A.H. Walker v. PPB

A
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Achille Hassun Walker,                         :
                            Petitioner         :
                                               :
                     v.                        :   No. 570 C.D. 2020
                                               :   Submitted: December 4, 2020
Pennsylvania Parole Board,                     :
                        Respondent             :



BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE P. KEVIN BROBSON, Judge1
              HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                               FILED: March 24, 2021


       Achille Hassun Walker (Walker) petitions for review of a May 28, 2020 Order
of the Pennsylvania Parole Board (Board) that affirmed the Board’s actions mailed
on June 6, 2018, and June 13, 2018, recommitting Walker as a convicted parole
violator (CPV) to serve 36 months of backtime and denying him credit for time spent
at liberty on parole, also known as street time. Walker is represented by appointed
counsel, Kent D. Watkins, Esquire (Counsel). Counsel has filed an Application to
Withdraw as Counsel (Application to Withdraw) and a No-Merit Letter, which are
based on his conclusion that Walker’s Petition for Review is without merit. For the



       1
       This case was assigned to the opinion writer before January 4, 2021, when Judge Brobson
became President Judge.
following reasons, we grant Counsel’s Application to Withdraw and affirm the
Board’s May 28, 2020 Order.
      Walker was initially sentenced on December 28, 2005, to three to six years’
imprisonment at a state correctional institution (SCI) for his conviction of
manufacture, sale, delivery, or possession with intent to deliver drugs, unsworn
falsification to authorities, false identification to law enforcement, and disorderly
conduct. (Sentence Status Summary, Certified Record (C.R.) at 1.) On November
8, 2006, Walker pled guilty to an additional count of manufacture, sale, delivery, or
possession with intent to deliver drugs, and was sentenced to an additional three to
six years’ imprisonment, to be served consecutively to his initial sentence. (Id.) On
August 4, 2010, the Board paroled Walker from his original sentence, which, based
on the combined consecutive sentences he received, had a maximum date of August
4, 2016, and he was released on January 3, 2011. (C.R. at 7.) On May 13, 2015, the
Pennsylvania State Police searched Walker’s approved residence and discovered a
firearm in his possession. (Technical Violation Arrest Report, C.R. at 11; Notice of
Charges and Hearing, C.R. at 12.) The next day, May 14, 2015, the Board issued a
warrant to commit and detain Walker for violating his parole. (Id. at 10.) That same
day, the Pennsylvania State Police arrested Walker, alleging that he possessed a
firearm in violation of the conditions of his parole. (Technical Violation Arrest
Report, C.R. at 11.)
      By notice dated May 20, 2015, the Board charged Walker with a technical
parole violation for knowingly possessing a firearm. (C.R. at 12.) That same day,
Walker waived his rights to be represented by counsel and to preliminary and
violation hearings, and he admitted to his technical violation. (Id. at 14.) By action
mailed on June 16, 2015, the Board recommitted Walker as a technical parole



                                          2
violator (TPV) to serve six months of backtime. (Id. at 86-88.) On June 18, 2015,
Walker filed an Administrative Remedies Form challenging the Board’s decision to
recommit him as a TPV. (Id. at 97-98.) By action mailed August 5, 2015, the Board
affirmed its June 16, 2015 order. (Id. at 101-02.)
      On June 9, 2015, prior to the Board’s order recommitting Walker as a TPV,
the Pennsylvania State Police and the Berks County District Attorney filed a criminal
complaint against Walker in Berks County, charging him with 12 counts of
possession of a controlled substance with intent to deliver, and 1 count each of
furthering a corrupt organization, conspiracy to further a corrupt organization,
criminal use of a communication facility, dealing in proceeds of unlawful activity,
and unlawful possession of a firearm. (Id. at 16-22.) Bail for Walker’s new charges
was set at $100,000 on June 24, 2015, and Walker did not post bail. (Criminal
Docket, C.R. at 110, 112.) On July 15, 2015, Walker waived his rights to counsel,
a detention hearing, and a panel hearing. (C.R. at 95-96.) By action recorded on
August 26, 2015, the Board modified its June 16, 2015 order by adding that it would
detain Walker pending resolution of the new charges and changing the reparole
portion of the June order to now read that Walker was automatically reparoled on
November 14, 2015, pending disposition of the outstanding criminal charges. (Id.
at 113.) On August 4, 2016, Walker’s original maximum sentence date, the Board
lifted its detainer, and Walker was granted unsecured bail on the new criminal
charges against him in Berks County. (Criminal Docket, C.R. at 114, 119.)
      On February 13, 2018, Walker pled guilty to criminal use of a communication
facility and one count of conspiracy related to the manufacture, delivery, or
possession with intent to manufacture or deliver a controlled substance, and the
remaining charges were dismissed. (Criminal Docket, C.R. at 123-24.) He was



                                         3
sentenced to 5 years of probation and 11 months, 15 days to 23 months of
incarceration in a Berks County facility. (Id., C.R. at 123.) The Board issued a new
warrant to commit and detain Walker on April 11, 2018, based on his new
conviction, noting that his original maximum sentence date, which had passed,
would be recalculated “upon recording of the Board’s final action.” (C.R. at 136.)
The Board then issued a Notice of Charges and Hearing based on his new conviction,
and Walker waived his rights to counsel and to panel and revocation hearings, and
he admitted to his new conviction. (Id. at 137, 141-42.)
      A hearing examiner recommended recommitting Walker as a CPV to serve 36
months of backtime and denying Walker credit for time spent at liberty on parole.
(Revocation Hearing Report, C.R. at 149, 153.) The hearing examiner based this
recommendation on the fact that Walker “was on parole for drug[-]related crimes
and was convicted of felony drug[-]related crimes[] that occurred while he was on
parole. In addition, [Board] agents found [Walker] to be in possession of a firearm.”
(Id. at 153.) The hearing examiner signed the Revocation Hearing Report on April
24, 2018, and, on May 10, 2018, a Board member executed the Revocation Hearing
Report, noting that the Board agreed with the hearing examiner on denying credit
for time spent at liberty on parole. (Id. at 148, 153.)
      By action mailed on June 6, 2018, the Board deleted the automatic reparole
provisions in its earlier orders, referred to its prior orders recommitting Walker as a
TPV to serve 6 months of backtime, and recommitted Walker as a CPV to serve 36
months of backtime concurrently, when available, pending parole from or
completion of his Berks County sentence. (Id. at 154-55.) The Board’s June 6, 2018
action did not recalculate Walker’s maximum sentence date or state whether the
Board awarded Walker credit for time spent at liberty on parole. By Notice of Board



                                           4
Decision, mailed on June 13, 2018, the Board denied Walker credit for street time
and recalculated his maximum sentence date as October 1, 2023. (Id. at 160-61.)
The Notice also stated that Walker would not be eligible for reparole until March 1,
2021. (Id. at 160.)
      On June 19, 2018, Walker filed a pro se Administrative Remedies Form and
attached a Request for Administrative Review concerning the Board’s orders mailed
on June 6 and June 13, 2018. (Id. at 162-66.) Walker alleged that the Board abused
its discretion in recommitting him for a period of 36 months, which he claimed
exceeded the time remaining on his original sentence, and that the Board erred in
issuing its June 6, 2018 recommitment order without simultaneously determining
whether to grant Walker credit for street time. (Id. at 164-65.) He asserted that the
Board’s June 13, 2018 order denying him credit for street time was insufficient to
repair this alleged error in the June 6, 2018 order and also suggested that the Board
erred in denying him credit because his new conviction was not for a “crime of
violence.” (Id. at 165.) Walker also argued that the Board’s reliance on his
possession of a firearm in denying him street time credit constitutes double jeopardy
because the Board first relied on that violation to recommit him as a TPV. (Id. at
165-66.) Finally, he asserted that the Board failed to credit him with all of the time
for which he was detained solely on its warrant. (Id. at 164.)
      The Board responded to Walker’s Request for Administrative Review on May
28, 2020, and affirmed its June 6 and June 13, 2018 decisions. (Id. at 177-79.) The
Board first explained that it acted within its discretion in denying Walker credit for
street time and that it provided legally sufficient reasons for that decision. (Id. at
177-78.) It further stated that its June 6, 2018 decision to recommit Walker as a
CPV authorized its later decision to deny credit and recalculate his maximum



                                          5
sentence date. (Id. at 178.) The Board also explained how it recalculated Walker’s
maximum sentence date, noting that Walker received 41 days of presentence credit
for the period of May 14, 2015, to June 24, 2015, when he was detained solely on
the Board’s detainer. (Id.) Subtracting 41 days from the 2,040 days remaining on
Walker’s original sentence resulted in 1,999 days remaining on his original sentence.
Adding 1,999 days to Walker’s custody for return date of April 11, 2018, yielded a
new maximum date of October 1, 2023. (Id.) As for Walker’s claim regarding his
recommitment term, the Board explained that it was authorized to recommit Walker
as a CPV for up to 48 months based on his particular convictions and that the 36-
month term it imposed is within the presumptive range established by the Board’s
regulations and, therefore, not subject to challenge. (Id.) The Board did not directly
address Walker’s double jeopardy argument.
      Walker, with the assistance of Counsel, filed his Petition for Review in this
Court on June 22, 2020.       Therein, he challenged the Board’s May 28, 2020
affirmance of its June 6 and June 13, 2018 orders on two bases. First, Walker argued
that the Board erred by “fail[ing] to give [him] credit for all [of the] time served
exclusively to its warrant.” (Petition for Review ¶ 5.) Second, he asserted that the
Board “abused its discretion by failing to give [Walker] credit for all time in good
standing on parole.” (Id. ¶ 6.)
      On September 29, 2020, Counsel filed the Application to Withdraw on the
basis that the Petition for Review lacks merit. In support, Counsel also filed the No-
Merit Letter, which he sent to Walker and the Board, along with the Application to
Withdraw, detailing his review of the Certified Record and relevant law. After
summarizing the relevant factual and procedural history, Counsel addressed the
issues Walker raised in the Petition for Review, as well as the other issues Walker



                                          6
raised in his administrative appeal to the Board. Regarding presentence confinement
credit, Counsel pointed out that the Board credited Walker with the 41 days he was
detained between May 14, 2015, when Walker was initially detained on the Board’s
warrant, and June 24, 2015, when bail was set on his new charges, which he failed
to post, causing him to be detained on the new charges. (No-Merit Letter at 10.)
Counsel also explained that Walker remained detained on the Berks County charges,
not the Board’s warrant alone, until he reached the maximum date of his initial
sentences, when he was granted unsecured bail and released on August 4, 2016. (Id.;
see C.R. at 128.) Based on these facts, Counsel concluded that the Board correctly
credited Walker with the 41 days of presentence confinement that was solely due to
the Board’s warrant. Regarding credit for street time, Counsel stated that the Board
has discretion to award or deny credit for street time where, as here, the new
conviction is not for a violent offense. (No-Merit Letter at 7-8.) Counsel explained
that the Board’s June 13, 2018 order provides contemporaneous reasons for the
Board’s exercise of discretion to deny credit as required under the Pennsylvania
Supreme Court’s decision in Pittman v. Pennsylvania Board of Probation and
Parole, 

159 A.3d 466

(Pa. 2017). (No-Merit Letter at 9.)
      Counsel also addressed the other arguments Walker raised in his
administrative appeal to the Board. Citing Section 6138(a)(2.1) of the Prisons and
Parole Code (Code), 61 Pa.C.S. § 6138(a)(2.1), Counsel stated that the Board’s June
6 order recommitting Walker as a CPV was an interim order, which authorized its
June 13 order denying credit for street time and recalculating Walker’s maximum
sentence date. (Id. at 7-9.) Concerning Walker’s recommitment term, Counsel
concluded that, because the length of the 36-month term is within the combined
presumptive range for the two offenses of which Walker was convicted, it is not



                                         7
subject to judicial review.     (Id. at 10-11).     Counsel also explained that the
recommitment term, which is 1,095 days in length, does not exceed the remainder
of Walker’s original sentence, which was 1,999 days at the time he was released on
parole. (Id. at 11.) Finally, Counsel addressed the Board’s reliance on Walker’s
possession of a firearm in denying him street time credit and concluded that this did
not constitute a second punishment for the same offense. (Id.) In support, Counsel
observed that, although the Board relied on Walker’s firearm possession to guide its
discretionary decision to deny credit for street time, its decision to recommit him as
a CPV was based on his “new conviction[,]” not his firearm possession. (Id.)
      Having concluded that the Petition for Review lacks merit, Counsel informed
Walker of his right to hire another attorney or to file a brief on his own behalf raising
any new points he might deem worthy of consideration. (Application to Withdraw
¶¶ 7-8; No-Merit Letter at 12.) Counsel also served Walker with this Court’s
September 30, 2020 order informing Walker that he could obtain substitute counsel
at his own expense or file a brief on his own behalf. Walker did not file a brief on
his own behalf.
      Before appointed counsel may withdraw from representation in a case in
which the right to counsel does not derive from the United States Constitution, such
as here, counsel must submit a Turner or no-merit letter that must contain: (1) the
nature and extent of counsel’s review; (2) the issues the petitioner wishes to raise;
and (3) counsel’s analysis in concluding that the petitioner’s appeal is without merit.
Commonwealth v. Turner, 

544 A.2d 927

, 928 (Pa. 1988); Hughes v. Pa. Bd. of Prob.
& Parole, 

977 A.2d 19

, 25 (Pa. Cmwlth. 2009). In addition, counsel must send the
petitioner a copy of the no-merit letter, “a copy of counsel’s petition to withdraw,”
and a statement advising the petitioner of his right to proceed with new counsel or



                                           8
pro se. Zerby v. Shanon, 

964 A.2d 956

, 960 (Pa. Cmwlth. 2009). Once counsel
satisfies the procedural requirements of Turner, this Court will “conduct its own
review of the merits of the case.”

Id. (citation omitted).
Counsel

has complied with the procedural requirements of Turner. As we
have set forth above, Counsel has explained the nature and extent of his review of
the record, addressed the issues Walker raised in his Petition for Review and in his
administrative appeal to the Board, and provided a thorough analysis of those issues
and Counsel’s reasons for concluding that they lack merit. Counsel served copies
of both the Application to Withdraw and the No-Merit Letter on Walker and the
Board. In the No-Merit Letter, and additionally, by serving Walker with the Court’s
September 30, 2020 order, Counsel informed Walker that he could retain substitute
counsel or file a brief on his own behalf. Thus, Counsel has satisfied the procedural
requirements of Turner, and we now turn to Walker’s arguments that the Board erred
in its May 28, 2020 Order.2


       1.      Whether the Board erred by crediting 41 days of Walker’s
               presentence confinement toward his original sentence.
       In Gaito v. Pennsylvania Board of Probation and Parole, 

412 A.2d 568

, 571
(Pa. 1980), the Pennsylvania Supreme Court held that if the parolee has met bail on
the new charges but remains in custody solely on the Board’s detainer, then the time
the parolee spends in custody “shall be credited against [the] original sentence.” On
the other hand, if the parolee “remains incarcerated prior to trial because [the
parolee] has failed to satisfy bail requirements on the new criminal charges, then the


       2
        Our standard of review in parole revocation cases “is limited to determining whether the
Board committed a constitutional violation or an error of law and whether the findings of fact are
supported by substantial evidence.” Lee v. Pa. Bd. of Prob. & Parole, 

885 A.2d 634

, 637 (Pa.
Cmwlth. 2005) (citing Slaymaker v. Pa. Bd. of Prob. & Parole, 

768 A.2d 417

(Pa. Cmwlth. 2001)).


                                                9
time spent in custody shall be credited to [the] new sentence.”

Id. Similarly, when
a

parolee “[i]s detained under both the Board’s warrant and the new criminal
charges, this time is properly allocated to [the] new criminal sentence . . . .”
Hammonds v. Pa. Bd. of Prob. & Parole, 

143 A.3d 994

, 999 (Pa. Cmwlth. 2016).
Only if “it is not possible to award all of the credit on the new sentence because the
period of pre[]sentence incarceration exceeds the maximum term of the new
sentence” may the excess time be applied to the parolee’s original sentence.
Armbruster v. Pa. Bd. of Prob. & Parole, 

919 A.2d 348

, 355 (Pa. Cmwlth. 2007)
(emphasis omitted).
      Applying these rules here, the Board awarded Walker credit against his
original sentence for the time he spent in custody solely on the Board’s detainer.
Walker was initially detained solely on the Board’s warrant from his arrest on May
14, 2015, until he was arraigned on the new charges and bail was set on June 24,
2015, a period of 41 days. The Board credited these 41 days towards Walker’s
original sentence. (Order to Recommit, C.R. at 158.) The Board did not credit
Walker’s remaining presentence confinement time beginning on June 25, 2015,
towards his original sentence because, at that time, Walker was detained on the new
charges and on the Board’s detainer. Therefore, the presentence confinement time
beginning June 25, 2015, must be applied to his new sentence and, because there is
no allegation that the remaining presentence confinement exceeds the maximum
sentence on his new charges, Walker was not entitled to any further credit against
his original sentence. See 

Armbruster, 919 A.2d at 355

. For this reason, the Board
did not err in crediting Walker only 41 days of presentence confinement time toward
his original sentence. Walker’s argument in this regard is therefore without merit.




                                         10
      2.     Whether the Board abused its discretion by denying Walker credit
             for time spent at liberty on parole.
      Section 6138(a)(2), (2.1) of the Code provides, in pertinent part, that

      (2) If a [CPV’s] recommitment is so ordered, the [CPV] shall be
      reentered to serve the remainder of the term which the [CPV] 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 [CPV]
      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 . . . or a
             crime requiring registration under 41 Pa.C.S. Ch. 97
             Subch. H (relating to registration of sexual offenders).

             (ii) The [CPV] was recommitted under [S]ection 6143 [of
             the Code] (relating to early parole of inmates subject to
             Federal removal order).

61 Pa.C.S. § 6138(a)(2), (2.1). Our Supreme Court held in Pittman that Section
6138(a)(2) “clearly and unambiguously grants the Board discretion to award credit
to a CPV recommitted to serve the remainder of his sentence,” other than in the
enumerated 

exceptions. 159 A.3d at 473

. The Supreme Court further held that “the
Board must provide a contemporaneous statement explaining its reason for denying
a CPV credit for time spent at liberty on parole.”

Id. at 475.

However, the Board’s
articulation of its basis “need not be extensive,” and a single sentence usually will
suffice. Plummer v. Pa. Bd. of Prob. & Parole, 

216 A.3d 1207

, 1211 (Pa. Cmwlth.
2019).
      Walker does not challenge the sufficiency of the Board’s stated reasons for
denying him credit for time spent at liberty on parole, and it is clear that the Board



                                         11
had the discretion, once it recommitted Walker as a CPV, to deny him credit for his
street time. Although he did not file a pro se brief in support of his position, Walker
argued in his Administrative Remedies Form that the Board erred in issuing its June
6, 2018 recommitment order without simultaneously determining whether to grant
or deny Walker credit for his street time. He also claimed that the Board’s later
issuance of its June 13, 2018 order, containing the reasons for its decision to deny
credit, was not sufficient to correct this error.
      This Court has held that the Board complies with Pittman and no remand is
required even where the Board fails to give a contemporaneous reason for denying
street time but later corrects the error. Smoak v. Talaber, 

193 A.3d 1160

, 1164 (Pa.
Cmwlth. 2018). In Smoak, the Board issued an order recommitting a CPV and not
awarding credit for street time but did not provide the reason for doing so until its
response to the petitioner’s request for administrative review. We held that while it
was error for the Board not to record a reason for denying credit in its decision
recommitting the petitioner, the “matter [did] not need to be remanded to the [] Board
to correct the error because the [] Board, after receiving [the petitioner’s]
administrative appeal, corrected its omission by modifying the recommitment order
to include its reason for denying [the petitioner] credit for his street time.”

Id.
Here, the Board’s

recommitment of Walker occurred when the hearing
examiner and one Board member signed the Revocation Hearing Report
recommending Walker’s recommitment as a CPV. See Barnes v. Pa. Bd. of Prob.
& Parole, 

203 A.3d 382

, 392 (Pa. Cmwlth. 2019) (“Parole revocation occurs once a
hearing examiner and Board member or two Board members sign a hearing report
recommitting a prisoner as a CPV.”). In the Revocation Hearing Report, the hearing
examiner recommended that the Board deny credit for street time and provided a



                                           12
contemporaneous reason for that decision, i.e., that Walker “was on parole for drug[-
]related crimes and was convicted of felony drug[-]related crimes[] that occurred
while he was on parole. In addition, [Board] agents found the offender to be in
possession of a firearm.”3 (Revocation Hearing Report, C.R. at 153.) Accordingly,
the Board complied with Pittman, because it effectively denied Walker credit for
street time when a Board member signed the Revocation Hearing Report on May 10,
2018, which included a contemporaneous statement of the reason for the denial.
Moreover, the Board’s June 13, 2018 decision was the first time the Board expressly
denied Walker credit for street time, which decision set forth the same
contemporaneous statement of the reasons for the Board’s denial as in the
Revocation Hearing Report. We acknowledge that the earlier Notice of Board
Decision mailed on June 6, 2018, did not state a reason for the Board’s denial of
credit, but it also did not expressly discuss credit for street time at all. To the extent
that the Board’s failure to discuss street time credit expressly in its June 6, 2018
action constitutes error, no remand is necessary because the Board corrected this
error in its June 13, 2018 decision. See 

Smoak, 193 A.3d at 1164

. Accordingly,
because the Board complied with the dictates of Pittman and corrected its own error,
Walker’s argument in this regard is without merit.
       To the extent that Walker argues that the Board abused its discretion by not
crediting him the time he spent at liberty on parole because he did not commit a
crime of violence or any of the crimes enumerated in Section 6138(a)(2.1)(i), this

       3
         Although Walker does not challenge the legal sufficiency of the stated reasons, we note
that we have found these precise reasons to be sufficient where, as here, they are consistent with
the Certified Record. See 

Barnes, 203 A.3d at 390-91

; see also Williams v. Pa. Bd. of Prob. &
Parole (Pa. Cmwlth., No. 1243 C.D. 2018, filed Aug. 21, 2019), slip op. at 10. Unreported
opinions, such as Williams, are cited for their persuasive value in accordance with Pennsylvania
Rule of Appellate Procedure 126, Pa.R.A.P. 126, and Section 414(a) of this Court’s Internal
Operating Procedures, 210 Pa. Code § 69.414(a).


                                               13
argument is without merit. That section provides that the Board must not award
credit for time spent at liberty on parole to parolees who have committed those
enumerated crimes. It does not limit the Board’s ability to deny credit for time spent
at liberty on parole. That decision is within the Board’s discretion, see 

Pittman, 159
A.3d at 473

, which, as we have discussed, the Board did not abuse. For these
reasons, we cannot find that the Board abused its discretion by denying Walker credit
for the time he spent at liberty on parole.

       3.      Whether the Board erred in recommitting Walker for a period of
               36 months.4
       The Pennsylvania Supreme Court has held that “[a]s long as the period of
recommitment is within the presumptive range for the violation,” this Court “will
not entertain challenges to the propriety of the term of recommitment.” Smith v. Pa.
Bd. of Prob. & Parole, 

574 A.2d 558

, 560 (Pa. 1990). The presumptive ranges for
parole violations are found in Section 75.2 of the Board’s regulations, 37 Pa. Code
§ 75.2. The presumptive range for criminal use of a communication facility is 6 to
12 months.5

Id. The presumptive range

for conspiracy relates to the specific crime,

       4
          Walker’s arguments regarding recommitment and double jeopardy were raised before the
Board and reiterated in the No-Merit Letter filed by Counsel. Therefore, the Court may address
these issues under Rule 1513(d)(5) of the Pennsylvania Rules of Appellate Procedure. Pa.R.A.P.
1513(d)(5) (providing that the omission of an issue from a petition for review will not constitute
waiver if the court is able to address it based on the certified record).
        5
          We note that “criminal use of a communication facility” is not listed in Section 75.2 of
the Board’s regulation establishing presumptive ranges. The list is not exhaustive, however, and
where an offense is not listed, the Board uses the presumptive range for a listed offense of similar
severity. Simpson v. Pa. Bd. of Prob. & Parole, 

556 A.2d 542

, 543 (Pa. Cmwlth. 1989). Criminal
use of a communication facility, which is codified as an offense at Section 7512 of the Crimes
Code, 18 Pa.C.S. § 7512, is a third-degree felony. Similar third-degree felonies, such as criminal
mischief, criminal trespass, and theft, carry presumptive ranges of 6 to 12 months. 37 Pa. Code §
75.2. We have affirmed Board decisions setting forth that presumptive range for this offense. See
Harvey v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 1375 C.D. 2017, filed Sept. 7, 2018), slip
(Footnote continued on next page…)


                                                14
which here is the manufacture, delivery, or possession with intent to manufacture or
deliver, a controlled substance, which is punishable by a maximum of 15 years of
imprisonment. See Section 13(a)(30), (f)(1) of The Controlled Substance, Drug,
Device and Cosmetic Act, 35 P.S. § 780-113(a)(30), (f)(1).6 Accordingly, the
presumptive range for the conspiracy offense is 24 to 36 months. 37 Pa. Code § 75.2.
Consequently, the maximum aggregate backtime for the two charges is 30 to 48
months.

Id. Here, the Board’s

imposition of 36 months of backtime is within the
presumptive range for parole violations resulting from these convictions. Therefore,
in compliance with Smith, we will not disturb the Board’s Order. Walker’s argument
on this issue is thus without merit.
       Additionally, “[i]t is well-settled that the Board is not permitted to impose
backtime which exceeds the entire remaining balance of [the] parolee’s unexpired
term.” Savage v. Pa. Bd. of Prob. & Parole, 

761 A.2d 643

, 645 (Pa. Cmwlth. 2000).
Here, the remaining balance of Walker’s unexpired term, after applying credit, was
1,999 days. (Order to Recommit, C.R. at 158.) The Board imposed a recommitment
term of 36 months, or 1,095 days. (Notice of Board Decision, C.R. at 154.)
Accordingly, the amount of backtime the Board imposed did not exceed the
remaining balance of Walker’s judicially imposed sentence, and his argument to the
contrary is without merit.




op. at 12; Love v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 149 C.D. 2015, filed Dec. 3, 2015),
slip op. at 5. Regardless, Walker does not challenge the presumptive range the Board applied.
        6
          Act of April 14, 1972, P.L. 233, as amended, 35 P.S. § 780-113(a)(30), (f)(1).


                                               15
      4.     Whether the Board’s recommitment constitutes double jeopardy
             or a second punishment for the same conduct.
      Initially, we note that the constitutional protection against double jeopardy
applies only to criminal prosecutions and does not apply to purely administrative
functions, such as parole revocation proceedings before the Board. Rivenbark v. Pa.
Bd. of Prob. & Parole, 

501 A.2d 1110

, 1112-13 (Pa. 1985); McClure v. Pa. Bd. of
Prob. & Parole, 

461 A.2d 645

, 647 (Pa. Cmwlth. 1983). “The Board does not
convict the parolee of any crime at a parole revocation hearing. Rather it determines
whether the parolee has violated the terms and conditions of [] parole . . . .”

Rivenbark, 501 A.2d at 1112

. Specifically concerning Walker’s argument that he
was twice punished for the same conduct, i.e., possession of a firearm, we note that
the Board’s decision to deny credit for street time is an administrative decision that
does not represent a punishment or extension of the sentence originally imposed.
Young v. Bd. of Prob. & Parole, 

409 A.2d 843

, 847 (Pa. 1979) (Denying credit on a
sentence for time spent on parole “represents a reasonable exercise of the
penological responsibility and does not offend . . . constitutional guarantees . . . .”).
Therefore, because neither the Board’s decision to recommit Walker as a TPV nor
its decision to deny credit for street time constitute a punishment, Walker’s argument
that he was twice punished for the same conduct is meritless.
      Based upon the foregoing, we conclude that Walker’s Petition for Review is
wholly without merit. Accordingly, we grant Counsel’s Application to Withdraw
and affirm the Board’s May 28, 2020 Order.



                                         _____________________________________
                                         RENÉE COHN JUBELIRER, Judge




                                           16
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Achille Hassun Walker,                    :
                         Petitioner       :
                                          :
                 v.                       :   No. 570 C.D. 2020
                                          :
Pennsylvania Parole Board,                :
                        Respondent        :



                                      ORDER

     NOW, March 24, 2021, the Application to Withdraw as Counsel filed by Kent
D. Watkins, Esquire, is GRANTED, and the May 28, 2020 Order of the
Pennsylvania Parole Board is AFFIRMED.



                                       _____________________________________
                                       RENÉE COHN JUBELIRER, Judge

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