Opinion
No. 1400 C.D. 2014
06-24-2015
Judson Hardy, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Before this Court is Richard C. Shiptoski's (Attorney Shiptoski) application for leave to withdraw as counsel for Judson Hardy (Hardy) on Hardy's petition for review of an order of the Pennsylvania Board of Probation and Parole which recommitted Hardy to serve eighteen months backtime as a convicted parole violator and established a new maximum date of October 23, 2016.
Hardy was effectively sentenced on March 11, 2003, to a term of two years six months to ten years for burglary and was concurrently sentenced to a term of two years six months to ten years for conspiracy to commit burglary and was concurrently sentenced to a term of one year six months to five years for possessing an instrument of crime.
On April 3, 2006, Hardy was paroled with a maximum sentence date of March 11, 2013. On May 1, 2006, Hardy was arrested by the City of Harrisburg Police Department. In a decision recorded June 27, 2006, and mailed July 12, 2006, the Board detained Hardy pending the disposition of criminal charges and recommitted him to serve three months backtime as a technical parole violator for his failure to abide by written instructions. Following Hardy's conviction for criminal trespass, loitering and prowling, and possessing an instrument of crime, the Board in a decision recorded July 12, 2007, and mailed July 19, 2007, recommitted him to serve nine months backtime as a convicted parole violator concurrent with the earlier recommitment as a technical parole violator. The Board established his new maximum date as April 28, 2014.
On May 12, 2011, the Board paroled Hardy to a state detainer. On April 16, 2012, the Board paroled Hardy from a one to two year sentence for the 2007, criminal trespass conviction. On October 25, 2012, the Board issued a warrant to commit and detain Hardy. On October 25, 2012, the Pennbrook Police Department arrested Hardy and charged him with burglary and possession of an instrument of crime. On December 11, 2012, the Board detained Hardy pending the disposition of criminal charges. On November 6, 2013, Hardy pled guilty to the burglary charge in the Court of Common Pleas of Dauphin County (common pleas court). The common pleas court sentenced Hardy to a term of eleven and one-half to twenty-three months with credit for time served and granted his immediate release.
Hardy returned to State custody on November 18, 2013. In a decision recorded on February 12, 2014, and mailed on February 25, 2014, the Board recommitted Hardy to serve eighteen months backtime as a convicted parole violator and recalculated his maximum date as October 23, 2016.
On June 23, 2014, Hardy petitioned for administrative relief nunc pro tunc and alleged that the Board's decision to recommit him as a convicted parole violator was erroneous and a violation of his rights under the Eighth and Fourteenth Amendments to the United States Constitution. He also alleged that the recommitment of eighteen months backtime "exceeds petitioner's [Hardy] entire remaining balance of his original maximum release date which was imposed by the Court. Thus, the Board is in abuse of its authority and power to impose a sanction which exceeded petitioner [sic] [Hardy] remaining backtime." Petition for Administrative Appeal Nunc Pro Tunc, June 23, 2014, (Petition), Paragraph No. 6 at 2; Certified Record (C.R.) at 134. Hardy further alleged that he could not serve past his previous maximum date of April 28, 2014, which meant he could only serve approximately six months backtime. Hardy sought the reinstatement of his previous maximum release date of April 28, 2014, and his release from custody "due to his receiving time-served for the new offense. Petitioner [Hardy] was entitled to time credit for a time he was incarcerated in custody on both the new offense and the Board's warrant." Petition, Paragraph No. 9 at 3; C.R. at 135. Hardy admitted that his petition was untimely but argued that the Board's error of extending his maximum date was a separate violation of his constitutional rights which triggered a new cause of action "thereby eviscerating any issue of timeliness of this appeal." Petition, Paragraph No. 10 at 3; C.R. at 135.
On July 28, 2014, the Board dismissed Hardy's petition as untimely:
The Board regulation governing administrative appeals states that administrative appeals must be received at the Board's Central Office within 30 days of the mailing date of the Board's order. . . . This means that you had until March 27, 2014 to submit your challenge of this decision. Because the Board did not receive your appeal and you did not submit it to prison officials for mailing by that date, your appeal is untimely and the Board cannot accept it on this issue. Moreover, you do not allege any grounds to accept your appeal nunc pro tunc.Board Decision, July 28, 2014, at 1; C.R. at 138.
Purely for your information, the decision to recommit you as a convicted parole violator gave the Board statutory authority to recalculate your sentence to reflect that you received no credit for the period you were at liberty on parole. . . . The Pennsylvania Supreme Court has also upheld the Board's authority to take this action. . . . (Citations omitted.)
Hardy objected to the dismissal of his administrative appeal as untimely and asserted that the Board should have treated his petition as a request for reconsideration. See Threats v. Pennsylvania Board of Probation and Parole, 518 A.2d 327 (Pa. Cmwlth. 1986), reversed on other grounds, 553 A.2d 906 (Pa. 1989).
On October 1, 2014, the Board informed Hardy that it would take no further action on his request for relief because the Board's regulation at 37 Pa.Code §73.1(b)(3) states that a "[s]econd or subsequent petitions for administrative review and petitions for administrative review which are out of time under this part will not be received."
Attorney Shiptoski was assigned to represent Hardy. After review of Hardy's petition for review and the certified record, Attorney Shiptoski desires to withdraw and asserts that Hardy's petition for review is without merit.
Appointed counsel may withdraw from assisting an indigent parolee in appealing a parole revocation order, "[w]hen, in the exercise of his professional opinion, counsel determines that the issues raised . . . are meritless, and when the . . . court concurs. . . ." Commonwealth v. Turner, 544 A.2d 927, 928-929 (Pa. 1988).
In reviewing an application to withdraw, this Court must make an independent evaluation of proceedings before the Board to determine whether a parolee's appeal is meritless. Dear v. Pennsylvania Board of Probation and Parole, 686 A.2d 423 (Pa. Cmwlth. 1996). When this Court agrees with counsel's assertion that the appeal is without merit, this Court will permit counsel to withdraw when counsel has fulfilled the technical requirements set forth in Craig v. Pennsylvania Board of Probation and Parole, 502 A.2d 758 (Pa. Cmwlth. 1985). Under Craig, counsel must (1) notify the parolee of the request to withdraw, (2) furnish the parolee with a copy of the brief, and (3) advise the parolee of his right to retain new counsel to raise any new points that he might deem worthy of consideration. In the no merit letter or brief counsel must indicate the nature and extent of his review, the issues the parolee wishes to raise, and counsel's analysis in concluding that the appeal is without merit. Wesley v. Pennsylvania Board of Probation and Parole, 614 A.2d 355 (Pa. Cmwlth. 1992).
Hardy submitted his objection to the Board's order to dismiss his request for administrative relief to this Court to serve as his petition for review.
Attorney Shiptoski asserts that Hardy's contention that his petition for administrative relief was timely is without merit:
The Board mailed a decision on February 25, 2014 recommitting him to 18 months backtime with a recalculated parole violation maximum date of October 23, 2016. . . .
Mr. Hardy filed a pro se Petition for Administrative Appeal Nunc Pro Tunc dated June 12, 2014 which was received by the Board on June 23, 2014. . . .
Board Regulations specifically 37 Pa. Code §73.1(a)(i) provides [sic] that appeals shall be received by the Board's Central Office within thirty (30) days of the mailing date of the Board's Order.
A Petition for Administrative Review must also be received by the Board's Central Office within thirty (30) days of the Board's Order. 37 Pa.Code §73.1(b)(i)(a).
. . . .
Mr. Hardy's pro se Petition for Administrative Appeal, which was postmarked June 17, 2014 . . . was received by the Board on June 23, 2014. . . .
A delay in filing an appeal that is not attributable to the Petitioner, such as the intervening negligence of a third party or a breakdown in the administrative process may be sufficient to warrant nunc pro tunc relief. . . .
The burden is upon the offender to establish grounds for allowing an Administrative Appeal, Nunc Pro Tunc. . . .
Judson Hardy argues that each day the Board refuses to correct its order extending his original maximum release date constitutes a separate violation of his constitutional
rights creating a new cause of action which provides a new jurisdictional basis for relief. . . .
The argument however is not supported by legal authority nor does it appear to fall into the exception allowing nunc pro tunc relief. . . .
. . . .
In that correspondence, dated August 11, 2014, Judson Hardy argued that his Administrative Relief should not have been dismissed at [sic] it mirrors the case of Threats v. Pennsylvania Board of Probation and Parole . . . 518 A.2d 327 ([Pa. Cmwlth.] 1986) reversed on other grounds . . . 553 A.2d 906 ([Pa.] 1989). . . .
In Threats, a parole violator filed for Administrative Relief approximately 200 days after the issuance of a Board decision issued on May 30, 1985.
Subsequently, on December 10, 1985, Pennsylvania Supreme Court issued its decision in Rivenbark v. Pennsylvania Board of Probation and Parole . . . 501 A.2d 1110, 1113 ([Pa.] 1985) in which the Court ruled that a parolee cannot be recommitted as a technical parole violator when technical and convicted violations are based on the same act constituting the new crime of which parolee was convicted.
Commonwealth Court then held that the Rivenbark decision could be appealed retroactively. . . .
The parolee's Request for Administrative Relief was allowed by the Pennsylvania Board of Probation and Parole as a Request for Reconsideration even though the filing deadline had expired.
There must be evidence of a retroactive change in the law that renders the prior revocation decision illegal or in violation of parolee's constitutional rights.
. . . .
A review of the record and law does not indicate any evidence of a retroactive change in the law affecting the Board's decision in Mr. Hardy's case which would
trigger allowance of an otherwise untimely Administrative Appeal.Richard C. Shiptoski's Anders v. California, 386 U.S. 738 (1967) Brief in Support of Petition for Leave to Withdraw as Counsel, December 5, 2014, at 14-18.
After making a conscientious and thorough review of the record and applicable statutes and case law, counsel has determined that any appeal of the decision by Respondent Board to 'dismiss as untimely' Judson Hardy's Petition for Administrative Relief is frivolous and without merit. (Citations omitted.)
This Court agrees with Attorney Shiptoski's analysis of the applicable statute, regulation, and case law. There is no retroactive change in the law that affects Hardy's case as there was in Threats.
Accordingly, this Court grants Attorney Shiptoski's petition for leave to withdraw and affirms the order of the Board in the above-captioned matter.
Attorney Shiptoski also addresses the merits of Hardy's petition concerning his maximum date. However, because this Court has determined that the Board correctly held that Hardy's request for administrative relief was untimely, this Court need not address this issue.
In a letter dated December 4, 2014, and addressed to Hardy, Attorney Shiptoski complied with the requirements of Craig. --------
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 24th day of June, 2015, the application for leave to withdraw as counsel is hereby granted. The order of the Pennsylvania Board of Probation and Parole in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge