D. Smoak v. J.J. Talaber, Esq., Secretary PBPP

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Darrell Smoak, :

Petitioner :

:

v. : No. 112 C.D. 2018

: Submitted: June 15, 2018

John J. Talaber, Esquire, Secretary :

Pennsylvania Board of :

Probation and Parole, :

Respondents :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION

BY PRESIDENT JUDGE LEAVITT FILED: September 11, 2018

Darrell Smoak (Smoak) petitions for review of an order of the

Pennsylvania Board of Probation and Parole (Parole Board) that recommitted him

as a convicted parole violator to serve nine months backtime. Smoak argues that the

Parole Board erred by failing to provide him with a statement of reasons for its

decision to deny him credit for time spent at liberty on parole. For the reasons that

follow, we affirm.

In 2009, Smoak was sentenced to a term of five to ten years of

incarceration for possession with intent to deliver illegal narcotics. Simultaneously,

he was sentenced to four to eight years of incarceration for the offense of illegal

possession of firearms. Smoak’s maximum release date was September 20, 2018.

On July 24, 2014, Smoak was released on parole.

On March 17, 2016, Smoak reported to the Parole Office for a

urinalysis and was discovered to have a rubber glove filled with urine. The City of

Chester Police Department arrested Smoak for Furnishing Drug Free Urine – Use or

Attempt. He was unable to post bail and was confined at the Delaware County

Prison.

On May 19, 2016, Smoak was convicted of Furnishing Drug Free Urine

and was sentenced to one year of county probation. On that same date, Smoak

waived his right to a parole revocation hearing. On June 23, 2016, the Parole Board

recommitted Smoak to a state correctional institution as a convicted parole violator

to serve nine months of backtime. The Parole Board calculated his parole violation

maximum date of release to be May 14, 2020.

On July 19, 2016, the Parole Board received Smoak’s petition for

administrative review, wherein he challenged the Parole Board’s decision to “take[ ]

[his] street time[.]” Certified Record at 75 (C.R. __).1 By decision issued December

19, 2017, the Parole Board modified the June 23, 2016, recommitment order by

adding the following language:

THE BOARD IN ITS DISCRETION DOES NOT AWARD

CREDIT TO YOU FOR THE TIME SPENT AT LIBERTY ON

PAROLE FOR THE FOLLOWING REASON(S):

--UNRESOLVED DRUG AND ALCOHOL ISSUES.

C.R. 70. Thereafter, on January 9, 2018, the Parole Board denied Smoak’s petition

for administrative review, stating, in pertinent part:

[T]he decision on whether to grant or deny a convicted parole

violator for time at liberty on parole is purely a matter of

discretion. The Prisons and Parole Code authorizes the Board to

grant or deny credit for time at liberty on parole for certain

criminal offenses. 61 Pa. C.S. §6138(a)(2.1). To the extent that

1

At the same time as his administrative appeal was pending, on January 18, 2017, Smoak was

paroled. While on parole, Smoak was convicted of driving under the influence. C.R. 68, 72.

Subsequently, the Parole Board recommitted Smoak as a convicted parole violator, and his parole

violation maximum date is now March 9, 2021. C.R. 72.

2

you claim the Board abused its discretion by not having an

adequate reason to deny you credit for the time you spent at

liberty on parole, this claim is now moot. On December 19,

2017, the Board mailed you a new board action providing a

reason for why you were denied credit for the time you spent at

liberty on parole. In this case the reasoning provided was that

you have unresolved drug and alcohol issues.

C.R. 79. Smoak now petitions this Court for review.

On appeal,2 Smoak argues that the Parole Board abused its discretion

by failing to provide him with a contemporaneous statement of reasons for denying

credit for street time. In support of his argument, Smoak cites our Supreme Court’s

decision in Pittman v. Pennsylvania Board of Probation and Parole, 159 A.3d 466

(Pa. 2017). He also argues that the Parole Board improperly delayed his right to

appeal the recommitment decision by taking nearly two years to respond to his

administrative appeal. The Parole Board responds that it properly exercised its

discretion in denying Smoak credit for time spent at liberty on parole, including

setting forth the basis for its decision to deny him credit.

By way of background, Section 6138(a)(1) of the Prisons and Parole

Code (Parole Code)3 provides that

[a] parolee under the jurisdiction of the board released from a

correctional facility who, during the period of parole or while

delinquent on parole, commits a crime punishable by

imprisonment, for which the parolee is convicted or found guilty

by a judge or jury or to which the parolee pleads guilty or nolo

contendere at any time thereafter in a court of record, may at the

discretion of the board be recommitted as a parole violator.

2

This Court’s review determines whether the Parole 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; Moroz v.

Pennsylvania Board of Probation and Parole, 660 A.2d 131, 132 (Pa. Cmwlth. 1995).

3

61 Pa. C.S. §§6101-6153.

3

61 Pa. C.S. §6138(a)(1). Where the Parole Board determines to recommit a parolee

as a convicted parole violator,

the parolee shall be reentered to serve the remainder of the term

which the parolee would have been compelled to serve had the

parole not been granted and, except as provided under paragraph

(2.1), shall be given no credit for the time at liberty on parole.

61 Pa. C.S. §6138(a)(2) (emphasis added). Section 6138(a)(2.1) of the Parole Code

provides that, “[t]he [Parole B]oard may, in its discretion, award credit to a parolee

recommitted … for the time spent at liberty on parole,” with three enumerated

exceptions, none of which are applicable in this case.4 61 Pa. C.S. §6138(a)(2.1).

Recently, in Pittman, our Supreme Court explained that, when the

Parole Board exercises its discretion under Section 6138(a)(2.1), it “must articulate

the basis for its decision to grant or deny a [convicted parole violator] credit for time

served at liberty on parole.” 159 A.3d at 474. Simply checking “no” on the standard

hearing report does not suffice. The Supreme Court noted that “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. The Parole Board must issue a

contemporaneous statement of reasons as to why it denied a convicted parole

4

Section 6138(a)(2.1) states:

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).

4

violator credit for time spent at liberty on parole; where the Board fails to do so, this

Court will remand for the Board to set forth its reasons. See Anderson v. Talaber,

171 A.3d 355, 360 (Pa. Cmwlth. 2017) (case remanded where Parole Board abused

its discretion by failing to “issue a contemporaneous statement of its decision to deny

[the parolee] credit for street time” in accordance with Pittman); Green v.

Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No. 725 C.D. 2017,

filed April 19, 2018), slip op. at 9 (unreported) (“failing to provide a

contemporaneous statement of reasons” for a denial of credit constitutes error and

abuse of discretion, requiring a remand).5

Here, because Smoak was recommitted as a convicted parole violator,

he was not entitled to credit for time spent at liberty on parole unless the Parole

Board, in its discretion, determined to award him credit. 61 Pa. C.S. §6138(a)(2),

(2.1). The Parole Board exercised its discretion and affirmatively chose to deny

Smoak credit for time spent at liberty. C.R. 31. However, it did not record any

reason for its decision to deny credit on the June 23, 2016, recommitment order.

C.R. 56. This was an error.

However, this matter does not need to be remanded to the Parole Board

to correct the error because the Parole Board, after receiving Smoak’s administrative

appeal, corrected its omission by modifying the recommitment order to include its

reason for denying Smoak credit for his street time. Specifically, the Parole Board

stated:

THE BOARD IN ITS DISCRETION DOES NOT AWARD

CREDIT TO YOU FOR THE TIME SPENT AT LIBERTY ON

PAROLE FOR THE FOLLOWING REASON(S):

5

An unreported panel decision of this Court, “issued after January 15, 2008,” may be cited “for

its persuasive value[.]” 210 Pa. Code §69.414(a).

5

--UNRESOLVED DRUG AND ALCOHOL ISSUES.

C.R. 70. As noted, “the reason the [Parole] Board gives does not have to be

extensive and a single sentence explanation is likely sufficient in most instances.”

Pittman, 159 A.3d at 475 n.12. We hold the Parole Board’s reason to deny Smoak

credit for time spent at liberty on parole is sufficient.6 However, the Parole Board’s

above-quoted explanation is not a full sentence, and it does not identify the incidents

that created these “issues.” It is just barely sufficient.

Smoak also argues that the Parole Board, by waiting nearly two years

to respond to his administrative appeal, delayed his right to appellate review.

Although the Parole Code does not provide a deadline for the Parole Board to

respond to a request for administrative relief, the Parole Board’s time to respond is

not indefinite.

A parolee’s right to due process may be compromised where the delay

to enter the appellate process causes prejudice. In Slotcavage v. Pennsylvania Board

of Probation and Parole, 745 A.2d 89 (Pa. Cmwlth. 2000), the parolee claimed that

the Parole Board violated his equal protection and due process rights because it took

more than six months to respond to his administrative appeal. This Court stated:

[a]ssuming that the six-month delay was an unreasonable amount

of time for the [Parole] Board to issue a decision, a parolee’s due

process rights to access the courts are not violated when a parole

board puts off making a decision of parole until the parolee

serves his time on other crimes. Moody v. Daggett, 429 U.S. 78,

97 S.Ct. 274, 50 L.Ed.2d 236 (1976). Likewise, Pennsylvania

courts have required a showing of harm on the part of a parolee

6

Additionally, Smoak contends that the Parole Board should not have dismissed as moot that

portion of his administrative appeal wherein he objected to the Parole Board’s failure to set forth

a reason for its decision to deny him credit for his street time. The Parole Board, by modifying its

prior decision to set forth its reason, addressed his objection; therefore, we agree with the Parole

Board that this issue was moot.

6

challenging the parole revocation process. In Commonwealth v.

Marchesano, 519 Pa. 1, 544 A.2d 1333 (1988), our Supreme

Court held that where a probationer did not suffer any actual

prejudice, a five month and three week delay in the probation

revocation process did not violate the speedy process rule of

Pa.R.Crim.P. 1409 concerning probation from “county-time,”

especially where the parolee would have been incarcerated in any

event because he was serving time for other offenses. In the

present case, the [Parole] Board completed the entire revocation

process on March 2, 1999, when it denied Slotcavage’s

administrative appeal, approximately eight years before the

expiration of his sentence on the federal drug charges. Because

he was not prejudiced by the [Parole] Board’s delay in

responding to his administrative appeal, Slotcavage’s due

process rights under the United States and Pennsylvania

Constitutions were not violated.

Slotcavage, 745 A.2d at 92-93 (emphasis added). More recently, in Cooper v.

Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No. 48 C.D. 2018, filed

August 7, 2018) (unreported), this Court addressed the Parole Board’s 15-month

delay in acting on an administrative appeal, stating:

While the length of the delay on its face is substantial, it does not

constitute a valid ground for relief from the [Parole] Board’s

decision, even if it were [sic] held to be unreasonable and

inexcusable. The remedy for the [Parole] Board’s failure to

timely act on an appeal is a petition for mandamus in this Court’s

original jurisdiction to require the [Parole] Board to issue its

decision, not reversal of an otherwise correct decision after it has

been issued…. Moreover, a delay in issuing a decision on a

parole appeal does not violate an inmate’s due process rights if

the delay does not harm the inmate’s ability to obtain the full

relief he seeks….

Slip op. at 7-8 (citations omitted).

Here, Smoak does not allege that he suffered any prejudice from the

Parole Board’s delay in responding to his administrative appeal. Further, Smoak

was not prejudiced by the Parole Board taking approximately 18 months to respond

7

to his petition for administrative review. After receiving Smoak’s administrative

appeal, the Parole Board remedied the error by modifying the June 23, 2016,

recommitment order to provide Smoak with the reason for its decision to deny him

credit for time spent at liberty on parole. Thus, rather than suffering any prejudice

from the delay, Smoak benefitted, because he received a statement of reasons for

why he was denied credit for his street time.7

For these reasons, we affirm the Parole Board’s order.

______________________________________

MARY HANNAH LEAVITT, President Judge

7

Additionally, even if the Parole Board did not timely respond to Smoak’s administrative appeal,

his remedy would have been to file a mandamus action seeking to compel the Board to issue its

decision. See Slotcavage, 745 A.2d at 91, n.3. He did not do so.

8

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Darrell Smoak, :

Petitioner :

:

v. : No. 112 C.D. 2018

:

John J. Talaber, Esquire, Secretary :

Pennsylvania Board of :

Probation and Parole, :

Respondents :

ORDER

AND NOW, this 11th day of September, 2018, the order of

Pennsylvania Board of Probation and Parole, dated December 19, 2017, is

AFFIRMED.

______________________________________

MARY HANNAH LEAVITT, President Judge