IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Cole J. Kazickas, :

Petitioner :

:

v. :

:

Pennsylvania Board :

of Probation and Parole, : No. 214 C.D. 2019

Respondent : Submitted: October 18, 2019

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION BY 

JUDGE COVEY FILED: February 7, 2020

Cole J. Kazickas (Kazickas) petitions this Court for review of the 

Pennsylvania Board of Probation and Parole’s (Board) January 30, 2019 order 

denying his request for administrative relief.1 The sole issue before this Court is

whether the Board erred by denying Kazickas credit for time served on parole in good 

standing when recommitting him as a convicted parole violator (CPV) after 

previously recommitting him as a technical parole violator (TPV) with street time 

credit during the same parole period. After review, we affirm.

Kazickas is currently an inmate incarcerated at the State Correctional 

Institution (SCI) at Dallas. On August 2, 2012, Kazickas was sentenced to 1 year, 5 

months and 8 days to 3 years and 11 months for violating his drug certification 

 

1 Kazickas filed his petition for review pro se; however, on March 22, 2019, William E. 

Moore, Esquire (Counsel) entered his appearance on Kazickas’ behalf and filed an appellate brief. 

Counsel also filed the Board’s Certified Record as the Reproduced Record. Because the proposed 

Reproduced Record is not numbered in accordance with Pennsylvania Rule of Appellate Procedure 

2173 (relating to pagination), references herein are made to the Certified Record.
2

program and possessing drug paraphernalia (Original Sentence). See Certified 

Record (C.R.) at 2, 7. On November 30, 2012, Kazickas was sentenced to a 

concurrent term of 11 months and 8 days to 2 years and 11 months for drug 

possession and escape from detention. See C.R. at 2, 7. 

On November 6, 2013, the Board voted to parole Kazickas from his 

Original Sentence. See C.R. at 4-6. He was released on parole on January 13, 2014. 

See C.R. at 8. At that time, his maximum release date was July 2, 2016. See C.R. at 

170. As a condition of his parole, Kazickas signed and, therefore, agreed to 

Conditions of Parole/Reparole (Parole Conditions), including, inter alia:

2. Your approved residence . . . may not be changed without 

the written permission of the parole supervision staff.

. . . . 

7. . . . If you are arrested on new criminal charges, the 

Board has the authority to lodge a detainer against you 

which will prevent your release from custody, pending 

disposition of those charges, even though you may have 

posted bail or been released on your own recognizance from 

those charges.

If you violate a condition of your parole/reparole and, after 

the appropriate hearing(s), the Board decides that you are in 

violation of a condition of your parole/reparole[,] you may 

be recommitted to prison for such time as may be specified 

by the Board.

If you are convicted of a crime committed while on 

parole/reparole, the Board has the authority, after an 

appropriate hearing, to recommit you to serve the balance of 

the sentence or sentences which you were serving when 

paroled/reparoled, with no credit for time at liberty on 

parole [(i.e., street time)2].

 

2

“Street time” refers to “the period of time a parolee spends at liberty on parole.” Dorsey v. 

Pa. Bd. of Prob. & Parole, 854 A.2d 994, 996 n.3 (Pa. Cmwlth. 2004). 
3

C.R. at 9; see also C.R. at 9-11. The Parole Conditions also prohibited Kazickas

from consuming or possessing alcohol and/or controlled substances. See C.R. at 10. 

On October 7, 2015, Kazickas was arrested in Bucks County and 

charged with driving under the influence of a controlled substance (Bucks County 

Charges). See C.R. at 14-18. On October 8, 2015, the Board lodged a 48-hour

detainer against Kazickas, and he was placed in Bucks County Prison. See C.R. at 

12. On October 13, 2015, Kazickas was released from Bucks County Prison with 

instructions to report to his parole agent at the Allentown District Office. See C.R. at 

52. 

On October 29, 2015, the Board declared Kazickas delinquent effective 

October 27, 2015 because he did not report to his parole agent. See C.R. at 13. That 

same day, Kazickas reported to the Allentown District Office, tested positive for 

controlled substances and was taken to Lackawanna County Prison for 

detoxification.3 See C.R. at 52. Kazickas was transferred to an in-patient treatment 

center on November 10, 2015. See C.R. at 52. On January 22, 2016, Kazickas was 

moved to the Allentown Community Corrections Center (CCC). See C.R. at 52. 

After Kazickas absconded from the CCC, the Board declared Kazickas delinquent 

effective February 19, 2016. See C.R. at 22, 52. 

On April 13, 2016, the Hellertown Police Department arrested Kazickas 

on charges of corruption of a minor, endangering the welfare of a child, recklessly 

endangering another person, and possession of controlled substances and drug 

paraphernalia (Northampton County Charges). See C.R. at 41-45. He did not post 

bail on his Northampton County Charges. See C.R. at 46. On April 20, 2016, the 

Board issued a warrant to commit and detain Kazickas, and he was placed in Lehigh 

County Prison. See C.R. at 23, 46. On April 25, 2016, the Board ordered that 

 

3 The Board cancelled the delinquency when Kazickas reported to the Allentown District 

Office on October 29, 2015. See C.R. at 13. 
4

Kazickas be detained at Lehigh County Prison pending disposition of his 

Northampton County Charges. See C.R. at 24. 

On April 27, 2016, the Board served Kazickas with a Notice of Charges 

for violating his Parole Conditions by absconding from his approved residence at the 

CCC. See C.R. at 36. That same day, Kazickas admitted to the parole violation and 

waived his right to counsel and panel and detention hearings. See C.R. at 25-27. On 

May 27, 2016, the second panel member voted to recommit Kazickas as a TPV.

4

 See 

C.R. at 25-52. 

By decision recorded June 1, 2016 (mailed June 8, 2016), the Board 

formally recommitted Kazickas as a TPV to serve his unexpired term, and 

recalculated Kazickas’ Original Sentence as follows: “PAROLE VIOLATION MAX DATE 

[(i.e., JULY 2, 2016)] WITH DELINQUENCY TIME [(i.e., 61 DAYS FROM FEBRUARY 19 TO 

APRIL 20, 2016)] ADDED IS [SEPTEMBER 1,] 2016, SUBJECT TO CHANGE IF CONVICTED 

OF PENDING CRIMINAL CHARGES.”

5

 C.R. at 54; see also C.R. at 55-57. The Board’s 

June 1, 2016 Order to Recommit reflected that Kazickas forfeited “0[] D[ays]” of 

prior parole liberty. C.R. at 56. Thus, Kazickas lost time for the period he was 

delinquent, but did not lose credit at that time for the period he spent on parole in 

good standing between his January 13, 2014 parole release date and when he was 

confined on the Bucks County Charges on October 7, 2015. See C.R. at 170. 

 

4 Section 6113(b) of the Prisons and Parole Code states, in relevant part: “The [B]oard may 

make decisions on . . . revocation in panels of two persons. A panel shall consist of one board 

member and one hearing examiner or of two board members.” 61 Pa.C.S. § 6113(b). “[T]he date 

that the revocation and recommitment Hearing Report was signed by the second panel member 

thereby effectively revok[ed] [Kazickas’] parole . . . .” Wilson v. Pa. Bd. of Prob. & Parole, 124 

A.3d 767, 769 n.3 (Pa. Cmwlth. 2015).

5

“It is well-settled law that the Board retains jurisdiction to recommit an individual as a 

parole violator after the expiration of the maximum term, so long as the crimes that lead [sic] to the 

conviction occurred while the individual is on parole.” Miskovitch v. Pa. Bd. of Prob. & Parole, 77 

A.3d 66, 73 (Pa. Cmwlth. 2013); see also Reavis v. Pa. Bd. of Prob. & Parole, 909 A.2d 28, 34 (Pa.

Cmwlth. 2006).
5

The Board released Kazickas from his detainer upon reaching his 

maximum sentence date on September 1, 2016. See C.R. at 86. On September 2, 

2016, Kazickas’ parole supervisors executed a Criminal Arrest and Disposition 

Report for the Board to declare Kazickas delinquent for control purposes. See C.R. at 

58-62. On September 8, 2016, the Board declared Kazickas delinquent for control 

purposes as of October 7, 2015, when he was arrested on the Bucks County Charges. 

See C.R. at 63. 

On September 23, 2016, Kazickas entered into a negotiated plea 

regarding his Northampton County Charges, pleading guilty to endangering the 

welfare of a child, possession of a controlled substance and making false reports. See

C.R. at 64-80. On October 6, 2016, the Board re-lodged its warrant to commit and 

detain Kazickas, stating: “Although [Kazickas’] original maximum sentence was 

[September 1,] 2016, the maximum sentence is being extended due to a new 

conviction. The new maximum sentence will be computed upon recording of the 

Board’s final action.” C.R. at 75. 

On October 20, 2016, the Board served Kazickas with a Notice of 

Charges based upon his Northampton County Charges conviction. See C.R. at 81. 

That same day, Kazickas admitted to the conviction and waived his right to counsel

as well as panel and detention hearings. See C.R. at 81-89. On November 8, 2016, 

the second panel member voted to recommit Kazickas as a CPV to serve his 

unexpired term, without credit for time spent at liberty in good standing on parole,

because Kazickas “was involved in a relationship with the minor victim of the CPV 

offense[,] . . . [the minor] overdosed on heroin, and was unresponsive[] at the time 

police responded.” C.R. at 97; see also C.R. at 90-97. On November 9, 2016, 

Kazickas was sentenced to 12 to 24 months of incarceration in an SCI for the 

Northampton County Charges, followed by 12 months of supervision, with credit for 

time served. See C.R. at 98-113.
6

On October 26, 2016, Kazickas pled guilty to the Bucks County Charges 

and was sentenced to one year and six months of probation. See C.R. at 114-130. On 

November 22, 2016, the Board served Kazickas with a Notice of Charges based upon 

his Bucks County Charges conviction. See C.R. at 131. That same day, Kazickas 

admitted to the conviction and waived his right to a panel hearing. See C.R. at 132, 

140. On December 12, 2016, the panel voted to recommit Kazickas as a CPV to 

serve his unexpired term, without credit for time spent at liberty on parole, because 

Kazickas “has an additional conviction for [e]ndangering the [w]elfare of [c]hildren, 

[p]ossession of a [c]ontrolled substance and [f]alse [r]eports. . . . These reasons also 

explain why the presumptive range of 3-12 m[onths] is not recommended and [an]

unexpired term is recommended.” C.R. at 148; see also C.R. at 141-150. On 

November 30, 2016, Kazickas was transferred to SCI-Graterford.

By decision recorded December 27, 2016 (mailed February 21, 2017), 

the Board referred to and modified its June 1, 2016 action (mailed June 8, 2016; 

recommitting Kazickas as a TPV) as previously specified to also formally recommit 

Kazickas as a CPV to serve his unexpired term (i.e., “2 YEARS, 4 MONTHS

CONCURRENTLY FOR A TOTAL OF 2 YEARS [AND] 4 MONTHS BACKTIME.”)

(Recommitment Decision). C.R. at 152; see also C.R. at 149-153. The Board 

recalculated Kazickas’ Original Sentence maximum release date to March 12, 2019.6 

See C.R. at 149, 152.

On March 10, 2017, Kazickas submitted an Administrative Remedies 

Form appealing from the Recommitment Decision alleging, inter alia, that: (1) 

although he maxed out his sentence, new criminal convictions resulted in the Board 

rescinding his street time and recalculating his maximum sentence release date; (2) 

the Board erred by exceeding the presumptive ranges; and (3) the Board abused its 

 

6 According to the parties, Kazickas nevertheless remains in custody at SCI-Dallas. 
7

discretion by failing to credit his sentence for time he spent at liberty on parole.7 See 

C.R. at 154-155.

 By decision recorded January 11, 2019 (mailed January 16, 2019), the 

Board referred to its Recommitment Decision and recommitted Kazickas as a TPV to 

serve his unexpired term, and stated that “THE BOARD IN ITS DISCRETION DID NOT 

AWARD CREDIT TO YOU FOR THE TIME SPENT AT LIBERTY ON PAROLE FOR THE 

FOLLOWING REASON: -- UNRESOLVED DRUG AND ALCOHOL ISSUES.” C.R. at 163; see 

also C.R. at 164. By January 30, 2019 letter, the Board responded to Kazickas’ 

administrative appeal as follows:

First, the Board recalculated your maximum sentence date 

to March 12, 2019, based on your recommitment as a 

[CPV]. The decision to recommit you as a [CPV] gave the 

Board statutory authority to recalculate your sentence to 

reflect that you received no credit for the period you were at 

liberty on parole. 61 Pa.C.S. § 6138(a)(2). The Board 

denied you credit for time at liberty on parole in this 

instance. The Board advised you of this potential penalty 

on the parole conditions you signed on January 10, 2014. 

You also had constructive notice of this potential penalty 

via the statute. Additionally, the ability to challenge the 

recalculation decision after it is imposed satisfies your due 

process rights. Therefore, the Board’s recalculation of your 

maximum sentence date did not violate any constitutional 

provisions, including double jeopardy.

Next, the Board recommitted you to serve your unexpired 

term of 2 years, 4 months for the offenses in question. The 

presumptive ranges assigned to these offenses are as 

follows, based on [Sections 75.1 and 75.2 of the Board’s 

Regulations,] 37 Pa. Code §§ 75.1-75.2:

• Endangering the Welfare of Children 

(M[isdemeanor (M)] l) = 12 to 18 months

 

7 Kazickas also notified the Board that it was using an incorrect SCI number for him. See 

C.R. at 154. The Board corrected the error by decision recorded on April 12, 2017. See C.R. at 

161. In addition, on May 1, 2018, the Board denied Kazickas’ reparole request based on reported 

misconducts and his unsatisfactory parole supervision history. See C.R. at 162. 
8

• Intentional Possession of a Controlled Substance 

(M) = 3 to 6 months

• False Reports - Reported Offense Did Not Occur 

(M2) = 3 to 6 months

• [DUI] (M) = 3 to 6 months

• Use/Possession of Drug Paraphernalia (M) = 3 to 6 

months

Adding these terms together gave the Board a maximum 

term of 42 months. 37 Pa. Code § 75.2. Therefore the 

decision for you to serve 2 years, 4 months, falls within the 

presumptive range and is not subject to challenge. Smith v.

P[a.] B[d.] of Prob[.] [&] Parole, 574 A.2d 558 (Pa. 1990).

Finally, the decision on whether to grant or deny a [CPV]

credit for time at liberty on parole is purely a matter of 

discretion. The Prisons and Parole Code [(Parole Code)]

authorizes the Board to grant or deny credit for time at 

liberty on parole for certain criminal offenses. 61 Pa.C.S. § 

6138(a)(2.1). To the extent that you claim the Board 

abused its discretion by not having an adequate reason to 

deny you credit for the time you spent at liberty on parole, 

your request for relief is granted. On January 16, 2019, the 

Board mailed you a new [B]oard action providing a reason 

for why you were denied credit for the time you spent at 

liberty on parole. In this case the reasoning provided was 

that you have unresolved drug and alcohol issues.

Accordingly, the [B]oard action [recorded December 27, 

2016 (]mailed February 21, 2017[)], is AFFIRMED as to 

the Board’s authority to recalculate your sentence and the 

recommitment term imposed. To the extent you claim the 

Board abused its discretion and failed to state a reason for 

not awarding credit for time at liberty on parole, your 

request for relief is GRANTED, and the new [B]oard action 

was mailed on January 16, 2019.

C.R. at 165-166.

 By decision recorded March 29, 2019 (mailed April 2, 2019), “DUE TO 

RECEIPT OF ADDITIONAL INFORMATION,” the Board modified its December 27, 2017, 

April 12, 2018 and January 11, 2019 actions “BY CHANGING [KAZICKAS’] PAROLE 
9

VIOLATION MAX DATE TO NOW READ: [MARCH] 7[,] 2019,” and modified its December 

27, 2016 action (mailed February 21, 2017) by changing the recommitment portion to 

now read: “RECOMMIT TO A[N] [SCI] AS A [CPV] TO SERVE YOUR UNEXPIRED TERM OF 2

YEARS, 3 MONTHS, 25 DAYS, CONCURRENTLY, FOR A TOTAL OF YOUR UNEXPIRED TERM 

OF 2 YEARS, 3 MONTHS, 25 DAYS.”8 C.R. at 168; see also C.R. at 169-171. The 

Board’s March 29, 2019 Order to Recommit reflected that Kazickas forfeited “0[]

D[ays]” of prior parole liberty. C.R. at 170. Kazickas appealed to this Court.9

Kazickas’ sole argument in this appeal is that, in light of this Court’s 

holding in Penjuke v. Pennsylvania Board of Probation & Parole, 203 A.3d 401 (Pa. 

Cmwlth. 2019), the Board erred by forfeiting his street time credit upon his 

recommitment as a CPV following his recommitment as a TPV with credit for time 

served on parole in good standing.10 The Board rejoins that “Penjuke does not apply 

to this case because the criminal conduct that led to [Kazickas’] recommitment as a 

[CPV] occurred during the same period of parole as the violation that led to his 

recommitment as a [TPV].” Bd. Br. at 8. This Court agrees with the Board.

Section 6138 of the Parole Code provides, in relevant part:

(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 

 

8 Based on the record, the Board credited Kazickas five days from April 20 to April 25, 

2016, when he was held on the Board’s detainer. See C.R. at 170. 

9

“Our scope of review of the Board’s decision denying administrative relief is limited to 

determining whether necessary findings of fact are supported by substantial evidence, an error of 

law was committed, or constitutional rights have been violated.” Fisher v. Pa. Bd. of Prob. & 

Parole, 62 A.3d 1073, 1075 n.1 (Pa. Cmwlth. 2013).

10 Kazickas concludes that, since the Board cannot later revoke street time credit previously 

awarded, he completed his Original Sentence on September 1, 2016, and his one- to two-year 

sentence for the Northampton County Charges expired, thus, he should be released from prison 

immediately.
10

found guilty . . . 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 the time at 

liberty on parole.

(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, unless any of the following apply:

(i) The crime committed during the period of parole 

or while delinquent on parole is a crime of violence 

as defined in [Section 9714(g) of the Sentencing 

Code,] 42 Pa.C.S. § 9714(g) (relating to sentences 

for second and subsequent offenses) or a crime 

requiring registration under [Sentencing Code]

Subch. H (relating to registration of sexual 

offenders).

. . . . 

(c) Technical violators.--

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

violates the terms and conditions of his parole, . . . may be 

detained pending a hearing before the [B]oard or waiver of 

the hearing or recommitted after a hearing before the 

[B]oard or a waiver of the hearing. 

. . . . 

(2) If the parolee is recommitted under this subsection, the 

parolee shall be given credit for the time served on parole in 

good standing but with no credit for delinquent time and 

may be reentered to serve the remainder of the original 

sentence or sentences.

(3) The remainder shall be computed by the [B]oard from 

the time the parolee’s delinquent conduct occurred for the 

unexpired period of the maximum sentence imposed by the 

court without credit for the period the parolee was 
11

delinquent on parole. The parolee shall serve the remainder 

so computed from the date the parolee is taken into custody 

on the warrant of the [B]oard.

61 Pa.C.S. § 6138.

This Court has ruled:

Under the current statutory regime, the [] Board must [] 

decide whether to award or deny credit for street time upon 

a parolee’s recommitment as a [CPV]. See 61 Pa.C.S. § 

6138(a)(2.1). Once the [] 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.

Young v. Pa. Bd. of Prob. & Parole, 189 A.3d 16, 21 (Pa. Cmwlth. 2018) (emphasis 

added; footnote omitted).11 In Penjuke, this Court again declared: 

[T]he Board could not ‘reach back,’ Brady [v. Pa. Bd. of 

Prob. & Parole (Pa. Cmwlth. No. 262 C.D. 2018, filed 

August 7, 2019) (Brady I)], slip op. at 9, into the past 

periods of parole and [] take away or revoke credit that 

was previously granted . . . as a TPV-credit which, we 

stated in Young, should have ‘already been applied to his 

original sentence.’ [Young,] 189 A.3d at 21.

Penjuke, 203 A.3d at 417 (emphasis added). Accordingly, the Penjuke Court ruled, 

“when the Board recommits a CPV, it cannot revoke the credit that a parolee has been 

granted in a previous parole that resulted in recommitment as a TPV.” Id. at 420 

(emphasis added); see also Brady v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth. No. 262 

C.D. 2018, filed February 1, 2019) (Brady II) (the Board may only order forfeiture of 

street time credit a parolee earned between the date of the most recent 

 

11 The Pennsylvania Supreme Court granted an appeal in Young. See Young v. Pa. Bd. of 

Prob. & Parole, 200 A.3d 5 (Pa. 2019).
12

parole/reparole and his CPV recommitment, and may not forfeit street time credited 

to a parolee in a prior parole period).12 

Here, Kazickas was paroled on January 13, 2014. See C.R. at 8. By 

decision rendered June 1, 2016 (mailed June 8, 2016), the Board recommitted 

Kazickas as a TPV and granted him street time credit, as Section 6138(b)(2) of the 

Parole Code mandates. By determination made December 27, 2016 (mailed February 

21, 2017), the Board modified its decision to recommit Kazickas as a TPV rendered 

June 1, 2016 (mailed June 8, 2016) by also recommitting Kazickas as a CPV and 

directing him to serve the remainder of his sentence, as Section 6138(a)(2) of the 

Parole Code allows. Kazickas committed the technical and criminal parole violations 

at issue in this appeal in the same parole period. Because the criminal conduct that 

led to Kazickas’ CPV recommitment occurred during the same parole period as the 

violation that led to his TPV recommitment, Penjuke does not control in this case. 

Moreover, the Board was authorized to and did make Kazickas’

September 1, 2016 maximum sentence release date “SUBJECT TO CHANGE IF [HE WAS]

CONVICTED OF [THOSE] PENDING CRIMINAL CHARGES.” C.R. at 54; see also C.R. at 55-

57. Therefore, despite that Kazickas served his TPV recommitment first in time, and 

he reached what was, at that time, his maximum sentence date, the Board did not 

improperly revoke street time credit granted in a prior parole period. Rather, as it 

was authorized to do, the Board ordered that Kazickas forfeit the time he spent at 

liberty on parole in good standing between his most recent parole (i.e., January 13, 

2014) and his CPV recommitment. 

 

12 This Court acknowledges that its unreported memorandum opinions may only be cited 

“for [their] persuasive value, but not as binding precedent.” Section 414(a) of the Commonwealth 

Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a). 
13

Based on the foregoing, the Board’s January 30, 2019 order is affirmed.

___________________________

ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Cole J. Kazickas, :

Petitioner :

:

v. :

:

Pennsylvania Board :

of Probation and Parole, : No. 214 C.D. 2019

Respondent :

O R D E R

AND NOW, this 7

th day of February, 2020, the Pennsylvania Board of 

Probation and Parole’s January 30, 2019 order is affirmed.

___________________________

ANNE E. COVEY, Judge