IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Charles Bazemore, :

Petitioner :

:

v. : No. 1011 C.D. 2018 : Submitted: January 25, 2019 Pennsylvania Board of Probation and : Parole, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY PRESIDENT JUDGE LEAVITT FILED: April 22 , 2019

Charles Bazemore petitions for review of an adjudication of the
Pennsylvania Board of Probation and Parole (Parole Board) denying his request for

administrative relief from its recalculation of his maximum sentence date . On
appeal, Bazemore argues that the Parole Board lacked authority to revoke 995 days

of senten ce credit previously awarded to him in connection with his recommitment
as a technical parole violator

. F or the reasons that follow, we reverse the Parole Board’s adjudication and remand the matter for a new adjudication.

The relevant facts are not in dis pute. In 2012, Bazemore was sentenced
to a term of one year and six months to six years imprisonment for possession with

intent to deliver a controlled substance. His maximum sentence date was October
16, 2018.
On April 28, 2014, Bazemore was parole d t o an approved residence in
Philadelphia, Pennsylvania , from which he absconded. O n October 2, 2015, the
Parole Board declared him delinquent as of September 29, 2015. On October 22,2

2015, the Norristown Police Department arrested Bazemore on the Parole Board’s

warrant and transferred him to the community education center at the State

Correctional Institution

- Chester. Certified Record at 14 (C.R. __). Thereafter, on
December 8, 2015, the Parole Board cancelled its declaration of delinquenc y and

reinstated Bazemore ’s parole.

On July 13, 2016, the Norristown Police Department arrested

Bazemore for possessi on of drug paraphernalia. On September 14, 2016, the Parole

Board detain ed Bazemore

, pending disposition of the new criminal charges. O n December 19, 2016, Bazemore pled guilty to the summary offense of disorderly
conduct and received 90 days ’ probation. On January 3, 2017, the Parole Board

continue d Bazemore ’s parole but imposed additional special condition s that
Bazemore attend an outp atient drug treatment program and be placed on a curfew.

O n January 17, 2017, parole agents arrested Bazemore for violating his
parole conditions by engaging in assaultive behavior and missing curfew. On May
23, 2017, the Parole Board recommit ted Bazemore as a technical parole violator. In
doing so, it credited Bazemore for his parole time, which was 995 days. His

maximum sente nce date remained October 16, 2018. T he Parole Board took no

action on Bazemore’s conviction for disorderly conduct

.

O n July 20, 2017, the Parole Board paroled Bazemore to a community
corrections center in Philadelphia. On September 24, 2017, Bazemore was arrested
for simple assault and released on unsecured bail. T hat same day, the Parole Board

issued a warrant to deta in Bazemore for parole violations.3 On January 19, 2018, Bazemore pled guilty to simpl e assault and was

sentenced to six to 23 months of incarceration in the county prison. 1 C.R. 122. O n April 25, 2018, the Parole Board recommitted Bazemore as a convicted parole

violator to serve 15 months ’ backtime, upon completion of his new sentence. On
May 31, 2018, Bazemore became available to begin serving his backtime.

On June 8, 2018, the Parole Board decided not to award Bazemore

credit for his t ime on parole and calculated his maximum sentence date to be July
30, 2021. In doing so, the Parole Board revoked the 995 days of sentence credit it

had previously awarded to Bazemore in the course of his prior recommitment as a
technical parole violator.

On June 18, 2018, Bazemore filed a request for administrative relief challenging the Parole Board’s calculation of his ma ximum sentence date

. Bazemore stated that he only had two months of street time

, 2 specifically writing

that the two months was “all the time” he had “at liberty.” C.R. 182

- 83. By decision

of June 27, 2018, the Parole Board denied his request for administrative relief. Bazemore petitioned for this Court’s review.

On appeal, 3 Bazemore challenges the Parole Board’s calculation of hi s maximum sentence date. Citing to this Court’s decision in Young v. Pennsylvania
Board of Probation and Parole , 189 A.3d 16 (Pa. Cmwlth. 2018), petition for

1 Bazemore was given credit for time served from September 24, 201 7 , until January 19, 2018. C.R. 118, 122.

2 “‘Street time’ is a term for the period of time a parolee spends at liberty on parole.” Dorsey v. Pennsylvania Board of Probation and Parole , 854 A.2d 994, 996 n.3 (Pa. Cmwlth. 2004).

3 This Court’s review is limited to determining whether the Parole Board’s adjudication is supported by substantial evidence, whether an error of law has been committed, or whether constitutional rights have been violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Moroz v. Pennsylvania Board of Probation and Parole, 660 A.2d 131, 132 (P a. Cmwlth. 1995).4

allowance of appeal granted , 200 A.3d 5 (Pa. 2019), 4 Bazemore argues that, once

credit for street time is awarded , it cannot be revoked . Bazemore contends that the

Parole Board erred in revoking its prior award of 995 days of street time credit.

The Parole Board responds that Bazemore waived this issue be cause he

did not raise it in his administrat ive appeal. In the alternative, the Parole Board
responds that Young is distinguishable because it involved th e Parole Board ’s
previous award of credit to a convicted parole violator ; here, by contrast the previous

award of credit was to a technical parol e vio lator.

W e first address the Parole Board’s argument that Bazemore waived

the issue of his street time credit . Under Section 703(a) of the Administrative Agency Law, a party “may not raise upon appeal any other question not raised before
the agency[ .]” 2 Pa. C.S. §703(a). 5 Further, Pennsylvania Rule of Appellate
Procedure 1551(a) provides that “[n]o question shall be heard or considered by the court which was not raised before the government unit[.]” P A

. R.A.P. 1551(a). 6

4 Young involved a convicted parole violator, previously awarded credit for the time spent at liberty on parole, which the Parole Board took away during his subsequent recommitment as a convicted parole violator. This Court held that the Prisons and Parole Code (Parole Code), 61 Pa. C.S. §§101

- 6309, did not give the Parole Board the authority to revoke its prior award of sentence credit upon a parolee’s subsequent recommitment as a convicted parole violator.

5 Section 703(a) states: A party who proceeded before a Commonwealth agency under the terms of a particular statute shall not be precluded from questioning the validity of the statute in the appeal, but such party may not raise upon appeal any other question not raised be fore the agency (notwithstanding the fact that the agency may not be competent to resolve such question) unless allowed by the court upon due cause shown. 2 Pa. C.S. §703(a).

6 Rule 1551(a) states: Review of quasijudicial orders shall be conducted by the c ourt on the record made before the government unit. No question shall be heard or considered by the court which was not raised before the government unit except: (1) Questions involving the validity of a statute.5

Thus, issues not raised t o the Parole Board in an administrative appeal “are waived
for purposes of appellate review by this [ C ] ourt.” McCaskill v. Pennsylvania Board
of Probation and Parole , 631 A.2d 1092, 1094

- 95 (Pa. Cmwlth. 1993), appeal

denied , 644 A.2d 739 (Pa. 1994).

Her e, on the administrative remedies form, Bazemore checked boxes
identifying the reasons for his appeal t o the Parole Board. Bazemore specifically
identified the following reasons:

Administrative Appeal (an appeal of a revocation decision): Check the Reason (s) for Appeal and Explain:

1.  Insufficient Evidence

2.  Error of Law (Timeliness, jurisdiction, hearsay, etc.)

3.  Violation of Constitutional Law (Due process, double

jeopardy, etc.)

4.  Recommitment Challenge (Time/term given by Board,

automatic reparole, ret urn to custody, etc.)

5.  Other

Explanation:

________________________________________________ Petition for Administrative Review (appeal of a revocation decision regarding sentence calculations):

(2) Questions involving the jurisdiction o f the government unit over the subject matter of the adjudication. (3) Questions which the court is satisfied that the petitioner could not by the exercise of due diligence have raised before the government unit. If, upon hearing before the court, the cour t is satisfied that any such additional question within the scope of this paragraph should be so raised, it shall remand the record to the government unit for further consideration of the additional question. The court may in any case remand the record to the government unit for further proceedings if the court deems them necessary.

P A

. R. A.P. 1551(a).6 Check the Reason(s) for Relief and Explain:

 Sentence Credit Challenge  Reparole Eligibility Date

 Order of Service of Sentences  Other

Explanation: I was paroled 4

- 28

- 14 I came back as a [technical parole violator] 1

- 17

- 17. I was reparole 7

- 20

- 17 arrested 9

- 23

- 17 Graterford placed a detainer on me 9

- 24

- 17. My max was 10

- 16

- 18 it was changed to 7

- 30

- 2 021 I only owe 2 months street ti me.

__________________________

C.R. 182. On the attachment to t his appeal form , Bazemore stated that, “[f]rom 7

-
20

- 17 to 9

- 23

- 17 is all the time I had at liberty.” C.R. 183. Notably, in its
adjudication, t he Parole Board stated that it understood Bazemore to be objecting to

the recalculation of his maximum date.

Bazemore’s administrative appeal put the Parole Board on notice that
he challenged t he calculation of his maximum date of sentence, including the

forfeiture of his street time credit. This is i mplicit in his statement that “[f]rom 7

-
20

- 17 to 9

- 23

- 17 is all the time I had at liberty .” C.R. 183. T his statement sets forth

Ba z emore’s belie f that he had no other street time eligible for forfeiture because the
prior street time had been applied to his original sentence

. We conclude that
Bazemore preserved the credit issue for our review. 7

T urning to the merits of Bazemore’s appeal, we begin with a brief
review of the applicable law. Section 6138(a)(1) of the Parole Code provides :

(a) Convicted violators.

-- (1) A parolee under the jurisdiction of the board released from a correctional facility who, during the period of parole or while delinq uent on parole,

7 Additionally, the Parole Board states that Bazemore’s counsel admitted that Bazemore did not raise this issue in the administrative appeal. See Parole Board Brief at 7. We disagree. Although counsel acknowledged that Bazemore did not specifically describe the Parole Board ’s error as forfeiture of his prior street time credit

, th is issue was subsumed within the issue of sentence calculation s and sentence credit challenge on the administrative appeal form

.7 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.

61 Pa. C.S. §6138(a)(1). Where the Parole Board determines to recommit a parolee
as a convicted parole violator,

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.

6 1 Pa. C.S. §6138(a)(2). Section 6138(a)(2.1) of the Parole Code states that, “[t]he [Parole B]oard may, in its discretion, award credit to a parolee recommitted ... for the time spent at liberty on parole,” with exceptions for certain violent crimes. 61

Pa . C.S. §6138(a)(2.1). 8 In Young

, 189 A.3d 16, this Court construed Section
6138(a)(2.1) to mean that, “[i]f the Parole Board chooses to ‘award credit’ for the parolee’s street time towards his sentence, the street time is gone.” Id

. at 19. Thus

, “[t]he only extant ‘time spent at liberty on parole’ will be that time that falls between

8 Section 6138(a)(2.1) of the Parole Code states: The board may, in its discretion, award credit to a parolee recommitted under paragraph (2) for the time spent at liberty on parole, unless a ny 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 42 Pa. C.S. § 9714(g) (relating to sentences for second and subsequent offenses) or a crime requiring registration under 42 Pa. C.S. Ch. 97 Subch. H (relating to re gistration of sexual offenders). (ii) The parolee was recommitted under section 6143 (relating to early parole of inmates subject to Federal removal order). 61 Pa. C.S. §6138(a)(2.1).8

the parolee’s most recent reparole and his recommitment.” Id. at 20 (quoting 61 Pa.
C.S. §6138(a)(2.1))

.

With regard to technical parole violators, Section 6138( c) of the Parole
Code states, in relevant part:

( c ) Technical violators.

— (1) A parolee under the jurisdiction of the board who violates the terms and conditions of his parole, other than by the commission of a new crime of which the parolee is convicted o r found guilty by a judge or jury or to which the parolee pleads guilty or nolo contendere in a court of record, may be detained pending a hearing before the board or waiver of the hearing or recommitted after a hearing before the board 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 sen tence or sentences.

61 Pa. C.S. §6138(c). This Court recently construed Section 6138(c) in Penjuke v.
Pennsylvania Board of Probation and Parole , __ A.3d __ (Pa. Cmwlth., No. 1304
C.D. 2017, filed February 1, 2019) (en banc), petition for allowance of a ppeal filed
(Pa., No. 92 EAL 2019, March 1, 2019 )

. 9

In Penjuke , the parolee spent 793 days on parole before absconding
from parole supervision. Subsequently, the Parole Board recommitted him as a

9 In its brief, the Parole Board notes that this same issue was pending before the Court in Brady v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No. 262 C.D. 2018 , filed February 1, 2019) (unreported). Brady was a companion case to Penjuke

.9

technical parole violator for violating his parole condit ions. The parolee received

cre dit towards his sentence for his 793 days on parole

.

The reafter, the Parole Board again paroled the parolee. On reparole, he

was convicted and recommitted as a convicted parole violator. In recalculat ing the parolee’s maximum sentence date

, the Parole Board revoked the credit for the 793
days that had been awarded in his prior recommitment as a technical parole violator.
The parolee appealed . On appeal, the parolee argu ed that once he has been given

cre dit for street time, that credit cannot be revoked

. This Court agreed.

I n 2012, the General Assembly amended the Parole Code to add Section
6138(a)(2.1), 10 which gave the Parole Board discretion to award a convicted parole
violator credit for the time sp ent at liberty on parole. We reasoned, accordingly, that

this amendment rendered earlier precedent on Section 6138(a)(2) of little value

. In
examining Section 6138(a)(2), w e concluded that

the clauses ‘had the parole not been granted’ and ‘at liberty on parole’ i n section 6138(a)(2) [could not ] reasonably be interpreted to permit the [Parole] Board to go beyond the ‘parole period’ mentioned in that section, which [was] couched solely in relatio n and reference to the ‘parolee’s recommitment’ as a [convicted parole violator].

Penjuke

, __ A.3d at __, slip op. at 23 (quoting 61 Pa. C.S. § 6138(a)(2)). We

construed the clause “ shall be given no credit ” to apply only to the period of parole

that pre ceded the parolee’s recommitment as a convicted parole violator. Id

.

Next, this Court reviewed Section 6138(c)(2) and concluded that it

mandated that a technical parole violator “be given credit for the time served on
parole in good standing [.] ” 61 Pa . C.S. §6138(c)(2)

. This signified that the Parole

Board “ has no choice over the matter and must grant credit to the parolee who is

10 61 Pa. C.S. §6138(a)(2.1), a dded by the Act of July 5, 2012, P.L. 1050.10

recommitted as a [ technical parole violator ] .” Penjuke

, __ A.3d at __, slip op. at 26.
Importantly, t he Parole Code does not authorize the Parole Board to revoke this

credit

. For this reason, we concluded that the only street time a parolee c an forfeit is that period of “ time that falls between [his] most recent reparole and his

recommitment.” Id. , __ A.3d at __, slip . op. at 26

- 27 (quoting Young , 189 A.3d at
21). We explained that the Parole Board cannot “reach back, into the past periods
of parole and also take away or revoke credit that was previously granted [to a
parolee] as a [ technical parole violator ] [

, ]” because that credit should have “ already
been applied to [ the parolee’s ] original sentence.” Penjuke

, __ A.3d at __, slip op.

at 27.

This Court reversed the Parole Board ’s revocation of the 793 days of

street time credit it had previously awarded the p arolee in his recommitment as a
technical parole violator and remand ed the matter to the Parole Board to reinstate
the 793 days of credit and issue a new adjudication. Penjuke is binding.

Here, as in Penjuke

, the Parole Board, in recommitting Bazemore as a convicted parole violator, revoked the 995 days of street time credit previously
granted to him in his recommitment a s a technical parole violator. This was an error.

Once c redit for the 995 days of street time was applied to Bazemore’s sentence
, the
street time was gone

. Consequently

, a t the time of his recommitment as a convicted
parole violator

, the only street time eligible for forfeiture wa s that time from his most
recent reparole on July 20, 2017, to his recommitment. Penjuke , __ A.3d at __, sl ip

op. at 24.
For these reasons, we reverse the Parole Board’s adjudication and

remand this case to the Parole Board to reinstate the 995 days of street time credit to11

Bazemore’s maximum sentence and to issue a new adjudication recomputing his

maxi mum sentence date

.

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

Charles Bazemore, :

Petitioner :

:

v. : No. 1011 C.D. 2018

: Pennsylvania Board of Probation and : Parole, :

Respondent :

O R D E R

AND NOW, this 22 nd day of April , 2019, the adjudication of the
Pennsylvania Board of Probation and Parole (Parole Board) is REVERSED and this

matter is REMANDED for the Parole Board to issue a new adjudication in
accordance with this opinion.

Jurisdiction relinquished.

_____________________________________ MARY HANNAH LEAVITT, President Judge