IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David Johnson, :

Petitioner :

:

v. : No. 2420 C.D. 2015

: Submitted: May 13, 2016

Pennsylvania Board of Probation :

and Parole, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY PRESIDENT JUDGE LEAVITT FILED: June 21, 2016

David Johnson petitions for review of an adjudication of the 

Pennsylvania Board of Probation and Parole (Board) denying his request for 

administrative review of the Board’s decision recommitting him as a convicted 

parole violator. Johnson argues that the Board erred in extending his original 

maximum release date and by not explaining why it decided to not award him 

credit for his time spent at liberty on parole. For the reasons that follow, we affirm 

the order of the Board.

Johnson is currently incarcerated in the State Correctional Institution 

at Graterford. His original conviction for the manufacture, sale, delivery or 

possession with intent to deliver a controlled substance resulted in a two and one 

half to five year sentence. His minimum release date was January 9, 2014, and his 

maximum release date was September 9, 2015. Johnson was paroled on January 9, 
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2014. The conditions of parole, which Johnson signed, stated: “If you are 

convicted of a crime committed while on parole/reparole, the Board has the 

authority, after an appropriate hearing, to recommit you to serve the balance of the 

sentence or sentences which you were serving when paroled/reparoled, with no 

credit for time at liberty on parole.” Certified Record at 21 (C.R. ___).

On September 12, 2014, Johnson was arrested on new criminal 

charges. That same day, the Board lodged a detainer against Johnson. By decision 

mailed November 5, 2014, the Board recommitted Johnson as a technical parole 

violator for violating curfew. The decision advised Johnson that the Board was 

continuing to detain him pending disposition of his new criminal charges. On 

April 13, 2015, Johnson pled guilty to making terroristic threats and the 

manufacture, sale, delivery, possession, or possession with intent to deliver a 

controlled substance. The trial court sentenced Johnson to one and one half to 

three years of incarceration. Johnson was returned to a State Correctional 

Institution on April 17, 2015.

On May 22, 2015, Johnson waived his right to a revocation hearing 

and admitted to violating his parole. The Board voted to revoke Johnson’s parole 

and deny him credit for the time he spent at liberty on parole, also known as “street 

time.” On August 24, 2015, the Board recommitted Johnson as a convicted parole 

violator to serve the unexpired term of one year and eight months from his original 

sentence, with no credit for his street time. Accordingly, the Board revised

Johnson’s original maximum sentence date of September 9, 2015, to December 11, 

2016.

On September 2, 2015, Johnson, pro se, filed an administrative 

appeal. Johnson argued that the Board’s recommitment order improperly extended 
3

his maximum sentence date and constituted an abuse of discretion. The Board 

denied Johnson’s appeal on October 23, 2015. In its letter, the Board explained:

[D]iscretionary decisions on parole issues are not subject to 

administrative or judicial review. 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). However, nothing in the statute grants an 

offender the right [to] this credit. The Board chose to deny you 

credit for time at liberty on parole in this instance. The Board’s 

discretionary decision is not subject to appeal.

C.R. 150. Johnson, now represented by counsel, petitions this Court to review the 

Board’s decision.

On appeal,1Johnson contends that the Board erred in denying his 

administrative appeal for two reasons. First, Johnson argues that the Board lacked

the authority to recalculate his maximum sentence date. Second, Johnson argues

that the Board failed to explain adequately why it chose to deny him credit for his 

street time. The Board counters that this Court has repeatedly reaffirmed the 

Board’s authority to recalculate the maximum sentence date of a convicted parole 

violator. The Board also argues that this Court recently held that the Board does 

not need to explain its reasoning when denying a parolee credit for street time. 

In his first contention, Johnson challenges the Board’s authority to 

recalculate his maximum sentence date. In response, the Board cites Section 

6138(a) of the Prisons and Parole Code as the source of its authority. It states, in 

relevant part:

 

1

This Court’s review is to determine whether the Board’s adjudication is supported by 

substantial evidence, whether an error of law has been committed, or whether constitutional 

rights have been violated. Moroz v. Pennsylvania Board of Probation and Parole, 660 A.2d 131, 

132 (Pa. Cmwlth. 1995).
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(a) Convicted violators.--

(1) 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) If the parolee’s recommitment is so ordered, 

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.

(2.1) The board may, in its discretion, award 

credit to a parolee recommitted under paragraph 

(2) for the time spent at liberty on parole[.]

61 Pa. C.S. §6138(a) (emphasis added). 

In short, under Section 6138(a) the Board must recommit a convicted 

parole violator to serve the time remaining on his original sentence and may, in its 

discretion, credit the parolee for his street time. The Board then recalculates the 

parolee’s maximum sentence date, which will depend on how much, if any, credit 

the Board gives the parolee for street time. Our Supreme Court has upheld the 

Board’s authority to recalculate the maximum sentence date, holding that it “is not 

an encroachment upon the judicial sentencing power.” Young v. Pennsylvania 

Board of Probation and Parole, 409 A.2d 843, 848 (Pa. 1979). Accordingly, we 

reject Johnson’s argument that the Board lacked the authority to recalculate his 

maximum sentence date.
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Johnson next argues that the Board erred in deciding to forfeit his 

street time when it recommitted him. Johnson acknowledges that the Board has 

discretion under 61 Pa. C.S. §6138(a)(2.1) to award credit for street time; he

contends that the Board failed to exercise that discretion by summarily denying 

him credit. In support, Johnson points to the Board’s hearing report, which states: 

“BOARD ONLY – Credit time spent at liberty on parole: [ ] No [ ] Yes (Excluded 

offenses on pg. 8).” C.R. 130. The Board checked “No” without further 

explanation. Id. According to Johnson, the lack of any explanation means that the 

Board failed to exercise its discretion, which is an abuse of discretion.

This Court recently considered, and rejected, the same argument in 

Pittman v. Pennsylvania Board of Probation and Parole, 131 A.3d 604 (Pa. 

Cmwlth. 2016), appeal granted, __ A.3d __ (Pa., 90 MAL 2016, filed May 23, 

2016). There, the Board denied a convicted parole violator credit for his street 

time. The hearing report contained the following language: “BOARD ONLY –

Credit time spent at liberty on parole: [ ] No [ ] Yes (excluded offenses on pg. 8).” 

Id. at 606. The Board checked the “No” box and provided no further explanation. 

The parolee appealed to this Court, arguing that the Board’s failure to explain its 

decision constituted an abuse of the Board’s discretion under Section 6138(a)(2.1). 

This Court disagreed, holding that the Board’s decision not to disclose its reason

for denying credit was permissible under Section 6138(a)(2.1). 

Here, Johnson challenges the Board’s decision for the same reason as 

did the parolee in Pittman. Applying Pittman to the instant case, as we must, we 

hold that the Board did not err by checking the “No” box without elaborating on its 

reasons for doing so. It is enough for the Board to check the box. This shows that 
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it exercised its discretion to deny Johnson credit for street time, albeit for reasons 

unknown.

For these reasons, we affirm the Board’s adjudication.

 ______________________________________

 MARY HANNAH LEAVITT, President Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

David Johnson, :

Petitioner :

:

v. : No. 2420 C.D. 2015

:

Pennsylvania Board of Probation :

and Parole, :

Respondent :

O R D E R

AND NOW, this 21st day of June, 2016, the order of the Pennsylvania 

Board of Probation and Parole dated October 23, 2015 in the above-captioned 

matter is AFFIRMED.

 ______________________________________

 MARY HANNAH LEAVITT, President Judge