IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Otto Young, :

Petitioner :

:

v. : No. 361 C.D. 2016 : Argued: April 11, 2018 Pennsylvania Board of : Probation and Parole, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE ELLEN CEISLER, Judge

OPINION

BY PRESIDENT JUDGE LEAVITT FILED: June 12, 2018

Otto Young petitions for review of an adjudication of the Pennsylvania

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

relief from one of the terms of his recommitment a s a convicted parole violator.

Young contends that the Parole Board erred by revoking sentence credit it had

previously awarded him in a prior recommitment. Concluding that the Prisons and

Parole Code (Parole Code) , 61 Pa. C.S. §§101

- 6309

, did not confer upon the Parole

Board the discretion to revoke its aw ard of sentence credit, we reverse the Parole

Board’s adjudication

.

The relevant facts are not in dispute. In 2013, the Parole Board

recommitted Young as a convicted parole violator as a result of his conviction for

retail theft. At the recommitment, the Parole Board reviewed Young’s case and

decided to grant him credit toward his sentence for 1918 days, i.e. , the days he had2

spe nt at liberty on parole before the retail theft. 1 Thereafter, in February 2014,

Young was reparoled . In July 2014

, Young was detained on the Parole Board’s

warrant following his arrest for burglary, and he was later convicted on the new

criminal charge . In November 2015, the Parole Board recommitted him as a

convicted parole violator for the 2014 burglary offense and revoked the sentence

credit of 1918 days it had previously awarded him in 2013. This resulted in a new

maximum sentence date of May 31, 2023.

Young sought administrative relief, contending that the Parole Board

had unlawfully revoked the credit that it had previously decided to award to him.

On February 24, 2016, the Parole Board denied his request for administrative relief,

explaining:

The Board paroled you from a state correctional institution on

February 9, 2014 with a max sentence date of May 26, 2017. This means you had a total of 1202 days remaining on your sentence at the time of parole. In light of your recommitment as

a convic ted parole violator, the Board was authorized to recalculate your sentence to reflect that you received no credit for the period that you were at liberty on parole. 61 Pa. C.S. § 6138(a)(2). The Board did not give you credit in this case. This

includes any prior time that you were on parole. Houser v. Pennsylvania Board of Probation and Parole , 682 A.2d 1356 (Pa. Commw. Ct. 1996). In this case, you were previously on parole from November 19, 2007 to February 18, 2013 which amounts to 1918 days. Adding the 1918 days of prior parole liberty forfeited, to the 2733 [ 2 ] days you had remaining left 3120 days remaining on your sentence.

Certified Record at 187 (C.R. ___) . Young petitioned for this Court’s review

.

1 This covered the period from November 19, 2007, through February 18, 2013.

2 The number “2733” is erroneous. The actual number o f days left on his sentence was 1202 days

. The error has no bearing in this appeal.3 On appeal, 3 Young challenges the Parole Board ’s calculation of his

sentence as contrary to the plain language of the Parole Code

, which does not

expressly authorize the Parole Board to revoke sentence credit it has decided to

award to a parolee

. In response, t he Parole Board argues that its decision was

consistent with the overall purpose of the Parole Code

.

This case of first impression raises an issue of statutory construction

. 4

Specifically, we consider Section 6138(a) of the Parole Code

, which states, in

relevant part

, as follows :

(a) Convicted violators.

--

***

(2) If th e 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 paragrap h (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, unless any of the following apply :

3 This Court’s review determines whether the Parole Board’s adjudication is supported by

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

have been violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Moroz v.
Pennsylvania Board of Probation and Parole, 660 A.2d 131, 132 (Pa. Cmwlth. 1995). The facts

are not in dispute. This appeal involves a pure legal question over which our scope of review is

plenary and our standard of review is de novo

. Soppick v. Borough of West Conshohocken , 6 A.3d

22, 24 n.5 (Pa. Cmwlth. 2010).

4 Our analysis is guided by the principles set forth in the Statutory Construction Act of 1972, 1 Pa.

C.S. §§1501

- 1991, which provides that “[t]he object of all interpretation and construction of
statutes is to ascertain and effectuate the intention of the General Assembly.” 1 Pa. C.S. § 1921(a).
The plain language is the best guide and cannot be disregarded in order to pursue the statute’s

spirit. 1 Pa. C.S. §1921(b).4 (i) 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 (re lating to registration of sexual offenders).

(ii) The parolee was recommitted under section 6143 (relating to early parole of inmates subject to Federal removal order).

61 Pa. C.S. §§6138(a) (emphasis added). 5 Our Supreme Court has held that where

the Pa role Board exercises its discretion under Section 6138(a)(2.1) to deny credit

for time spent at liberty on parole, it must explain its reasons therefor

. Pittman v.

Pennsylvania Board of Probation and Parole , 159 A.3d 466, 473

- 75 (Pa. 2017 ).

Thus , where a parolee is recommitted as a convicted parole violator

, the Parole

Board must take action under Section 6138(a)(2.1) and either grant or deny sentence

credit

. 6

To summarize , i f the Parole Board chooses not to award credit pursuant

to Section 6138(a)(2.1) , the parolee serves the remainder of his sentence as if he had

not been granted parole. 61 Pa. C.S. §6138(a)(2). However, if the Parole Board

does award credit, the parolee no longer has “time spent at liberty on parole

, ” i.e.

,

“street time.” Id. This is so because Section 6138(a)(2.1) requires the Parole Board

to choose a course of action with regard to a convicted parole violator’s street time

at the time of recommitment

. If the Parole Board chooses to “award credit” for the

parolee’s street time to wards his sentence, the street time is gone. T he award of

5 Section 6138(a)(2.1) became effective on September 4, 2012, and applies to any convicted parole

violator recommitment d ecisions on or after that date.

6 This assumes the conviction is not for a type of crime that renders the parolee ineligible for credit

under subsections (i) and (ii) of Section 6138(a)(2.1).5

sentence credit is an affirmative act and not a decision to defer the forfeiture of street

time to a later time.

T he Parole Board argues that it has “authority to withdraw sentence

credit it provided in a prior recommitment.” Parole Board Brief at 8. In support, it

directs the Court to precedent that, it argues, gives an expansive reading to the term

“the parole” in Section 6138(a) (2). Parole Board Brief at 10.

I n Morris v. Pennsylvania Board of Probation and Parole

, 4 6 5 A.2d 97

(Pa. Cmwlth. 1983)

, for example, the Parole Board decided to allow the parolee to

remain on parole notwithstanding his criminal conviction. When he was later

convicted of new criminal charges, the Parole Board revoked his parole and

recommitted him as a technical and convicted parole violator. In calculating his new

maximum sentence date, the Parole Board assumed that the parolee had forfeited all

his street time

. The parolee argued that he should have been credited with the street

time that had accrued prior to his first conviction because the Parole Board’s decision

to co ntinue his parole sealed “off from forfeiture the street time which preceded it.”

Morris

, 465 A.2d at 9 7

. This Court rejected th is contention.

Anderson v. Pennsylvania Board of Probation and Parole

, 472 A.2d

1168 (Pa. Cmwlth. 1984), raise d the question of whether street time

, which was not

forfeited because the parole violator was recommitted as a technical parole violator,

could be forfeited upon the parolee’s later conviction. As in Morris

, the parolee

argued that the law commonly referr ed to as the Parole Act 7 required him to forfeit

only that street time accumulated after his most recent release on parole. He argued

that the phrase “period of parole” referred only to the most recent or “current” period

7 Act of August 6, 1941, P.L. 861, as amended , 61 P.S. §§331.1

- 3 31.34a. The Parole Act was

repealed by the Act of August 11, 2009, P.L. 147 , when the statute was codified into the Parole

Code.6

of parole. This C ourt rejected this argument. See also Caldwell v. Pennsylvania

Board of Probation and Parole

, 511 A.2d 884, 885 (Pa. Cmwlth. 1986) (affirming

that “period of parole” as used in former Section 21. 1 (a) of the Parole Act refers to

all parole time); Andrews v

. Pennsylvania Board of Probation and Parole

, 516 A.2d

838 (Pa. Cmwlth

. 1986) ( Parole Board ’ s decision not to act upon a parolee’s

conviction did not waive the forfeiture of all street time in a subsequent

recommitment ).

The Parole Board’s reliance on these cases is misplaced because these

cases were decided under former Section 21 .1 (a) of the Pa role Act, 61 P.S.

§331.21a(a) (repealed). 8 Under the former law, the Parole Board had no discretion

with respect to the calculation of the sentence remaining for a recommitted parolee,

whether a convicted or technical parole violator. By operation of law, upon

8 Former Section 21 .1 (a) of the Parole Act stated:

(a) Convicted Violators. Any parolee under the jurisdiction of the Pennsyl vania

Board of Parole released from any penal institution of the Commonwealth who,

during the period of parole or while delinquent on parole , commits any crime

punishable by imprisonment, for which he is convicted or found guilty by a judge

or jury or to w hich he 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. If his recommitment is so ordered, he shall be reentered to serve the

remainder of the term which said parolee would have been compelled to serve had

he not been paroled

, and he shall be given no credit for the time at liberty on parole

. The board may, in its discretion, reparole whenever, in its opinion, the best interests

of the prisoner justify or require his release on parole and it does not appear that the

interests of the Commonwealth will be injured thereby. The period of time for

which the parole violator is required to serve shall be computed from and begin on

the date that he is taken into custody to be returned to the institution as a parole

violator

.
A dded by the Act of August 24, 1951, P.L. 1401, as amended , formerly 61 P.S. §331.21a(a)

(emphasis added). Section 6138(a) of th e Parole Code is virtually the same as Section 21.1(a) of

the Parole Act, but with the addition of numbered subparagraphs.7

recommitment, a convicted parole violator forfeited all street time. 9 See Richards v.

Pennsylvania Board of Probation and Parole

, 20 A.3d 596

, 599 (Pa. Cmwlth. 2011) ;

Melendez v. Pennsylvania Board of Probation and Parole

, 944 A.2d 824, 825 (Pa.

Cmwlth. 2008)

. By contrast, a technical parole violator did not forfeit any street

time upon his recommitment

.

U nder the current statutory regime

, the Parole Board must now decide

whether to award or deny credit for street time upon a parolee’s recommitment as a

convicted parole violator. See 61 Pa. C.S. §6138(a)(2.1). 10 Once the Parole Board

grants sentence credit for street time, it is gone. The only extant “time spent at liberty

on parole” will be that time that falls between the parolee’s most recent reparole and

his recommitment. Id.

It has long been established that a criminal defendant who is acquitted

or receives a sentence shorter than the period of his pre

- sentence incarceration

cannot place that excess incarceration into a “penal checking account” to be drawn

9 “ The Parole Code codified the parole provisions of the Act of August 6, 1941, P.L. 861 (former

Parole Act). Section 6138(a)(1) of the Parole Code retains the identical language of repealed

Section 21.1a of the former Parole Act, added by the Act of August 24, 1951, P.L. 1401, 61 P.S.

§ 331.21a.” Price v. Pennsylvania Board of Probation and Parole , 117 A .3d 362, 365 n. 5 (Pa.

Cmwlth. 2015).

10 The dissent is correct that language changes made when the legislature codified Section 21.1(a)

of the Parole Act into Section 6138(a)(2) in 2009 were not intended to affect prior judicial

construction of that section . That is the general rule for any codification of statutes. The 2009

codification of the Parole Act, however, is irrelevant to this case because, as the dissent points out,

forfeiture of all street time was still mandatory for convicted parole violators in 2009. That

changed in 2012 when the legislature amended the now

- codified Parole Code to require the Parole

Board to decide whether to award or deny credit for street time when a parolee is recommitted

upon conviction for a crime that does not involve violence or require registration as a sex offender.

Precedent interpreting Section 6138(a)(2) prior to the 2012 amendment is not binding and has little

value to the proper construction of Section 6138(a)(2.1). The legislature has given the Parole

Board t he discretion to award sentence credit to a convicted parolee it decides to recommit. It has

not given the Parole Board the concommitant power to revoke this decision, under any

circumstances.8

upon in the event of a future criminal act. Martin v. Pennsylvania Board of

Probation and Parole

, 840 A.2d 299, 308 (Pa. 2003) (Constitution neither permits

nor requires penal checking accounts ); Jones v. Pennsylvania Board of Probation

and Parole

, 831 A.2d 162, 168 (Pa. Cmw lth. 2003) (Parole Code does not allow a

parolee to establish a penal checking account). Thus

, a parolee detained only on new

criminal charges cannot apply his excess pre

- sentence incarceration to his original

sentence. 11 Effectively, t he Parole Board seeks to do the obverse by placing the

sentence credit it awards to a parolee into a n escrow account for later forfeiture

. T he

Parole Code does not authorize the Board to establish a “sentence escrow account”

any more than it authorizes criminal defendant s to establish a “penal checking

account.”

In matters of statutory construction , o ur Supreme Court has directed as

follows:

[ Courts must ] accept that when the General Assembly selects

words to use in a statute, it has chosen them purposefully. 1 Pa. C.S. §1921(b). We cannot change those words to reflect our own public policy concerns, nor can we edit them based on the supposition that we know what the General Assembly meant to

say when it said something different.

Commonwealth v. Scolieri , 813 A.2d 672, 673 (Pa. 2002) (emphasis added). Our

Supreme Court has likewise cautioned that “although one is admonished to listen

attentively to what a statute says[,] one must also listen attentively to what it does

not say.” Commonwealth v. Giulian

, 141 A.3d 1262, 1268 (Pa. 2016) (quoting

Commonwealth v. Johnson , 26 A.3d 1078, 1090 (Pa. 2011)). Simply, the Parole

11 However, where a parolee is incarcerated on both the Board ’ s detainer and on new charges, the
incarceration time in excess of the sentence on the new conviction will be applied to the parolee’s

original sentence. Martin , 840 A.2d at 308. The Supreme Court went out of its way to explain

that its ruling in Martin d id “not create a ‘penal checking account.’” Id. at 309.9

Board asks this Court to add words to Section 6138(a)(2.1) that the legislature chose

to omit, i.e. , authorization to revoke sentence cred it after it has been granted and

applied to the parolee’s sentence

.

The Parole Board acknowledges that Section 6138(a)(2.1) does not

authorize its revocation of sentence credit but rejoins that Section 6138(a)(2.1) does

not forbid this action

. This is n ot persuasive. The Parole Board is not a free agent ;

rather, it operates within the confines of its statutory authorization and mandate. In

Aetna Casualty and Surety Company v. Commonwealth of Pennsylvania, Insurance

Department , 638 A.2d 194, 200 (Pa. 19 94), our Supreme Court reiterated that an

administrative agency , a creature of statute, can exercise only those powers

“conferred upon it by the [General Assembly] in clear and unmistakable language.”

(internal quotation omitted). The General Assembly has not granted the Parole

Board the power to revoke sentence credit it has decided to award

.

When Young was recommitted in 2015 as a convicted parole violator

,
the Parole Board lacked the statutory authority to revoke the 1918 days of credit it

had awarded him in 2013. Those 1918 days had already been applied to his original

sentence. Just as the Parole Board lacks the power to revoke days served on a

sentence in prison, it lacks the power to revoke days served on a sentence by reason

of the Parol e Board’s express award of credit in the course of a prior recommitment.

For these reasons, we reverse the Parole Board’s adjudication denying

Young’s request for administrative relief and remand the matter for the Parole

Board’s recalculation o f Young’s m aximum sentence date consistent with this

o pinion

.

______________________________________ MARY HANNAH LEAVITT, President JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Otto Young, :

Petitioner :

:

v. : No. 361 C.D. 2016

: Pennsylvania Board of : Probation and Parole, :

Respondent :

O R D E R

AND NOW, this 12 th day of June , 2018, the order of the Pennsylvania

Board of Probation and Parole (the Parole Board) dated February 24, 2016, is hereby

REVERSED

, and this matter is REMANDED to the Parole Board for recalculation

of Otto Young’s maximum release date in accordance with the attached Opinion

.

Jurisdiction relinquished.

______________________________________ MARY HANNAH LEAVITT, President JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Otto Young :

Petitioner :

:

v. : No. 361 C.D. 2016 : Argued: April 11

, 2018

Penn sylvania Board of Probation and : Parole, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE PATRICIA A

. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE ELLEN CEISLER, Judge

DI SSENTING OPINION

BY JUDGE SI M PSON FILED: June 12, 2018

Because t he majority fails to follow the General Assembly’ s express

pronouncement of its intent, I must respectfully dissent from the majority’s

conclusion that the serial parole violator here does not forfeit all his “ street time ”

—

i.e ., time spent at liberty on parole. Rather, c onsistent with the General Assembly’s

direction that it did not intend to change or affect prior judicial construction when it

changed the language of the controlling statute, I would hold that Otto Yo ung

(Young) forfeited all prior “street time” due to the decision by the Pennsylvania

Board of Probation and Parole (Board) to again recommit Young as a convicted

parole violator , this most recent time on account of his 2014 criminal conviction for

burglary.RES

- 2 Young’s multiple failures on supervision extend well beyond the brief

description in the majority opinion. Young’ s original 6

- year, 10

- month to 25

- year

sentence was for burgl ary, violation of probation, terroristic threats and criminal

conspiracy. After parole in 2000, he was recommitted by the Board on his original

sentence as a technical parole violator in 2001. After re

- parole in 2004, he was

arrested in 2005. He was the reafter convicted of a new crime, and he was

recommitted by the Board as a convicted parole violator in 2006. Young was re

- re

paroled in 2009, but he was again arrested and convicted in 2013. The Board

recommitted him on his original sentence as a convic ted parole violator a second

time, but it granted him credit for his “street time.” It is credit for this time , 1

, 918

days, which is at issue here.

Young was re

- re

- re

- paroled in 2014. However, later that year he was

arrested and ultimately convicted of burglary of an occupied residence at night. The

Board recommitted him on his original sentence as a convicted parole violator for a

third time. This time, the Board noted Young’s extensive history of burglaries, and

it denied him credit for all “street t ime,” including 1

, 918 days previously credited in

2013. This decision by the Board is the basis of the current appeal.

When Young’s saga began, the law was clear. Under various decisions

of this Court, the Board had the authority upon recommitment to wi thdraw sentence

credit it previously provided

. See

, e.g

. , Armbruster v. Pa. Bd. of Prob. & Parole

,

919 A.2d 348 (Pa. Cmwlth

. 2007); Houser v. Pa. Bd. of Prob. & Parole , 682 A.2d

1365 (Pa. Cmwlth. 1996), appeal denied , 692 A.2d 568 (Pa. 1997).RES

- 3 These cases arose under Section 21.1(a) of the former act commonly

referred to as the Parole Act. 1 With respect to convicted parole violators, Section

21.1(a) of the Parole Act provided in relevant part:

(a) Convicted Violators. Any parolee under the jurisdiction of th e [Board] released from any penal institution of the Commonwealth who, during the period of parole or while delinquent on parole, commits any crime punishable by imprisonment, for which he is convicted or found guilty by a judge or jury or to which he plea ds guilty or nolo contendre at any time thereafter in a court of record, may, at the discretion of the [B] oard, be recommitted as a parole violator. If his recommitment is
so ordered, he shall be reentered to serve the remainder of the term which said par olee would have been compelled to serve had he not been paroled, and he shall be given no

credit fo r the time at liberty on parole

....

(Emphasis added.) Since 1984, starting with Anderson v. Pennsylvania Board of

Probation and Parole , 472 A.2d 1168 (Pa. Cmwlth. 1984), this Court consistently

interpreted the above provision as mandating forfeiture of all time at liberty on parole

credited to a sentence, even if credited upon a prior recommitment. In other words,

pursuant to our interpretation, Section 21. 1(a) mandated revocation of all time at

liberty on parole, and the Board lacked the power to exercise discretion with rega rd

to the forfeiture of credit.

In Act 33 of 2009, where the General Assembly repealed the Parole Act

and consolidated its provision s as Sections 6101 through 6309 of the Prisons and

Parole Code, 61 Pa. C.S. §§ 6101

- 6 309 , the General Assembly modified the above

1 Act of August 6, 1941, P.L. 861, added by the Act of August 24, 1951, P.L. 1401, as
amended

, 61 P.S. § 331.21a(a), repealed by Section 11 of the Act of August 11, 2009, P.L. 147
(Act 33 of 2009)

.RES

- 4

language. Section 6138(a)(2) of the Prisons and Parole Code, 61 Pa. C.S.

§ 6138(a)(2), which replaced Section 21.1(a) of the Parole Act , as origi nally enacted

in Act 33 of 2009

, addressed the issue of “ street time ” for a convicted parole violator

who is recommitted as follows:

If the parolee’s recommitment is so ordered, the parolee shall be reentered to serve the remainder of the term which the p arolee would have been compelled to

serve had the parole not been granted and shall be given no credit for the time at liberty on parole.

(Emphasis added .) With respect to “ street time, ” the General Assembly, in its

original enactment of Section 6138(a)(2), changed the relevant statutory language

from “had he not been paroled” (former) to “had the parole not been granted” (Act

33 of 2009). Ordinarily, such a change in language would prom pt this Court to

consider whether the General Assembly’s use of different language should trigger

an alternative construction. In Act 33 of 2009, however, the General Assembly

expressly addresse d the language change:

Any difference in language between 61 Pa. C.S. Pts. I, II, III, IV, and V and the [repealed] acts

... is intended only to conform to the style of the Pennsylvania

Consolidated Statutes and is not intended to change or affect the legislative intent, judicial construction or administrative interp retation and impl ementation of those

acts

....

Section 10(2) of Act 33 of 2009 (emphasis added). 2 Accordingly, the General

Assembly’s express intent in passing Act 33 of 2009 was that this Court’s prior

construction of Section 21.1(a) of the Parole Act sho uld prevail when interpreting

2 Section 10(2) of Act 33 of 2009 goes on to provide exceptions to this general rule not applicable here.RES

- 5

Section 6138(a)(2) of the Prisons and Parole Code, regardless of differences in

language, thereby mandating forfeiture of all time at liberty on parole credited to a

sentence, even if credited up on a prior re commitment.

Th e majority’s failure to follow

, the General Assembly’ s ex p licit

direction in this regard is the basis for my dissent

. As explained below, because

Section 6138(a)(2) of the Prisons and Parole Code is the only statutory provision

addressing credit for “stree t time” which applies in this case, our prior case law

should be followed.

In 2012, the General Assembly amended Section 6138(a) of the Prisons

and Parole Code in two material respects. 3 First, it added Section 6138(a)(2.1) of

the Prisons and Parole Code, 61 Pa. C.S. § 6138(a)(2.1), which, under certain

circumstances, affords the Board discretion to award credit to a parolee recommitted

as a convicted parole violator for “the time spent at liberty on parole.” 4 Second, it

amended Section 61 38(a)(2) of the Prisons and Parole Code to reflect the addition

3 See Section 15 of the Act of July 5, 2012, P.L. 1050 (Act 122 of 2012).

4 Section 6138(a)(2.1) of the Prisons and Parole Code provides:

The [B] oard may, in its discretion, award credit to a parolee 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 viol ence

... or a crime requiring [se xual offender] registration ....

(ii) The parolee was recommended under section 6143 [of the Prisons and Parole Code] (relating to early parole of inmates subj ect to Federal removal order).RES

- 6

of this newly

- granted authority to the Board. The amended Section 6138(a)(2),

applicable here, provides:

If the parolee’s recommitment is so ordered, the parolee shall be reentered to serve the remainder of the term which the parol e e 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.

61 Pa. C.S. § 6138(a)(2) (emphasis add ed). The added language ( underlined ) is an

obvious reference to the Board’s new discretionary authority to award credit to

convicted parole violators.

In light of the f

oregoing, I would apply our prior precedent interpreting

Section 6138(a)(2) of the Pri sons and Parole Code, while giving effect to the new

discretionary authority of the Board set forth in Section 6138(a)(2.1) o f the Prisons

and Parole Code

. C onsistent with the Court’s historical interpretation of Section

6138(a)(2) of the Prisons and Paro le Code (and its predecessor Section 21.1(a) of

the Parole Act), I would hold that when the Board recommitted Young as a c onvicted

parole violator for the third time , Section 6138(a)(2) of the Prisons and Parole Code

mandated forfeiture of all prior street time credited to his original sentence, including

the 1,918 days that the Board previously credited to his sentence as a matter of

discretion under Section 6138(a)(2.1) of the Prisons and Parole Code. If Young’s

most recent recommitment had been for a te chnical violation, there would have been

no forfeiture of prior credit. See 61 Pa. C.S. § 6138(c)(2). Moreover, if Young’s

most recent recommitment had been for a nonviolent criminal offense, then the

Board would have had discretion under Section 6138(a)( 2.1) of the Prisons andRES

- 7

Parole Code to award Young credit for the time forfe ited under Section 6138(a)(2).

Since neither applies in this case, the mandate of Section 6138(a)(2) prevails.

On this basis, I would affirm the Board’s denial of Young’s r equest for

credit

.

ROBERT SIMPSON, Judge

Judge Covey joins in this dissent.