Statutory Interpretation; Sentence Credit Revocation Under the Parole Code

Young v. Pennsylvania Board of Probation and Parole, 189 A.3d 16 (Pa. Cmwlth. 2018), allocatur granted Jan. 2, 2019, appeal docket 1 MAP 2019

Otto Young sought Commonwealth Court review of the Pennsylvania Board of Probation and Parole’s denial of his request for relief from one of the terms of his recommitment as a convicted parole violator, claiming that the Parole Board unlawfully revoked the sentencing credit that it had awarded him. In a split decision, the Commonwealth Court en banc in a published opinion reversed the Board on an issue of statutory construction.

Summarizing the undisputed facts, Commonwealth Court explained:

In 2013, the Parole Board recommitted Young as a convicted parole violator as a result of his conviction for retail theft. At the recommitment, the Parole Board reviewed Young’s case and decided to grant him credit toward his sentence for 1918 days, i.e., the days he had spent at liberty on parole before the retail theft.

Thereafter, in February 2014, Young was reparoled. In July 2014, Young was detained on the Parole Board’s warrant following his arrest for burglary, and he was later convicted on the new criminal charge. In November 2015, the Parole Board recommitted him as a convicted parole violator for the 2014 burglary offense and revoked the sentence credit of 1918 days it had previously awarded him in 2013. This resulted in a new maximum sentence date of May 31, 2023.

Slip Op. at 1-2. The Parole Board denied Young’s request for administrative relief, explaining that Young was paroled on February 9, 2014 with a max sentence date of May 26, 2017, leaving him with 1,202 days left on his sentence at the time of parole.  Due to the parole violation, the Parole Board claimed that it properly recalculated Young’s sentence to reflect no credit for the period of his parole and properly refused to credit Young for any of the time he was on parole.  The Parole Board separated this convicted parole violation from Young’s previous parole from November 19, 2007 to February 18, 2013.  Those 1,918 days of forfeited parole were added to the days he initially had remaining, resulting in a total of 3,120 days left on his sentence.

The Board relied on Section 6138(a) of the Parole Code, which states, in

relevant part:

Convicted violators

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(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 board 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 42 Pa.C.S. § 9714(g) (relating to sentences for second and subsequent offenses) …

(ii) The parolee was recommitted under section 6143 (relating to early parole of inmates subject to Federal removal order).

Young challenged the Board’s calculation of his sentence as contrary to the plain language of the Parole Code.  He argued the code does not expressly authorize the Parole Board to revoke sentence credit that is previously awarded to a parolee.  Conversely, the Parole Board emphasized its decision was consistent with the overall purpose of Section 6138(a) of the Parole Code. 

The Commonwealth Court disagreed with the Parole Board’s interpretation of the Parole Code, reasoning that when the Parole Board grants sentence credit for “street time,” it is gone.  In such circumstance, the “time spent at liberty on parole” subject to forfeiture is only the time between the most recent parole and recommitment.  The court reasoned that under Section 6138(a)(2.1), if the credit is not awarded, then the parolee would serve the remainder of the sentence as if parole has not been granted.  If it was awarded, the parolee would no longer have the “time spent at liberty on parole” or “street time.” Slip Op. at 4. The majority maintained that the Parole Board’s attempt at essentially creating a “sentence escrow account”, which could be used for a parolee’s future forfeiture, was not authorized by the Parole Code. Id. at 8.The Parole Code, the majority reasoned,  does not grant the Parole Board the power to revoke sentence credit it previously awarded, even in the course of a prior recommitment.  Therefore, the court held that those 1,918 days of credit it previously awarded Young cannot be revoked.

Judge Simpson, joined by Judge Covey, argued in dissent that the majority misinterpreted the statute and its clearly expressed intent. The Commonwealth Court, he argued, had consistently interpreted  Section 21.1(a) of the former Parole Act,  to mean that a parolee found guilty of a crime punishable by imprisonment forfeits all time on parole, even if the Parole Board had at the time of a previous recommitment given the parolee credit for that time on parole. 

The new statute, Act 33 of 2009, replaced the Parole Act with the Parole Code, and substituted  61 Pa. C.S. § 6138(a)(2) for Section 21.1(a) of the former Parole Act, but made only stylistic changes, not a change “affect[ing] legislative intent, judicial construction or administrative interpretation and implementation.”  Slip Op. at REV-4. Indeed, the dissent explained, the General Assembly expressly stated in Act 33 that any difference in language between the former statute and the current statute “is not intended to change or affect the legislative intent, judicial construction or administrative interpretation and implementation of those acts.” Accordingly, the dissent would have affirmed the Board and held that all of Young’s time at liberty on parole, including time that was already credited in a previous recommitment decision, be forfeited.

The Supreme Court granted the Board’s allocatur petition, stating the issue for review as follows:

May the Board of Probation and Parole retroactively revoke previously awarded credit for time served while an individual is at liberty on parole pursuant to 61 Pa.C.S. § 6138(a)?

Allocatur grants present an excellent opportunity for your group or association to advance your legal and policy goals by filing an amicus brief. Participating as an amicus has proven to be an effective method of advising and influencing courts and often can involve far fewer resources than traditional lobbying.

If you are interested or would like more information, contact Kevin McKeon or Dennis Whitaker.