IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Selinda Lane, : Petitioner :

:

v. : No. 299 C.D. 2019

: Submitted: August 23, 2019 Pennsylvania Board of : Probation and Parole, : Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE BROBSON FILED: January 23, 2020

Petitioner Selinda Lane (Lane) , also known as Selinda Short, petitions

for review of a final determination of the Pennsylvania Board of Probation and

Parole (Board), dated September 20 , 2018. 1 The Board denied Lane’s request for

administrative relief, thereby rejecting her claim that the Board erred by failing to

1 Lane filed with this Court a seemingly untimely petition for review in which she aver s facts in support of an appeal nunc pro tunc . The basis for the requested relief includes the Board’s mailing of the final determination to an incorrect address and staffing issues at the Lycoming County Public Defender’s Office. As directed b y this Court’s order dated April 3, 20 19 , the p arties address the timeliness of Lane’s petition for review in their briefs on the merits. The Board, in so doing, state s that it “has no reason to believe or suspect that the professed reasons by [Lane’s] counsel are anything but true,” and that it “does not believe that the granting of [ nunc pro tunc relief] would be unreasonable or an abuse of the Court’s discretionary powers in this respect.” (Respondent’s Brief at 9

- 10.) The Court agrees with the assessment of the parties and, therefore,
will consid er the merits of the appeal now before us.2

grant her credit for all time served at liberty on parole. For the reasons set forth

below, we affirm.

On June 2, 2010, Lane pled gui lty to recei ving stolen property, forgery,

i dentity theft, retail theft, and reckless endangerment. (Certified Record (C.R.)

at 1

- 2.) The Court of Common Pleas of the 39th Judicial District ( Franklin County

Branch) sentenced Lane to a minimum term of inc arceration of 4 months , 15 days

and a maximum term of incarceration of 2 years for the offenses of r eceiving s tolen

p roperty, f

orgery, i dentity t heft, and one count of r etail t heft . ( Id. ) With respect to

the remaining three counts of r etail t heft and the offense of r eckless e ndangerment,

the Court of Common Pleas of the 39th Judicial District ( Franklin County Branch)

sentenced Lane to a minimum term of incarceration of 1 month and a maximum term

of incarceration of 2 years. ( Id. ) The Board granted Lane parole on March 3, 2011.

( Id. at 5.) Lane was rele ased from confinement on August 1, 2011. ( Id. at 8.) At

the time of her parole, Lane had a maximum sentence date of January 4, 2020. ( Id. )

In addition to the standard conditions of her parole, the Board required Lane to report

to the Atkins House in York, Pennsylvania, and complete a rehabilitation program

immediately following her release from confinement. ( Id. at 12.) Lane tested

positive for drug use several times throughout her time on parole

, including the

following test dates: August 1, 2011, August 27, 2015, August 31, 2015,

September 14, 2015, and September 21, 2015. ( Id. at 39.)

Pol ice arrested Lane on February 16 , 2017, after f inding 9 bags of

cocaine and 10 bags of heroin at her home during a warranted police search. ( Id.

at 17.) That same day, t he Cumberland County District Attorney charged Lane with

three counts of Manufacture, Delivery, or Possession With Inte nt to Manufac ture o r

Deliver

, Section 13(a)(30) of The Controlled Substance, Drug, Device & Cosmetic3

Act, Act of April 14, 1972, P.L. 233, as amended

, 3 5 P.S. § 780

- 113( a )(30), and

with Conspiracy to Manufacture, Delivery, or Possession With Intent to

Manufacture or De liver, 18 P a

. C. S. § 903 . ( Id. at 43 .) The Board issued a warrant

to commit and detain Lane on February 17, 2017. ( Id. at 18.) The Court of Common

Pleas of Cumberland County set Lane’ s monetary bail on February 17, 2017

, and

readjusted Lane’ s bail on February 27, 2017 ; Lane post ed bail on February 27, 2017

. ( Id. at 40, 42 .) By Board decision dated March 22, 2017, t he Board ordered Lane to

be detained throughout the duration of the disposition of her new criminal charges.

( Id. at 22.)

On June 27, 20 17, Lane ple d nolo contendere to Conspiracy to

Manufacture, Delivery, or Possession With Intent to Manufacture or Deliver, 18 P a

.
C. S. § 903 . ( Id. at 47

- 48.) The Court of Common Pleas of Cumberland County

sentenced Lane to a minimum incarceration term of 1 year, 6 months, and a

maximum incarceration term of 3 years. ( Id. at 48.) Lane, therefore, was detained

solely by the Board’s warrant from the date that she posted bail on

February 27, 2017, until her sentencing date of June 27, 2017. ( Id. at 40, 42. ) The

Board issued a notice of charges and hearing to inform Lane of her upcoming

revocation h earing before the Board on July 11, 2017. ( Id. at 3 5 .) Lane waived her

right to a revocation hearing on July 13, 2017. ( Id. at 26 .) Within the Board ’s

hearing report, dated August 11

, 2017, the Board indicated that it should deny Lane

credit for all time spent at liberty on parole because she was “selling heroin.” ( Id.

at 29.) By Board decision recorded on August 30 , 2017

, and mailed on

September 15, 2 017, the Board recommitted Lane as a convicted parole violator

(CPV) to serve an incarceration term of 15 months’ backtime, thus, denying her

credit for all time spent at liberty on parole because of her “poor supervision history.”4

( Id. at 54.) After cre diting Lane time for the 120 days she spent detained solely by

the Board’s warrant from February 27, 2017, until June 27, 2017, t he Board

recalculated Lane’s parole violation maximum date to be September 26, 2025. ( Id.

at 40, 54. )

Lane , through her atto rney , sought administrative relief with the Board

by filing an administrative remedies form on October 2, 2017, arguing that

the 15 months’ imposed backtime is excessive and that the Board abused its

discretion in its recalculation of Lane’s maximum sentence date by denying her

credit for all time spent at liberty on parole

. 2 ( Id. at 56

- 62.) The Board received

correspondence from Lane on May 22, 2018, inquiring about the status of her

administrative remedies request, as neither she nor her attorney had received any

documentation regarding her request for administrative relief . ( Id. at 68.)

On September 20, 2018, the Board denied Lane’s request ed relief,

reasoning :
[Lane] was released on parole on A ugust 1, 2011,

with a maximum sentence date of J a nuary 4, 2020. At that point, 3078 days remained on her sentence. The Board has the authority to establish a parole violation maximum date in cases of [CPVs] . Because she was recommitted as a [CPV] , she is required to serve the remainder of her original term and is not entitled to credit for any periods of time at liberty on parole. The record in this matter does not show that the Board abused its discretion when it did not award credit for time at liberty on parole. [Lane] is entitled to 120 days of c redit on her parole violation maximum date for the time she was detained so lely by the Board from February 27, 2017[,] to Ju ne [2] 7, 2017.

2 As she was not sure if her attorney was submitting an administrative remedies form, Lane filed a separate administrative remedies form on October 1, 2017, challenging the Board’s decision to deny her credit fo r all time spent at liberty on parole , noting that this wa s her first parole
revocation as a CPV and she had been on, what she described as, the lowest level of parole with very little supervision needed. ( C.R. at 56

- 59.)5 [Lane] was sentenced to state incarceration on June 27, 2017. Because [s]he was sentenced to state incarceration,

s he is required to serve her original sentence prior to the new sentence. However, that provision does not take effect until a parolee is recommitted as a [CPV] . Thus, she did not become available to commence service of her original sentence until the Boa rd voted to recommit her as a parole violator on August 21, 2017. Ad ding 2958 days (3078

- 120) to August 21, 2017[,] [ results in a ] September 25, 2025 parole violation maximum sentence date. Finally, the record in this matter reflects that the recommitmen t period imposed in this case is not subject to challenge because it falls within the presumptive range for the new convictions.

( Id. at 73

- 74 (citations omitted).)

Lane now petitions this Court for review, 3 arguing that the Board

abused its discretion by failing to grant her credit for all of the time spent at liberty

on parole

. When determining whether there has been an abuse of discretion, the

Pennsylvania Supreme Court has held that “ [ a ] n abuse of discre tion is not merely an

error of judgment, but occurs only where the law is overridden or misapplied, or the

judgment exercised is manifestly unreasonable, or the result of partiality, prejudice,

bias or ill will.” Zappala v. Brandolini Prop. Mgmt., Inc. , 9 09 A.2d 1272, 1284

(Pa. 2006); see also Moss v. SCI

- Mahanoy Superintendent Pa. Bd. of Prob. &

Parole , 194 A.3d 1130, 1133 n.5 (Pa. Cmwlth. 2018), appeal denied

, 215 A.3d 562

(Pa. 2019).

3 This Court’s standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. 2 Pa. C.S. § 704.6 Section 6138(a)(2.1) of the Prisons and Parole Code, 61 Pa. C.S.

§ 6138(a)(2.1), sets forth guidelines for the Board’s discretionary power in granting

and denying credit for parole and provides:

The Board may, in its discretion , award credit to a parolee recommitted under paragraph (2) [ 4 ] for the time spent at liberty on parole, unless any of the following apply:
(i) The crime committed during the period of parole

. . . is a crime of violence

. . . or a crime requiring registration [as a sexual offender].

(ii) T he parolee was recommitted under [S]ection 6143 [of the Prisons and Parole Code, 61 Pa. C.S. § 6143,] (relating to early parole of inmates subject to Federal removal order).

(Emphasis added.) 5

4 Section 6138(a)(2) of Prisons and Parole Code, 61 Pa. C.S. § 6138(a)(2), provides, in part:
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 a s provided under paragraph (2.1)

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

(Emphasis added.)

5 The Pennsylvania Supreme Court has held that, pursuant to Section 6138(a)(2.1) of the Prisons and Parole Code, in order to prope rly exercise its own authority, “the Board must provide a contemporaneous statement explaining its reason for denying a CPV credit for time spent at liberty on parole.” Pittman v. Pa. Bd. of Prob. & Parole , 159 A.3d 466, 475 (Pa. 2017). The Supreme Court specified that a “single[

- ]sentence explanation” given by the Board explaining its decision “is likely sufficient in most instances” to meet the Pittman standard. Id. at 475 n.12. Moreover, this Court has found that the statement “poor supervision histo ry” is sufficient to meet

the Pittman standard. See Cuthbert v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth.,

No. 1116 C.D. 2018, filed July 12, 2019) , slip op. at 9

- 10 ; see also Sullivan v. Pa. Bd. of Prob. &
Parole (Pa. Cmwlth., No. 883 C.D. 2018, filed April 18, 2019) , slip op. at 17

. We note, however, that this Court has also found the Board’s reasoning of a CPV’s “poor supervision history” inadequate to satisfy the Pittman standard when this reason is “facially inconsistent” with the CPV’s clean parole rec ord. See Baldwin v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth.,

No. 907 C.D. 2018, filed April 2, 2019)

, slip op. at 6 (holding that Board’s stated reason

— i.e.

,7 Lane argues that the B oard abused its discretion in denying her credit

for all the time she spent at liberty on parole

, because the Board’s stated reason for

its denial of her credit

— i.e.

, “ poor supervision history ”

— “has little or no support in

the record.” (Petitioner’s Br . at 13.) Lane does not dispute that she had tested

positive for drug use

— first on the day she was released from confinement in

August 2011 and then 4 times during a 25

- day period in 2015 . Rather, Lane appears

to contend that the successful aspects of her parole supervision

— i.e. , a 4

- year period

between her first and second positive urinalysis and another period of 17 months

from her last positive urinalysis to her arrest on the new criminal charges

— somehow

negate her earlier violations of the conditions of parole. S he appear s to dicker over

the Board’s characterization of her parole supervision history as “poor.” Lane cites

no authority

, and we find none

, to illustrate that testing positive for illegal drug use

several times while on parole combined with an arrest for possessi on and selling

ill egal drugs does not either constitute “poor supervision history” or provide a b asis

for the denial of credit. Furthermore, while Lane may have a difference of opinion

as to whether she should be considered as having a “ poor supervision history

, ” the

Board ’s characterization of it as such does not rise to the level of an abuse of

discretion . An abuse of discretion requires more than just a difference of opinion,

and Lane has not established that the Board, in denying credit to Lane, overrode or

misapplied the law or exercised judgment that was “ manifestly unreasonable, or the

result of partiality, prejudice, bias or ill will.” Zappala , 909 A.2d at 1 284

. We must

“poor supervision his tory”

— did not satisfy Pittman standard because it was “facially inconsistent with Baldwin’s spotless record of compliance with parole supervision for almost nine years,” during which time he had “no infractions of any kind.”). Here, Lane does not argue that the Board
failed to set forth its rationale for denial of credit in a cont emporaneous statement; r ather , Lane

argu es that the Board’s rationale is insufficient.8

conclude, therefore, that the Board did not abuse its discretion when it deni ed Lane

credit for her time spent at liberty on parole.

Accordingly, we affirm the order of the Board.

P. KEVIN BROBSON, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Selinda Lane, : Petitioner :

:

v. : No. 299 C.D. 2019

: Pennsylvania Board of : Probation and Parole, : Respondent :

O R D E R

AND NOW, thi s 23 rd day of January, 20 20

, we AFFIRM the final

determination of the Pennsylvania Board of Probation and Parole.

P. KEVIN BROBSON, Judge