         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


John Frank Monek,                        :
                 Petitioner              :
                                         :
            v.                           :
                                         :
Pennsylvania Board of                    :
Probation and Parole,                    :   No. 795 C.D. 2019
                  Respondent             :   Submitted: December 6, 2019


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


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                      FILED: April 27, 2020


             John Frank Monek (Monek) petitions for review from the May 23,
2019 order of the Pennsylvania Board of Probation and Parole (Board) denying
Monek’s request for administrative relief that challenged the Board’s March 1, 2019
Order to Recommit Monek by alleging that the Board failed to put forth a sufficient
reason to deny him credit for time spent at liberty prior to his recommitment for
parole violations. For the following reasons, we affirm.
            On September 15, 2015, Monek was sentenced to two terms of three to
seven years’ incarceration for Criminal Trespass and Aggravated Harassment By a
Prisoner. See Sentence Status Summary, Certified Record (C.R.) at 1-3. On May
26, 2016, Monek was granted parole subject to multiple Conditions Governing
Parole/Reparole (Conditions of Parole), which conditions Monek acknowledged by
signing the Conditions of Parole prior to his release. See Conditions of Parole, C.R.
at 8-10. The Conditions of Parole required Monek, among other things, to: (1)
reside in an approved residence not to be changed without written permission of
parole supervision staff (Condition 2); (2) maintain regular contact with parole
supervision staff by reporting regularly as instructed and following written
instructions of the Board or parole supervision staff (Condition 3(a)); and (3) comply
with special conditions imposed by the Board or parole supervision staff (Condition
7). See id. Also included among Monek’s special conditions of parole were the
additional requirements that he “not consume or possess alcohol under any condition
for any reason[,]” and “not enter establishments that sell or dispense alcohol except
as approved by parole supervision staff.” Condition 7, C.R. at 9. Additionally, the
Conditions of Parole warned Monek as follows:

             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.

Conditions of Parole, C.R. at 8. Monek was ultimately released on parole on
September 6, 2016. See Order to Release on Parole/Reparole dated May 26, 2016,
C.R. at 7.
             After failing to report to his parole agent as instructed, Monek was
declared delinquent from parole effective November 8, 2017.               See Board
Administrative Action recorded Nov. 28, 2017, C.R. at 12; Notice of Charges and
Hearing executed Dec.13, 2017, C.R. at 19-20. A warrant issued and Monek was
arrested on December 5, 2017. See Warrant to Commit and Detain dated Dec. 5,

                                          2
2017, C.R. at 13; Technical Violation Arrest Report executed Dec. 13, 2017, C.R. at
22-23. Monek waived his right to counsel and his revocation hearing and admitted
to three technical parole violations.         See Waiver of Violation Hearing and
Counsel/Admission Form executed Dec. 20, 2017, C.R. at 15. As a result, Monek
was detained in a Parole Violator Center until February 2018. See Order to Cancel
Warrant to Commit and Detain dated Feb. 1, 2018, C.R. at 28.
              On February 1, 2018, Monek completed his time in the Parole Violator
Center and was transferred to the Self-Help Community Corrections Facility in
Philadelphia (Self-Help). On February 28, 2018, parole authorities presented Monek
with an additional special condition of parole that instructed, in pertinent part:

              Upon your release from Self[-]Help you must immediately
              report to Keystone Correctional [Facility,] 7201
              Allentown Blvd Harrisburg, PA 17112[,] (717) 651-0340.
              No side trips.

              Failure to report will be [a] violation of parole.

Special Condition of Parole dated Feb. 28, 2018 (Special Condition), C.R. at 29.1
              Monek did not report to the Keystone Correctional Facility upon his
release from Self-Help on March 1, 2018. See Supervision History executed Apr. 4,
2018, C.R. at 57-59. Accordingly, Monek was declared delinquent effective March
1, 2018. Id. On March 10, 2018, the Elizabethtown Police Department arrested
Monek on the new criminal charges of Driving Under the Influence of Alcohol
(DUI) and False Identification to Law Enforcement (False Identification)
(collectively, the new criminal charges). Id.; see also Criminal Complaint filed Mar.

       1
         Monek refused to sign the Special Condition, but makes no contention that he did not
receive or review it or was otherwise unaware of the Special Condition or its contents.

                                             3
12, 2018, C.R. at 31-25. The Board lodged a detainer against Monek for the new
criminal charges and violations of Conditions 2 and 7, for changing his approved
residence without permission and for failing to comply with the Special Condition
to report to Keystone Correctional Facility, respectively. See Warrant to Commit
and Detain dated Mar. 11, 2018, C.R. at 30.
             The Board conducted a violation hearing on April 6, 2018.             See
Violation Hearing Notes of Testimony, Apr. 6, 2018 (N.T. 4/6/2018), C.R. at 65-96.
During the hearing, Monek’s parole agent testified that Monek’s approved residence
as of March 1, 2018 was Keystone Correctional Facility, which he was not allowed
to change without written permission, and that Monek failed to report to Keystone
Correctional Facility as directed. See N.T. 4/6/2018 at 7-9, C.R. at 71-73. Monek
admitted to the technical violations. See id. at 10-11, C.R. at 74-75. He explained
that he did not dispute that he intentionally failed to report as directed, and instead
offered an explanation of his motivation for his technical parole violations. Id. at
10-22, C.R. at 74-86. Based on these admissions, the hearing examiner found
substantial evidence of Monek’s violations existed, and Monek was recommitted as
a technical parole violator for a period of six months. See Violation Hearing Report
dated Apr. 6, 2018, C.R. at 43-50.
             On June 13, 2018, Monek filed an administrative appeal of the Board’s
decision. See Administrative Remedies Form, C.R. at 105-09. In his administrative
appeal, Monek argued – as he had at his violation hearing – that the Board
improperly revoked his parole for technical violations because substantial evidence
had not been put forth to support such a revocation. Id. On February 15, 2019, the
Board responded by explaining that the record indicated Monek had admitted to all
charged technical violations in this matter. See Board Response to Administrative


                                          4
Appeal dated Feb. 15, 2019, C.R. at 189. Accordingly, the Board affirmed the April
6, 2018 recommitment order. Id.2
              On August 23, 2018, Monek was convicted on the new criminal
charges.3   The Board received official verification of the new convictions on
September 20, 2018 and conducted a parole revocation hearing on December 18,
2018. See N.T. 12/18/2018, C.R. at 145-69. At the hearing, Monek again admitted
to his prior technical parole violations and further explained that, in early March
2018, anxiety over his transfer from Self-Help in Philadelphia to a facility in
Harrisburg and his fears regarding the perceived consequences such a transfer would
have on the progress he was endeavoring to make in his life, schooling, and career
caused him to seek solace in alcohol. See N.T. 12/18/2018 at 11-22, C.R. at 155-66.
Based on this hearing, on March 8, 2019, the Board recommitted Monek as a
convicted parole violator and, in its discretion, denied him credit for time spent at
liberty as a result of Monek’s unresolved drug and alcohol issues. See Notice of
Board Decision dated Mar. 8, 2019 (March 2019 Recommitment Decision), C.R. at
205-06. On April 9, 2019, Monek filed an administrative appeal of the March 2019
Recommitment Decision. See Administrative Remedies Form dated Apr. 9, 2019
(Administrative Appeal), C.R. at 300-22. By decision dated May 23, 2019, the




       2
         Monek’s appeal of the Board’s February 15, 2019 decision is the subject of a separate
appeal currently pending before this Court at Monek v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth.
No. 325 C.D. 2019).
       3
         Monek pled guilty to both charges and was sentenced to time served to 23 months and 3
years’ probation for the DUI conviction and one year of probation for the False Identification
conviction. See Court of Common Pleas of Lancaster County Docket No. CP-36-CR-0002144-
2018 at 2-3.

                                              5
Board affirmed the March 2019 Recommitment Decision.                        See Response to
Administrative Appeal dated May 23, 2019, C.R. at 323-24. This appeal followed.4
              On appeal, Monek claims that the Board abused its discretion by failing
to provide him with an adequate reason for denying him credit for his street time.
See Monek’s Brief at 14-20. He does not argue that the Board lacked the authority
to deny him street time, but instead asserts that taking all his street time was
excessive under the circumstances and that the Board failed to articulate adequate
reasons for so doing. Id. at 14. We do not agree.
              Parolees convicted of new criminal offenses committed while on parole
are subject to recommitment as convicted parole violators and may, in the Board’s
discretion, lose credit for all “time at liberty on parole,” also known as “street time,”
upon recommitment. See Pittman v. Pa. Bd. of Prob. & Parole, 159 A.3d 466, 474
(Pa. 2017); see also 61 Pa.C.S. § 6138(a)(1)-(2.1) (explaining that if the parolee is
recommitted as a convicted parole violator, the parolee shall be given no credit for
the time spent at liberty on parole unless the Board, in its discretion, decides to award
the time as provided therein). When exercising its discretion to deny convicted
parole violators street time credit, “the Board must provide a contemporaneous
statement explaining its reason for denying a [convicted parole violator] credit for
time spent at liberty on parole.” Pittman, 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.



       4
          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, whether an
error of law was committed or whether constitutional rights have been violated. Fisher v. Pa. Bd.
of Prob. & Parole, 62 A.3d 1073, 1075 n.1 (Pa. Cmwlth. 2013).

                                               6
              Here, at his revocation hearing following his new convictions for DUI
and False Identification, Monek testified that learning that he would be required to
report to a facility in Harrisburg after finishing at Self-Help in Philadelphia put him
under great stress. See N.T. 12/18/2018 at 15-22, C.R. at 159-66. He attempted to
resolve the matter with his parole supervisors, but was unsuccessful. Id. Monek
explained that, instead of reporting to the facility in Harrisburg as directed, he went
to the lounge of the hotel in which he was staying and consumed alcohol. Id. This
behavior, Monek explained, resulted in his DUI conviction. See N.T. 12/18/2018 at
18-19, C.R. at 162-63.5
              Based in part on this testimony,6 on March 1, 2019, the Board
recommitted Monek to serve six months as a convicted parole violator. See Notice
of Board Decision dated Mar. 1, 2019, C.R. at 205-06. The Board also exercised its
discretion to not award Monek any credit for his street time due to “unresolved drug
and alcohol issues.” Id.
              Recently, this Court found “unresolved drug and alcohol issues” to be
an adequate reason for the Board’s denial of street time. See Smoak v. Talaber, 193
A.3d 1160, 1165 (Pa. Cmwlth. 2018).                In Smoak, an individual convicted of
possession with intent to deliver narcotics reported to his parole officer for a
urinalysis and was discovered to have a rubber glove filled with urine on his person.
Id. at 1162. Following his conviction for furnishing drug-free urine, the Board
recommitted the individual as a convicted parole violator and denied him credit for

       5
         Monek had previously made the same admissions and given the same explanations for
his actions at his parole revocation hearing in April 2018 and in his Administrative Appeal filed
in June 2018. See N.T. 4/6/2018, C.R. at 65-96; see also Administrative Appeal, C.R. at 105-09.
       6
         Prior to Monek’s testimony, his parole officer testified and certified copies of Monek’s
DUI and False Identification convictions were offered into evidence. See N.T. 12/18/2018 at 6-8,
C.R. at 150-52.
                                               7
his street time for the stated reason of “unresolved drug and alcohol issues.” Id. at
1165. This Court held that the Board’s reason to deny street time was sufficient,
albeit just barely so. Id.
             Likewise here, Monek admitted to using alcohol and patronizing an
establishment that served alcohol without permission from his parole supervisor.
Further, this admitted alcohol use directly resulted in new convictions for DUI and
False Identification. Based on Monek’s admissions, the Board denied Monek credit
for street time for “unresolved drug and alcohol issues.” The Board’s reason for
denying street time is sufficient and not an abuse of its discretion. See Smoak.
             To the extent Monek argues that the Board abused its discretion by
taking away all, instead of a smaller portion, of his accumulated street time because
he had good reason to seek solace in alcohol, we disagree that the Board abused its
discretion. As stated, the Board may in its discretion deny a convicted parole
violator all credit for “time at liberty on parole” and, therefore, need not award credit
for some smaller portion of street time. Pittman, 159 A.3d at 474; see also 61
Pa.C.S. § 6138(a)(1)-(2.1). Consequently, we see no error in the Board’s exercise
of its discretion to not award Monek credit for a smaller portion of the street time
and to deny credit for all street time in these circumstances. See Smoak.
             Accordingly, we affirm.




                                         __________________________________
                                         CHRISTINE FIZZANO CANNON, Judge




                                           8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


John Frank Monek,                    :
                 Petitioner          :
                                     :
           v.                        :
                                     :
Pennsylvania Board of                :
Probation and Parole,                :   No. 795 C.D. 2019
                  Respondent         :


                                 ORDER


           AND NOW, this 27th day of April, 2020, the May 23, 2019 order of
the Pennsylvania Board of Probation and Parole is AFFIRMED.



                                   __________________________________
                                   CHRISTINE FIZZANO CANNON, Judge
