Pittman v. Pa. Bd. of Probation and Parole: Board Abused its Discretion by Failing to Use Discretion
The Parole Violation statute requires the Board of Probation and Parole to use its discretion when considering whether to credit “time at liberty on parole” to a convicted parole violator’s re-sentencing for the underlying crime, the Supreme Court has ruled in Pittman v. Pa. Bd. of Probation and Parole. Furthermore, the Board must explain its decision in order to provide an opportunity for effective appellant review.
Kevin Pittman was sentenced in 2010 for a Possession With Intent to Distribute, and was paroled a year later. While on parole, Pittman committed another crime, which brought him before the Board. The Board checked a “No” box in answer to the question “Credit time spent at liberty on parole” on a form, and when pressed for an explanation by Pittman via letter, the Board argued he had “automatically forfeited credit for all of the time that you spent on parole” by committing a subsequent crime. Pittman appealed to the Commonwealth Court for review, which affirmed en banc.
Baer for the Majority: Parole Board has discretion to award credit for time at liberty on parole, and must at least consider doing so
The Parole Violation statute provides that the Parole Board “may, in its discretion, award credit . . . for the time spent at liberty on parole.” This provision “clearly and unambiguously grants the Board discretion” to award credit for time at liberty on parole. Thus, the Board erred when it said that Pittman “automatically forfeited” his time spent on parole. “[T]he Board abused its discretion . . . by concluding that it had no discretion,” Justice Baer said for the majority, reversing the Commonwealth Court and remanding to the Board to consider whether, in its discretion, Pittman should be credited with time he spent at liberty on parole.
The Court went further, ruling that the Board must produce more than a “Yes” or “No” checkbox on a form when rendering a discretionary decision. The majority held that this requirement, though not found in the statute, rested on three separate bases. First, Article V, Section 9 of the Pennsylvania Constitution grants citizens the right to an appeal from all administrative agency hearings to courts of record. Failing to provide any written reasoning for the Board’s decision threatened to turn this Constitutional appellate right to a “mere empty formality.” Second, “inherent notions of due process” demand a written explanation when a convicted parole violator is facing re-sentencing. Third, the General Assembly’s intent in passing the Parole Violation statute is best served by requiring a written opinion regarding a decision involving the Board’s discretion.
Saylor: This Decision is In Keeping with our Past Decisions on Parole Board Appeals
Noting that the Court has previously ruled that parole revocation determinations are subject to the right to appeal, Chief Justice Saylor expressed concern in a brief concurrence that the majority opinion “may be read to diverge from this statutory requirement concerning the timing and/or content of written explanations by the Board.” Saylor offered no further explanation on this point, and was joined by Justice Todd in this opinion.
Mundy: Discretion Must be Exercised by the Board, but No Explanation is Required in the Statute
Arguing that the majority “insert[ed] new language” into the statute, Justice Mundy, joined by Justice Wecht, concurred in the result because the Board abused its discretion, but noted that nothing in the statute requires a written opinion. Noting that the Board is free to defend its decision in the appellate courts—as it did here—she argued that a written decision is not required by the statute or by practice in order for a meaningful appeal to take place.
Conclusion: The Board lost this one, right?
The Parole Board loses this appeal on paper, but one always wonders what the Appellant wins in a case like this. For his pains, he receives the right to go back before the Parole Board, wounded by a rebuke by the Commonwealth’s highest tribunal, and beg for discretionary mercy. This time, the Board will be free to check “No” again, and will be sure to write an opinion as to why. Perhaps the Board will grant some mercy, now aware that it has broader latitude than it previously thought, but it seems unlikely that Mr. Pittman ends up in a much better situation now than before.