E. Allen v. PBPP ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Eric Allen, :
Petitioner :
:
v. : No. 1273 C.D. 2019
: Submitted: May 29, 2020
Pennsylvania Board :
of Probation and Parole, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CROMPTON FILED: September 18, 2020
Eric Allen (Allen) petitions this Court for review of the Pennsylvania
Board of Probation and Parole’s (Board)1 order denying multiple requests for relief
related to his denial of parole and credit determinations. In his counseled brief, Allen
presents two issues for review: (1) whether the Board erred by denying him credit
for the two years he spent in custody in New York; and (2) whether the Board abused
its discretion by denying him credit for the time spent while at liberty on parole, and
in failing to state a sufficient reason for its denial.2 Upon review, we affirm.
1
Subsequent to the filing of the petition for review, the Pennsylvania Board of Probation
and Parole has been renamed the Pennsylvania Parole Board. See Sections 15, 16, and 16.1 of the
Act of December 18, 2019, P.L. 776, No. 115 (effective February 18, 2020); see also Sections
6101 and 6111(a) of the Prisons and Parole Code, as amended, 61 Pa. C.S. §§6101, 6111(a).
2
In his uncounseled petition for review, Allen also claimed the Board erred by denying
him credit for the two non-consecutive periods of time he served in a Community Corrections
Center. However, as he neglects to brief the basis for this credit, it is waived. See Pa.R.A.P. 2119.
Also, nothing in the record indicates that Allen sought credit for this time prior to this appeal, so it
is also waived for failure to raise that issue before the Board. See DeMarco v. Pa. Bd. of Prob. &
Parole, 758 A.2d 746 (Pa. Cmwlth. 2000).
I. Background
On May 11, 2000, Allen was sentenced to serve two consecutive 5- to
10-year sentences, and one concurrent 1- to 7-year sentence for offenses committed
in Lehigh County (Original Sentence). Certified Record (C.R.) at 1. At that time,
his controlling minimum date was May 18, 2010, and his controlling maximum date
was May 18, 2020. Id. Allen was paroled on April 10, 2014; however, his actual
release date was June 23, 2014. C.R. at 8.
On March 7, 2015, Allen was arrested in Bethlehem, Pennsylvania, on
a driving under the influence (DUI) charge. C.R. at 21. Following his arrest, Allen
stopped reporting to his parole agent and the agent was unable to reach him via
telephone or at his personal residence. Id. As a consequence, the Board declared
Allen delinquent on March 9, 2015. C.R. at 13.
On November 12, 2015, following a traffic stop of a vehicle in which
he was a passenger, Allen was arrested in New York for possession of a loaded
firearm and possession of marijuana, both of which were found in the vehicle. C.R.
at 16. The following day, the Board issued a warrant for Allen’s arrest. C.R. at 14.
After spending almost two years in New York custody at Ryker’s Island,
on September 13, 2017, Allen pled guilty to the New York charges, for which he
was sentenced to two, one-year sentences to be served consecutively. C.R. at 20,
23. Upon completing his New York sentence, on October 17, 2017, Allen was
transferred to the State Correctional Institution (SCI) in Frackville to serve backtime
on his Original Sentence.
2
In early February 2018, the Board held a parole revocation hearing, for
which Allen waived his right to counsel. C.R. at 31. At that time, his DUI charges
were pending.
On February 20, 2018, Allen pled guilty to his outstanding Bethlehem
DUI and was sentenced to time served. C.R. at 45. On the same day, the Board issued
a decision recommitting Allen to an SCI as a “Technical Parole Violator to serve 6
months, and as a Convicted Parole Violator [(CPV)] to serve 24 months concurrently,
when available, pending receipt of information on outstanding criminal charges . . .
.” C.R. at 40 (February 2018 Recommitment). However, the Board did not mail
this decision until April 9, 2018. C.R. at 41.
Allen submitted a “Formal Complaint” to the Board dated July 12,
2018, raising a number of issues.3 C.R. at 60-61. Specifically, Allen complained
that his revocation hearing for the New York firearms charges and the DUI charge
occurred on February 9, 2018, but he had “yet to receive a final decision.” C.R. at
60. He claimed he served 9 months without receiving a decision, plus 23 months on
the Board’s detainer, which totaled 32 months when he was recommitted to serve
only 24 months. He argued the Board’s nine-month delay prevented him from
participating in an early review program, and thus prejudiced his parole eligibility.
Id. He also challenged the Board’s failure to credit his Original Sentence with the
two years he served in New York, asserting the New York sentence was to run
concurrent to any sentence he was currently serving. C.R. at 61. The Board did not
respond to this complaint.
3
The Board received an identical “Formal Complaint” two days later. See Certified Record
(C.R.) at 64-65.
3
To account for the DUI conviction, the Board issued another Order to
Recommit on October 2, 2018. C.R. at 54. In this order, the Board utilized its
discretion under Section 6138(a)(2.1) of the Prisons and Parole Code (Code), 61 Pa.
C.S. §6138(a)(2.1), to not award credit to Allen for his time spent at liberty on parole,
totaling 167 days. Id. Specifically, the order stated Allen forfeited 167 days, and
had a total of 2,442 days of backtime, making the new maximum date June 24, 2024.
C.R. at 54-55. A Board decision was recorded on the same date, mailed on October
9, 2018, explaining that the Board “did not award credit to [Allen] for the time spent
at liberty on parole for the following reason: Firearms Charges.” C.R. at 56
(October 2018 Recommitment).
Subsequently, Allen submitted an “Administrative Remedies Form”
with an attached memorandum. C.R. at 66. On the form, he checked the boxes for
sentence credit challenge, error of law (timeliness), and recommitment challenge. In
the memorandum, Allen again argued the Board erred in not granting him credit on
his Original Sentence for the two years he served in New York because he was held
simultaneously on the Board’s detainer. C.R. at 67-70. In support, he cited Santiago
v. Pennsylvania Board of Probation & Parole, 937 A.2d 610 (Pa. Cmwlth. 2007).
While he did not dispute the recommitment for 24 months on his backtime, he
challenged the new maximum sentence date of June 24, 2024. Again, the Board did
not respond to this submission.
More than a year after submitting his Formal Complaint, Allen sent
correspondence directed to legal counsel of the Board noting the Board’s lack of
response to his complaints. In the correspondence, received by the Board on June
4
25, 2019, Allen advised he filed his request for Administrative Relief “more than six
months ago,” and he still had not received a response from the Board. C.R. at 73.
Allen also submitted, by separate cover, an “Administrative Appeal,”
which the Board received on August 8, 2019. C.R. at 75. This appeal challenged
the Board’s July 10, 2019, decision to deny Allen parole following his revocation
hearing. The Board denied parole based on a variety of factors, which encompassed
risk to the community, unsatisfactory supervision history, failure to accept
responsibility and behavior while incarcerated, including a reported misconduct of
which Allen was subsequently cleared. C.R. at 75-112.
Finally, by letter dated August 23, 2019, the Board responded to the
four submissions Allen sent between July 2018 and August 2019. C.R. at 113-14
(Response). After identifying each of Allen’s submissions (Formal Complaint of
July 2018, C.R. at 60-61; the Administrative Remedies Form of December 2018,
C.R. at 66-70; Request for Response of July 2019, C.R. at 73; and Administrative
Appeal of August 2019, C.R. at 75), the Board summarized the issues raised as follows:
“1) not yet receiving [his] recalculations, 2) credit applied and [Allen’s] recalculated
max date, and 3) the decision to deny [Allen’s] reparole.” C.R. at 113. The Board
advised it was treating his submissions collectively as “a petition for administrative
review from the [B]oard actions recorded February 20, 2018 (mailed April 9, 2018),
October 2, 2018 (mailed October 9, 2018), and July 10, 2019.” Id.With regard to the July 2018 “Formal Complaint” regarding the lack of
a decision on his recommitment and the effect of parole revocation on his backtime,
5
the Board stated the issue was “moot as there was another Board decision recorded
subsequently.”4 C.R. at 113. At the end of the letter, in smaller italicized print, the
Board included appeal rights information, stating: “If you wish to appeal the decision
to dismiss the matter as moot, you must file an appellate petition for review with the
Commonwealth Court within thirty (30) days of the mailing date of the Board’s
response.” C.R. at 114. The Board enclosed a list of public defenders with the letter.
The Board then addressed Allen’s challenge to its application of credit
and recalculation of his maximum date. C.R. at 113. With respect to its October
2018 Recommitment, the Board admitted it erred in recalculating his maximum date
following his return from New York custody on October 17, 2017. At that time,
Allen had 2,275 days of backtime on his Original Sentence. With regard to his claim
of backtime credit, the Board advised that Allen’s recommitment as a CPV
“authorized the recalculation of [his] sentence to reflect that [he] received no credit
for the time [he] w[as] at liberty on parole. 61 Pa. C.S. §6138(a)(2). In this case,
the [B]oard did not award you credit for time at liberty on parole. . . .” Id. (emphasis
added). The Board explained its reason for denying credit as follows:
On November 12, 2015[,] you were arrested for new criminal
charges in New York. You did not post bail. On November 13,
2015[,] the Board lodged its detainer against you. You were
sentenced on September 13, 2017[,] to a term of 1 year at count
1 and 1 year at count 2, to be served consecutively. You were
available from your New York charges on October 17, 2017.
Based on these facts, the [B]oard did not award backtime credit.
This means you still had a total of 2275 days remaining on your
[O]riginal [S]entence {not 2442 days as initially calculated}.
4
The Board did not indicate the date or content of this subsequent Board decision; however,
based on the record, it appears the decision in question is the October 2018 Recommitment.
6
Id. (emphasis in original). Therefore, “the [B]oard action mailed October 9, 2018[,]
has been REVERSED in regards to the max date and your request for relief is
GRANTED” in that the Board corrected his maximum date to January 9, 2024. C.R.
at 114. Simultaneously, the Board issued an “Order to Recommit,” also dated
August 23, 2019, correcting its calculation to reflect 2,275 days of backtime, with a
maximum parole violation date of January 9, 2024. C.R. at 116. The order indicated
it denied credit for the 167 days Allen spent at liberty on parole (12/8/11 to 5/23/13)
in its calculation. The order was accompanied by a Board action restating the
changes to the earlier Board decisions as to the maximum date. It stated “the rest of
the [B]oard action remains the same.” C.R. at 118.
With regard to Allen’s correspondence in July 2019 contesting the
denial of parole, the Board advised that such decisions are not subject to review.
C.R. at 114. Therefore, the Board took no action.5
Allen petitions this Court for review of the Board’s Response.6 See Pet.
for Review, ¶11. In his petition, Allen claims the Board erred in denying him credit
for time served in New York and for forfeiting his time spent at liberty on parole
without stating a reason in its decision, in violation of the standards in Pittman v.
Pennsylvania Board of Probation & Parole, 159 A.3d 466 (Pa. 2017).
5
Another administrative appeal received August 12, 2019, appears identical to Allen’s July
2019 submission to which the Board responded. Nonetheless, the Board issued a decision mailed
August 28, 2019, noting that there is no right to appeal such a decision. C.R. at 159.
6
Although Allen characterized his petition for review also as a complaint in mandamus,
by order dated September 19, 2019, this Court confirmed that the matter is within our appellate
jurisdiction. Additionally, Allen’s court-appointed counsel titled his brief “Appeal from the Denial
of an Administrative Appeal Pursuant to Title 37 Pa. [Code] §71.5(h).” Pet’r’s Br. (cover page).
7
II. Discussion
On appeal,7 Allen claims he is entitled to credit on his Original Sentence
for the two years spent in New York custody because the New York sentence was
to be served concurrently with any sentence he was currently serving. Allen next
argues the Board abused its discretion in failing to award him credit for the 167 days
he spent at liberty on parole. He also contends that the Board did not articulate a
reason for its denial of credit as required by Pittman.
The Board counters that the record does not support Allen’s contention
that his New York sentence was to run concurrent to his Original Sentence. As to
its denial of credit for time spent at liberty on parole, the Board maintains the
challenge is waived because Allen did not raise it in any of his administrative appeals.
A. New York Sentence
First, we address Allen’s argument that the Board erred by denying him
credit for the time he spent incarcerated in New York from November 12, 2015, to
October 17, 2017. C.R. at 23. In his brief, Allen represents that the New York
sentence specified that this time was to be served concurrently with any other
sentence he was currently serving. See Pet’r’s Br. at 11. However, and relevant
here, Allen does not cite anything in the record to support this claim, and the certified
record does not contain a copy of the New York sentencing order.
7
“Our review of the Board’s decision is limited to determining whether constitutional
rights were violated, whether the decision is in accordance with the law, or whether necessary
findings are supported by substantial evidence.” Kerak v. Pa. Bd. of Prob. & Parole, 153 A.3d
1134, 1138 n.9 (Pa. Cmwlth. 2016).
8
From our careful review, there is nothing in the record that substantiates
Allen’s claim that his sentence on the New York charges was to run concurrently
with any other sentence he was serving on other convictions.8 The Certificate of
Disposition Indictment, dated October 24, 2017, specifies only that the charges of
Criminal Possession of a Firearm and Criminal Possession of a Weapon, each of
which carries a sentence of one year of imprisonment, were to be served
consecutively with one another. C.R. at 20. There is no reference as to whether that
two-year sentence was to be served concurrently or consecutively with any other
sentence that Allen was currently serving or for which charges were outstanding. Id.This Court has held that briefs “are not part of the evidentiary record
and assertions of fact therein that are not supported by the evidentiary record may
not form the basis of any action by this Court.” Jones v. Workers’ Comp. Appeal
Bd. (City of Chester), 961 A.2d 904, 909 (Pa. Cmwlth. 2008). Here, the only source
for this credit is Allen’s brief. See Pet’r’s Br. at 11. Accordingly, this Court has no
basis to disturb the Board’s decision to deny credit on his Original Sentence for the
two years he served on his New York sentence.9
8
The New York documents in the record consist of the Arrest Report dated November 13,
2015 (C.R. at 15-18), one page of a seven-page facsimile from the Extradition Unit dated
September 28, 2017 (C.R. at 19), and the Certificate of Disposition Indictment dated October 24,
2017 (C.R. at 20). It is unclear why the other six pages of the facsimile from the New York
Extradition Unit are not part of the certified record as the page included (2 of 7) contains
handwritten notes, one of which is underlined twice at the top stating: “6 pages.” C.R. at 19. We
note the record reflects Allen was sentenced on the New York charges on September 13, 2017.
C.R. at 20.
9
Nevertheless, it bears emphasis that New York does not have the authority to impose
mandatory conditions on Pennsylvania sentences. See Martin v. Pa. Bd. of Prob. & Parole, 840
A.2d 299, 309 (Pa. 2003); Fowler v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 67 C.D. 2013,
filed Oct. 16, 2013), 2013 WL 5762355 (unreported).
9
B. Credit for Time Spent at Liberty on Parole
Next, Allen argues the Board abused its discretion in deciding not to
award him credit on his sentence for the 167 days he spent at liberty on parole, i.e.,
street time. Pet’r’s Br. at 12. Allen asserts the Board failed to meet the Pittman
standard by failing to articulate its reason for the credit denial.
In its brief, the Board did not articulate the reason for its denial of credit,
or cite the record to show where it articulated such a reason, or argue that its reason,
if articulated, was sufficient under Pittman. Rather, the Board contends that Allen
waived his right to raise this argument because he did not address it in his
Administrative Appeal. Resp’t’s Br. at 8-10.
After careful review of the record, we agree with the Board that Allen
did not articulate a Pittman challenge to the denial of credit for his street time prior
to filing his petition for review. Primarily, Allen challenged the denial of credit for
the two years he served in New York, not for the period when he was at liberty on
parole (167 days). Allen did not cite Pittman or argue the Board did not sufficiently
explain a reason for denying discretionary credit for time spent at liberty on parole.
Although this Court hesitates to decide this issue on grounds of waiver
given the unique administrative path of this credit challenge, there simply is no
reference to the Board’s credit denial of the 167 days in any of Allen’s requests for
relief. Allen did not mention or request credit for the 167 days in his Administrative
Remedies Form despite that the October 2018 Order to Recommit stated: “Prior
Parole Liberty Forfeited: 167D = 00Y 05M 15D.” C.R. at 54.
10
The Board informed Allen of its denial of credit in the October 2018
Recommitment. There, the Board explicitly stated the reason for its denial of credit
corresponding to the 167 days was: “Firearms charges.” C.R. at 56. Significantly,
there is no reference to the insufficiency of this reason until Allen filed his appellate
brief to this Court.
It is well established that “issues not raised . . . before the Board in an
administrative appeal are waived for purposes of appellate review by this court.”
McCaskill v. Pa. Bd. of Prob. & Parole, 631 A.2d 1092, 1094-95 (Pa. Cmwlth.
1993); see also Headley v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 2553 C.D.
2015, filed May 2, 2017), 2017 WL 1629441 (unreported)10 (checking box for
“Sentence Credit Challenge” did not preserve credit issue when no credit period
alleged, and no attachment indicating type of credit challenge); Fryer v. Pa. Bd. of
Prob. & Parole (Pa. Cmwlth., No. 145 C.D. 2014, filed Oct. 10, 2014), 2014 WL
5456790 (unreported) (alleging Board improperly credited time spent in custody did
not preserve credit challenge as to time spent at liberty on parole, resulting in waiver
of that credit challenge). Cf. Plummer v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No
1484 C.D. 2017, filed May 14, 2018), 2018 WL 2187872 (unreported) (rejecting
Board’s waiver argument as CPV specified credit period in administrative appeal).
Here, Allen checked the box for “Sentence Credit Challenge” on his Administrative
Remedies Form, stating “See Memorandum.” C.R. at 74. The memorandum focused
exclusively on his request for two years’ credit for his New York sentence. Because
Allen did not appeal the Board’s credit denial in his Administrative Remedies Form,
he may not challenge it for the first time in this appeal. McCaskill; Fryer.
10
We cite this case for its persuasive value in accordance with Section 414(a) of this
Court’s Internal Operating Procedures, 210 Pa. Code §69.414(a).
11
The Board’s Order to Recommit is an administrative order subject to
appeal through the administrative proceeding. Allen filed such an administrative
appeal to the October 2018 Recommitment, but he neglected to identify any
challenge to the credit denial for street time, or the reason articulated for the denial,
i.e., firearms charges. Also, and relevant here, Allen did not file an administrative
appeal of the August 23, 2019 Order, despite that the Board stated: “If you wish to
contest the new January 9, 2024[,] max date, you may file an administrative
appeal/petition for administrative review from the [B]oard action recorded August
23, 2019.” C.R. at 114. Indeed, the paragraph containing the administrative order is
copied in full in the Order in Question section of Allen’s brief. See Pet’r’s Br. at 3.
Ultimately, the Board corrected its mathematical error in which it
erroneously added the 167 days’ street time to his backtime (2,275+167 = 2,442),
thus extending his Original Sentence. See Response, C.R. at 113-14. Thus, to the
extent the Board erred in calculating Allen’s maximum date by misallocating the
167 days, it corrected that error in the August 23, 2019 Order to Recommit, as
confirmed in the Board action reflecting that order. We discern no error by the Board
in its calculation of Allen’s maximum date.11
Having deemed Allen’s Pittman challenge waived, we need not address
the sufficiency of the Board’s stated reason here.12
11
Further, the decision to award credit to a CPV for time spent at liberty on parole is within
the Board’s discretion. Section 6138(a)(2.1) of the Code, 61 Pa. C.S. §6138(a)(2.1). Allen points
to no abuse of discretion in denying him backtime credit for his street time.
12
Nonetheless, we note that our Supreme Court did not prescribe criteria for a sufficient
reason for a credit denial under Section 6138(a)(2.1) of the Code in Pittman v. Pennsylvania Board
12
III. Conclusion
For the foregoing reasons, this Court affirms the Board.
______________________________
J. ANDREW CROMPTON, Judge
of Probation & Parole, 159 A.3d 466 (Pa. 2017). Since the Court advised that the reason need
not be extensive, and “a single sentence . . . is likely sufficient in most instances,” id. at 475 n.12,
this Court has reviewed several Pittman challenges to the sufficiency of the Board’s reason. See
Marshall v. Pa. Bd. of Prob. & Parole, 200 A.3d 643 (Pa. Cmwlth. 2018); Smoak v. Talaber, 193
A.3d 1160, 1165 (Pa. Cmwlth. 2018). We explained the Board’s given reason must be “accurate
and related to the parolee’s offenses.” Marshall, 200 A.3d at 650. It should also be “documented
by the record.” Plummer v. Pa. Bd. of Prob. & Parole, 216 A.3d 1207, 1212 (Pa. Cmwlth. 2019).
Although we do not decide the merits of Allen’s Pittman challenge, the Board’s stated reason here
is accurate and supported by the record. Also, in the context of a counsel’s withdrawal application,
this Court recognized the reason “firearms charges” as sufficient. See Tres v. Pa. Bd. of Prob. &
Parole (Pa. Cmwlth., No. 828 C.D. 2018, filed June 3, 2019), 2019 WL 2400098 (unreported)
(Board indicated arrest on firearms charge as reason for credit denial).
Moreover, Pittman provides that when exercising its discretion to deny credit for time spent
at liberty on parole, the Board must provide a contemporaneous statement explaining its reason.
The reason was provided in the October 2018 Recommitment as “firearms charges.” C.R. at 54.
That was contemporaneous to the Order to Recommit in which the Board set forth its calculation
of Allen’s backtime, and listed the forfeiture of 167 days.
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Eric Allen, :
Petitioner :
:
v. : No. 1273 C.D. 2019
:
Pennsylvania Board :
of Probation and Parole, :
Respondent :
ORDER
AND NOW, this 18th day of September 2020, the order of the
Pennsylvania Board of Probation and Parole is AFFIRMED.
______________________________
J. ANDREW CROMPTON, Judge