          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert E. Daniels,                   :
                                     :
                          Petitioner :
                                     :
                     v.              : No. 168 C.D. 2019
                                     : Submitted: August 23, 2019
Pennsylvania Board of                :
Probation and Parole,                :
                                     :
                          Respondent :


BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                           FILED: April 15, 2020

             Robert E. Daniels (Daniels) petitions for review of an order of the
Pennsylvania Board of Probation and Parole (Board) that recommitted Daniels as a
convicted parole violator (CPV) and recalculated his maximum sentence date with
no credit for time at liberty on parole. Daniels argues that the Board abused its
discretion by denying him credit without providing a contemporaneous statement
articulating the reason for its decision as required by Pittman v. Pennsylvania Board
of Probation and Parole, 159 A.3d 466 (Pa. 2017). Upon review, we affirm.
             In March 2009, Daniels was originally sentenced to a term of
incarceration of four years and six months to nine years for one count of
manufacture/sale/delivery or possession with intent to deliver (PWID). Certified
Record (C.R.) at 1. His minimum sentence date was August 15, 2015, and his
maximum sentence date was February 15, 2020. Id. At the expiration of his
minimum sentence, the Board released Daniels on parole. Id. at 4.
              In July 2017, Daniels was arrested on new drug-related charges. C.R.
at 13. The Board issued a warrant to commit and detain Daniels for parole violations.
Id. at 19. Daniels did not post bail. Id. at 21, 23. In November 2017, Daniels pled
guilty to three counts of PWID, one count of criminal use of a communication
facility and one count of use/possession of drug paraphernalia. Id. at 32-33. He was
sentenced to one year and six months to three years for each count of PWID, with
no further penalty for the other counts included in his guilty plea. Id. The other
drug-related charges were withdrawn. Id.
              As a result of the new conviction, the Board charged Daniels as a CPV.
Daniels signed a waiver of revocation hearing and counsel/admission form relative
to the charge. C.R. at 50. The Board revoked Daniels’ parole. C.R. at 60.
              By decision mailed March 26, 2018, the Board recommitted Daniels as
a CPV to serve 24 months’ backtime. C.R. at 74-75. The Board calculated his new
maximum sentence date as April 9, 2022, and declared Daniels would not be eligible
for parole until October 8, 2019. Id. The Board did not award credit for time spent
at liberty on parole, which is sometimes referred to as “street time,” citing Daniels’
“continue[d] behavior of drug sales” as the reason. Id. at 74.
              Daniels, representing himself, requested administrative review1 of the
Board’s March 26, 2018 decision asserting that the Board abused its discretion by
denying credit for time spent at liberty on parole and failing to provide an adequate
contemporaneous statement as required by Pittman. C.R. at 78-79. By decision
mailed January 14, 2019, the Board denied Daniels’ request for administrative

       1
        Daniels filed an “Administrative Remedies Form,” which the Board treated as a request
for administrative review because Daniels objected to his recalculated maximum date.
                                             2
review and affirmed its recommitment decision. Id. at 88. Daniels then petitioned
this Court for review of the Board’s decision.2
               Daniels, who is now represented by counsel, contends that the Board
abused its discretion by denying him credit for time spent at liberty on parole without
providing a contemporaneous statement of explanation for the denial. Daniels
argues that the only statement offered, “continue[d] behavior of drug sales,” is
inadequate. Daniels also challenges the accuracy of the Board’s rationale.
               When determining whether there has been an abuse of discretion, the
Pennsylvania Supreme Court has held that “[a]n abuse of discretion is not merely an
error of judgment, but occurs only where the law is overridden or misapplied, or the
judgment exercised is manifestly unreasonable, or the result of partiality, prejudice,
bias or ill will.” Pittman, 159 A.3d at 474 (quoting Zappala v. Brandolini Property
Management, Inc., 909 A.2d 1272, 1284 (Pa. 2006)); see Moss v. SCI-Mahanoy
Superintendent Pennsylvania Board of Probation and Parole, 194 A.3d 1130, 1133
n.5 (Pa. Cmwlth. 2018), appeal denied, 215 A.3d 562 (Pa. 2019).
               Section 6138(a)(2.1) of the Prisons and Parole Code, 61 Pa. C.S.
§6138(a)(2.1), “unambiguously grants the Board discretion to award credit to a CPV
recommitted to serve the remainder of his sentence.” Pittman, 159 A.3d at 473.
There are two enumerated exceptions to the Board’s discretion to award credit,
neither of which apply here. See 61 Pa. C.S. §6138(a)(2.1)(i)-(ii).
               When exercising its discretion to deny credit for time spent at liberty
on parole, the Board must provide a “contemporaneous statement” explaining its


       2
         Our review is limited to determining whether the Board’s adjudication is supported by
substantial evidence, whether an error of law has been committed, or whether constitutional rights
have been violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Smoak v.
Talaber, 193 A.3d 1160, 1163 n.2 (Pa. Cmwlth. 2018).
                                                3
rationale. Pittman, 159 A.3d at 474. This allows the appellate court reviewing the
matter to have a method to assess the Board’s exercise of discretion. Marshall v.
Pennsylvania Board of Probation and Parole, 200 A.3d 643, 651 (Pa. Cmwlth.
2018). “[T]he Board’s statement of reasons should be informed by aggravating and
mitigating circumstances and account for the parolee’s individual circumstances.”
Id. at 652.
              To meet the standard, the Board’s given reason must be “accurate and
related to the parolee’s offenses.” Marshall, 200 A.3d at 650. In addition to
accuracy, we have also considered whether the Board’s stated reason “is documented
in the record and affords the parolee notice of the specific acts being referenced.”
Plummer v. Pennsylvania Board of Probation and Parole, 216 A.3d 1207, 1212 (Pa.
Cmwlth. 2019).
              However, the Board’s explanation need not be extensive, and “a single
sentence . . . is likely sufficient in most instances.” Pittman, 159 A.3d at 475 n.12.
In fact, this Court has found several single-sentence explanations given by the Board
for its decision to deny a CPV credit for time spent at liberty on parole as sufficient
to meet the Pittman standard.
              For instance, in Smoak v. Talaber, 193 A.3d 1160 (Pa. Cmwlth. 2018),
we considered the adequacy of the Board’s five-word reason for denying street time
credit. Following the parolee’s respective drug-related and firearm convictions, he
was sentenced to one year of probation for attempting to furnish drug-free urine. In
recalculating his maximum sentence date, the Board denied the parolee street time
credit due to his “unresolved drug and alcohol issues.” Id. at 1163. On appeal, this
Court recognized that Pittman does not require the Board’s stated reason to be
extensive. Although the Board’s statement was “not a full sentence” and failed to


                                          4
“identify the incidents that created these ‘issues,’” we held it was legally sufficient,
albeit “just barely sufficient.” Id. at 1165.
               Similarly, in Plummer, we held that the Board’s stated reason, “prior
history of supervision failures,” was accurate and supported by the record, and thus
legally sufficient under the Pittman standard. See also Lane v. Pennsylvania Board
of Probation and Parole (Pa. Cmwlth., No. 299 C.D. 2019, filed January 23, 2020)
(finding that the statement “poor supervision history” satisfied Pittman standard);
Williams v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No. 1243
C.D. 2018, filed August 21, 2019) (holding Board’s stated reason “new conviction
[was the] same/similar to [his] original offense” satisfied Pittman standard); Tres v.
Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No. 828 C.D. 2018,
filed June 3, 2019) (holding Board’s stated reason “arrested for a firearms charge”
satisfied Pittman standard); Bleach v. Pennsylvania Board of Probation and Parole
(Pa. Cmwlth., No. 794 C.D. 2017, filed May 31, 2019) (holding Board’s stated
reason “[r]evoke street time due to second conviction (drugs) while on parole”
satisfied Pittman standard); Lawrence v. Pennsylvania Board of Probation and
Parole (Pa. Cmwlth., No. 1132 C.D. 2018, filed April 12, 2019) (holding Board’s
stated reason “new conviction same/similar to the original offense” satisfied Pittman
standard).3
               Contrary to Daniels’ assertions, the Board contemporaneously set forth
its reason for denying him street time credit. In its revocation hearing report, the
Board stated that “[Daniels] has [a] history of drug sales going back to 1980” and
that “[he] should not get credit for time spent at liberty on parole due to continued

       3
          Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code
§69.414(a), an unreported panel decision issued by this Court after January 15, 2008, may be cited
“for its persuasive value, but not as binding precedent.”
                                                5
behavior of drug sales.” C.R. at 60. In its March 26, 2018 recommitment decision,
the Board again cited “continue[d] behavior of drug sales” as the basis for denying
credit for time spent at liberty on parole. C.R. at 74. The Board sufficiently
articulated its reason for denying credit. See Pittman; Smoak.
              As for Daniels’ assertion that the Board’s reason is not accurate or
supported by the record, Daniels admits he “has some drug sale history,” but he
maintains that his criminal history is more related to drug use than drug sales.
Petitioner’s Brief at 10. Even assuming that his criminal history is more related to
substance abuse than sales,4 the record contains sufficient evidence to support the
Board’s rationale related to drug sales. Daniels’ original offense and new criminal
offenses were both related to the sale of drugs. In 2009, Daniels pled guilty and was
convicted of one count of PWID. C.R. at 1. In 2017, Daniels pled guilty and was
convicted of three counts of PWID. Id. at 32, 41-42. According to the arrest report
for the new criminal offenses, the Harrisburg Police Department set up three
controlled buys of heroin in May, June and July of 2017. Id. at 21. At each
transaction, Daniels sold the officer 50 bags of heroin for $350. Id. Daniels’ recent
criminal behavior, spanning the past decade, constitutes “continue[d] behavior of
drug sales.” Id. at 74. Thus, the Board’s rationale is accurate, related to Daniels’
offenses, and supported by the record. See Plummer; Marshall.




       4
          The Certified Record begins with Daniels’ “original” offense in 2009 and does not shed
much light on his early criminal history other than to chronicle his location and sentence/parole
status dating back to 1986 in the Pennsylvania Department of Corrections Moves Report. See C.R.
at 1, 70-71. However, the Certified Record does note Daniels’ drug use in 2007 under the Board’s
Supervision History. Id. at 23.
                                               6
            For these reasons, we conclude that the Board’s stated reason satisfies
the Pittman standard. Accordingly, we affirm the Board’s order.




                                     MICHAEL H. WOJCIK, Judge




                                        7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robert E. Daniels,                   :
                                     :
                          Petitioner :
                                     :
                     v.              : No. 168 C.D. 2019
                                     :
Pennsylvania Board of                :
Probation and Parole,                :
                                     :
                          Respondent :



                                   ORDER


            AND NOW, this 15th day of April, 2020, the order of the Pennsylvania
Board of Probation and Parole, mailed January 14, 2019, is AFFIRMED.



                                     __________________________________
                                     MICHAEL H. WOJCIK, Judge
