200 A.3d 643
Pa. Commw. Ct.2018Background
- Dwight Marshall was sentenced in Pennsylvania in 1998 to 11–22 years (max date Jan. 15, 2019) and paroled in 2008.
- In Delaware Marshall was convicted of a Tier 4 cocaine offense (16 Del. C. §4752) and received an 8-year term; Delaware extradited him to Pennsylvania.
- The Pennsylvania Board recommitted Marshall as a convicted parole violator (CPV) to 24 months backtime, treating the Delaware offense as most closely related to Pennsylvania possession with intent to deliver (35 P.S. §780–113(a)(30)), with a presumptive recommitment range of 18–24 months.
- The Board denied Marshall credit for nearly nine years of street time, giving the sole reason: “felony drug related crimes.”
- Marshall administratively appealed; the Board affirmed. He petitioned for review in Commonwealth Court seeking recalculation using a lower recommitment range (3–6 months) and credit for street time.
- The Court affirmed revocation and the recommitment range but vacated the credit denial and remanded for the Board to provide an adequate, individualized explanation for denying street-time credit in line with Pittman.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Due process notice of possible new max date at waiver | Marshall: Board failed to notify him that waiver could lead to a new maximum date, violating due process | Board: Issue waived because not raised adequately in administrative appeal; no authority requires detailed listing of all possible consequences | Waived; Marshall failed to raise it administratively and cites no authority requiring such notice |
| Board authority to recalculate maximum sentence date | Marshall: Board unlawfully extended his judicially-imposed max date | Board: Recalculation is permissible as backtime does not exceed original sentence remaining | Denied—Board acted within authority; recalculation was lawful because it did not add to total sentence length |
| Correct presumptive recommitment range for out-of-state conviction | Marshall: Delaware conviction is most analogous to Pennsylvania simple possession (3–6 months) | Board: Delaware Tier 4 felony corresponds to PA possession with intent to deliver (10-year max), so 18–24 months is appropriate | Affirmed—Court agrees the Delaware Tier 4 conviction is analogous to PA §780–113(a)(30); 24 months is within the presumptive range |
| Denial of credit for time at liberty on parole (street time) | Marshall: Board abused discretion and violated Pittman by denying nearly nine years of credit without individualized reasons | Board: Denial was within its statutory discretion; gave reason “felony drug related crimes” | Vacated and remanded—Board’s four-word rationale was insufficient for meaningful appellate review under Pittman; Board must articulate individualized, fact-based reasons for denying street-time credit |
Key Cases Cited
- Yates v. Pa. Bd. of Prob. & Parole, 48 A.3d 496 (Pa. Cmwlth. 2012) (backtime cannot exceed time remaining on original sentence; Board may recommit to serve remainder)
- Hughes v. Pa. Bd. of Prob. & Parole, 179 A.3d 117 (Pa. Cmwlth. 2018) (Board may recalculate maximum date where it does not increase maximum length of sentence)
- Pittman v. Pa. Bd. of Prob. & Parole, 159 A.3d 466 (Pa. 2017) (Board must state reasons when exercising discretion to deny street-time credit; reasons must allow appellate review)
- Harrington v. Pa. Bd. of Prob. & Parole, 507 A.2d 1313 (Pa. Cmwlth. 1986) (severity of criminal conduct—not severity of punishment—controls recommitment range selection)
- Ward v. Pa. Bd. of Prob. & Parole, 538 A.2d 971 (Pa. Cmwlth. 1988) (appellate courts will not disturb Board’s discretion if backtime is within applicable presumptive range)