Opinion
No. 1742 C.D. 2014
07-28-2015
Gary L. Butcher, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Gary L. Butcher petitions for review of the September 5, 2014 Order of the Pennsylvania Board of Probation and Parole (Board) that rejected Butcher's counseled July 28, 2014 Petition for Administrative Relief (July 2014 Petition) because it was Butcher's second request seeking administrative relief from a Decision of the Board mailed September 6, 2013. In an Order mailed January 24, 2014, the Board dismissed, as untimely, Butcher's first pro se Petition for Administrative Relief, received October 17, 2013 (October 2013 Petition), seeking relief from the Board's September 6, 2013 Decision. On appeal, Butcher argues the Board erred in dismissing his October 2013 Petition as untimely filed because the Board's failure to provide Butcher with the name and address of the local public defender for appeals purposes in the September 6, 2013 Decision and the mailing of this decision to the wrong state correctional institution (SCI) constituted a breakdown in administrative processes. Butcher argues further that this matter should be remanded to the Board to either accept his pro se October 2013 Petition or to conduct an evidentiary hearing to provide Butcher with the opportunity to establish that the untimeliness of his administrative appeal should be excused.
Butcher was sentenced on March 2, 2007 to serve 4 to 8 years, concurrently, for robbery and criminal conspiracy. (Sentence Status Summary, C.R. at 1.) The original minimum and maximum dates for these sentences were August 10, 2010 and August 10, 2014. (Sentence Status Summary, C.R. at 1.) Butcher was released on parole on June 9, 2011 to a community corrections facility. (Order to Release on Parole/Reparole, C.R. at 8.) The Board declared Butcher delinquent effective June 20, 2012. (Administrative Action, C.R. at 12.) The Darby Borough Police Department arrested Butcher on February 8, 2013 for driving under the influence, driving with a suspended license, reckless driving, and careless driving, resulting in new criminal charges against him and confinement in Delaware County. (Criminal Arrest Report, C.R. at 14.) Although Butcher's bail was set at $10,000, he was unable to post bail. (Criminal Docket, C.R. at 57-59.) The Board issued a Warrant to Commit and Detain Butcher on February 8, 2013. (Warrant to Commit and Detain, C.R. at 13.)
The Board issued Butcher a Notice of Charges and Hearing on February 19, 2013, advising him of the new criminal charges against him, his technical parole violations, his right to counsel, and how to contact the Delaware County public defender. (Notice of Charges and Hearing, C.R. at 19-20.) Butcher signed a waiver of his rights to counsel, a preliminary hearing, and a panel hearing on February 21, 2013. (Waiver of Representation by Counsel, C.R. at 21; Waiver of Preliminary Hearing, C.R. at 22; Waiver of Panel Hearing, C.R. at 22.) Thereafter, by decision mailed March 11, 2013, the Board detained Butcher pending disposition of his criminal charges, recommitted Butcher as a technical parole violator to serve 6 months for his multiple parole violations, and advised Butcher that his parole violation maximum date was March 31, 2015. (Notice of Board Decision, March 11, 2013, C.R. at 38-40.) The Board determined that Butcher owed 233 days for the time he was delinquent on parole; therefore, the Board calculated Butcher's parole violation maximum date as March 31, 2015. (Order to Recommit, C.R. at 36.)
On May 20, 2013, Butcher pled guilty to driving under the influence and driving with a suspended license in the Delaware County Court of Common Pleas. (Criminal Arrest and Disposition Report, C.R. at 41-42.) Butcher was sentenced to, inter alia, 72 hours to 6-months in Delaware County Prison with immediate parole to a drug and alcohol treatment facility and community service. (Criminal Arrest and Disposition Report, C.R. at 41-42.) On June 11, 2013, the Board issued a Notice of Charges and Hearing advising Butcher that, as a result of his criminal conviction, a parole revocation hearing was scheduled for June 24, 2013. (Notice of Charges and Hearing, C.R. at 45.) This Notice of Charges and Hearing also included the contact information for the Delaware County public defender. (Notice of Charges, C.R. at 45). On June 11, 2013, Butcher waived his rights to a parole revocation hearing and counsel at that hearing and a panel hearing. (Waiver of Revocation Hearing and Counsel/Admission Form, C.R. at 54; Waiver of Panel Hearing, C.R. at 55.) The Waiver of Revocation Hearing and Counsel/Admission Form signed by Butcher on June 11, 2013 specifically acknowledges that "there is no penalty for requesting counsel, that free counsel is available. . ." and that he had "been provided the name and address of the local public defender." (Waiver of Revocation Hearing and Counsel/Admission Form, C.R. at 54.)
By Decision mailed September 6, 2013, the Board recommitted Butcher as both a technical parole violator and convicted parole violator to serve six months backtime concurrently, for a total of six months backtime. (Notice of Board Decision, September 6, 2013, C.R. at 72.) As a result, the Board calculated Butcher's parole violation maximum date as March 11, 2017. This Decision was addressed to Butcher at SCI-Graterford; however, there is a handwritten note on a second copy of the September 6, 2013 Decision in the certified record which provides "@ Benner 9-3-13" with the date underlined. (Notice of Board Decision, September 6, 2013, C.R. at 74.)
With regard to Butcher's appeal rights, the September 6, 2013 Decision provided as follows:
IF YOU WISH TO APPEAL THIS DECISION, YOU MUST FILE A REQUEST FOR ADMINISTRATIVE RELIEF WITH THE BOARD WITHIN 30 DAYS OF THIS ORDER. THIS REQUEST SHALL SET FORTH SPECIFICALLY THE FACTUAL AND LEGAL BASIS FOR THE ALLEGATIONS. SEE 37 PA CODE SEC. 73. YOU HAVE THE RIGHT TO AN ATTORNEY IN THIS APPEAL AND IN ANY SUBSEQUENT APPEAL TO THE COMMONWEALTH COURT.(Notice of Board Decision, September 6, 2013, C.R. at 72.)
On October 18, 2013, the Board received a pro se letter from Butcher, which the Board treated as a petition for administrative relief (October 2013 Petition) wherein Butcher objected to the calculation of his parole violation maximum date as established in the Board's Decision mailed September 6, 2013. (October 2013 Petition, C.R. at 73.) However, in this pro se letter, Butcher does not specifically refer to the September 6, 2013 Decision. Instead, Butcher explains that he believed his parole violation maximum date was March 31, 2015 until he received a new status sheet stating that his parole violation maximum date was March 11, 2017. (October 2013 Petition, C.R. at 73.) Butcher further indicates that he does not understand why his parole violation maximum date was changed to March 11, 2017 and that his counselor did not "even understand my status sheet." (October 2013 Petition, C.R. at 73.)
Although Butcher refers to this date as March 11, 2015, the correct date is March 31, 2015 as set forth in the Board's decision mailed March 11, 2013. (Notice of Board Decision, March 11, 2013, C.R. at 38.)
By Order mailed January 24, 2014, the Board dismissed Butcher's October 2013 Petition as untimely because it was filed more than 30 days after the mailing date of the September 6, 2013 Decision. (Board Order, January 24, 2014, C.R. at 77.) The Board stated that Butcher was clearly advised of his appeal rights on the face of the September 6, 2013 Decision and that "for whatever reason, [he] chose not to file a timely petition for administrative review." (Board Order, January 24, 2014, C.R. at 77.) The Board further advised that "[t]o the extent you are merely looking for an explanation of your parole violation max date, please contact your institutional parole staff." (Board Order, January 24, 2014, C.R. at 77.) The Board did not advise Butcher in the January 24, 2014 Order of his right to appeal this Order, and Butcher did not petition this Court for review of the Board's January 24, 2014 Order.
On July 28, 2014, the Board received a second petition for administrative relief (July 2014 Petition) filed on behalf of Butcher by the Centre County Public Defender. (July 2014 Petition, C.R. at 80-84.) Therein, counsel acknowledges that Butcher's October 2013 administrative appeal appears to be untimely but asserts that the Board's failure to properly notify Butcher of his right to counsel at the appeal stage warrants nunc pro tunc administrative review of the September 6, 2013 Decision. (July 2014 Petition, C.R. at 81.) Counsel also states that the September 6, 2013 Decision appeared to have been mailed to SCI-Graterford in Montgomery County when, per the AOPC docket, he was incarcerated at SCI-Benner, in Centre County. (July 2014 Petition, C.R. at 81.) With respect to Butcher's March 11, 2017 parole violation maximum date, counsel states that the calculations in the Order to Recommit are erroneous because this order lists Butcher's original maximum date as March 31, 2015 when the order should have reflected this date as August 10, 2014. (July 2014 Petition, C.R. at 82.) Finally, counsel states that the Board failed to credit Butcher's original sentence with 78 days of pre-sentence confinement which reflects the time that Butcher was detained solely on the Board's warrant. (July 2014 Petition, C.R. at 82.) Counsel requested that the Board accept Butcher's nunc pro tunc appeal and vacate the September 6, 2013 Decision purportedly mailed to Butcher "at an unknown date and to the wrong institution." (July 2014 Petition, C.R. at 83.)
By Order mailed September 5, 2014, the Board rejected Butcher's July 2014 Petition because it was Butcher's second request for administrative relief from the Board's September 6, 2013 Decision. (Board Order, September 5, 2014, C.R. at 85.) Butcher now petitions for review of the Board's September 5, 2014 Order.
"Our scope of review of the Board's decision denying administrative relief is limited to determining whether necessary findings of fact are supported by substantial evidence, an error of law was committed, or constitutional rights have been violated." Yates v. Pennsylvania Board of Probation and Parole, 48 A.3d 496, 498 n.2 (Pa. Cmwlth. 2012).
In support of this appeal, Butcher focuses on the Board's January 24, 2014 Order dismissing his October 2013 Petition as untimely. Although Butcher concedes that his October 2013 Petition was not filed within 30 days of the mailing date of the Board's September 6, 2013 Decision, he argues that the Board should have accepted his October 2013 Petition nunc pro tunc or at least provided him with an opportunity to establish that there was a sufficient breakdown in the administrative process to excuse the untimely filing. Butcher contends that not providing him with the address of the local public defender in the Board's September 6, 2013 Decision constitutes a prima facia showing that there was a breakdown in the administrative process that warrants the granting of his appeal from the Board's decision nunc pro tunc. This is particularly true, Butcher argues, where the initial revocation provided him with the address of the Delaware County public defender, and at the time of the Board's September 6, 2013 Decision, he was incarcerated in Centre County.
In response, the Board argues that Butcher has waived his right to ask for nunc pro tunc relief or to challenge the Board's January 24, 2014 dismissal of his October 2013 Petition as untimely because he did not appeal the Board's January 24, 2014 Order to this Court. The Board argues further that it properly dismissed Butcher's July 2014 Petition pursuant to its regulations that require the rejection of a second or subsequent petition for administrative relief. Upon review, we are constrained to agree with the Board.
Here, Butcher was required to file in this Court a petition for review of the Board's January 24, 2014 Order dismissing his appeal from the September 6, 2013 Decision as untimely within 30 days of the January 24, 2014 mailing date. See Rule 1512(a)(1) of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 1512(a)(1) (providing that a petition for review of a quasi-judicial order shall be filed within 30 days after the entry of the order); see also Hill v. Pennsylvania Board of Probation and Parole, 683 A.2d 699, 701 (Pa. Cmwlth. 1996) ("Pursuant to Pa. R.A.P. 1512(a)(1)[,] a petition for review must be filed within 30 days after the entry of the order from which an appeal is taken."). Butcher did not do so and he offers no explanation as to why he did not appeal the January 24, 2014 Order to this Court. Accordingly, although Butcher raises an important issue as to whether the Board is required to include the address of local public defenders on its recommitment decisions, we cannot revisit the issue of whether the untimeliness of Butcher's October 2013 Petition should be excused because we lack the jurisdiction to consider Butcher's direct challenge to the January 24, 2014 Order.
Rather than filing a second request for administrative relief from the Board's September 6, 2013 Decision, counsel should have filed a petition for review with this Court seeking to appeal, nunc pro tunc, the Board's January 24, 2014 Order. As stated previously, the Board's January 24, 2014 Order did not advise Butcher of his right to appeal the Board's Order to this Court and it is clear from the record that Butcher did not have counsel when the Board issued its January 24, 2014 Order. See Hill, 683 A.2d at 701 (Because a parolee is entitled to assistance of counsel in the prosecution of an appeal from a revocation decision, this Court refused to quash a parolee's timely notice of appeal because it did not meet the requirements for a petition for review where the inmate was not represented by counsel until after the 30-day appeal period set forth in Pa. R.A.P. 1512(a)(1) had expired.).
Moreover, even if this Court had jurisdiction, our review of the record reveals that Butcher's March 11, 2017 parole violation maximum date is correct even though as we explain, the Board's Order to Recommit does contain a clerical error. It appears from the statements in his October 2013 Petition that Butcher did not understand, based on the information he received on his status sheets, why his parole violation maximum date was changed from March 31, 2015 to March 11, 2017. (October 2013 Petition, C.R. at 70.) Butcher's confusion may have arisen from the fact that in its order recommitting Butcher as both a technical and convicted parole violator and setting forth the March 11, 2017 parole violation maximum date, the Board indicated that Butcher's original maximum date was March 31, 2015. (Order to Recommit, C.R. at 70.) However, the certified record shows that Butcher's original maximum date was August 10, 2014. (Sentence Status Summary, C.R. at 1.) The Board recalculated Butcher's parole violation maximum date as March 31, 2015 when the Board recommitted Butcher as a technical parole violator by the Board's decision mailed March 11, 2013. The Board determined that Butcher owed 233 days for the time he was delinquent on parole and recalculated Butcher's parole maximum violation date as March 31, 2015. (Order to Recommit, C.R. at 36.) Thus, it would appear the Board set forth the March 31, 2015 date as Butcher's original maximum date by mistake in its order recommitting Butcher as both a technical and convicted parole violator. Notwithstanding this clerical error, the Board correctly calculated Butcher's new parole violation maximum date as March 11, 2017. (Order to Recommit, C.R. at 70.)
Because Butcher refers in his October 2013 Petition to his "new status sheet saying [his] max date is 3-11-17," (October 2013 Petition, C.R. at 73), it is unclear if Butcher actually received a copy of this Order to Recommit. It would appear to be a violation of an inmate's due process rights if he or she is not given a copy of the Order to Recommit or at least an explanation in some written form as to how parole violation maximum dates are calculated.
As stated previously, Butcher began serving his original 4 to 8 year sentence on March 2, 2007. Butcher was released on parole on June 9, 2011 to a community corrections facility, declared delinquent on June 20, 2012, and arrested on new criminal charges on February 8, 2013. Although the Board thereafter recalculated Butcher's parole violation maximum date as March 31, 2015 when it recommitted him as a technical parole violator, when the Board later recommitted Butcher as both a technical and convicted parole violator after receiving confirmation of his May 20, 2013 conviction on new criminal charges, the Board exercised its discretion not to grant Butcher time for when he was at liberty on parole. (Hearing Report, C.R. at 48.) Therefore, because Butcher had only served 4 years, 3 months and 7 days on his original sentence when he was released on parole on June 9, 2011, Butcher owed 1391 days or 3 years, 9 months, and 22 days backtime on his original sentence. Adding 3 years, 9 months, and 22 days to Butcher's custody for return date of May 20, 2013, yields a new parole violation maximum date of March 11, 2017.
Section 6138(a) of the Probation and Parole Code provides, in pertinent part:
(1) A parolee under the jurisdiction of the board released from a correctional facility who, during the period of parole or while delinquent on parole, commits a crime punishable by imprisonment, for which the parolee is convicted or found guilty by a judge or jury or to which the parolee pleads guilty or nolo contendere at any time thereafter in a court of record, may at the discretion of the board be recommitted as a parole violator.
(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:
61 Pa. C.S. § 6138(a). --------(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) or a crime requiring registration under 42 Pa. C.S. Ch. 97 Subch. H (relating to registration of sexual offenders).
(ii) The parolee was recommitted under section 6143 (relating to early parole of inmates subject to Federal removal order).
Butcher also contends in his brief on appeal that he is owed an additional 78 days of credit on his original sentence because his bail status was changed on February 13, 2013 to "non-monetary condition" meaning as of that date, he was being held solely on the Board's detainer. However, the criminal docket shows that although a non-monetary condition of Butcher's bail changed, the monetary portion of his bail remained set at $10,000. (Criminal Docket, C.R. at 57-59.) Therefore, Butcher is not owed any additional credit on his original sentence.
We now turn to the Board's September 5, 2014 Order, which is properly before this Court. As stated previously, the Board rejected Butcher's July 2014 Petition because it was a second or subsequent request for administrative relief from the Board's September 6, 2013 Decision. Pursuant to the Board's regulations, "[s]econd or subsequent petitions for administrative review . . . will not be received." 37 Pa. Code § 73.1(b)(3). As such, we find no error in the Board's refusal to take further action on Butcher's July 2014 Petition.
For the foregoing reasons, the Board's September 5, 2014 Order is affirmed.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, July 28, 2015, the September 5, 2014 Order of the Pennsylvania Board of Probation and Parole entered in the above-captioned matter is AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge