IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John Duzicky, :

Petitioner :

: No. 945 C.D. 2021

v. :

: Submitted: February 11, 2022

Pennsylvania Parole Board, :

Respondent :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE LORI A. DUMAS, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE McCULLOUGH FILED: June 14, 2022

John Duzicky (Duzicky) petitions for review of the order of the 

Pennsylvania Parole Board (Board), mailed on July 28, 2021, which determined that 

he was afforded a timely revocation hearing, that he was properly denied time spent at 

liberty on parole, and that his maximum sentence date was properly recalculated. Upon 

review, we affirm the Board’s decision.

Background

The issues regarding Duzicky’s parole stem from his 2011 guilty plea in 

Beaver County to four counts of the manufacture, sale, or delivery, or possession with 

intent to deliver a controlled substance (PWID), two counts of criminal attempt –

PWID, one count of corrupt organizations, and one count of conspiracy to commit 
2

corrupt organizations. (Certified Record (C.R.) at 1-4.) At the time of sentencing, 

Duzicky’s minimum sentence date was April 24, 2017, and his maximum sentence date 

was April 24, 2023. (C.R. at 2, 4.) Duzicky was paroled and released to an approved 

home plan on April 24, 2017. (C.R. at 9-10.) 

On March 14, 2019, the Pittsburgh Police Department arrested Duzicky 

and charged him with possession of a controlled substance (cocaine) by a person not 

registered and PWID. (C.R. at 16, 21-25, 65-70.) On March 15, 2019, the Board 

lodged a detainer against Duzicky, and, on the same day, Duzicky was confined at the 

Allegheny County Jail. (C.R. at 15, 17.) Bail was set at $40,000, which Duzicky did 

not post. (C.R. at 19, 54.) 

The Board issued a Notice of Charges and Hearing on April 3, 2019, 

indicating that a detention hearing was scheduled for April 9, 2019. (C.R. at 25.) 

Following the hearing, at which Duzicky was represented by a public defender, the 

Board issued an order (recorded on May 23, 2019) detaining Duzicky pending 

disposition of the new criminal charges. (C.R. at 34.) 

On February 6, 2020, Duzicky pled guilty before the Allegheny County 

Court of Common Pleas (trial court) to one count of possession of a controlled 

substance by a person not registered and one count of PWID. (C.R. at 55.) The Board 

received official verification of Duzicky’s new conviction on February 10, 2020.1 

(C.R. at 38, 42.) Duzicky’s sentencing was originally scheduled to be held on May 11, 

2020, but was subsequently continued,2 by Allegheny County Court Administration, to 

September 16, 2020, presumably due to the then-recent onset of the COVID-19 

1 According to Duzicky’s Criminal Arrest and Disposition Report and Supervision History, a 

unit supervisor and deputy district director concurred with pursuing a revocation hearing. (Certified 

Record (C.R.) at 41-43.) 

2 Duzicky’s sentencing was continued three times. See C.R. at 60-61.
3

pandemic. (C.R. at 60-61.) Duzicky was sentenced on the new criminal charges, as 

scheduled, to one to five years of incarceration in a state correctional institution (SCI) 

and a concurrent 10-year state probation sentence, with 552 days of credit for time 

served in the Allegheny County Jail from March 15, 2019, to September 16, 2020. 

(C.R. at 51-52, 55, 61.) On October 9, 2020, Duzicky retained different counsel, who 

requested a parole revocation hearing before the Board. (C.R. at 36.)

Duzicky remained confined in the Allegheny County Jail until January 27, 

2021, when he was returned to the Department of Corrections’ custody at SCI-Greene. 

(C.R. at 38, 54, 122, 130.) A revocation hearing was initially scheduled for February 

25, 2021, but was continued due to Duzicky’s unavailability. (C.R. at 37, 121 

(indicating “[i]nmate transferred prior to hearing”).) On March 1, 2021, the Board 

issued another Notice of Charges and Hearing, notifying Duzicky that a panel 

revocation hearing was scheduled for March 9, 2021, due to his new convictions in 

Allegheny County. (C.R. at 39.) 

The Board held the parole revocation hearing as scheduled, via 

videoconference, during which Duzicky was represented by counsel. (C.R. at 85-120.) 

A parole agent, Joseph Link (Agent Link), testified during the hearing regarding

Duzicky’s new convictions in Allegheny County of the underlying crimes which 

occurred while Duzicky was on parole, and submitted the trial court’s sentencing order, 

secure docket entries indicating Duzicky’s guilty plea, and the criminal complaint from 

the Pittsburgh Police Department into evidence. (C.R. at 92-94, 98-100.) Duzicky also 

admitted to his new convictions. (C.R. at 93.) Duzicky’s counsel then explained three 

documents he submitted to parole staff: a mitigation memorandum, two letters in 

support of Duzicky, and the trial court’s sentencing transcript, all of which were 

admitted into evidence for mitigation purposes. (C.R. at 101-04.) Prior to questioning 
4

Duzicky, his counsel explained that he needed to correct some things stated in the 

mitigation memorandum due to him not being able to talk to “Duzicky for about the 

last six weeks because he went from Allegheny [County Jail] to [SCI-]Smithfield and 

was in quarantine, and then he came to [SCI-]Houtzdale and was in quarantine.” (C.R. 

at 104.) 

Counsel then questioned Duzicky about his recent whereabouts in the 

prison system, to which Duzicky responded that he had been in jail since March 15, 

2019, and that he went from Allegheny County Jail to SCI-Smithfield, and that he was, 

at the time of the hearing, incarcerated at SCI-Houtzdale. (C.R. at 106-07.) Duzicky 

testified that he was “in quarantine” and “[c]omplete lockdown” at all three locations 

due to the COVID-19 pandemic, and specifically, at Allegheny County Jail since 

March 16, 2020. (C.R. at 106-07.) Duzicky then testified about his family history, 

including how he grew up watching his family sell illegal drugs to earn money. (C.R. 

at 107-08.) He also explained that he found out about his mental health issues once he 

got to Allegheny County Jail, and that he became involved in the Hope Program; he 

also admitted to having a gambling problem. (C.R. at 108-11.) Duzicky also testified 

that he worked every day while he was on parole, never had supervision issues, and 

earned a GED. (C.R. at 112, 114.) Duzicky confirmed that he reached out to his parole 

agent once he pled guilty to the new charges and requested a hearing “to see if [he] 

could, you know, get out on an ankle bracelet or something . . . before [his] sentencing” 

to see his stepdad who was ill. (C.R. at 114-15.) Agent Link made a closing statement, 

noting that Duzicky’s new convictions were the same or similar to his previous offenses

and that he posed a threat and risk to public safety. (C.R. at 117-18.) The hearing then 

concluded. 
5

In a decision mailed on April 14, 2021 (recorded on April 12, 2021), the 

Board recommitted Duzicky to an SCI as a convicted parole violator (CPV) to serve 

18 months of backtime for his Allegheny County convictions of possession of a 

controlled substance by a person not registered and PWID. (C.R. at 145-46.) In so 

doing, the Board, in its discretion, denied Duzicky credit for his time spent at liberty 

on parole because his new convictions were “the same or similar to the original 

offense[,]” and recalculated Duzicky’s maximum sentence date as March 15, 2027. 

(C.R. at 143-46.) 

On May 4, 2021, the Board received Duzicky’s counseled administrative 

appeal, in which Duzicky alleged that the Board failed to hold a timely revocation 

hearing, incorrectly recalculated his maximum sentence date, and improperly denied 

Duzicky credit for time he spent at liberty on parole, including credit for time Duzicky 

spent incarcerated in Allegheny County Jail, and also failed to consider Duzicky’s 

mitigation evidence. (C.R. at 147-85.) 

In its response mailed on July 28, 2021, the Board affirmed its April 14, 

2021 decision. (C.R. at 187-89.) In so doing, the Board explained that Duzicky’s 

revocation hearing was, in fact, timely held because Duzicky chose not to waive his 

right to a revocation hearing while being held at the Allegheny County Jail. (C.R. at 

187.) Further, because Duzicky was then being held outside the jurisdiction of the 

Department of Corrections, the Board’s regulations required that the Board hold a panel 

revocation hearing within 120 days of the official verification of Duzicky’s return to 

an SCI. (C.R. at 187 (citing section 71.4(1)(i) of the Board’s regulations, 37 Pa. Code 

§ 71.4(1)(i)).) Because Duzicky was returned to an SCI on January 27, 2021, and his 

hearing was held 41 days later on March 9, 2021, the Board determined that Duzicky’s

panel revocation hearing was timely. Id.
6

Regarding its decision to deny Duzicky credit for time spent at liberty on 

parole, the Board explained that the issue is purely a matter of discretion under the 

Prisons and Parole Code (Parole Code),

3 which authorizes the Board to grant or deny 

credit to a CPV for time spent at liberty on parole for certain offenses and requires only 

that the Board give a reason for its decision to deny credit, which it did here. (C.R. at 

187 (citing section 6138(a)(2.1) of the Parole Code, 61 Pa. C.S. § 6138(a)(2.1)).) The 

Board also determined that the reason it gave for denying Duzicky credit for time spent 

at liberty on parole was sufficient pursuant to Pittman v. Pennsylvania Board of 

Probation and Parole, 159 A.3d 466 (Pa. 2017), as it articulated that Duzicky was 

denied such credit because his new conviction was the same or similar to the original 

offense. (C.R. at 187-88.)

Finally, the Board explained Duzicky’s recalculated maximum sentence 

date as follows:

The Board paroled [] Duzicky on April 24, 2017[,] with a 

maximum date of April 24, 2023[,] leaving him with 2[,]191 days 

remaining on his original sentence the day he was released. The 

Board’s decision to deny [] Duzicky credit for the time spent at 

liberty on parole based on his recommitment as a CPV authorized 

the recalculation of his maximum date to reflect the same. 61 Pa. 

C.S. § 6138(a)(2). This means that [] Duzicky owed 2[,]191 days 

on his original sentence based on the recommitment. 

The record indicate[s] that Allegheny [C]ounty authorities 

arrested [] Duzicky on March 15, 2019[,] for new criminal charges, 

he did not post bail, and the Board lodged its detainer that day. On 

September 16, 2020, [] Duzicky was sentenced to a new term of 

incarceration to be served in an SCI. Following the March 9, 2021 

revocation hearing, the Board voted to revoke [Duzicky’s] parole 

on March 15, 2021. Based on these facts, because [] Duzicky failed 

3

61 Pa. C.S. §§ 101-7301. 
7

to post bail, the Board applied no pre[]sentence credit because the 

Board did not hold him solely on its warrant following the March 

15, 2019 arrest. Gaito v. [Pennsylvania] Board of Probation and 

Parole, 412 A.2d 568 (Pa. 1980). Such credit must be applied to 

the new sentence and [] Duzicky still owed 2[,]191 days on his 

original sentence.

The . . . Parole Code provides that a CPV who was released 

from an SCI and receives a new sentence to be served in an SCI 

must serve the original sentence first. 61 Pa. C.S. § 6138(a)(5).

However, that provision does not take effect until the Board revokes 

the offender’s parole. Campbell v. [Pennsylvania] Board of 

Probation and Parole, 409 A.2d 980 (Pa. 1980). This means that 

[] Duzicky became available to commence service of his original 

sentence on March 15, 2021. Adding 2[,]191 days to that 

availability date yields a recalculated maximum date of March 15, 

2027. Thus, the Board properly recalculated his maximum date.

Again, please note that credit not applied to the original sentence 

will be calculated by the Department of Corrections and allocated 

toward the new state sentence upon commencement of that term.

(C.R. at 187-88.) The Board thus affirmed its April 14, 2021 decision. Duzicky, 

through counsel, now petitions this Court for review of the Board’s decision.

4

Discussion

On appeal, Duzicky raises three issues. First, he argues that the Board 

failed to hold a timely revocation hearing, in that it failed to hold the hearing within 

120 days of Duzicky’s sentencing on September 16, 2020, at which time he became 

available to the Board. Duzicky’s Brief at 7, 12-16. Second, Duzicky claims that the 

4 Our scope of review is limited to determining whether constitutional rights were violated, 

whether an error of law was committed, or whether necessary findings of fact are supported by 

substantial evidence. McCloud v. Pennsylvania Board of Probation and Parole, 834 A.2d 1210, 1212 

n.6 (Pa. Cmwlth. 2003).
8

Board abused its discretion in denying Duzicky credit for the time he spent at liberty 

on parole and disregarding his mitigation evidence in doing so. Duzicky’s Brief at 7, 

16-20. Finally, Duzicky argues that he was unduly prejudiced by the Board’s failure 

to interview him for parole after he served the first year of his new one- to five-year 

sentence. Duzicky’s Brief at 7, 20-25. Duzicky requests that this Court reverse the 

Board’s decision with respect to its revocation of Duzicky’s parole. Duzicky’s Brief 

at 26. 

We begin with Duzicky’s claim that the Board failed to timely hold a 

panel revocation hearing in this case. Citing Mack v. Pennsylvania Board of Probation 

and Parole, 654 A.2d 129 (Pa. Cmwlth. 1995), Duzicky argues that, when he was 

sentenced on September 16, 2020, he was confined at the Allegheny County Jail solely 

on the Board’s warrant, and that the 120-day period began to run as of that date. He 

further claims that he essentially began serving two state sentences upon his sentencing, 

all while being held at the county jail. Because he was within the Board’s jurisdiction 

as of the date of his sentencing, Duzicky argues that the revocation hearing held on 

March 9, 2021, nearly 174 days after his sentencing, was untimely. Duzicky’s Brief at 

12, 14.

The Board responds that it conducted a timely revocation hearing in this 

case, as it held the hearing within 120 days of Duzicky’s return to an SCI, as per the 

regulation. Board’s Brief at 6-7. The Board appears to admit that “the record is silent 

as to a return verification date,” and surmises that “the actual return date is the standard 

that must be used.” Board’s Brief at 7. The Board then distinguishes Mack from the 

instant matter, stating that Duzicky was not being held solely on the Board’s warrant 

after his sentencing on September 16, 2020, but, rather, he was awaiting the trial court’s 

commitment of him to be transferred to an SCI to begin serving his backtime. Board’s 
9

Brief at 8. Further, the Board explains, unlike other cases cited by Duzicky, there is 

nothing in the record showing that Duzicky was being held at the Allegheny County 

Jail at the Board’s request, or that the Board was even made aware that Duzicky was 

available on the date of his sentencing. Board’s Brief at 8-9. The Board suggests, in a 

footnote, that this Court “should take judicial notice of the impact [COVID-19] . . . had 

on the ability of county correctional administrators and the local courts to effectively 

run their respective systems.” Board’s Brief at 9 n.2. The Board therefore requests 

that this Court defer to the Board’s regulation and hold that the revocation hearing was 

timely held in this matter. Board’s Brief at 9. 

Essentially, the issue in this case boils down to whether the Board 

conducted its hearing in a timely manner 41 days after Duzicky’s return to an SCI or 

in an untimely manner 174 days after Duzicky was sentenced on September 16, 2020. 

Section 71.4(1) of the Board’s regulations, 37 Pa. Code § 71.4(1), provides that:

(1) A revocation hearing shall be held within 120 days from the date 

the Board received official verification of the plea of guilty or nolo 

contendere or of the guilty verdict at the highest trial court level 

except as follows:

(i) If a parolee is confined outside the jurisdiction of the 

Department of Corrections, such as confinement out-ofState, confinement in a Federal correctional institution or 

confinement in a county correctional institution where the 

parolee has not waived the right to a revocation hearing by a 

panel in accordance with Commonwealth ex rel. Rambeau v. 

Rundle, . . . 314 A.2d 842 ([Pa.] 1973), the revocation 

hearing shall be held within 120 days of the official 

verification of the return of the parolee to a State 

correctional facility.

(ii) A parolee who is confined in a county correctional 

institution and who has waived the right to a revocation 

hearing by a panel in accordance with the Rambeau decision 
10

shall be deemed to be within the jurisdiction of the 

Department of Corrections as of the date of the waiver.

(Emphasis added.) 

This regulation is based upon the well-established principle that the 120-

day period does not begin to run until the Board acquires jurisdiction over the parolee. 

Williams v. Pennsylvania Board of Probation and Parole, 579 A.2d 1369, 1371 (Pa. 

Cmwlth. 1990). Where a parolee asserts that the Board held a revocation hearing 

beyond the 120-day period, the Board bears the burden of proving, by a preponderance 

of the evidence, that the hearing was timely. Koehler v. Pennsylvania Board of 

Probation and Parole, 935 A.2d 44, 50 (Pa. Cmwlth. 2007). 

Here, it is undisputed that Duzicky did not waive his right to a panel 

revocation hearing at any time. The Board’s record establishes that Duzicky’s 

convictions were officially verified on February 10, 2020, and that he was returned to 

an SCI on January 27, 2021. (C.R. at 38, 42, 122, 130.) Therefore, the revocation 

hearing held on March 9, 2021, 41 days after Duzicky’s return to an SCI, was timely 

under a plain reading of section 71.4(1)(i) of the Board’s regulations. 

Duzicky contends, however, that the 120-day period began to run on 

September 16, 2020, when he was sentenced on his new Allegheny County convictions, 

as the Board never lifted its detainer against Duzicky. Thus, according to Duzicky, the 

revocation hearing held on March 9, 2021, nearly 174 days after he was sentenced, was 

untimely.

We recognize that “[u]nreasonable and unjustifiable delays which are not 

attributable to the parolee or his counsel do not toll the running of the 120 days.” Mack, 

654 A.2d at 131. Further, “[w]here a parolee is held at the county institution solely as 

a result of the Board’s action, the Board is not warranted in delaying a revocation 

hearing until 120 days after the parolee’s return to [an SCI].” Id. “Furthermore, a 
11

parolee being held at a county institution as a result of Board action in the form of a 

detainer places the parolee within the Board’s jurisdiction, and the Board must conduct 

a hearing within 120 days from the date which it acquires jurisdiction.” Id. 

Upon his sentencing on September 16, 2020, Duzicky remained confined 

in Allegheny County Jail solely on the Board’s March 15, 2019 warrant until he was 

returned to an SCI by county authorities on January 27, 2021. (C.R. at 38, 122, 130.) 

Thus, it appears Duzicky is correct that the Board would have obtained jurisdiction 

over him on September 16, 2020, immediately following his sentencing, and that the 

exception in section 71.4(1)(i) would therefore not apply under these circumstances.

See Murray v. Jacobs, 512 A.2d 785, 789 (Pa. Cmwlth. 1986); see also Griffin v. 

Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No. 762 C.D. 2018, filed 

April 12, 2019), slip op. at 3.5 It further appears that the Board was required to hold a 

revocation hearing within 120 days from September 16, 2020, or by January 14, 2021, 

for it to be considered timely. Therefore, the panel revocation hearing held on March 

9, 2021, appears to have been untimely held. 

However, section 71.5(c) of the Board’s regulations, 37 Pa. Code § 

71.5(c), provides additional guidance, as follows:

(c) In determining the period for conducting hearings under this 

chapter, there shall be excluded from the period, a delay in any 

stage of the proceedings which is directly or indirectly 

attributable to one of the following:

(1) The unavailability of a parolee or counsel.

. . . . 

5 Griffin, an unreported opinion of this Court issued after January 15, 2008, is cited for its 

persuasive value in accordance with Section 414(a) of this Court’s Internal Operating Procedures, 

210 Pa. Code § 69.414(a).
12

(5) An event which could not be reasonably anticipated 

or controlled by the Board, including, but not limited to, 

illness, injury, acts of nature and prison or civil disorder.

Although the Board has not provided much detail regarding its suggestion, 

set forth in a footnote in its brief, that this Court “should take judicial notice of the 

impact [COVID-19] . . . had on the ability of county correctional administrators and 

the local courts to effectively run their respective systems[,]” as it relates to Duzicky’s 

case specifically, see Board’s Brief at 9 n.2, we nevertheless will take judicial notice 

of the historic and novel COVID-19 pandemic and the Governor’s response thereto,6

as well as the effect the pandemic had on prison operations at both the county and state 

levels.7 See Wiley v. Pennsylvania Board of Probation and Parole, 801 A.2d 644, 645 

6 On March 6, 2020, Governor Wolf issued a Proclamation of Disaster Emergency regarding 

the novel COVID-19 pandemic. Thereafter, the Governor issued numerous orders designed to 

mitigate and stop the spread of COVID-19, which orders, inter alia, closed non-essential businesses 

and directed citizens to stay at home. The Proclamation was renewed multiple times through May 

2021. See Corman v. Acting Secretary of Pennsylvania Department of Health, 267 A.3d 561, 567-

68 (Pa. Cmwlth.), aff’d, 268 A.3d 1080 (Pa., No. 83 MAP 2021, December 10, 2021) (per curiam 

order); 266 A.3d 452 (Pa. 2021) (opinion explaining Court’s reasoning for affirming). 

7 On March 16, 2020, the Supreme Court declared a general statewide judicial emergency. 

County courts thereafter declared judicial emergencies in their respective districts, including in the 

Fifth Judicial District. See In Re: Fifth Judicial District Emergency Operations (No. AD - 2020 - ___ 

- PJ, order filed March 16, 2020) (declaring judicial emergency in Fifth Judicial District of 

Pennsylvania through April 14, 2020, pursuant to Pennsylvania Supreme Court’s March 16, 2020 

order). The judicial emergency in the Fifth Judicial District was extended numerous times through 

March 2021. See Allegheny County Court Orders (dated April 2, 2020 (extending through May 8, 

2020), May 6, 2020 (extending through June 1, 2020), August 31, 2020 (extending through December 

31, 2020), and December 3, 2020 (extending through March 31, 2021)), available at 

https://www.pacourts.us/ujs-coronavirus-information (last visited June 13, 2022). 

Additionally, throughout the duration of the judicial emergency in the Fifth Judicial District, 

various orders were entered by the President Judge of the Allegheny County Court of Common Pleas 

directing that “no inmates . . . will be transported from state correctional facilities, county jails or 

prisons, . . .” until further order of the court. See Allegheny County Court Orders (dated March 18, 

22, 23, & 26, 2020; May 6, 2020; May 28, 2020 (extending directive regarding transportation of 

inmates through August 31, 2020); and August 31, 2020 (extending non-transfer of certain inmates 

(Footnote continued on next page...)
13

n.3 (Pa. Cmwlth. 2002) (Court took judicial notice of the historic events of September 

11, 2001, and the Governor’s response thereto, citing Fatemi v. Fatemi, 537 A.2d 840 

(Pa. Super. 1988) (matters of history, if sufficiently notorious to be subject to general 

knowledge, will be judicially noticed)). Moreover, Duzicky himself testified at the 

panel revocation hearing held on March 9, 2021, that he was on complete lockdown in 

quarantine while incarcerated at the Allegheny County Jail, as well as at SCISmithfield and SCI-Houtzdale. (C.R. at 106-07.)8

 Further, the Board apparently 

scheduled a revocation hearing for February 23, 2021; however, due to Duzicky’s 

unavailability, the hearing was continued. (C.R. at 37.) 

Therefore, we conclude that the period of September 16, 2020, through 

January 27, 2021, during which Duzicky remained in county custody on a Board 

warrant awaiting transfer to an SCI to begin serving the backtime on his original 

sentence, should be excluded from the 120-day period because it was directly the result 

of the COVID-19 pandemic’s effect on prison operations and the lockdowns attendant 

thereto. Thus, under the circumstances of this case, we deem the March 9, 2021 panel 

revocation hearing timely held pursuant to the Board’s regulations, as it was held only 

41 days following Duzicky’s return to an SCI.

through December 31, 2020)), available at https://www.pacourts.us/ujs-coronavirus-information (last 

visited June 13, 2022). 

8 The transcript of Duzicky’s sentencing, entered into evidence at the panel revocation hearing 

for purposes of mitigation, also reveals details about COVID-19’s effect on court and prison 

operations during the relevant timeframe: “THE COURT: . . . the pandemic occurred and there were 

a lot of issues related to the logistics of having the defendant sentenced . . . from May 11th the case 

was continued again at various times. There was no transport from the jail due to lockdowns related 

to quarantine, court closures, you know, basically, a lot of reasons. So I just wanted to make the 

record as to why the defendant was not sentenced within 90 days of his plea, and it was all really 

pandemic-related.” (C.R. at 153-54.) 
14

Next, we address Duzicky’s claim that the Board abused its discretion in 

denying him credit for the time he spent at liberty on parole. Section 6138(a)(2), (2.1) 

of the Parole Code provides that:

(2) If a [CPV’s] recommitment is so ordered, the [CPV] shall 

be reentered to serve the remainder of the term which the 

[CPV] 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.

(2.1) The [B]oard may, in its discretion, award credit to a 

[CPV] 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 . . . or a crime requiring registration 

under 41 Pa.C.S. Ch. 97 Subch. H (relating to 

registration of sexual offenders).

(ii) The [CPV] was recommitted under 

[S]ection 6143 [of the Code] (relating to early 

parole of inmates subject to Federal removal 

order).

61 Pa. C.S. § 6138(a)(2), (2.1).9 Our Supreme Court held in Pittman that Section 

6138(a)(2) “clearly and unambiguously grants the Board discretion to award credit to 

a CPV recommitted to serve the remainder of his sentence,” other than in the 

enumerated exceptions. Pittman, 159 A.3d at 473. The Supreme Court further held 

that “the Board must provide a contemporaneous statement explaining its reason for 

denying a CPV credit for time spent at liberty on parole.” Id. at 475. 

9 We note that various sections of the Parole Code, including Section 6138, have recently been 

amended by the Act of June 30, 2021, P.L. 260, effective immediately. While the substance of the 

pertinent statutory section both prior to and after the amendments is essentially the same, we

nevertheless reference the version of the Parole Code that was in effect at the time the Board rendered 

its decision in this matter. 
15

Duzicky’s argument related to this issue appears to imply that he thinks 

he is eligible to receive credit for his time at liberty on parole because the crimes for 

which he was convicted are not crimes of violence and do not require him to register 

as a sex offender, and further because the Board failed to consider mitigating factors 

related to his convictions in determining the amount of backtime owed. Duzicky’s 

Brief at 16-20. This Court notes, however, that section 6138(a)(2.1) of the Parole Code 

does not give Duzicky the right to receive credit for time spent at liberty on parole. 

Rather, section 6138(a)(2.1) gives the Board complete discretion, as Duzicky 

acknowledges in his brief, see Duzicky’s Brief at 19-20, to award a CPV credit for time 

spent at liberty on parole unless the CPV committed a crime of violence or a crime 

requiring sex offender registration, in which case, the Board is given no discretion and 

is required to take away the CPV’s time spent at liberty on parole. Upon Duzicky’s 

recommitment as a CPV, he was required to serve the remainder of the term that he 

would have been compelled to serve had he not been granted parole, with no credit for 

time spent at liberty on parole, unless the Board, in the exercise of its sole discretion, 

chose to award credit. Section 6138(a)(2), (2.1) of the Parole Code, 61 Pa. C.S. § 

6138(a)(2), (2.1). Because Duzicky did not commit a crime of violence or a crime 

requiring that he register as a sex offender, the Board was empowered to exercise its 

discretion under section 6138(a)(2.1) and determine whether to grant Duzicky credit 

for the time that he spent at liberty on parole. The Board chose not to do so in this case

and explained its reason for denying Duzicky credit for his street time by noting on the 

revocation hearing report that it would deny Duzicky credit because his new conviction 

(PWID) is the same or similar to his original offense (PWID). (C.R. at 124, 145.) We 

have previously held that “same or similar to the original offense” is a sufficient reason 
16

for denying credit under Pittman. See Barnes v. Pennsylvania Board of Probation and 

Parole, 203 A.3d 382, 391 (Pa. Cmwlth. 2019). 

We also note that the Board’s stated reason is amply supported by the 

record in this matter, which reflects that Duzicky’s parole stemmed from his 2011 

convictions for multiple counts of PWID, criminal attempt – PWID, corrupt 

organizations, and conspiracy to commit corrupt organizations, and that his subsequent 

conviction for PWID was obviously similar to his original convictions because all of 

the convictions involved drugs. (C.R. at 1-4.) Furthermore, although Duzicky was 

generally compliant with supervision up until he was arrested on the new charges, (see 

C.R. at 16, 30, 123), the revocation hearing report in this matter indicates that Duzicky 

“has continued to deal drugs”; his “new conviction involved 2.2 pounds of cocaine”; 

and “[h]is drug dealing continues to generate new victims.” (C.R. at 123.) 

We also reject Duzicky’s claim that the Board failed to consider his 

mitigation evidence. The revocation hearing report clearly acknowledges his 

mitigation evidence presented at and admitted into evidence at the hearing, stating that 

Duzicky offered documentation and testimony regarding his “rough upbringing,” his 

completion of the Hope Program in Allegheny County Jail, his work history, and his 

positive adjustment up until his arrest. (C.R. at 123.) While we are sympathetic to 

Duzicky and applaud his efforts to better his life following his most recent arrest, it is 

well settled that the Board has been given broad discretion in parole matters and is not 

required to accept justifying or mitigating evidence to excuse the commission of parole 

violations and, therefore, does not abuse its discretion where it determines that 

mitigating evidence presented by a parolee does not excuse the commission of parole 

violations. Pitch v. Pennsylvania Board of Probation and Parole, 514 A.2d 638, 641 
17

(Pa. Cmwlth. 1986). We therefore reject Duzicky’s claim that the Board abused its 

discretion in denying him credit for the time that he spent at liberty on parole. 

Finally, we address Duzicky’s claim that he was unduly prejudiced by the 

Board’s failure to interview him for parole after he served the first year of his new oneto five-year sentence. Duzicky’s argument in this regard is not entirely clear. See 

Duzicky’s Brief at 20-25. However, we glean his argument to be that the Board should 

have granted him a parole interview between the time he was sentenced on September 

16, 2020, and his recommitment as a CPV on April 12, 2021. We disagree. 

“[I]t is axiomatic that, in Pennsylvania, the decision to parole, or . . . reparole, is discretionary with the Board, . . . and that there is no right to be paroled or 

re-paroled.” White v. Pennsylvania Board of Probation and Parole, 833 A.2d 819 (Pa. 

Cmwlth. 2003) (citing Reider v. Pennsylvania Board of Probation and Parole, 514 

A.2d 967 (Pa. Cmwlth. 1986)). Here, Duzicky has not been unduly prejudiced by the 

Board’s decision not to interview him for parole during the alleged timeframe because 

Duzicky had not yet been recommitted as a CPV or begun serving his backtime, but, 

rather, he remained in county custody following his sentencing while awaiting transfer 

to an SCI. Moreover, because Duzicky was released from an SCI and received a new 

sentence to be served in an SCI, he was required to serve the backtime on his original 

sentence prior to serving his new sentence pursuant to section 6138(a)(5) of the Parole 

Code, 61 Pa. C.S. § 6138(a)(5). That provision does not take effect, however, until the 

Board revokes the parolee’s parole and the remainder of the original sentence becomes 

due and owing. Campbell. Here, Duzicky did not become available to commence 

service of his backtime until March 15, 2021, when the final Board member signed the 

revocation hearing report. (C.R. at 128-29.) Further, according to the Board’s April 

14, 2021 decision, Duzicky was not even determined to be eligible for reparole until 
18

September 15, 2022. (C.R. at 145.) Duzicky’s allegation of prejudice is therefore 

without merit.

Accordingly, for the foregoing reasons, we affirm the Board’s July 28, 

2021 order.

________________________________

PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John Duzicky, :

Petitioner :

: No. 945 C.D. 2021

v. :

:

Pennsylvania Parole Board, :

Respondent :

ORDER

AND NOW, this 14th day of June, 2022, the July 28, 2021 order of the 

Pennsylvania Parole Board is AFFIRMED. 

________________________________

PATRICIA A. McCULLOUGH, Judge