              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Harvey Hoover,                           :
                   Petitioner            :
                                         :   No. 609 C.D. 2017
            v.                           :
                                         :   Submitted: October 27, 2017
Pennsylvania Board of                    :
Probation and Parole,                    :
                  Respondent             :



BEFORE:     HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                      FILED: December 14, 2017


            Harvey Hoover (Petitioner) petitions for review of the April 28, 2017
decision 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
            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



                                           2
imposition of 24 months backtime in light of the removal of the disorderly conduct
offense. By decision mailed May 18, 2016,1 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.2 (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, 2017,3 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 results in a new maximum sentence date of



       1
         The Board does not state the reason for the extensive delay in responding to Petitioner’s
administrative appeal.

       2
           The Board appears to have mailed an identical decision to Petitioner dated May 31, 2016.

       3
          Again, the Board does not state the reason for the extensive delay in responding to
Petitioner’s administrative appeal.



                                                  3
November 24, 2024. Petitioner thereafter filed a petition for review with this Court.4
(C.R. at 81-92.)


                                            Discussion
               On appeal,5 Petitioner argues that 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.


    Modification of Maximum Sentence/Credit for Time at Liberty on Parole
               Petitioner first argues that the Board erred in improperly modifying a
judicially-imposed maximum sentence and improperly denying him credit for time
spent in good standing on parole. We disagree with the former but agree with
Petitioner’s latter argument.
               With respect to the modification of his maximum sentence, Petitioner
argues that the Board does not have the authority to alter a judicially-imposed sentence
and that any detention beyond the original maximum sentence date constitutes cruel
and unusual punishment and an ex post facto violation. However, both our Supreme

       4
         While Petitioner’s petition for review and brief reflect that he is appealing from the Board’s
prior 2016 decisions and its April 28, 2017 decision, presumably because the Board referenced the
earlier decisions in its latest decision, any appeal from those earlier decisions is untimely and not
properly before this Court. The only matter properly on appeal is the Board’s April 28, 2017 decision.

       5
         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
Court and this Court have previously considered and rejected such arguments. See
Gaito v. Pennsylvania Board of Probation and Parole, 412 A.2d 568 (Pa. 1980); Young
v. Pennsylvania Board of Probation and Parole, 409 A.2d 843 (Pa. 1979); Monroe v.
Pennsylvania Board of Probation and Parole, 555 A.2d 295 (Pa. Cmwlth. 1989);
Bellamy v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No. 439 C.D.
2014, filed May 7, 2015).
             With respect to the denial of credit for time spent in good standing on
parole, Petitioner argues that the Board failed to consider whether he should receive
such credit, and failed to provide specific reasons for denying the same, in violation of
section 6138(a)(2.1) of the Prison and Parole Code, 61 Pa.C.S. §6138(a)(2.1). Section
6138(a)(2.1) states that:

             The board 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 42 Pa.C.S. §9714(g)
                    (relating to sentences for second and subsequent
                    offenses) or a crime requiring registration under
                    42 Pa.C.S. Ch. 97 Subch. H (relating to
                    registration of sexual offenders).

                    (ii) The parolee was recommitted under section
                    6143 (relating to early parole of inmates subject
                    to Federal removal order).
61 Pa.C.S. §6138(a)(2.1). The Board does not allege that either of these exceptions
apply herein.
             Our Supreme Court recently discussed section 6138(a)(2.1) of the Parole
Code in Pittman v. Pennsylvania Board of Probation and Parole, 159 A.3d 466 (Pa.
2017). In Pittman, the Court held that section 6138(a)(2.1) clearly and unambiguously


                                           5
granted the Board discretion to award credit to a convicted parole violator recommitted
to serve the remainder of his sentence. 159 A.3d at 473. The Court explained that
simply checking a “No” box on a standard hearing form does not constitute a proper
exercise of the Board’s discretion, as such action “renders appellate review a mere
empty formality” and fails to comport with “basic notions of due process.” Id. at 474.
Hence, the Supreme Court directed that the Board must articulate the basis for its
decision to deny credit to a convicted parole violator for time served at liberty on
parole. Id. In the present case, the Board concedes that it failed to comply with Pittman
and provide Petitioner with specific reasons for denying him this credit. The Board
requests that the Court remand this matter for further explanation consistent with
Pittman, and we shall grant a limited remand in this regard.


                                 Presumptive Range
               Next, Petitioner argues that the Board erred in recommitting him to a
period of backtime in excess of the presumptive range. We disagree.
               While Petitioner is correct that the Board’s regulations provide a
presumptive range for recommitment based upon a conviction for simple assault of 9
to 15 months,6 these regulations further provide that the Board “may deviate from the
presumptive range or determine that recommitment should not occur, provided written
justification is given.” 37 Pa. Code §75.1(c). Additionally, these regulations state,
“The presumptive ranges of parole backtime are intended to structure the discretion of
the Board while allowing for individual circumstances in terms of mitigation and
aggravation to be considered in the final decision.” 37 Pa. Code §75.1(b).




      6
          37 Pa. Code §75.2.


                                           6
             In this case, the Board clearly exceeded the presumptive range, but it
provided written justification for the same, citing Petitioner’s continued violent
convictions. Indeed, the record in this case 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.
Hence, we cannot say that the Board erred in exceeding the presumptive range of
recommitment.


                                 Service of Sentence
             Finally, Petitioner argues that the Board erred in forcing him to serve his
new sentence before his original sentence. However, the Board contends that Petitioner
waived this argument by failing to raise it in his administrative appeals. We agree with
the Board that this argument was not raised. Hence, it is waived. See Newsome v.
Pennsylvania Board of Probation and Parole, 553 A.2d 1050, 1052 (Pa. Cmwlth.
1989) (“It is well-settled that failure to raise an issue before the Board results in a
waiver and precludes this Court from review.”).
             However, even if not waived, Petitioner’s argument would fail. Section
6138(a)(5) of the Parole Code addresses new sentences, providing as follows:

             If a new sentence is imposed on the parolee, the service of
             the balance of the term originally imposed by a Pennsylvania
             court shall precede the commencement of the new term
             imposed in the following cases:


                                           7
                   (i) If a person is paroled from a State
                   correctional institution and the new sentence
                   imposed on the person is to be served in the
                   State correctional institution.

                   (ii) If a person is paroled from a county prison
                   and the new sentence imposed upon him is to be
                   served in the same county prison.

                   (iii) In all other cases, the service of the new
                   term for the latter crime shall precede
                   commencement of the balance of the term
                   originally imposed.
61 Pa.C.S. §6138(a)(5).
             In this case, Petitioner was paroled from a state correctional institution,
and the record reveals that his new sentence was a county sentence. Consistent with
section 6138(a)(5)(iii), Petitioner was required to serve his new sentence prior to
serving the remainder of his original sentence.


                                      Conclusion
             The recalculation of Petitioner’s maximum sentence date did not
constitute an alteration of a judicially-imposed sentence and did not violate the
prohibitions against cruel and unusual punishment or ex post facto laws. However, the
Board did err to the extent that it failed to give specific reasons for refusing to grant
Petitioner a credit for time spent in good standing on parole, which is required by
Pittman. The Board provided sufficient written justification for imposing backtime
beyond the presumptive range for his simple assault conviction. Additionally, because
Petitioner’s new sentence was a county sentence, the Board did not err in requiring
Petitioner to serve his new sentence prior to serving the remainder of his original
sentence.


                                           8
             Accordingly, the decision of the Board, insofar as it failed to give specific
reasons for refusing to grant Petitioner a credit for time spent in good standing on
parole, is vacated. The matter is remanded to the Board for the limited purpose of
providing an explanation for this refusal consistent with Pittman. In all other respects,
the Board’s decision is affirmed.



                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge




                                            9
             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 14th day of December, 2017, the decision of the
Pennsylvania Board of Probation and Parole, dated April 28, 2017, is affirmed in
part and vacated and remanded in part consistent with this opinion.
            Jurisdiction retained.



                                             ________________________________
                                             PATRICIA A. McCULLOUGH, Judge
