Marshall v. Pa. Bd. of Prob. & Parole

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Dwight Marshall, :

Petitioner :

:

v. : No. 172 M.D. 2018

: Submitted: August 24, 2018

Pennsylvania Board of Probation :

and Parole, :

Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION

BY JUDGE SIMPSON FILED: December 17, 2018

Dwight Marshall (Marshall) petitions for review from an order of the

Pennsylvania Board of Probation and Parole (Board) that denied his administrative

appeal. He challenges the Board’s recommitment order that extended his maximum

sentence date based on an out-of-state conviction, asserting the Pennsylvania crime

used to discern the recommitment range was more severe. He also argues the Board

abused its discretion in denying him credit for his time spent at liberty on parole and

inadequately explaining its denial. We vacate the Board’s order, and remand to the

Board to explain its credit determination sufficiently to enable appellate review.

I. Background

In 1998, Marshall was sentenced to 11 to 22 years in prison for murder

in the third degree and robbery, with a maximum date of January 15, 2019. He

obtained release on parole on March 3, 2008. Almost nine years later, as a result of

a traffic stop in Delaware, Marshall was charged with multiple crimes related to his

possession of 200.49 grams of powder cocaine and 67.94 grams of crack cocaine.

Specifically, a court in the State of Delaware, Kent County convicted Marshall for

“DDEAL Tier 4 (F) Cocaine” under 16 Del. C. §4752, and it sentenced him to eight

years, custody level 5. Certified Record (C.R.) at 17 (Sentence Order, 5/10/17).

Delaware then extradited Marshall to serve his sentence in Pennsylvania.

The new conviction subjected Marshall to a parole revocation hearing.

Marshall acknowledged his conviction, and signed a waiver of his right to a hearing.

C.R. at 36. The parole revocation hearing report recommended “taking [his] street

time” because Marshall “was on parole for Murder and was convicted of felony drug

related crimes.” C.R. at 35.

As a result of his out-of-state conviction, the Board recommitted

Marshall to serve 24 months as a convicted parole violator (CPV). In determining the

appropriate recommitment range, the Board determined that Marshall’s Delaware

conviction most closely related to the Pennsylvania crime of possession with intent

to manufacture or deliver a controlled substance (cocaine) under Section 13(a)(30)

of The Controlled Substance, Drug, Device and Cosmetic Act (Controlled Substance

Act),1 that carries a statutory maximum sentence of 10 years. 37 Pa. Code §75.1.

Pursuant to 37 Pa. Code §75.2, the presumptive recommitment range for that new

offense is 18 to 24 months. The Board did not award Marshall credit for his time

spent at liberty on parole because of his “felony drug related crimes.” C.R. at 49.

Based on his conviction, the Board recalculated Marshall’s maximum sentence date

as April 29, 2028.

1

Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §780–113(a)(30).

2

Through counsel, Marshall filed an administrative appeal of the

Board’s recommitment order. The Board issued a decision, affirming and explaining

the term of recommitment. Because it stated a reason for denying Marshall credit

for his time spent at liberty on parole, the Board deemed moot his challenge to its

exercise of discretion in its denial of credit. C.R. at 73.

Marshall filed a timely petition for review to this Court (Petition) seeking

an order vacating the Board’s decision and remanding to the Board to modify his

recommitment using the appropriate range corresponding to his criminal conduct,

possession of cocaine. He seeks credit for almost nine years spent at liberty on parole,

and a recalculation of his maximum sentence date to reflect that credit.

II. Discussion

On appeal,2 Marshall asserts the Board violated his due process rights

when it did not notify him, at the time he waived his revocation hearing, that a new

maximum sentence date was a possible consequence. He challenges the Board’s

authority to alter his original maximum date beyond his judicially-imposed sentence.

He also argues the Board applied an incorrect recommitment range corresponding to

a more severe offense. Using the most closely related crime of possession, as opposed

to possession with intent to distribute, he maintains the appropriate recommitment

range was 3 to 6 months, not 18 to 24 months. In addition, Marshall contends the

Board abused its discretion when it denied him credit for time spent at liberty on

parole, and he challenges the adequacy and accuracy of its reason for doing so.

2

“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).

3

A. Notice

First, we address Marshall’s argument that the Board violated his due

process rights because it did not notify him, at the time he waived his revocation

hearing, that a possible consequence was a new maximum sentence date. The Board

responds that Marshall waived this challenge when he did not raise it during the

administrative proceedings. We agree.

The record shows Marshall did not challenge the adequacy of notice for

the revocation hearing in his several-page administrative remedies form. C.R. at 53-

60. Significantly, Marshall’s counsel filed his administrative appeal. C.R. at 53.

On the pre-printed administrative remedies form, counsel checked the box for

“Violation of Constitutional Law (Due process, double jeopardy, etc.).” C.R. at 53.

Other than checking that box, there is no suggestion of this issue for the Board’s

review. Marshall’s failure to raise this issue before the Board results in waiver.

Chesson v. Pa. Bd. of Prob. & Parole, 47 A.3d 875 (Pa. Cmwlth. 2012).

In any event, Marshall cites no authority for the proposition that the

Board must provide specific notice as to all possible legal consequences of a parole

revocation hearing.

B. Recalculation of Maximum Sentence Date

Next, we consider Marshall’s contention that in recalculating his

maximum sentence date, the Board imposed additional time beyond his judicially-

authorized sentence.

4

When a parolee violates the terms and conditions of his parole, the

Board may recommit him to serve all or part of the remainder of his original

sentence. Yates v. Pa. Bd. of Prob. & Parole, 48 A.3d 496 (Pa. Cmwlth. 2012). The

time served on recommitment is known as backtime. Id. Thus, backtime cannot

exceed the time remaining on the original judicial sentence. Id. By definition, when

the Board imposes backtime, it does not alter a judicially-imposed sentence; it

simply requires the prisoner to serve some or all of the time remaining on the original

sentence. Id. The Board is authorized to recalculate the maximum date of a sentence

beyond the original date where it is not adding to the total length of the sentence.

Hughes v. Pa. Bd. of Prob. & Parole, 179 A.3d 117 (Pa. Cmwlth. 2018) (maximum

length of sentence, not maximum date, is controlling).

Here, at the time of his release on parole, Marshall had over 10 years

remaining on his original sentence. In recalculating Marshall’s maximum sentence

date, the Board did no more than require him to serve that sentence. Yates. Thus,

to the extent Marshall posits that the Board lacked authority to recalculate his

maximum sentence date, he is incorrect.

C. Recommitment Range

Marshall also asserts the Board applied an incorrect recommitment range

of 18 to 24 months when the conduct underlying his Delaware conviction most closely

related to possession of a controlled substance, a misdemeanor in Pennsylvania, with a

presumptive range of 3 to 6 months. He contends the Board erred in analogizing the

conduct underlying his Delaware conviction to possession with intent to distribute,

which is subject to a 10-year prison term under Pennsylvania law.

5

In determining the applicable presumptive recommitment ranges for

out-of-state convictions, the Board compares the out-of-state offense to those listed

in its regulations. When the list does not include the offense, the Board assesses the

criminal conduct to discern the most closely related crime category under

Pennsylvania law. See 37 Pa. Code §§75.1, 75.2.

“The presumptive ranges are intended to directly relate to the severity

of the crime for which the parolee has been convicted.” 37 Pa. Code §75.1(d).

Further, “[t]he severity ranking of crimes listed in §75.2 ... is not intended to be

exhaustive, and the most closely related crime category in terms of severity and the

presumptive range will be followed if the specific crime which resulted in conviction

is not contained within the listing.” 37 Pa. Code §75.1(e). For drug offenses, the

presumptive range depends on the maximum term of imprisonment for the offense.

37 Pa. Code §75.2. However, “[i]t is the severity of the criminal conduct that

determines the presumptive range, not the severity of the punishment.” Rodriguez

v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 1997 C.D. 2015, filed March 28,

2016), slip op. at 7, 2016 WL 1221840, at *2 (unreported) (quoting Harrington v.

Pa. Bd. of Prob. & Parole, 507 A.2d 1313, 1315 (Pa. Cmwlth. 1986)).

Here, the Delaware court adjudged Marshall guilty of “DDEAL, Tier 4

(Cocaine),” a felony in Delaware. C.R. at 17. Although the charges included various

crimes under Section 4752 of the Delaware Penal Code, Marshall’s conviction record

does not specify a subsection. Premised on this omission, Marshall claims his crime

amounted to mere possession of a controlled substance, not possession with intent

to deliver as the Board found. We disagree.

6

Section 4752 of the Delaware Penal Code is captioned “drug dealing—

aggravated possession; class B felony.” 16 Del. C. §4752. It consists of five

subsections, each of which includes the offense “possesses a controlled substance,”

in various quantity levels, with or without aggravating factors. Id.

Notwithstanding Marshall’s contentions, none of these offenses is

analogous to mere possession of a controlled substance under Pennsylvania law.

Thus, we are unpersuaded by Marshall’s argument that Section 13(a)(16) of the

Controlled Substance Act, 35 P.S. §780–113(a)(16), is the most closely related

crime. First, that provision pertains to possession of a controlled substance “by a

person not registered under this act, or a practitioner not registered or licensed by

the appropriate State Board …” without regard to the quantity of the drug. Id.

Second, violating that provision is a misdemeanor punishable by a maximum of one

year under Section 13(b) of the Controlled Substance Act, 35 P.S. §780–113(b), for

which the presumptive recommitment range is 3 to 6 months. Third, in reviewing

other subsections in the same section, Section 13(30) of the Controlled Substance Act,

35 P.S. §780–113(a)(30), is more analogous to Marshall’s conduct in Delaware.

Section 13(a)(30) of the Controlled Substance Act, 35 P.S. §780–113(a)(30),

classifies possession with intent to deliver a controlled substance as a felony

punishable by a maximum term of 10 years in prison. Significantly, Marshall’s

Delaware conviction was also a felony, for which he received an eight-year sentence.

Despite that the Sentencing Order does not specify the subsection of

Section 4752 of the Delaware Penal Code, it states the conviction corresponds to a

Tier 4 quantity. Notably, subsection 1 sets forth this quantity in the offense; it reads:

7

“manufactures, delivers, or possesses with intent to manufacture or deliver a

controlled substance in a Tier 4 quantity.” 16 Del. C. §4752(1) (emphasis added).

Therefore, the conduct underlying Marshall’s conviction most closely relates to the

Pennsylvania crime of possession with intent to deliver under Section 13(a)(30) of

the Controlled Substance Act, 35 P.S. §780–113(a)(30), as the Board concluded.

The Board did not err in utilizing the presumptive range corresponding to that crime.

This Court will not interfere with the Board’s discretion as long as the

amount of backtime the Board imposed was within the applicable presumptive range.

Ward v. Pa. Bd. of Prob. & Parole, 538 A.2d 971 (Pa. Cmwlth. 1988). Here, the

recommitment period of 24 months is within the presumptive range corresponding

to the closely related offense the Board identified. 37 Pa. Code §75.2.

D. Credit for Time at Liberty on Parole

Finally, Marshall argues the Board erred in its refusal to credit his

almost nine years of time spent at liberty on parole in recalculating his maximum

sentence date. Although he acknowledges the Board’s discretion to deny such credit

under the Prisons and Parole Code, he contends the Board violated the constitutional

requirements in Pittman v. Pennsylvania Board of Probation & Parole, 159 A.3d 466

(Pa. 2017), because it “denied [him] credit without conducting any individual

assessment of the facts and circumstances surrounding his parole revocation.” Id. at

474 (emphasis added); see Pet’r’s Br. at 19. We discern merit in this argument.

Section 6138(a)(1) of the Prisons and Parole Code provides that any

parolee who commits a crime punishable by imprisonment while on parole, and is

8

convicted or found guilty of that crime, may be recommitted as a CPV. 61 Pa. C.S.

§6138(a)(1). Further, 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,” except when the

recommitment involves the reasons in subsections 6138(a)(2.1)(i) and (ii) (including

violent and sexual offender crimes), not present here. Pittman, 159 A.3d at 473.

Relevant here, in Pittman, our Supreme Court held that in not explaining

its exercise of discretion with reasons for awarding or denying credit, the Board

violated its statutory mandate and denied a parolee’s constitutional due process rights.3

The Court reasoned that the Board satisfies constitutional due process by stating the

reasons for exercising its discretion to deny credit for the time a parolee spent at

liberty on parole. However, the Court did not set forth criteria for such a statement,

noting only that it need not “be extensive and a single sentence explanation is likely

sufficient in most instances.” Id. at 475 n.12.

Here, the Board’s reason for denying Marshall credit for time spent at

liberty on parole consisted of four words: “felony drug related crimes.” C.R. at 49.

Although the word “felony” connotes the severity of the offense, it remains unclear

how a drug-related conviction warrants denying credit for almost nine years of street

time, which is more than the sentence Marshall received for his new conviction.4

Further, the phrase implies he committed multiple felony drug crimes when he was

convicted of just one. See Pet’r’s Br. at 10, 19-22.

3

See PA. CONST. art. V, §9 (providing a right to appeal from agency decisions).

4

Notably, Marshall’s felony conviction is not listed among the crimes for which the Board

lacks the discretion to award credit. See 61 Pa. C.S. §6138(a)(2.1).

9

Recently, when presented with a Pittman challenge to the sufficiency

of a reason, this Court found a five-word reason for denying credit for street time

“just barely sufficient.” See Smoak v. Pa. Bd. of Prob. & Parole, __ A.3d __, __

(Pa. Cmwlth., No. 112 C.D. 2018, filed September 11, 2018), slip op. at 6, 2018 WL

4308762, at *3 (“unresolved drug and alcohol issues” was adequate). In Smoak, the

Board’s stated reason indicated multiple issues of an ongoing nature. There, the

parolee was convicted on drug-related offenses, and was recommitted when he

attempted to furnish drug-free urine to pass a drug test. The reason was accurate and

related to the parolee’s offenses. This Court was able to assess the Board’s exercise

of discretion in denying Smoak credit for approximately two years of street time.

Since the Court decided Pittman, this Court assessed the Board’s

exercise of discretion in a number of cases. See, e.g., Hayward v. Pa. Bd. of Prob. &

Parole (Pa. Cmwlth., No. 1735 C.D. 2017, filed July 18, 2018), slip op. at 5, 2018 WL

3447033, at *2 (unreported) (deeming “conviction involved possession of a weapon”

sufficient reason); Vann v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 1067 C.D.

2017, filed April 10, 2018), slip op. at 18, 2018 WL 1722658, at *7 (unreported)

(holding reason of “prior history of supervision failures” and “unresolved drug and

alcohol issues” sufficed). We upheld the Board’s discretion in denying street time

credit when the reason showed recidivism. See Johnson v. Pa. Bd. of Prob. & Parole

(Pa. Cmwlth., No. 25 C.D. 2018, filed October 12, 2018), slip op. at 9, 2018 WL

4940327, at *5 (unreported) (“third firearm conviction” was sufficient reason); Harvey

v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 1375 C.D. 2017, filed September 7,

2018), slip op. at 9, 2018 WL 4264935, at *3 (unreported) (“extensive history of illegal

drug involvement” and new drug-related conviction were adequate reasons).

10

However, in none of the prior cases has the Board used as few words

that have no apparent relationship to the parolee. Further, none of these cases

involved an unexplained inaccuracy in the stated reason.

Pittman requires the Board to articulate a reason for exercising its

discretion to deny credit for street time because “an appellate court hearing the

matter must have method to assess the Board’s exercise of discretion.” Id. at 474.

To meet the constitutional guarantees of due process, an agency’s decision must be

explained “in sufficient detail to permit meaningful appellate review.” Fisler v. State

Sys. of Higher Educ., Cal. Univ. of Pa., 78 A.3d 30, 41 (Pa. Cmwlth. 2013) (quoting

Peak v. Unemployment Comp. Bd. of Review, 501 A.2d 1383, 1389 (Pa. 1985)).

There must be safeguards to ensure against arbitrary decision-making. Peak.

Here, other than reference to a felony conviction, the Board’s stated

reason does not contain any facts that relate to this parolee. The significance of the

“drug-related” modifier of crime is also unclear from this record. The record does

not indicate that his prior conviction was drug related, or otherwise suggest

recidivism. As to the commission of a felony while on parole, the commission of a

felony could be one of the factors that the Board considers when exercising its

discretion to award or withhold credit; however, standing alone, the commission of

a felony is an insufficient articulation of the Board’s reasoning.

Our task here is to evaluate whether the Board abused its discretion in

denying Marshall credit for almost nine years of street time for conviction of a drug-

related felony. The Board’s articulated reason simply restates the conviction without

11

an individual assessment of the facts surrounding Marshall’s parole revocation.

Without further explication of the stated reason, the Board’s reason for denying

Marshall credit is not amenable to appellate review. See Hinkle v. City of Phila.,

881 A.2d 22, 26 (Pa. Cmwlth. 2005); see also Pocono Mtn. Charter Sch., Inc. v.

Pocono Mtn. Sch. Dist., 88 A.3d 275, 290 (Pa. Cmwlth. 2014) (“lack of written

findings and reasons goes to the reviewability of a decision, not its validity.”).

Remand is appropriate to ensure this Court has a proper decision,

capable of review, before it. Newman Dev. Grp. of Pottstown, LLC v. Genuardi's

Family Markets, Inc., 52 A.3d 1233, 1247 (Pa. 2012) (“remands may encompass a

variety of proceedings” including remand for an explanation). Accordingly, we

remand to the Board for the limited purpose of explaining its exercise of discretion

in its credit determination, and to correct any error in exercising that discretion based

on the facts and circumstances of Marshall’s parole revocation.5

On remand, the Board should “articulate with reasonable clarity its

reasons for decision, and identify the significance of the crucial facts.” Gruzinski v.

Dep’t of Pub. Welfare, 731 A.2d 246, 251 n.14 (Pa. Cmwlth. 1997). The Board’s credit

decision should contain sufficient facts related to the parolee “to ensure the decision

is not arbitrary.” Barge v. Pa. Bd. of Prob. & Parole, 39 A.3d 530, 548 (Pa. Cmwlth.

2012). The Board’s statement of reasons should be informed by aggravating and

mitigating circumstances and account for the parolee’s individual circumstances.

Similar considerations guide a trial court’s reasons in the sentencing context.

5

See Hoover v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 609 C.D 2017, filed December

14, 2017), 2017 WL 6374750 (unreported) (Board requested this Court order a remand limited to

providing a reason for denial of credit for time spent at liberty on parole).

12

Accord Commonwealth v. Riggins, 377 A.2d 140 (Pa. 1977) (vacating sentence and

remanding to trial court for resentencing that states reasons for the particular

sentence imposed). At a minimum, the Board’s statement of reasons must accurately

reflect the facts informing its decision.

III. Conclusion

We vacate the Board’s order, and remand the matter to the Board for

the limited purpose of articulating reasons for its credit determination based on the

facts and Marshall’s circumstances in accordance with Pittman. In all other respects,

the Board’s decision is affirmed.

ROBERT SIMPSON, Judge

13

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Dwight Marshall, :

Petitioner :

:

v. : No. 172 M.D. 2018

:

Pennsylvania Board of Probation :

and Parole, :

Respondent :

ORDER

AND NOW, this 17th day of December, 2018, the order of the

Pennsylvania Board of Probation and Parole (Board) is AFFIRMED IN PART, as

to parole revocation and the recommitment range, and VACATED IN PART, as to

the credit for time spent at liberty on parole determination. The matter is

REMANDED to the Board to explain its exercise of discretion in its credit

determination as to the time Petitioner Dwight Marshall spent at liberty on parole.

Jurisdiction is relinquished.

ROBERT SIMPSON, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Dwight Marshall,

Petitioner :

:

v. : No. 172 M.D. 2018

: Submitted: August 24, 2018

Pennsylvania Board of Probation :

and Parole, :

Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

CONCURRING OPINION BY

SENIOR JUDGE PELLEGRINI FILED: December 17, 2018

I join with the well-reasoned majority opinion but write separately to

make clear that just because a parolee is being recommitted for a felony does not

justify the Pennsylvania Board of Probation and Parole (Board) from withholding

street time. 61 Pa.C.S. § 6138(a)(2.1) provides:

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).

Under this provision, the General Assembly has mandated that a parolee

who is recommitted for a felony that is not violent or is not a sexual offense remains

eligible for street time unless the Board articulates reasons that a longer period of

incarceration is warranted for rehabilitative reasons. The Board cannot take away

street time to punish a parolee just because he committed a non-excluded felony

while on parole. Courts impose punishment, not the Board. If prior offenses auger in

favor of more time in prison, it is up to the sentencing judge to take that into

consideration when determining an appropriate sentence on the new felony.

Moreover, under 61 Pa.C.S. § 6138(a)(2.1), the General Assembly

intended the Board to award street time unless there are exceptional circumstances

that require the Board to take it away. While those circumstances can include the

facts underlying the new felony, those facts have to be weighed against other factors

before street time can be taken away. For example, if parole is revoked for felony

theft that was committed to obtain drug money, then the Board could take away street

time so that there is sufficient time for the parolee to receive drug treatment in prison.

However, that may not be a sufficient reason to take the time away if the sentence on

the larceny charge is sufficient for the parolee to complete drug treatment. As this

example illustrates, each situation is extremely fact specific requiring the Board to go

into detail to explain the reasoning behind its decision not to award street time.

___________________________________

DAN PELLEGRINI, Senior Judge

DRP - 2