment as a
              [CPV]. The decision to recommit you as a [CPV] gave the
              Board statutory authority to recalculate your sentence to
              reflect that you received no credit for the period you were at
              liberty on parole. 61 Pa.C.S. § 6138(a)(2). The Board
              denied you credit for time at liberty on parole in this
              instance. The Board advised you of this potential penalty
              on the parole conditions you signed on January 10, 2014.
              You also had constructive notice of this potential penalty
              via the statute. Additionally, the ability to challenge the
              recalculation decision after it is imposed satisfies your due
              process rights. Therefore, the Board’s recalculation of your
              maximum sentence date did not violate any constitutional
              provisions, including double jeopardy.
              Next, the Board recommitted you to serve your unexpired
              term of 2 years, 4 months for the offenses in question. The
              presumptive ranges assigned to these offenses are as
              follows, based on [Sections 75.1 and 75.2 of the Board’s
              Regulations,] 37 Pa. Code §§ 75.1-75.2:
                   • Endangering the Welfare of Children
                   (M[isdemeanor (M)] l) = 12 to 18 months

       7
         Kazickas also notified the Board that it was using an incorrect SCI number for him. See
C.R. at 154. The Board corrected the error by decision recorded on April 12, 2017. See C.R. at
161. In addition, on May 1, 2018, the Board denied Kazickas’ reparole request based on reported
misconducts and his unsatisfactory parole supervision history. See C.R. at 162.
                                               7
                   • Intentional Possession of a Controlled Substance
                   (M) = 3 to 6 months
                   • False Reports - Reported Offense Did Not Occur
                   (M2) = 3 to 6 months
                   • [DUI] (M) = 3 to 6 months
                   • Use/Possession of Drug Paraphernalia (M) = 3 to 6
                   months
            Adding these terms together gave the Board a maximum
            term of 42 months. 37 Pa. Code § 75.2. Therefore the
            decision for you to serve 2 years, 4 months, falls within the
            presumptive range and is not subject to challenge. Smith v.
            P[a.] B[d.] of Prob[.] [&] Parole, 574 A.2d 558 (Pa. 1990).
            Finally, the decision on whether to grant or deny a [CPV]
            credit for time at liberty on parole is purely a matter of
            discretion. The Prisons and Parole Code [(Parole Code)]
            authorizes the Board to grant or deny credit for time at
            liberty on parole for certain criminal offenses. 61 Pa.C.S. §
            6138(a)(2.1). To the extent that you claim the Board
            abused its discretion by not having an adequate reason to
            deny you credit for the time you spent at liberty on parole,
            your request for relief is granted. On January 16, 2019, the
            Board mailed you a new [B]oard action providing a reason
            for why you were denied credit for the time you spent at
            liberty on parole. In this case the reasoning provided was
            that you have unresolved drug and alcohol issues.
            Accordingly, the [B]oard action [recorded December 27,
            2016 (]mailed February 21, 2017[)], is AFFIRMED as to
            the Board’s authority to recalculate your sentence and the
            recommitment term imposed. To the extent you claim the
            Board abused its discretion and failed to state a reason for
            not awarding credit for time at liberty on parole, your
            request for relief is GRANTED, and the new [B]oard action
            was mailed on January 16, 2019.

C.R. at 165-166.
            By decision recorded March 29, 2019 (mailed April 2, 2019), “DUE TO
RECEIPT OF ADDITIONAL INFORMATION,”       the Board modified its December 27, 2017,
April 12, 2018 and January 11, 2019 actions “BY       CHANGING [KAZICKAS’] PAROLE

                                           8
VIOLATION MAX DATE TO NOW READ: [MARCH] 7[,] 2019,”                 and modified its December
27, 2016 action (mailed February 21, 2017) by changing the recommitment portion to
now read: “RECOMMIT TO A[N] [SCI] AS A [CPV] TO SERVE YOUR UNEXPIRED TERM OF 2
YEARS,       3 MONTHS, 25 DAYS, CONCURRENTLY, FOR A TOTAL OF YOUR UNEXPIRED TERM
OF   2   YEARS,   3   MONTHS,   25   DAYS.”8   C.R. at 168; see also C.R. at 169-171. The
Board’s March 29, 2019 Order to Recommit reflected that Kazickas forfeited “0[]
D[ays]” of prior parole liberty. C.R. at 170. Kazickas appealed to this Court.9
                  Kazickas’ sole argument in this appeal is that, in light of this Court’s
holding in Penjuke v. Pennsylvania Board of Probation & Parole, 203 A.3d 401 (Pa.
Cmwlth. 2019), the Board erred by forfeiting his street time credit upon his
recommitment as a CPV following his recommitment as a TPV with credit for time
served on parole in good standing.10 The Board rejoins that “Penjuke does not apply
to this case because the criminal conduct that led to [Kazickas’] recommitment as a
[CPV] occurred during the same period of parole as the violation that led to his
recommitment as a [TPV].” Bd. Br. at 8. This Court agrees with the Board.
                  Section 6138 of the Parole Code provides, in relevant part:

                  (a) Convicted violators.--
                  (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

         8
          Based on the record, the Board credited Kazickas five days from April 20 to April 25,
2016, when he was held on the Board’s detainer. See C.R. at 170.
       9
          “Our scope of review of the Board’s decision denying administrative relief is limited to
determining whether necessary findings of fact are supported by substantial evidence, an error of
law was committed, or constitutional rights have been violated.” Fisher v. Pa. Bd. of Prob. &
Parole, 62 A.3d 1073, 1075 n.1 (Pa. Cmwlth. 2013).
       10
           Kazickas concludes that, since the Board cannot later revoke street time credit previously
awarded, he completed his Original Sentence on September 1, 2016, and his one- to two-year
sentence for the Northampton County Charges expired, thus, he should be released from prison
immediately.
                                                 9
found guilty . . . at any time thereafter in a court of record,
may at the discretion of the [B]oard 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 [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 [Sentencing Code]
    Subch. H (relating to registration of sexual
    offenders).
....
(c) Technical violators.--
(1) A parolee under the jurisdiction of the [B]oard who
violates the terms and conditions of his parole, . . . may be
detained pending a hearing before the [B]oard or waiver of
the hearing or recommitted after a hearing before the
[B]oard or a waiver of the hearing.
....
(2) If the parolee is recommitted under this subsection, the
parolee shall be given credit for the time served on parole in
good standing but with no credit for delinquent time and
may be reentered to serve the remainder of the original
sentence or sentences.
(3) The remainder shall be computed by the [B]oard from
the time the parolee’s delinquent conduct occurred for the
unexpired period of the maximum sentence imposed by the
court without credit for the period the parolee was

                              10
             delinquent on parole. The parolee shall serve the remainder
             so computed from the date the parolee is taken into custody
             on the warrant of the [B]oard.

61 Pa.C.S. § 6138.
             This Court has ruled:

             Under the current statutory regime, the [] Board must []
             decide whether to award or deny credit for street time upon
             a parolee’s recommitment as a [CPV]. See 61 Pa.C.S. §
             6138(a)(2.1). Once the [] Board grants sentence credit for
             street time, it is gone. The only extant ‘time spent at
             liberty on parole’ will be that time that falls between the
             parolee’s most recent reparole and his recommitment.
             Id.

Young v. Pa. Bd. of Prob. & Parole, 189 A.3d 16, 21 (Pa. Cmwlth. 2018) (emphasis
added; footnote omitted).11 In Penjuke, this Court again declared:

             [T]he Board could not ‘reach back,’ Brady [v. Pa. Bd. of
             Prob. & Parole (Pa. Cmwlth. No. 262 C.D. 2018, filed
             August 7, 2019) (Brady I)], slip op. at 9, into the past
             periods of parole and [] take away or revoke credit that
             was previously granted . . . as a TPV-credit which, we
             stated in Young, should have ‘already been applied to his
             original sentence.’ [Young,] 189 A.3d at 21.

Penjuke, 203 A.3d at 417 (emphasis added). Accordingly, the Penjuke Court ruled,
“when the Board recommits a CPV, it cannot revoke the credit that a parolee has been
granted in a previous parole that resulted in recommitment as a TPV.” Id. at 420
(emphasis added); see also Brady v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth. No. 262
C.D. 2018, filed February 1, 2019) (Brady II) (the Board may only order forfeiture of
street time credit a parolee earned between the date of the most recent




      11
         The Pennsylvania Supreme Court granted an appeal in Young. See Young v. Pa. Bd. of
Prob. & Parole, 200 A.3d 5 (Pa. 2019).
                                            11
parole/reparole and his CPV recommitment, and may not forfeit street time credited
to a parolee in a prior parole period).12
              Here, Kazickas was paroled on January 13, 2014. See C.R. at 8. By
decision rendered June 1, 2016 (mailed June 8, 2016), the Board recommitted
Kazickas as a TPV and granted him street time credit, as Section 6138(b)(2) of the
Parole Code mandates. By determination made December 27, 2016 (mailed February
21, 2017), the Board modified its decision to recommit Kazickas as a TPV rendered
June 1, 2016 (mailed June 8, 2016) by also recommitting Kazickas as a CPV and
directing him to serve the remainder of his sentence, as Section 6138(a)(2) of the
Parole Code allows. Kazickas committed the technical and criminal parole violations
at issue in this appeal in the same parole period. Because the criminal conduct that
led to Kazickas’ CPV recommitment occurred during the same parole period as the
violation that led to his TPV recommitment, Penjuke does not control in this case.
              Moreover, the Board was authorized to and did make Kazickas’
September 1, 2016 maximum sentence release date “SUBJECT TO CHANGE IF [HE WAS]
CONVICTED OF [THOSE] PENDING CRIMINAL CHARGES.”              C.R. at 54; see also C.R. at 55-
57. Therefore, despite that Kazickas served his TPV recommitment first in time, and
he reached what was, at that time, his maximum sentence date, the Board did not
improperly revoke street time credit granted in a prior parole period. Rather, as it
was authorized to do, the Board ordered that Kazickas forfeit the time he spent at
liberty on parole in good standing between his most recent parole (i.e., January 13,
2014) and his CPV recommitment.




       12
           This Court acknowledges that its unreported memorandum opinions may only 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).
                                              12
Based on the foregoing, the Board’s January 30, 2019 order is affirmed.



                         ___________________________
                         ANNE E. COVEY, Judge




                            13
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Cole J. Kazickas,                     :
                    Petitioner        :
                                      :
            v.                        :
                                      :
Pennsylvania Board                    :
of Probation and Parole,              :     No. 214 C.D. 2019
                   Respondent         :


                                     ORDER

            AND NOW, this 7th day of February, 2020, the Pennsylvania Board of
Probation and Parole’s January 30, 2019 order is affirmed.


                                      ___________________________
                                      ANNE E. COVEY, Judge
