Opinion
No. 1152 C.D. 2012
02-01-2013
Antonio Luis Falu, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Antonio Luis Falu (Falu) petitions for review from a final determination of the Pennsylvania Board of Probation and Parole (Board) that dismissed as untimely Falu's request for administrative relief of the Board's decision that recommitted him to serve eighteen months backtime as a convicted parole violator.
This Court's review is limited to determining whether the Board's findings are supported by substantial evidence, are in accordance with the law, and whether constitutional rights have been violated. Krantz v. Pennsylvania Board of Probation and Parole, 483 A.2d 1044 (Pa. Cmwlth. 1984). This Court will interfere with the Board's exercise of administrative discretion only where it has been abused or exercised in an arbitrary or capricious manner. Green v. Pennsylvania Board of Probation and Parole, 664 A.2d 677 (Pa. Cmwlth. 1995).
Falu was effectively sentenced on August 28, 2008, to a term of two to six years for the manufacture/sale/delivery or possession with intent to deliver drugs. He was also sentenced consecutively to two years' probation for possession of a firearm with the manufacturer number altered. On May 24, 2010, the Board paroled Falu. On March 16, 2011, Berks County Detectives arrested him. On April 21, 2011, the Board detained Falu pending the disposition of criminal charges. Falu was convicted of conspiracy to distribute and possession with intent to distribute cocaine base.
In a decision recorded and mailed on March 23, 2012, the Board recommitted Falu to serve eighteen months backtime as a convicted parole violator.
On April 2, 2012, Falu wrote the Board and requested a thirty day extension to submit his request for administrative relief because his institutional law library lacked "(37 Pa. Code Sec. 73) for me to set forth specifically the factual and legal basis as directed by (37 Pa. Code Sec. 73)." Letter from Antonio Luis Falu, April 2, 2012, at 1; Supplemental Certified Record (S.C.R.) at 1a.
Falu was incarcerated at the Federal Correctional Institution at Fort Dix, New Jersey.
By letter dated May 9, 2012, the Board denied Falu's request for an extension:
The Board regulation governing requests for administrative relief does not provide for extensions. Thus, any administrative appeal or petition for administrative review received after the 30-day time limitation will be dismissed as untimely absent sufficient justification.
To the extent you intend for your current filing to be construed as an administrative appeal, it cannot be accepted. The minimum requirements for submitting a request for administrative relief to the Board are set forth at 37 Pa. Code §73.1. This provision provides, in part, that an administrative appeal/petition for administrative review must 'present with accuracy, brevity, clearness and specificity whatever is essential to a ready and accurate understanding of the factual and legal points requiring consideration.'. . . . Your correspondence does not specify any factual or legal points for consideration in regards to the revocation of your parole or the calculation of reparole eligibility date. Nor do you specify what relief you are seeking. (Citation omitted).Board Decision, May 9, 2012, at 1; S.C.R. at 3a.
By letter dated April 27, 2012, and received by the Board on May 10, 2012, Falu requested administrative relief from the eighteen month recommitment and requested that he be permitted to serve his Pennsylvania sentence concurrently with his nine year federal sentence because the two sentences were based on the same offense: possession with intent to deliver crack cocaine. He also argued that he was scheduled to be under a five year term of federal supervised release after his federal sentence was complete, but the supervised release would not commence until after the completion of his Pennsylvania sentence. Falu wanted to minimize his prison term as much as possible.
Falu also submitted an "Appeal Notice of Board Decision" dated May 7, 2012. The Board received this appeal notice on May 10, 2012. Falu explained that, on April 8, 2012, he requested an extension to file his appeal because the federal facility where he was incarcerated was under lockdown for approximately seven days due to a chicken pox outbreak, so he did not have access to the law library. The lockdown was lifted on April 2, 2012. He also asserted that the Board failed to give him all the credit for which he was entitled.
The Board denied Falu's request for administrative relief and/or appeal as untimely:
The Board regulation authorizing administrative relief states that appeals/petitions must be received at the Board's central office within 30 days of the mailing date of the Board's determination. Your current request for relief was not received or submitted within 30 days of the decision in question. Therefore, your request for relief cannot be accepted because it is untimely.Board Decision, June 5, 2012, at 1; Certified Record at 19.
Falu petitioned for review with this Court. The Board moved to limit the issue to timeliness. On July 19, 2012, this Court granted the motion and limited the issues on appeal "to the timeliness of petitioner's [Falu] administrative appeal and related issues." Order of Commonwealth Court, July 19, 2012, at 1.
Falu contends that the Board erred when it dismissed his appeal as untimely because it did not consider the prison mailbox rule. Falu argues that because of the prison lockdown due to chicken pox, and his lack of access to the law library and copy machine, he was entitled to file his appeal late.
The Board's regulation concerning appeals and petitions for administrative review, 37 Pa.Code §73.1(a)(1), provides:
An interested party, by counsel unless unrepresented, may appeal a revocation decision. Appeals shall be
received at the Board's Central Office within 30 days of the mailing date of the Board's order. When a timely appeal of a revocation decision has been filed, the revocation decision will not be deemed final for purpose of appeal to a court until the Board has mailed its decision on appeal. This subsection supersedes 1 Pa.Code § 35.226 (relating to final orders).
Further, this Court has held that extensions of time for taking an appeal will not be granted in the absence of fraud or negligence on the part of administrative officials. Utegg v. Pennsylvania Board of Probation and Parole, 539 A.2d 65 (Pa. Cmwlth. 1988). This Court has held that the Board lacks jurisdiction to entertain the merits of a request for administrative relief, if the request was not timely filed. Christjohn v. Pennsylvania Board of Probation and Parole, 755 A.2d 92 (Pa. Cmwlth. 2000).
Here, the Board's decision was mailed March 23, 2012. Falu had thirty days from that date to request administrative relief. Thirty days from the date of mailing was April 22, 2012. Falu did not appeal until May 7, 2012. The appeal clearly was untimely. Falu does not allege any fraud or negligence on the part of Board officials. This Court agrees with the Board that Falu's request for administrative relief was untimely.
The prisoner mailbox rule states that a pro se administrative appeal is considered "filed" when the prisoner gives the appeal to prison mailing authorities. Christjohn. As Falu does not assert that he gave his request for administrative relief to prison mailing authorities within thirty days of the Board's decision, the prisoner mailbox rule is inapplicable.
Falu argues in his reply brief that his April 2, 2012, request for an extension of time constitutes an appeal. However, Falu did not raise this argument in his petitioner's brief. Further, a review of his request reveals that it was only a request for an extension and not an appeal of the Board's decision itself. Falu cites no statutory, regulatory, or case law support for the proposition that the request for an extension to file a request for administrative relief to the Board constitutes the request itself. --------
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 1st day of February, 2013, the order of the Pennsylvania Board of Probation and Parole in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge