              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Harvey Hoover,                            :
                   Petitioner             :
                                          :   No. 609 C.D. 2017
             v.                           :
                                          :   Submitted: October 19, 2018
Pennsylvania Board of                     :
Probation and Parole,                     :
                  Respondent              :


BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                        FILED: February 15, 2019


             Harvey Hoover (Petitioner) petitions for review of the April 28, 2017
order of the Pennsylvania Board of Probation and Parole (Board), which dismissed his
petition for administrative review and affirmed the determination to recommit him as
a convicted parole violator and extend his maximum sentence expiration date.


                            Facts and Procedural History
             This case was previously before the Court. See Hoover v. Pennsylvania
Board of Probation and Parole (Pa. Cmwlth., No. 609 C.D. 2017, filed October 27,
2017). In that case, we set forth the following facts:

             Petitioner was originally sentenced to a term of incarceration
             of 6 to 15 years following his plea of guilty to a charge of
             manslaughter in 2007. His original maximum sentence date
was October 10, 2022. Petitioner was released on parole in
2013 following expiration of his minimum sentence. In
August 2014, Petitioner was arrested and charged with
public drunkenness after he was involved in a fight with his
ex-girlfriend who obtained a protection from abuse order as
a result of the incident. Petitioner was arrested again in
November 2014 following a home invasion and charged with
robbery, aggravated assault, simple assault, and criminal
mischief. During this home invasion, Petitioner stomped the
victim in the face and torso, punched the victim, and
ransacked the victim’s apartment. (Certified Record (C.R.)
at 1-16, 41.)

The Board issued a warrant to commit and detain Petitioner.
Petitioner remained in the county prison unable to post bail.
On October 1, 2015, Petitioner pled guilty to simple assault
and disorderly conduct in return for having all other charges
nolle prossed. The Board thereafter issued a notice of
charges and a parole revocation hearing. Petitioner,
however, waived his right to a hearing and admitted to the
aforementioned convictions. By decision dated December 2,
2015, the Board recommitted Petitioner as a convicted parole
violator to serve 24 months[’] backtime pending his return to
a state correctional institution. The Board noted that it relied
on Petitioner’s admissions as evidence for its decision.
Additionally, while the normal backtime for a simple assault
was only 9 to 15 months, the Board noted an aggravating
reason of continued violent convictions for the increased
backtime. The Board did not modify Petitioner’s maximum
sentence date in this order. (C.R. at 17-68.)

Petitioner submitted an administrative remedies form
alleging that he was convicted of a summary offense of
disorderly conduct and that simple assault was not a violent
conviction. Having received no response from the Board,
Petitioner sent a letter dated March 29, 2016, inquiring as to
his appeal. The Board thereafter issued a decision dated
April 13, 2016, which modified its December 2, 2015
decision by deleting the reference to the offense of disorderly
conduct. Petitioner again submitted an administrative
remedies form alleging that the Board should have
reconsidered the imposition of 24 months[’] backtime in
light of the removal of the disorderly conduct offense. By

                               2
             decision mailed May 18, 2016,[] the Board affirmed its
             previous decision. The Board noted that the recommitment
             for the disorderly conduct conviction was a typo that was
             corrected by its April 13, 2016 decision. The Board also
             concluded that the enhanced 24 months[’] backtime was
             justified in light of Petitioner’s continued violent
             convictions. While acknowledging that simple assault was
             not a statutory violent offense, the Board stated that the
             offense was still assaultive in nature and, therefore, could be
             classified as violent.[] (C.R. at 69-80.)

             By decision dated September 1, 2016, the Board recalculated
             Petitioner’s maximum sentence date to November 24, 2024.
             Petitioner submitted an administrative remedies form
             challenging this recalculation in excess of 24 months.
             Petitioner noted that the time period between his parole and
             arrest on new criminal charges was only 13 months and,
             hence, his recalculation should be limited to this time period.
             By decision mailed April 28, 2017,[] the Board affirmed its
             previous decision. The Board explained that at the time
             Petitioner was paroled on October 10, 2013, he had 3,287
             days remaining on his maximum sentence. The Board noted
             that it chose not to grant Petitioner any credit for time spent
             at liberty on parole. The Board also noted that Petitioner did
             not become available to serve his original sentence until
             January 7, 2016, and adding 3,287 days to that date result[ed]
             in a new maximum sentence date of November 24, 2024.
             Petitioner thereafter filed a petition for review with this
             Court.[] (C.R. at 81-92.)
Hoover, slip op. at 1-4. In his petition for review, Petitioner raised the following
arguments:   The Board erred in (1) improperly modifying a judicially imposed
maximum sentence and improperly denying him credit for time spent in good standing
on parole; (2) recommitting him to a period of backtime in excess of the presumptive
range; and (3) forcing him to serve his new sentence before his original sentence. Id.
at 4.
             On December 14, 2017, this Court filed a memorandum opinion and order
affirming the Board on all issues raised by Petitioner, with the exception of one.


                                           3
Specifically, we remanded for further consideration of Petitioner’s allegation that the
Board improperly denied him credit for time spent in good standing on parole. Indeed,
the Board acknowledged in its brief that it failed to comply with Pittman v.
Pennsylvania Board of Probation and Parole, 159 A.3d 466 (Pa. 2017), in that it did
not provide Petitioner with specific reasons for denying him credit. As a result, we
remanded the matter to the Board to do so.
              The Board issued a new decision on June 6, 2018, explaining the reason
for its decision not to award Petitioner credit for time spent at liberty on parole:
“Conviction was assaultive in nature.” (Supplemental Record.) As directed by this
Court, both parties filed supplemental briefs addressing the sufficiency of the Board’s
reason for denying Petitioner credit.


                                          Discussion1
              Pursuant to Pittman, the Board must “provide a contemporaneous
statement explaining its reason for denying a [convicted parole violator] credit for time
spent at liberty on parole.” 159 A.3d at 475. However, “the reason the Board gives
does not have to be extensive and a single sentence explanation is likely sufficient in
most instances.” Id. at 475 n.12. In Smoak v. Pennsylvania Board of Probation and
Parole, 193 A.3d 1160, 1165 (Pa. Cmwlth. 2018), we found the five-word explanation,
“unresolved drug and alcohol issues,” sufficient—albeit, “just barely.”
              Here, the Board satisfied Pittman by providing sufficient explanation in
its June 6, 2018 letter, which indicated that it denied Petitioner credit due to the
assaultive nature of his simple assault conviction while on parole for his manslaughter

       1
         Our scope of review is limited to determining whether constitutional rights were violated,
whether the adjudication was in accordance with the law, and whether necessary findings were
supported by substantial evidence. 2 Pa.C.S. §704; Adams v. Pennsylvania Board of Probation and
Parole, 885 A.2d 1121, 1122 n.1 (Pa. Cmwlth. 2005).

                                                4
conviction. Indeed, Petitioner had a history of violent altercations. As we noted in our
prior opinion, the record reveals the following:

               Petitioner’s original voluntary manslaughter conviction,
               with provocation by victim; a detainer from the state of New
               York for attempted robbery in the 2nd degree; an arrest for
               public drunkenness in August 2014, following a physical
               altercation with his ex-girlfriend; and the latest conviction
               for simple assault which was described in a criminal
               complaint as Petitioner stomping the face and torso of a
               victim several times during an attempted robbery in the
               victim’s apartment and ransacking that apartment looking for
               money.
Hoover, slip op. at 7.
               Accordingly, because the Board provided sufficient explanation for its
decision, and, thus, properly exercised its discretion, the Board’s April 28, 2017 order
is affirmed.




                                             ________________________________
                                             PATRICIA A. McCULLOUGH, Judge




                                            5
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Harvey Hoover,                          :
                   Petitioner           :
                                        :    No. 609 C.D. 2017
            v.                          :
                                        :
Pennsylvania Board of                   :
Probation and Parole,                   :
                  Respondent            :


                                     ORDER


            AND NOW, this 15th day of February, 2019, the April 28, 2017 order
of the Board of Probation and Parole is hereby affirmed.



                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge
