IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kevan M. Alston, Jr., :

Petitioner :

:

v. : No. 1924 C.D. 2014

: No. 2042 C.D. 2014

: Submitted: September 2, 2016

Pennsylvania Board of Probation :

and Parole, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE COHN JUBELIRER FILED: November 28, 2016

In these consolidated appeals, Kevan M. Alston, Jr. (Alston) petitions for 

review of the September 24, 2014 and October 28, 2014 Orders of the 

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

administrative relief. On appeal, Alston argues that the Board erred in imposing 18 

months backtime due to his recommitment as a convicted parole violator (CPV) 

and improperly recalculated his maximum date by not giving him the appropriate 

amount of credit toward his sentence. Alston also asserts that the Board committed 

an error of law and violated Alston’s constitutional due process rights by, inter 

alia, failing to timely respond to his requests for administrative relief. 
2

Alston’s court appointed counsel had previously filed an Application for 

Leave to Withdraw as Counsel, which we denied in Alston v. Pennsylvania Board 

of Probation and Parole (Pa. Cmwlth., Nos. 1924, 2042 C.D. 2014, filed July 16, 

2015) (Alston I). Because of the state of the certified record, the Board filed a 

supplemental record on July 30, 2015 (Supplemental C.R. I). Alston’s counsel 

filed a brief on the merits of the Petitions for Review. The Board requested a 

remand in its responsive brief, based on its belief that the Board’s maximum 

sentence date of May 18, 2020, may not have been correct. This Court remanded 

to the Board for an evidentiary hearing and retained jurisdiction. The Board held 

an evidentiary hearing at which Alston and his counsel appeared. The Board 

issued a supplemental decision, which recalculated his maximum date to June 12, 

2020, so as not to give credit for time during which Alston had absconded from 

supervision. Although we provided Alston with an opportunity to challenge the 

Board’s recalculation, we have not received any response. Upon review, we find 

the Board did not err in its calculation of Alston’s maximum date, has given him 

appropriate credit, and has not violated his due process rights. Because we 

retained jurisdiction, the Board did not officially change Alston’s maximum date, 

and therefore, we remand for the Board to do so. 

I. History 

The lengthy history of this case was described in Alston I as follows: 

On September 30, 1998, Alston pled guilty to several charges 

of robbery with serious bodily injury and was sentenced to 10 to 20 

years. (Sentence Status Summary, C.R. at 1-3.) After being paroled 

in January 2010 and recommitted in September 2011 as a technical 

parole violator [(TPV)], Alston was reparoled on April 26, 2012 with 

a parole violation maximum date of January 7, 2018. (Notice of 

Board Decision, Jan[.] 11, 2010, C.R. at 10-11; Notice of Board 
3

Decision, September 26, 2011, C.R. at 19; Notice of Board Decision, 

Mar[.] 9, 2012, C.R. at 20-21.) While on parole, Alston was charged 

with new criminal charges [for simple assault and resisting arrest] in 

Lehigh County on January 28, 2013 for which he pled nolo 

contendere on September 20, 2013.[1] (Criminal Docket, C.R. at 44-

53.) As a result, Alston was sentenced to time served with immediate 

parole and twelve months’ probation. (Criminal Docket, C.R. at 

51.)[2] 

By Board decision mailed December 24, 2013, Alston was 

recommitted as a technical parole violator to serve six months 

backtime and “as a convicted parole violator to serve 18 months 

concurrently for a total of 18 months backtime, when available[,]

pending receipt of additional information.” (Notice of Board 

Decision, Dec[.] 24, 2013, C.R. at 35.) The Board’s December 24, 

2013 decision also denied Alston reparole. (Notice of Board 

Decision, Dec[.] 24, 2013, C.R. at 35.) On January 22, 2014, the 

Board received Alston’s pro se Request for Administrative Relief 

challenging the Board imposition of 18 months backtime and the 

denial of reparole. (Board Decision/Order, Sept[.] 24, 2014, C.R. at 

41.) By Decision/Order mailed September 24, 2014, the Board 

advised Alston as follows:

You waived your hearing rights and admitted to 

being convicted of the offenses of Simple Assault (M2) 

 

1 Alston also was arrested for driving under the influence of alcohol or controlled 

substance (DUI) on February 13, 2013. (Criminal Docket CP-39-CR-0000724-2013 at 2, 

Supplemental C.R. I at 107.) The Board concluded that he was released on his own 

recognizance (ROR) bail on the same day and was held solely on the Board’s warrant thereafter. 

(Notice of Board Decision, Feb. 14, 2014, at 1, Supplemental C.R. I at 144; Hr’g Tr., Apr. 1, 

2016, at 22-25, Board’s Supplemental Certified Record II (Supplemental C.R. II) at 53a-56a; 

Supplemental Board Letter, Apr. 28, 2016, at 4, Supplemental C.R. II at 77a.) Alston initially 

was granted Accelerated Rehabilitative Disposition (ARD) for the DUI, but his ARD was 

revoked. (Criminal Docket CP-39-CR-0000724-2013 at 3-6, Supplemental C.R. I at 108-11.)

He pleaded guilty to the DUI charge on October 24, 2013, and received six months probation. 

(Id. at 7, Supplemental C.R. I at 112.) 

2 By Board decision mailed on October 18, 2013, the Board detained Alston pending the 

resolution of his criminal charges, recommitted Alston as a TPV to serve 6 months backtime, and 

recalculated Alston’s maximum date to May 28, 2018, to include 141 days Alston was 

delinquent on parole. (Order to Recommit, Supplemental C.R. I at 84; Notice of Board Decision,

Oct. 18, 2013, Supplemental C.R. I at 86-88.) The October 18, 2013 Decision indicated that 

Alston’s new maximum date was “subject to change if convicted of outstanding criminal 

charges.” (Notice of Board Decision, Oct. 18, 2013, at 3, Supplemental C.R. I at 88.)
4

and Resisting Arrest (M2) in violation of your parole in 

writing on September 25, 2013. The waiver/admission 

form you signed specifically indicates that you chose to 

take said action of your own free will, without promise, 

threat or coercion. You also failed to withdraw the 

waiver/admission within the prescribed ten-day grace 

period. This admission gave the Board sufficient 

evidence to revoke your parole. Furthermore, you 

specifically waived your right to counsel at your 

hearings.

The Board recommitted you as a convicted parole 

violator to serve 18 months for the offenses of Simple 

Assault and Resisting Arrest. The presumptive 

recommitment range for the offense of Simple Assault is 

9 to 15 months and for Resisting Arrest is 6 to 12 

months, respectively. 37 Pa. Code § 75.2. This means 

that the maximum term the Board could impose that 

would fall within the presumptive range is 27 months. 

Thus, the 18-month recommitment term falls within the 

presumptive range and is not subject to challenge. Smith 

v. Pennsylvania Board of Probation and Parole, 574 

A.2d 558 (Pa. 1990).

(Board Decision/Order, Sept[.] 24, 2014, C.R. at 41 (emphasis in 

original).) Accordingly, the Board denied Alston’s pro se Request for 

Administrative Relief. ([Id.]) 

By decision mailed February 14, 2014, the Board referred to its 

prior actions recommitting Alston as both a technical parole violator 

and convicted parole violator to serve 18 months concurrently for a 

total of 18 months backtime and advised Alston that his new parole 

violation maximum date was May 18, 2020. (Notice of Board 

Decision, Feb[.] 14, 2014, C.R. at 37.) On March 4, 2014, the Board 

received a pro se “Notice of Appeal” from Alston challenging the 

recalculation of his parole violation date and alleging that the 

“calculation was done without due process of law as here, [he] was 

not afforded a parole violation hearing as guaranteed by the fifth 

amendment to the constitution.” (Notice of Appeal, C.R. at 40.) By 

Decision/Order mailed October 28, 2014, the Board explained to 

Alston how his parole violation maximum date was calculated as May 

18, 2020 and affirmed its decision mailed February 14, 2014. (Board 

Decision/Order, Oct[.] 28, 2014, C.R. at 54-55.) 
5

. . . 

On September 5, 2014, Alston, through Attorney [Kent D.] 

Watkins, [Esquire] filed with this Court a “Petition for Review (In the 

Nature of a Complaint in Mandamus)” (Mandamus Petition) alleging 

that it had been more than 120 days since Alston filed his January 22, 

2014 Request for Administrative Relief and his March 4, 2014 Notice 

of Appeal and seeking an order from this Court directing the Board to 

act on Alston’s requests for administrative relief. After the Board 

issued its September 24, 2014 Order denying Alston’s pro se January 

22, 2014 Request for Administrative Relief, the Board filed an 

application to dismiss Alston’s Mandamus Petition for mootness. 

Upon consideration of the Board’s application and Alston’s answer 

thereto, this Court denied the Board’s application by Order entered 

October 23, 2014. Alston v. P[a.] B[d.] of Prob[.] and Parole (Pa. 

Cmwlth., No. 463 M.D. 2014, filed Oct[.] 23, 2014). After the Board 

issued its October 28, 2014 Order denying Alston’s pro se March 4, 

2014 Notice of Appeal, the Board filed an amended application to 

dismiss Alston’s Mandamus Petition as moot. Upon consideration, 

this Court granted the Board’s amended application and dismissed 

Alston’s Mandamus Petition by Order entered November 14, 2014, 

because the Board had responded to Alston’s administrative appeals 

thereby providing Alston with the relief he requested. Alston v. P[a.] 

B[d.] of Prob[.] and Parole (Pa. Cmwlth., No. 463 M.D. 2014, filed 

Nov[.] 14, 2014).

On October 24, 2014, Alston, through Attorney Watkins, filed a 

Petition for Review with this Court which was docketed at 1924 C.D. 

2014. Therein, Alston seeks an order vacating the Board’s December 

24, 2013 action revoking his parole and its February 14, 2014 decision 

recalculating Alston’s parole violation maximum date based on the 

Board’s “actions in failing to timely respond to [Alston’s] 

administrative appeal” of the Board’s decision mailed February 14, 

2014. (Petition for Review, 1924 C.D. 2014, ¶ 12.) Alston alleges 

that he “has the right to timely be heard” and that the Board’s failure 

“to timely reply to [his] administrative appeals . . . has . . . [required 

him] to institute multiple court actions in order to receive a reply to 

his timely filed administrative appeal.” (Petition for Review, 1924 

C.D. 2014, ¶¶ 13, 15.) Alston alleges that the Board’s actions in 

failing to timely respond to this administrative appeal constitute an 

error of law and a violation of his constitutional rights. (Petition for 

Review, 1924 C.D. 2014, ¶ 12.) 

On November 12, 2014 Alston, through Attorney Watkins, filed 

an additional Petition for Review with this Court which was docketed 
6

at 2042 C.D. 2014. Therein, Alston seeks review of the Board’s 

October 28, 2014 Order denying his “Notice of Appeal” from the 

Board’s decision mailed February 14, 2014. (Petition for Review, 

2042 C.D. 2014, ¶ 4.) Alston alleges that the Board “failed to give 

[him] credit for all time served exclusively pursuant to the [B]oard’s 

warrant.” (Petition for Review, 2042 C.D. 2014, ¶ 5.) 

Alston I, slip op. at 2-6 (footnotes omitted). In Alston I, we denied the Application 

to Withdraw on the basis that counsel had not satisfied the requirements of a nomerit letter under Commonwealth v. Turner, 544 A.2d 927, 928 (Pa. 1988) and 

Zerby v. Shanon, 964 A.2d 956, 960 (Pa. Cmwlth. 2009). Alston I, slip op. at 7-8. 

While counsel discussed “whether Alston’s parole violation maximum date was 

correctly recalculated by the Board and whether the 18 month recommitment 

period imposed by the Board is within the presumptive range, he does not address 

any of the issues raised in the Petition for Review filed at docket number 1924 

C.D. 2014.” Id. at 8. Thus, we did not address the merits of Alston’s Petitions for 

Review and directed counsel to file either a new application to withdraw or a brief 

on the merits. Id. at 9, Order. 

We further observed in Alston I that: the certified record was missing 

certain documents, documents were incomplete, and there were some factual 

discrepancies left unresolved by the Board’s decisions and counsel’s no-merit 

letter. Id. at 8-9 n.4.3 The Court then directed the Board to certify a second 

volume of the certified record consisting of:

 

3

Specifically, we observed:

We note that the factual background relating to the time that Alston was 

released on parole on April 26, 2012 until the time he was sentenced on new 

criminal charges on September 20, 2013, particularly where and when he was 

incarcerated after being charged on January 28, 2013 with new criminal charges, 

is unclear from the certified record filed with this Court. Thus, it is questionable 

whether the Board correctly calculated Alston’s parole violation maximum date. 
7

1. [Alston’s] pro se Request for Administrative Relief;

2. Documentation regarding whether, and if so, where [Alston] was 

incarcerated between April 26, 2012 and September 20, 2013;

3. The dated and signed Notice of Charges and Hearing issued by the 

Board, or other notification of the scheduling, that is, times and 

dates, of the preliminary and detention hearings; 

4. The waiver/admission form that [Alston] allegedly signed waiving 

his right to counsel at the hearings;

 

For example, the Board gave Alston 86 days credit for the period he was 

incarcerated from February 13, 2013 to May 10, 2013 because he was 

incarcerated solely on the Board’s detainer; however, the Board also stated that 

Alston was erroneously released from incarceration from the Lehigh County 

Prison on April 15, 2013 after posting bail despite the Board’s existing detainer 

against him. (Board Decision/Order, Oct[.] 28, 2014, C.R. at 54-55.) Whether 

Alston was actually incarcerated between April 15, 2013 and the date of his 

conviction on September 20, 2013 is unclear because not only was Alston 

declared delinquent on April 15, 2013, the certified record indicates that Alston 

turned himself in to the Lehigh County authorities on September 3, 2013. 

(Supervision History, C.R. at 29-30.) These apparent discrepancies are not 

explained by Attorney Watkins in his no-merit letter.

In addition, it appears that there are several documents missing from the 

certified record and that the documents that are contained therein are not 

complete. For example, the Notice of Charges and Hearing issued by the Board 

to Alston charging him with the new criminal charges and technical parole 

violations is undated and unsigned and is missing the time and date of the 

preliminary and detention hearings. (Notice of Charges [and Hearing], C.R. at 

31.) There is no document in the certified record that actually schedules any type 

of hearing on these charges. Also missing from the certified record is the 

waiver/admission form that Alston allegedly signed waiving his right to counsel 

at the hearings. (Board Decision/Order, Sept[.] 24, 2014, C.R. at 41.) As such, 

the Board’s determination set forth in its September 24, 2014 Decision/Order that 

Alston waived his hearing rights, is not supported by the certified record. Further, 

the Board’s December 24, 2013 and February [14], 2014 decisions do not contain 

any indication as to the actual date these decisions were mailed. We ascertained 

the mailing dates from the Board’s September 24, 2014 and October 28, 2014 

denials of Alston’s Requests for Administrative Relief and Notice of Appeal, 

respectively. Given that this Court’s ability to perform effective appellate review 

is dependent on having complete and accurate records to review, it would be 

helpful if the records certified to the Court by the Board were more accurate.

Alston I, slip op. at 8-9 n.4.
8

5. Indications of the mailing dates of the Board’s December 24, 2013 

and February [14], 2014 decisions; and

6. Those other parts of the original record that were not previously 

forwarded to the Court but were relied upon by [the Board] in 

reaching its decisions in these matters.

(Per Curiam Order, July 17, 2015.) The Board filed the Supplemental C.R. I, 

consisting of approximately 145 pages of record materials, with this Court on July 

30, 2015. 

 

II. Remand for Evidentiary Hearing

Alston’s counsel filed a brief on the merits of the Petitions for Review, and 

the Board filed a responsive brief, arguing, inter alia, that Alston’s due process 

rights were not violated under these circumstances and requesting a remand based 

on its belief that it was “not convinced that the Board’s Original Sentence 

maximum date of May 18, 2020 is correct.” (Board Br.’s at 16.) By Per Curiam

Order dated March 18, 2016, this Court remanded the matter to the Board for “an 

evidentiary hearing to determine certain facts critical to the proper calculation of 

[Alston’s] maximum date.” (Per Curiam Order, Mar. 18, 2016.) In light of 

Alston’s alleged due process concerns, this Court, as suggested by the Board’s 

counsel in its brief, retained jurisdiction while on remand. (Id.; Board’s Br. at 16-

17.) The Board held the evidentiary hearing, at which Alston and his counsel 

appeared and presented evidence, and mailed a decision to Alston on April 20, 

2016. (Notice of Board Decision, Board’s Supplemental Certified Record II

(Supplemental C.R. II) at 69a-71a.) The Board sent a letter on April 28, 2016, to 

supplement the Board decision mailed April 20, 2016, and recertified the record 
9

(Supplemental C.R. II) with this Court on April 28, 2016. (Supplemental Board 

Letter, Supplemental C.R. II at 74a-77a.) 

Based on the evidence presented at the hearing and the existing record, the 

Board concluded that Alston was entitled to 61 days of sentence credit from 

February 13, 2013 to April 15, 2013, because this was the period during which he 

was confined solely on the Board’s warrant. On February 13, 2013, Alston was 

arrested for driving under the influence of alcohol or controlled substance (DUI).

(Criminal Docket CP-39-CR-0000724-2013 at 2, Supplemental C.R. I at 107; Hr’g 

Tr. at 18, 21-22, Supplemental C.R. II at 49a, 52a-53a.) The Board issued a

warrant to commit and detain Alston based on the DUI charge also on February 13, 

2013.4 (Warrant to Commit and Detain, Supplemental C.R. I at 34.) While 

confined on the Board’s warrant, Alston was arrested for the simple assault and 

 

4

It is not entirely clear whether Alston posted bail on the DUI charge. Some documents 

indicate that he did not post bail, but Alston testified that he did post bail on February 13, 2013, a 

fact the Board appears to have accepted both at the hearing and in its February 14, 2014 

Decision. (Notice of Board Decision, Feb. 14, 2014, Supplemental C.R. I at 144; Order to 

Recommit, Supplemental C.R. I at 130; Hr’g Tr. at 21-25, Supplemental C.R. II at 52a-56a.) 

However, even if Alston did not post bail on that date, he was entitled to receive credit for all of 

his time in custody. Martin v. Pa. Bd. of Prob. and Parole, 840 A.2d 299, 304 (Pa. 2003) (citing 

Gaito v. Pa. Bd. of Prob. and Parole, 412 A.2d 568, 571 n.6 (Pa. 1980)). “[I]f a parolee is 

acquitted, or if no new sentence is imposed for a conviction on the new charges, pre-trial custody 

is to be applied to the parolee’s original sentence,” and a parolee must be given credit for all 

periods of confinement where, inter alia, the “confinement is the result of both a Board warrant 

and pending criminal charges” and “where there is no period of incarceration imposed.” Id. at 

305, 309 (emphasis added). Here, Alston received no period of incarceration for the DUI charge; 

he initially was sentenced to ARD and, after that was revoked, he ultimately received six months 

probation. (Criminal Docket CP-39-CR-0000724-2013 at 3-7, Supplemental C.R. I at 108-12.) 

Because Alston was entitled to credit for the pre-sentence time he was being held on the Board’s 

warrant, and possibly on the DUI charge, from February 13, 2013 to April 15, 2013 (when he 

was arrested on the simple assault and resisting arrest charges, posted bail on those charges, and 

absconded), and he was not sentenced to a period of incarceration, that time was rightly credited 

toward his original sentence. Martin, 840 A.2d at 305, 307. Thus, any error in the Board’s 

finding that Alston was being held solely on its warrant based on Alston’s posting of bail for the 

DUI charge is harmless. 
10

resisting arrest on April 15, 2013, and Alston was released on his own 

recognizance (ROR) bail. (Criminal Docket CP-39-CR-0001325-2013 at 2, 4-5, 

Supplemental C.R. I at 84, 96-97; Hr’g Tr. at 21, 24-25, Supplemental C.R. II at 

52a, 55a-56a.) Notwithstanding the Board’s existing warrant, Alston was released 

from prison on April 15, 2013, absconded from parole supervision, and remained 

delinquent until he turned himself in on September 3, 2013. (Hr’g Tr. at 25-27, 

Supplemental C.R. II at 56a-58a.) “Subtracting 61 days from the 2,518 days 

[remaining] results in Mr. Alston owing 2,457 days,” and adding those days to 

September 20, 2013, the date when Alston was granted parole from his conviction 

for simple assault and resisting arrest and returned to the Department of 

Corrections (DOC), would result in a new maximum date of June 12, 2020. 

(Notice of Board Decision, Apr. 20, 2016, Supplemental C.R. II at 69a-71a; Order 

to Recommit, Supplemental C.R. II at 72a; Supplemental Board Letter, Apr. 28, 

2016, Supplemental C.R. II at 74a-77a.) The Board did not officially change 

Alston’s maximum date from May 18, 2020 to June 12, 2020, because this Court 

retained jurisdiction. (Supplemental Board Letter (Apr. 28, 2016) at 4, 

Supplemental C.R. II at 77a.) Although given an opportunity to respond to the 

Board’s supplemental decision and recalculation of Alston’s maximum date, 

Alston has not filed a brief or response and, therefore, this matter is ready for our 

determination.

5, 6

 

5 By Per Curiam Order dated July 28, 2016, we directed Alston to file a response within 

30 days of the Order or we would “proceed to make a determination without the benefit of 

[Alston’s] response.” (Per Curiam Order, July 28, 2016.) 

6

In reviewing the Board’s orders, our review “is limited to determining whether the 

Board’s findings are supported by substantial evidence, [whether] an error of law [was] 

committed, or whether any of the parolee’s constitutional rights were violated.” Andrews v. Pa.

Bd. of Prob. and Parole, 516 A.2d 838, 841, n.10 (Pa. Cmwlth. 1986).
11

III. Issues Now Before this Court

a. Recommitment as a CPV to Serve 18 Months Backtime and 

Recalculation of Alston’s Maximum Date

We first address the issues related to Alston’s recommitment as a CPV to 

serve 18 months backtime and the recalculation of his maximum date. Alston 

objects to his being recommitted for a period of 18 months backtime based on his 

conviction for simple assault and resisting arrest. (Supplemental C.R. I at 125-26.) 

However, as acknowledged in Alston’s brief, the 18 months of backtime falls 

within the combined presumptive ranges for recommitment for simple assault (9 to 

15 months) and resisting arrest (6 to 12 months). 37 Pa. Code § 75.2. “As long as 

the period of recommitment is within the presumptive range for the violation, the 

Commonwealth Court will not entertain challenges to the propriety of the term of 

recommitment.” Smith v. Pa. Bd. of Prob. and Parole, 574 A.2d 558, 560 (Pa. 

1990). 

We now turn to the recalculation of Alston’s maximum date. As discussed 

above, the Board issued a supplemental determination recalculating Alston’s 

maximum date to June 12, 2020, and Alston has not responded to the Board’s new 

recalculation to assert that it is erroneous. We will, therefore, only review Alston’s 

arguments contained in his initial brief to this Court. Alston argues that the Board 

erred in not giving him credit for his time spent at liberty on parole and 

recomputing his maximum date based on his conviction for DUI in its February 14, 

2014 Decision even though his parole was not revoked based on that conviction,

and he did not waive the revocation hearing for that conviction. (Alston’s Br. at 

16.) Alston observes that, although the Board indicated in its February 14, 2014

Decision that it noted the DUI conviction and chose to not take action on that 

conviction, the Board nevertheless forfeited Alston’s time spent at liberty on parole 
12

and recalculated his maximum date as May 18, 2020, which Alston maintains was 

based on this new conviction. (Notice of Board Decision, Feb. 14, 2014, 

Supplemental C.R. I at 129.) Therefore, Alston argues that the Board erred in 

recalculating his maximum date and that he is entitled to credit for 285 days for his 

time at liberty on parole. 

The Board responds that the revocation of Alston’s parole, recommitment as 

a CPV, forfeiture of his time at liberty on parole, and recalculation of Alston’s 

maximum date were based on his pleading nolo contendere on September 20, 

2013, to simple assault and resisting arrest and not the DUI conviction as Alston 

asserts. According to the Board, Alston waived his revocation hearing, 

acknowledged his conviction for simple assault and resisting arrest, and the 

Board’s actions, therefore, were not erroneous. 

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

6138(a),

7

authorizes the Board to recommit a parolee who is convicted of a crime 

 

7

Section 6138(a) of the Parole Code provides, in relevant part, that:

(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.

61 Pa. C.S. §§ 6138(a)(1)-(2). Although the Board has the discretion to award credit for time 

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

required registration on a sex offender’s registry, it did not do so here. 61 Pa. C.S. § 

6138(a)(2.1)(i). 
13

punishable by imprisonment that was committed while on parole and to deny credit 

for time served at liberty on parole for a parolee who is recommitted as a CPV. 

See also Gaito v. Pa. Bd. of Prob. and Parole, 412 A.2d 568, 570 (Pa. 1980) 

(holding that the forfeiture of credit for time served at liberty on parole for a CPV 

is not unconstitutional). After a thorough review of the certified records in this 

case, the records reveal that Alston waived the revocation hearing based on his 

pleading nolo contendere on September 20, 2013, to simple assault and resisting 

arrest and acknowledged his new conviction. (Criminal Docket CP-39-CR0001325-2013 at 1, 7, Supplemental C.R. I at 95, 99; Waiver of Revocation 

Hearing and Counsel/Admission Form, Supplemental C.R. I at 83; Hearing Report, 

Supplemental C.R. I at 116-18.) The Board revoked Alston’s parole and denied 

him credit for time spent at liberty on parole based on that conviction. (Hearing 

Report, Supplemental C.R. I at 117-19, 123.) In its December 24, 2013 Decision, 

the Board recommitted Alston as a CPV based on the conviction for simple assault 

and resisting arrest and ordered him to serve 18 months backtime, “when available 

pending receipt of additional information.” (Notice of Board Decision, Dec. 24, 

2013, Supplemental C.R. I at 125 (emphasis added).) The December 24, 2013 

Decision indicated that, in addition to recommitting Alston as a CPV for 18 

months, it was modifying its prior October 18, 2013 Decision, which had

recommitted Alston as a TPV, declared Alston delinquent for 141 days, and

recalculated Alston’s maximum date to May 28, 2018 (based on those 141 days),

by deleting the reparole provision and adding an additional 6 months of backtime 

for a new technical violation. (Id.) The December 24, 2013 Decision did not, on 

its face, change Alston’s parole violation maximum date from May 28, 2018 to 

May 18, 2020, based on the new conviction for simple assault and resisting arrest. 
14

(Id.) Rather, it was the Board’s February 14, 2014 Decision that advised Alston of 

his new maximum date of May 18, 2020. (Id. at 129.)

A review of the February 14, 2014 Decision shows that the change in 

Alston’s maximum date was based on his admitted conviction for simple assault 

and resisting arrest, and not the DUI conviction for which the Board chose to take 

no action. (Notice of Board Decision, Feb. 14, 2014, Supplemental C.R. I at 129; 

Order to Recommit, Supplemental C.R. I at 130-31.) While the Board’s December 

24, 2013 Decision addressing Alston’s recommitment as a CPV did not change 

Alston’s maximum date, it appears that the Board was waiting for “additional 

information” before recalculating Alston’s maximum date to include the forfeiture 

of his time at liberty on parole based on Alston’s being recommitted as a CPV for 

his conviction for simple assault and resisting arrest. The Board received the 

information for which it was waiting, presumably information related to Alston’s

DUI charge and, thereafter, issued the February 14, 2014 Decision. In that 

decision, the Board noted the DUI conviction, but declined to take action on it,

and, referring to, inter alia, its prior December 24, 2013 Decision recommitting

Alston as a CPV for 18 months, recalculated Alston’s maximum date from May 

28, 2018 to May 18, 2020, based on the simple assault and resisting arrest 

conviction. We discern no error because the Board’s recalculation of Alston’s 

maximum date and denial of credit for time at liberty on parole were based on

Alston being recommitted as a CPV based on that admitted conviction as 

authorized by Section 6138(a) of the Parole Code and Gaito.

8

 

8 Although Alston has not challenged whether the Board correctly recalculated Alston’s 

maximum date from May 18, 2020 to June 12, 2020, we have reviewed the record and find that 

the Board did not err. Alston admitted that he absconded from supervision of the Board on April 

15, 2013, and did not return to custody until September 3, 2013; he is therefore not entitled to 

credit for that time period. (Hr’g Tr. 26-27, Supplemental C.R. II at 56a-57a.) 
15

b. Alston’s Due Process Rights

Finally, we address Alston’s claims that the Board violated his constitutional 

rights to due process. Alston argues that the Board committed an error of law and 

violated his constitutional right to due process by causing a delay in the appellate 

process where the Board: failed to timely respond to or answer Alston’s requests 

for administrative relief; filed multiple Board actions without responding to 

Alston’s previous appeals causing Alston to file multiple appeals on the same or 

similar issues; and submitted conflicting certified records to this Court. Alston 

asserts that parole revocation hearings are subject to the Administrative Law and 

Procedure Act (Administrative Law Act), 2 Pa. C.S. §§ 101-754, which provides 

for a two-tier process for parole revocations: “[f]irst, a factual record is made and 

an initial decision is rendered at a parole revocation hearing”; and second, “[a]

parolee can then appeal this decision to the Board by filing for administrative 

relief.” Goods v. Pa. Bd. of Prob. and Parole, 912 A.2d 226, 232 (Pa. 2006); 37

Pa. Code § 71.4(2)(v). Alston acknowledges that neither the Parole Code nor the 

Board’s regulations set time limitations on making either of these determinations, 

but he argues that this allows the Board to issue multiple actions, rendering filed

appeals void, restarting the appeal period for the parolee, and beginning the 

process for the parolee over again. This, Alston contends, interferes with his due 

process rights in having an adequate and effective appeal. (Alston’s Br. at 11-12, 

citing Com. v. Glover, 458 A.2d 935, 937 (Pa. 1983).) According to Alston, the 

Board’s ongoing delays under this process have placed Alston “in a position 

where, even if he were afforded the relief he was seeking, he would not have 

enough time to have the requested relief credited to his sentence or his appeal 
16

would be dismissed as moot because his maximum sentence would be completed.” 

(Alston’s Br. at 12.) 

The Board responds that any delays in issuing its orders in response to 

Alston’s requests for administrative review did not violate Alston’s due process 

rights. Citing Section 6113(d) of the Parole Code and Section 73.1(a) of its 

regulations, the Board notes that although these provisions set forth procedures for 

appeals, neither establish a time period for responding to a request for 

administrative review or appeal. 61 Pa. C.S. § 6113(d);937 Pa. Code § 73.1(a).10 

 

9

Section 6113(d) of the Parole Code provides that: 

(1) An interested party may appeal a revocation decision within 30 days of 

the board’s order. The decision shall be reviewed by three board members 

appointed by the chairperson or the chairperson’s designee.

(2) If practicable, at least two of the board members reviewing the 

decision must not have been on the panel whose decision is being appealed. The 

three board members deciding the appeal may affirm, reverse or remand the 

decision of the panel or may order the matter be heard de novo.

61 Pa. C.S. §§ 6113(d)(1)-(2).

10 Section 73.1(a) of the Board’s regulations states:

(a) Appeals.

(1) An interested party, by counsel unless unrepresented, may appeal a 

revocation decision. Appeals shall be received at the Board’s Central Office 

within 30 days of the mailing date of the Board’s order. When a timely appeal of 

a revocation decision has been filed, the revocation decision will not be deemed 

final for purpose of appeal to a court until the Board has mailed its decision on the 

appeal. This subsection supersedes 1 Pa. Code § 35.226 (relating to final orders).

(2) The scope of review of an appeal will be limited to whether the 

decision is supported by substantial evidence, an error of law has been committed 

or there has been a violation of constitutional law.
17

The Board argues that this Court held in Slotcavage v. Pennsylvania Board of 

Probation and Parole, 745 A.2d 89, 91 n.3 (Pa. Cmwlth. 2000), that a six-month 

delay in a Board decision did not violate due process and that even if it did, the 

relief would be a mandamus order directing the Board to issue a decision, not the 

reversal of the decision.

To establish a due process violation based on a delay in the appellate 

process, an appellant must prove both that “his cause was prejudiced by the delay . 

. . . [and] . . . that the state’s action in causing or allowing the delay was 

fundamentally unfair, not merely undesirable.” Com. v. Anders, 725 A.2d 170, 

172 (Pa. 1999) (internal quotations omitted) (emphasis added). “This prejudice is 

defined as affecting the various interests in facilitating prompt appeals which are: 

(1) preventing oppressive incarceration pending appeal; (2) minimizing the anxiety 

of persons awaiting the outcome of the appeal; and (3) limiting the possibility that 

grounds for appeal, or defenses in the event of reversal and retrial, will be 

impaired.” Com. v. Rosarius, 771 A.2d 29, 31 (Pa. Super. 2001) (citing Com. v. 

Glass, 586 A.2d 369, 373 (Pa. 1991), abrogated on other grounds by Betterman v. 

Montana, __ U.S. __, 136 S. Ct. 1609 (2016)). Our Supreme Court’s “approach 

has always been to determine whether there has in fact been prejudice, rather than 

 

(3) The failure of an appeal to present with accuracy, brevity, clearness 

and specificity whatever is essential to a ready and adequate understanding of the 

factual and legal points requiring consideration will be a sufficient reason for 

denying the appeal.

(4) Second or subsequent appeals and appeals which are out of time under 

these rules will not be received.

37 Pa. Code §§ 73.1(a)(1)-(4).
18

to presume that prejudice exists.” Glass, 586 A.2d at 372 (emphasis in original)

(citations omitted). 

In Slotcavage, the Board revoked the parolee’s parole and recommitted him 

as a TPV and CPV based on his conviction for federal charges. Slotcavage, 745 

A.2d at 90. The parolee filed an administrative appeal on September 8, 1998, to 

which no response was received by January 11, 1999. As here, the parolee filed a 

petition for review/mandamus action in this Court’s original jurisdiction seeking an 

order directing the Board to issue a decision, but prior to this Court acting on the 

petition, the Board issued its decision denying the appeal. We, therefore, 

dismissed the petition as moot. The parolee appealed the Board’s denial, arguing 

that the Board’s six-month delay in issuing its decision on his administrative 

appeal violated his equal protection and due process rights under the United States 

and Pennsylvania Constitutions. We held that even if the six months was an 

unreasonable amount of time, the parolee did not suffer any actual prejudice by the 

delay and, therefore, his due process rights were not violated. Id. at 92. Citing 

Sanders v. Pennsylvania Board of Probation and Parole, 651 A.2d 663, 667 (Pa. 

Cmwlth. 1994), in which this Court held that because the Parole Code and 

regulations do not provide a time frame for decisions, there was “‘no basis . . . for 

requiring the Board to dismiss with prejudice the allegations underlying the 

revocation hearing,’” we concluded, in Slotcavage, that “[e]ven when the Board 

fails to issue a timely decision, that does not mean that its decision would be 

reversed; it would only mean that a mandamus order would be issued for the Board 

to issue its decision.” Slotcavage, 745 A.2d at 91 n.3.

The Board acknowledges that its Orders here were issued more than six 

months after Alston’s appellate filings, but asserts that they were not so delayed as 
19

to violate due process, particularly where there was no actual prejudice to Alston. 

We observe that these Orders were issued after Alston had filed a mandamus 

action in this Court’s original jurisdiction requesting that we direct the Board to 

address his requests for administrative relief. Finally, we note that the certified 

record initially certified in this matter was, as discussed in Alston I, deficient. 

However, even though the delays and the state of the record initially certified to 

this Court are concerning, we must conclude that Alston has not “in fact been 

prejudice[d]” because the Board did not err in revoking Alston’s parole due to his

admitted conviction for simple assault and resisting arrest, recommitting him as a 

CPV to serve 18 months backtime, and recalculating his maximum sentence 

without credit for his time at liberty on parole or the time that he absconded. 

Glass, 586 A.2d at 372 (emphasis in original); see Gonzalez v. Bd. of Prob. and 

Parole (Pa. Cmwlth., No. 2090 C.D. 2010, filed July 15, 2011) (concluding that 

the parolee’s due process rights were not violated by a delay in the Board’s issuing 

a decision because the Board’s recalculation of the parolee’s maximum date was 

correct).

11, 12

 

11 Although Gonzalez is unreported, “an unreported panel decision of this court issued 

after January 15, 2008” may be cited “for its persuasive value.” 210 Pa. Code § 69.414(a).

12 Even assuming that the Board had erred in recalculating Alston’s maximum date by 

forfeiting his time at liberty on parole, Alston’s recalculated maximum date based solely on his 

recommitment as a TPV in the October 18, 2013 Decision was May 28, 2018, more than three

years after the Board’s October 28, 2014 Order denying Alston’s appeal of the February 14, 

2014 Decision was issued. Therefore, he was not in danger of reaching his maximum sentence

date and having any appeal dismissed as moot due to the Board’s delay. Moreover, as Alston 

acknowledges in his brief to this Court that the 18 months backtime imposed upon him based on 

his recommitment as a CPV is within the presumptive range, (Alston’s Br. at 14), he would have 

had to serve this 18 months backtime before being eligible for reparole. This means that Alston 

would have remained confined during and beyond the period of the Board’s delay before he 

would have been even eligible for reparole. Therefore, the delay by the Board in addressing 

Alston’s appeals did not result in an “oppressive incarceration pending [those] appeal[s].” 

Rosarius, 771 A.2d at 31.
20

IV. Conclusion

For the foregoing reasons, we affirm the Board’s Orders to the extent that 

they deny Alston’s requests for administrative relief related to the Board’s 

revoking Alston’s parole, recommitting Alston as a CPV to serve 18 months 

backtime based on Alston’s admitted convictions for simple assault and resisting 

arrest, and not giving credit for his time spent at liberty on parole or while he 

absconded from supervision. Additionally, we agree with the Board’s 

recalculation of Alston’s maximum date to June 12, 2020, as set forth in its April 

20, 2016 Decision issued on remand from this Court and its April 28, 2016 

supplemental letter. Accordingly, we vacate the Board’s Orders to the extent that 

they affirmed Alston’s maximum date as May 18, 2020, and remand the matter to 

the Board to modify Alston’s maximum date in accordance with the Board’s April 

20, 2016 Decision and its April 28, 2016 supplemental letter.

________________________________

 RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Kevan M. Alston, Jr., :

Petitioner :

:

v. : No. 1924 C.D. 2014

: No. 2042 C.D. 2014

Pennsylvania Board of Probation :

and Parole, :

Respondent :

O R D E R

NOW, November 28, 2016, the September 24, 2014 and October 28, 2014

Orders of the Pennsylvania Board of Probation and Parole (Board) are 

AFFIRMED to the extent that they deny Kevan M. Alston, Jr.’s (Alston) requests 

for administrative relief related to the Board’s recommitting Alston as a convicted 

parole violator to serve 18 months backtime based on Alston’s conviction for 

simple assault and resisting arrest and not giving him credit for his time spent at 

liberty on parole or while he absconded from supervision. Additionally, because 

this Court agrees with the Board’s recalculation of Alston’s maximum date to June 

12, 2020, as set forth in its April 20, 2016 Decision issued on remand from this 

Court and its April 28, 2016 supplemental letter, we VACATE the Board’s Orders 

to the extent that they affirmed Alston’s maximum date as May 18, 2020, and 

REMAND the matter to the Board to modify Alston’s maximum date in 

accordance with the Board’s April 20, 2016 Decision and its April 28, 2016 

supplemental letter.

Jurisdiction relinquished.

________________________________

 RENÉE COHN JUBELIRER, Judge