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 Paro le (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 d iscern the recommitment range was more se vere . 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 sufficien t ly to enable appellate review

.

I. Background
In 199 8, Marshall was sente nced to 1 1 to 22 years in prison for murder
in the third degree and robbery , with a maximum date of J anuary 15, 2019. He obtained release on parole on March 3, 2008. Almost nine year s later, as a result of a traffic stop in Delaware, Marshall was c h arged with multiple crimes related to his2

possession of 2 0 0 .49 grams of powder cocaine and 67 .94 grams of crack cocaine

. Specifically, a court in the State of Delaware, Kent County con victed 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. T he parole revocation hearing report recommended “ taking [ his ] street time ” because Marshall “ was on parole for M urder and was convict ed 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 p ossession with intent

to m anufacture or d eliver a c ontrolled s ubstance (cocaine) under Section 13(a)(30)
of T he 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, t he presumptive recommitment range for that new offense i s 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).3 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 state d a reason for denying Marshall credit
for his time spent at liberty on parole, t he 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 seek s credit for almost nine y ears 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 o riginal m aximum d ate beyond his judicially

- imposed sentence.
He also argues the Board applied an incorrect recommitment range correspond ing to a more severe offense

. Using the most closely related crime of p ossession , as opposed to possession with intent to distribute , he maintains the appropriate recommitment

range w as 3 to 6 months , not 18 to 24 months

. In addition, Marshall contend s the Board abused its discretion when it denied him credit for time spent at liberty on parole, and he challenge s 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 whethe r necessary findings are supported by substantial evidence.” Kerak v. Pa. Bd. of Prob. & Parole , 153 A.3d 1134, 1138 n.9 (Pa. Cmwlth. 2016)

.4 A. Notice First, we address Marshall’s argument that the Board violated his due

process r ights 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 respond s that Marshall waived this challenge when he did not raise it during the administrative proce edings. 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 c hecking th at 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 , 4 7 A.3d 875 (Pa. Cmwlth. 201 2 )

.

In any event , Marshall cites no authority for the proposition that the
Board must provide specific n otice 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.5 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

sentenc e. 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. T he 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, no t maximum date, is controlling)

.

Here, at the time of his release on parole, Marshall had over 10 years remaining on his original sentence. I n recalculating Marshall’s maximum sentence date, the Board d id no more than require him to serve that sentence

. Yates

. Thus, to the extent Marshall po sits th at th e 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
relate d to possession of a controlled substance, a mi sdemeanor in Pennsylvania , with a presumptive range of 3 to 6 months . He contends the Board erred in analogiz ing the conduct underlying his Delaware conviction to possession with intent to distribute , which is subject to a 10

- year prison term under Pennsylvania law.6 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 assess es the criminal conduct to discern the most closely related crime category under Pennsylvania law. See 37 Pa. Code §§75.1, 7 5.2.

“ T he 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 presumptiv e 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. & Pa role (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 “ DD EAL , Tier 4 (Cocaine), ” a felony in Delawa re. C.R. at 17. Although the charge s include d various
crimes under Section 4752 of the Delaware Penal Code, Marshall’s conviction record does not specify a subsectio n

. Premi sed on this omission , Mar shall claims his c rime amounted to mere possession of a controlled substance, not possession with intent
to deliver as the Board found. We disagree.7 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.

No twithstanding Marshall’s contentions, no ne of these offenses is analogous to mere possession of a controlled substance under Pennsylvania law. Thus, w e 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, t hat 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, v io lating 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 r ecommitment r ange is 3 to 6 months. Third, in reviewing
other subsections in th e 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),
classifie s 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 sentenc e

.

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 t his quantity in the offense ; it reads:8

“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 convict ion most closely relates to the Pennsylvania crime of possession with intent to deliver under Section 13(a)(30) of

t he 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 Boa rd ’ s discretion as long as the
amount of backtime the Board imposed wa s 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 acknowle dges the Board ’ s discretion to deny such credit
under the Prisons and Parole Code , he contends the Board violated th e 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 t his argumen t

.

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 is9

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 re committed 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, i n Pittman , our Supreme Court held that in not explain ing
its exercise of discretion with reasons for awarding or denying credit, the Board
violate d its statutory mandate and denie d a parolee’s constitutional due process ri gh ts

. 3
The Court reasone d that the Board satisf ies constitutional due process by stating the

re ason s 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 th e 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 P A

. C ONST . 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).10 Recently, when presented with a Pittman challenge to the suffici ency of a reason, this Court found a five

- word reason for denying credit for street tim e “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
4 308762 , 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 exer cise 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. Cm

wlth., 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 show ed 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).11 However, in none of the prior cases h as the Board used as few words that have no apparent relationship to the parolee. Further, none of thes e cases involved an unexplained inaccuracy in the stated reason.

Pittman requires the Board to articulate a reason for exercising its
discretion to de ny 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 sufficien t 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 en sure 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. T he Board’s articulated reason simply restates the conviction without12

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 M t n

. Sch. Dis t. , 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. Gr p. 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 ex ercise 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 , 7 31 A.2d 2 46 , 251 n.14 (Pa. Cmwlth. 1997). The Board’ s credit
de cision 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 reason s 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 )

.13

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 reason s must accurately
reflect the facts informing its decision.

III. Conclusion
W e vacate the Board’s order, and remand the matter to t he 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, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Dwight Marshall, : Petitioner :

: v. : No. 172 M.D. 2018
: Pennsylvania Board of Probation : and Parole, : Respondent :

O R D E R

AND NOW , this 17 th day of December , 2018, the order of the Pennsylvania Board of Probation and Parole (Board) is AFFIRMED IN PART , as to parol e revocation and the recommitment range, and VACATED IN PART, as to the credit for time spent at liberty on parole determination. T he matter is
REMANDED to the Board to explain its exercise of discretion in its credit
determin ation as to the time Petitioner Dwight Marshall spent at liberty on parole

.

Jurisdiction is relinquished.

ROBERT SIMPSON, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

D wight Marshall, Petitioner : : v. : No. 1 72 M .D. 201 8 : Submitted: August 24, 2018 Pennsylvania Board of Probation : and Parole, :

Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONOR ABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE DAN PELLEGRINI, Senior Judge

CONCURR ING 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 pa role 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).DRP

- 2

Under this prov ision , 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 commi tted 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 circumstance s 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 t o award street time.

___________________________________ DAN PELLEGRINI, Senior Judge