Young, O. v. PA Board of Probation & Parole, Aplt.

[J-100-2019][M.O. - Donohue, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

OTTO YOUNG, : No. 1 MAP 2019

:

Appellee : Appeal from the Order of the

: Commonwealth Court dated 6/12/18 at

: No. 361 CD 2016 reversing the order of

v. : the Pennsylvania Board of Probation

: and Parole dated 2/24/16 and

: remanding

PENNSYLVANIA BOARD OF :

PROBATION AND PAROLE, :

: ARGUED: November 20, 2019

Appellant

CONCURRING OPINION

CHIEF JUSTICE SAYLOR DECIDED: February 19, 2020

I join the majority opinion, subject to the understanding that it is limited to the

facts of this case, namely, the award by the Board of an unconditional credit against

Appellee’s sentence. See Notice of Board Decision filed July 23, 2013, in Parole No.

8933M, Institution No. BD0152 (“The Board in its’ [sic] discretion awards credit to you

for the time spent at liberty on parole.”). See generally Oliver v. City of Pittsburgh, 608

Pa. 386, 395, 11 A.3d 960, 966 (2011) (restating the axiom that the holding of a judicial

decision is read against its facts).

I also agree with the majority’s decision to reject the Board’s policy position in the

circumstances presented, as the Board made no effort whatsoever to put Appellee on

notice that revocation was possible. It would present a materially different case, in my

view, had the Board, at the time that it conferred the credit, expressly conditioned the

award upon Appellee’s refraining from committing any further crimes. Consistent with

the notions of due process and fair notice, this, of course, would have apprised Appellee

that the credit that he received was not intended to be unconditional, thus presenting a

much better case for a reservation of discretion, in the Board, to revoke.

To the degree that the Commonwealth Court’s reasoning would appear to

preclude the Board from exercising its broad discretion relative to credit awards by

imposing reasonable, express conditions, nothing in my joinder here should be taken as

lending my own approval at this juncture. In this regard, the circumstances at hand do

not present the issue, and concomitantly, there is no developed advocacy concerning

whether the clear and unmistakable conferral of discretion, by the Legislature, upon the

Board subject to no stated constraints carries with it the implied authority to impose

reasonable conditions.1 Of course, conditional grants of credit -- if and where

appropriate -- would certainly dispel the Board’s claims of absurdity as well as its

depiction of an undesirable chilling effect. See Majority Opinion, slip op. at 5.

I acknowledge the scale of the Board’s weighty responsibilities. On the other

hand, as recently related in Pittman, the Board must also recognize that the

dispensation of individualized justice, at a minimum, requires compliance with basic due

process norms. See Pittman, 639 Pa. at 52, 159 A.3d at 474 (invoking due process

concepts in rejecting the Board’s position that it had been invested with unbridled and

unreviewable discretion relative to decisions whether to award credit or impose a

forfeiture).

In this regard, to the extent that the Board might attempt to incorporate any

conditions into its future credit awards, the routinizing of such conditions -- absent

1In Pittman v. PBPP, 639 Pa. 40, 159 A.3d 466 (2017), this Court recognized that “the

Board has the broadest of discretion over many decisions regarding parolees.” Id. at

52, 159 A.3d at 474.

[J-100-2019][M.O. - Donohue, J.] - 2

individualized assessments -- would likely implicate issues along the lines of those

addressed in Pittman.

Justice Mundy joins this concurring opinion.

[J-100-2019][M.O. - Donohue, J.] - 3