IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kenneth Lee, :

Petitioner :

:

 v. : No. 33 C.D. 2020

: Submitted: December 18, 2020

Pennsylvania Board :

of Probation and Parole, :

Respondent :

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE CROMPTON FILED: March 26, 2021

Kenneth Lee (Lee) petitions for review of a December 10, 2019 order 

of the Pennsylvania Board of Probation and Parole (the Board)1 denying his request 

for administrative relief. In his Petition for Review (Petition), Lee asserts that the 

Board abused its discretion in concluding that he waived his right to counsel and an 

evidentiary hearing and by failing to grant him credit for his time spent at liberty on 

parole (street time). Lee also argues that his substantive due process rights were 

violated by the Board, alleging that the Board’s decision to recalculate his sentences 

and revoke his parole was biased. The Board contends that Lee validly waived his 

1 Subsequent to the filing of the petition for review, the Pennsylvania Board of Probation 

and Parole was renamed the Pennsylvania Parole Board. See Sections 15, 16, and 16.1 of the Act 

of December 18, 2019, P.L. 776, No. 115 (effective February 18, 2020); see also Sections 6101 

and 6111(a) of the Prisons and Parole Code, as amended, 61 Pa. C.S. §§6101, 6111(a).
2

rights to counsel and an evidentiary hearing and that the Board properly exercised 

its authority to recalculate Lee’s sentences and revoke his parole, a decision based

on Lee’s prior supervision failures as supported by the record. Upon consideration, 

we affirm the Board’s order and deny Lee’s Application for Summary Relief. 

I. Background

On December 12, 1993, Lee was arrested and charged with murder 

following the allegedly accidental discharge of a firearm that resulted in the death of 

Lee’s friend. Certified Record (C.R.) at 1; Lee’s Br. at iix. At the time of his arrest, 

Lee was on parole from a one-and-a-half- to five-year sentence for an April 4, 1992 

conviction of Possession with Intent to Deliver involving six grams of cocaine. 

Lee’s Br. at iix. The Board issued a Warrant to Commit and Detain Lee on 

December 14, 1993, and he was detained pending disposition of criminal charges. 

Supplemental Record (S.R.) at 17A, 22A. Lee pled guilty to Murder in the Third 

Degree and Convicted Felon Not to Carry a Firearm on January 17, 1995. Id. at 

15A, 25A. On April 10, 1995, the Honorable Jeffrey Manning of the Court of 

Common Pleas of Allegheny County sentenced Lee, in total, to 12 to 25 years in a 

state correctional institution (SCI), with minimum and maximum sentence dates of 

June 13, 2013, and June 13, 2032, respectively. Id. at 15A; C.R. at 1.

On May 10, 1995, the Honorable Donna Jo McDaniel of the Court of 

Common Pleas of Allegheny County sentenced Lee to 4 to 10 years of imprisonment

for “Violation of Probation Robbery (General).” C.R. at 1. These charges resulted 

from a robbery, specifically a “purse snatching,” that Lee committed on December 

11, 1990. Id. at 78. Judge McDaniel ordered this sentence to be served consecutive 

to any and all sentences imposed by Judge Manning related to the murder and 

firearms convictions. Id.
3

Based on Lee’s new convictions, on February 28, 1995, the Board held 

a parole revocation hearing. S.R. at 26A. On March 21, 1995, the Board ordered 

Lee recommitted to an SCI as a Convicted Parole Violator (CPV). Id. at 37A. Lee 

was paroled from SCI-Greene on June 8, 2015.2 C.R. at 56.

On April 18, 2018, Lee was arrested for Possession with Intent to 

Deliver, with the arrest report detailing “several bags of marijuana and a scale” 

belonging to Lee. Id. at 28. The Board issued a Warrant to Commit and Detain on 

April 19, 2018, to detain Lee pending disposition of his criminal charges. Id. at 33. 

As a result, Lee was transported to SCI-Fayette. Id. Following Lee’s guilty plea, 

the Court of Common Pleas of Allegheny County sentenced Lee to 12 months of 

probation. Id. at 60.

On May 24, 2018, the Board notified Lee of its intention to hold a parole 

revocation hearing relating to his recent charges. Id. at 40. Lee signed the notice, 

confirming his receipt. Id. Also, on May 24, 2018, Lee signed a Waiver of 

Revocation Hearing and Counsel form. Id. at 41. In a decision dated August 26, 

2018, the Board ordered Lee recommitted to an SCI to serve 12 months of backtime 

as a CPV. Id. at 67. The Board further explained that Lee was not eligible for parole 

until April 19, 2019. Id. Additionally, the Board did not award Lee credit for his 

2 At the expiration of his minimum sentence in 2013, Lee was notified that he would be 

considered for suitability for possible release. C.R. at 78. However, Lee was later notified by the 

Board that he would not be released at the conclusion of his minimum sentence and would not 

again be considered for parole until 2015. Id. In response, Lee filed a Petition for Review in the 

Nature of Mandamus with this Court, alleging that, by assessing his parole suitability based, in 

part, on subsequent legislation and parole guidelines and policy changes, the Board violated the ex 

post facto clauses of both the Pennsylvania and United States Constitutions. Id. This Court denied 

the Petition and, following Lee’s subsequent appeal, the Pennsylvania Supreme Court affirmed

this Court’s decision. See Lee v. Pa. Bd. of Prob. & Parole, 102 A.3d 419 (Pa. 2014). Lee then 

filed a Petition for a Writ of Certiorari with the United States Supreme Court, which was denied. 

See Lee v. Pa. Bd. of Prob. & Parole, 135 S. Ct. 2348 (2015).
4

street time due to “prior supervision failures.” Id. Lee’s maximum sentence date 

was also recalculated as April 24, 2035.3 Id. at 72.

Lee filed an administrative appeal with the Board on October 1, 2018, 

challenging the validity of his signed Waiver of Revocation Hearing and Counsel, 

as well as the authority of the Board to recalculate his sentence and to exercise its 

discretion by not awarding him credit for his street time. C.R. at 76-131. The Board 

affirmed its prior decision on December 10, 2019, indicating that its decision to 

revoke Lee’s parole was supported by substantial evidence, did not constitute an 

3

In its brief, the Board explains the details of the recalculation as follows:

When Lee was paroled from his [1995 third-degree murder and firearms] sentence 

. . . on June 8, 2015, his Original Sentence maximum date was June 13, 2032. C.R. 

at 8-9. This resulted in Lee owing 6,215 days toward his [1995 third-degree murder 

and firearms] [s]entence when he was paroled. C.R. at 65. When his maximum 

sentence was recalculated, the Board provided Lee with 21 days of backtime credit, 

for the period he was confined from April 19, 2018, to May 10, 2018, because he 

was sentenced to a term of probation. C.R. at 43-44, 65. The Board used May 10, 

2018, the day Lee was sentenced in his Allegheny [County “Violation of Parole 

Robbery (General)”] case, as Lee’s custody for return date. C.R. at 43-44, 65. 

Adding 6,194 days (6,215 days – 21 days = 6,194 days) to May 10, 2018, results in 

Lee’s [1995 third-degree murder and firearms] [s]entence maximum date being 

recalculated as April 25, 2035. C.R. at 65.

Board’s Br. at 4-5. Further, “Lee’s maximum sentence date was initially recalculated to April 25, 

2035, but due to a Department of Corrections Sentence Restructure the maximum sentence date 

was changed from April 25, 2035 to April 24, 2035. C.R. [at] 65-66, 72-74.” Id. at 4 n.1.
5

error of law, and did not violate any constitutional rights. C.R. at 267-68. Lee now 

petitions this Court for review.4,5

II. Discussion

Lee argues that the Board abused its discretion when it allegedly misled 

him with regard to waiving his rights to a revocation hearing and counsel. Further, 

Lee asserts that the Board also abused its discretion in determining that it lacked the 

discretion to award him credit for street time. Lee also contends that the Board’s 

recalculation of his maximum sentence date violated his substantive due process

rights. Finally, Lee alleges that the Board’s revocation of his parole can be attributed 

to its bias against him.

As acknowledged by Lee in his brief to this Court, “[a] finding of abuse 

of discretion may not be made ‘merely because an appellate court might have 

reached a different conclusion, but requires a result of unreasonableness, or 

partiality, prejudice, bias, or such lack of support so as to be clearly erroneous.’” 

4 Our review of a Board decision is limited to determining whether necessary findings of 

fact are supported by substantial evidence, whether an error of law was committed, or whether the 

constitutional rights of the parolee were violated. Detar v. Pa. Bd. of Prob. & Parole, 890 A.2d 

27 (Pa. Cmwlth. 2006). 

5 Lee also filed an Application for Summary Relief with this Court on February 11, 2020. 

In an Order dated April 6, 2020, this Court directed that the Application for Summary Relief be 

decided on briefs with the merits of the appeal. Cmwlth. Ct. Order, 04/06/2020. Lee’s Application 

for Summary Relief addresses the same issues raised within his Petition for Review, to such an 

extent that Lee makes an identical request of this Court in both documents:

WHEREFORE, Petitioner prays that this Honorable Court will reverse the 

determination of the Board regarding his Administrative Appeal and Petition for 

Review and grant him such relief as may be proper under the circumstances.

Petition at 11-12; Application for Summary Relief at 5. As Lee’s Application for Summary Relief 

serves only to reiterate the issues previously raised within his Petition, we incorporate 

consideration of Lee’s Application for Summary Relief within our review of his Petition.
6

Commonwealth v. Koch, 106 A.3d 705, 710-11 (Pa. 2014) (quoting Commonwealth 

v. Laird, 988 A.2d 618, 636 (Pa. 2010)). However, the Board maintains that the 

record does not contain evidence to support Lee’s assertions that he was misled or 

subject to bias by the Board that resulted in a deprivation of his constitutional rights. 

In fact, in the Board’s view, the evidence contained within the record actually 

demonstrates that the Board properly exercised its statutory authority and supported 

its associated decisions regarding Lee’s parole revocation with a sufficient reason, 

his prior supervision failures. In sum, the Board argues that it did not abuse its 

discretion and Lee’s argument is based on “his own bald assertion” and is 

unsupported by evidence. Board’s Br. at 8.

Lee requests that this Court vacate the Board’s parole revocation 

decision because he was coerced or pressured into signing the May 24, 2018 waiver. 

However, without evidence to support these accusations, this Court cannot simply 

disregard decisions made by the Board while exercising its discretion. Further, this 

Court has previously addressed similar concerns. In Prebella v. Pennsylvania Board 

of Probation and Parole, 942 A.2d 257, 262 (Pa. Cmwlth. 2008), this Court 

highlighted that the waiver of revocation hearing form itself states, “I waive this 

right of my own free will, without promise, threat or coercion.” Therefore, while 

the parolee in Prebella argued that he signed the waiver because of a promise of 

leniency by the Board, this Court found that this argument was defeated by the 

language contained in the waiver itself.

In the present case, Lee signed an identical waiver to the one described 

in Prebella. This Court has previously upheld parole revocations based on the use 

of this waiver form. See Prebella, 942 A.2d 257; see also McKenzie v. Pa. Bd. of 

Prob. & Parole, 963 A.2d 616 (Pa. Cmwlth. 2009). In Prebella, this Court held:
7

A parolee “must have an opportunity to be heard and to show, if he can, 

that he did not violate the conditions, or if he did, that circumstances in 

mitigation suggests that the violation does not warrant revocation.” 

Morrissey v. Brewer, 408 U.S. 471, 488 (1972). However, nothing in 

Morrissey prevents a parolee from waiving a violation hearing without 

first consulting counsel. A parole revocation hearing is not the 

equivalent of a “criminal prosecution in any sense.” Id. at 489.

In addition, and also contrary to [the parolee’s] contentions, the 

violation hearing waiver form here reflects [the parolee] voluntarily, 

knowingly and intelligently waived his right to a violation hearing and 

admitted the parole violations. . . .

Prebella, 942 A.2d at 261-62. Therefore, as Lee’s assertions related to coercion or 

pressure in regard to his signed waiver are not supported by the record, and this 

Court has previously held that the signing of the waiver appropriately demonstrates 

the contrary, we decline to vacate the Board’s parole revocation decision on these 

grounds.

Next, Lee argues that the Board’s decision not to credit him for his 

street time is an abuse of discretion as it is unsupported by sufficient evidence. 

However, the Board explained that Lee’s “prior history of supervision failures” 

warranted a lack of credit for street time.6 C.R. at 67. In Lee’s view, this is simply 

not a sufficient reason. Lee’s Br. at 3-4.

In Pittman v. Pennsylvania Board of Probation and Parole, 159 A.3d 

466 (Pa. 2017), our Supreme Court concluded that if the Board exercises its 

6 The Board points to Lee’s history of arrests and convictions while on parole for previous 

convictions as evidence of “prior supervision failures.” Board’s Br. at 6. “Committing a serious 

violent crime while on parole for another crime[, i.e., Lee’s third-degree murder and firearms 

convictions,] clearly supports the Board’s finding that Lee has a prior history of supervision 

failures.” Id. at 16. Further, the Board notes that during his street time, on December 12, 2017, 

Lee tested positive for consumption of alcohol in violation of his parole. C.R. at 27. Additional 

evidence in the record also indicates that the Board characterized Lee as not amenable to parole 

supervision. Id. at 67-68.
8

discretion to deny a CPV credit for street time, it “must provide a contemporaneous 

statement explaining its reason . . . .” Id. at 475. Our Supreme Court, however, 

noted that “the reason the Board gives does not have to be extensive and a single 

sentence explanation is likely sufficient in most instances.” Id. at 475 n.12. Further, 

this Court has previously held that a “prior history of supervision failures” is a 

sufficient reason to deny credit for street time. Plummer v. Pa. Bd. of Prob. & 

Parole, 216 A.3d 1207, 1212-13 (Pa. Cmwlth. 2019). 

61 Pa.C.S. §6138(a)(2.1) clearly states that the Board has discretion 

when deciding whether to credit a parolee for street time. 61 Pa.C.S. §6138(a), in 

relevant part, reads:

(a) Convicted violators. 

(1) A parolee under the jurisdiction of the [B]oard 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 [B]oard 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 

[street time].

(2.1) The [B]oard 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)(1), (2), & (2.1) (emphasis added). The Board “may” credit a 

parolee’s recommitment with street time, but it is not mandated to do so, as it is a 

discretionary determination reserved for the Board. Therefore, as the Board is 

statutorily afforded the discretion to withhold credit for street time, and in the present 
9

case, the Board did so with the appropriate support of sufficient evidence, the Board 

did not abuse its discretion.

Lee also asserts that his substantive due process rights were violated by 

the Board when it recalculated his maximum sentence date. However, the Board 

contends that, in keeping with the relevant statutory provisions contained within 61 

Pa.C.S. §6138(a), if the Board denies a parolee credit for street time, it must 

necessarily be able to recalculate the parolee’s maximum sentence date to reflect this 

discretionary decision. To deny street time without recalculation would defy the 

statutory scheme.

Additionally, in Young v. Commonwealth, 409 A.2d 843, 848 (Pa. 

1979), our Supreme Court held that the Board’s “power to deny credit for ‘street 

time’ . . . is not an encroachment upon the judicial sentencing power.” Instead, it is 

provided for by the statute. Id. Therefore, the Board is authorized to recalculate the 

maximum sentence date for CPVs to reflect instances where no credit was received 

for street time. Accordingly, in the present case, as Lee was not awarded credit for 

street time, the Board did not abuse its discretion by recalculating Lee’s maximum 

sentence date to reflect this lack of credit.

Finally, before this Court, Lee presents a catch-all argument asserting 

that the Board has a bias against him which resulted in the revocation of his parole. 

Lee alleges that the Board “chose to engage . . . in a clear and obvious coordinated 

and biased manner” in relation to his parole revocation process. Lee’s Br. at 8. 

However, despite this bold claim, Lee fails to present any evidence to support this 

alleged misconduct by the Board.

Lee requests that this Court consider the written statement of a Board 

staff member, Beth Rudzienski, which was recorded following Lee’s signing of the 
10

waiver of revocation hearing and counsel on May 24, 2018. See C.R. at 150. Ms. 

Rudzienski’s statement reads as follows:

When I met with you, you signed waivers to not have a hearing. We 

discussed that the only thing you would be doing at a hearing was 

disputing a conviction and you signed the waiver to get your Board 

Action faster as you admitted to having a new criminal conviction.

C.R. at 150. While Lee characterizes this statement as containing “false and/or 

misleading information,” it instead represents the counseling process provided to 

Lee prior to him signing the waiver. As described by this Court in Coades v. 

Pennsylvania Board of Probation and Parole, 

the Board or its hearing examiner [is required to] ensure that the parolee

is aware of the right to counsel, to free counsel if indigent, and that the 

parolee will not be penalized for requesting counsel. If the parolee 

appears without counsel, desires counsel and is unwilling to waive 

counsel, the Board is required to terminate the proceeding and 

reschedule the hearing. The Board’s regulations do not require this 

counseling be done on the record . . . .

480 A.2d 1298, 1306 (Pa. Cmwlth. 1984). In the present case, as in Coades, the 

counseling process provided to Lee regarding the waiver was not conducted on the 

record. However, Ms. Rudzienski later provided information regarding the 

circumstances surrounding the waiver, and per her statement, her actions comported 

with the procedure required to inform Lee of his rights. Further, Lee does not 

describe with specificity any coercion or promise that led him to sign the waiver. 

Therefore, as Lee argues generally and speculatively that he experienced bias during 

his parole revocation process, and his assertions are unsupported by the record, the 

Board did not exercise bias against Lee by revoking his parole.
11

III. Conclusion

For the foregoing reasons, we affirm the Board’s order and deny Lee’s 

Application for Summary Relief.

______________________________

J. ANDREW CROMPTON, Judge

Judge McCullough did not participate in the decision of this case.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kenneth Lee, :

Petitioner :

:

 v. : No. 33 C.D. 2020

:

Pennsylvania Board :

of Probation and Parole, :

Respondent :

O R D E R 

AND NOW, this 26th day of March 2021, we AFFIRM the December 

10, 2019 order of the Pennsylvania Board of Probation and Parole and DENY

Kenneth Lee’s Application for Summary Relief.

______________________________

J. ANDREW CROMPTON, Judge