Opinion
No. 865 C.D. 2014
02-17-2015
Mark Gadson, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Mark Gadson (Inmate), an inmate represented by appointed counsel, seeks review of an order of the Pennsylvania Board of Probation and Parole (Board) that denied his petition for administrative relief as untimely because the Board did not receive it within 30 days of the Board's January 24, 2013 recalculation decision. By order dated September 2, 2014, this Court limited the issue in this appeal to whether the Board properly dismissed Inmate's administrative appeal as untimely. Inmate contends he received a greensheet in August 2013 denying him parole and informing him of a recalculated original sentence maximum date, and that he timely filed his petition for administrative relief within 30 days of receiving the greensheet. Inmate therefore requests that we reverse the Board's order and remand the case for a determination on the merits of the appeal. For the reasons that follow, we affirm.
I. Background
Inmate currently resides in the State Correctional Institution in Albion, Pennsylvania (SCI-Albion). The Board retained parole authority over Inmate based on his 1991 aggregate sentence (original sentence) of 7 to 25 years for one count of prohibited offensive weapons (1 to 5 years) and two counts of manufacture, sale, delivery, or possession with intent to deliver, a controlled substance (3 to 10 years each). Inmate's original sentence had an initial minimum date of February 28, 1998, and an initial maximum date February 28, 2016.
In August 1999, the Board initially paroled Inmate. While on parole, Inmate committed a new offense that resulted in a conviction. In October 2003, the Board recommitted him as a convicted parole violator (CPV) to serve 18 months backtime, and it recalculated his maximum date as November 29, 2019.
The Board re-paroled Inmate in January 2005. During this period on parole, Inmate violated the written conditions of his parole and committed a new criminal offense. In May 2006, the Board recommitted Inmate to concurrently serve 12 months backtime as a CPV and 12 months backtime as a technical parole violator (TPV). In addition, the Board recalculated Inmate's maximum date as February 11, 2021.
In August 2007, the Board re-paroled Inmate to a state detainer sentence of 2½ to 7 years. This action apparently allowed Inmate to receive services outside the walls of a state correctional institution, but under close supervision. Unfortunately, while under this arrangement Inmate again violated the conditions of his parole. In July 2008, the Board recommitted Inmate as a TPV to serve nine months backtime when available.
Most relevant to the current controversy, on January 7, 2013, Inmate completed his detainer sentence and immediately returned to serving his original sentence. In a decision mailed January 24, 2013, the Board again notified Inmate of its July 2008 decision to recommit him for nine months, and it recalculated Inmate's maximum date as September 29, 2025. The recalculation decision included appeal instructions, which stated:
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 COMMONWEALTH COURT. DATE MAILED: JAN 24 2013Certified Record (C.R.) at 82.
On August 23, 2013, the Board issued a decision denying Inmate re-parole on his original sentence which again noted the recalculated maximum date. See C.R. at 83. This decision did not include appeal instructions. Nonetheless, the Board received a petition for administrative review from Inmate, post-marked September 23, 2013, which objected to the September 29, 2025 maximum date.
It is well-settled that a denial of parole is discretionary and not appealable. Rogers v. Pa. Bd. of Prob. & Parole, 724 A.2d 319 (Pa. 1999); Borsello v. Colleran, 833 A.2d 1213 (Pa. Cmwlth. 2003).
The Board considered Inmate's petition as an administrative appeal from the January 2013 recalculation decision and dismissed it as untimely. In response, Inmate filed a petition for review in this Court. By order dated September 2, 2014, this Court limited the issue in this case to whether the Board properly dismissed Inmate's petition for administrative review as untimely.
Our review of a Board order is limited to determining whether constitutional rights were violated, whether the adjudication was in accordance with law, and whether necessary findings were supported by substantial evidence. 2 Pa. C.S. §704; Flowers v. Pa. Bd. of Prob. & Parole, 987 A.2d 1269 (Pa. Cmwlth. 2010). --------
II. Discussion
A. Argument
Inmate contends the Board erred in dismissing his petition for administrative relief as untimely filed. Inmate asserts he received a Board greensheet dated August 24, 2013 denying him re-parole and listing the maximum date of his original sentence as September 29, 2025. Inmate filed a petition for administrative relief from the August 2013 notice, which the Board ultimately dismissed as untimely. See C.R. at 89.
Inmate maintains that the first notice he recalls that changed his maximum date from February 11, 2021 to September 29, 2025 was the August 2013 notice. Inmate argues that the Board had no legitimate reason to change his maximum date and that he was entitled to appeal that decision within 30 days of the date on the notice. Thus, Inmate asserts his September 2013 petition for administrative relief must be considered timely filed. Inmate therefore urges this Court to reverse the Board's order and remand this case for a decision on the merits.
B. Analysis
Pursuant to Board regulations, a parolee may petition for administrative review of a Board recalculation order under 37 Pa. Code §73.1(b), which provides (with emphasis added):
(1) A parolee, by counsel unless unrepresented, may petition for administrative review under this subsection of determinations relating to revocation decisions which are not otherwise appealable under subsection (a). Petitions for administrative review shall be received by the Board's Central Office within 30 days of the mailing date of the Board's determination. When a timely petition has been filed, the determination will not be deemed final for purposes of appeal to a court until the Board has mailed its response to petition for administrative review.37 Pa. Code §§73.1(b)(1), (3).
* * * *
(3) Second or subsequent petitions for administrative review and petitions for administrative review which are out of time under this part will not be received.
Here, in a decision mailed January 24, 2013, the Board notified Inmate of its recalculation of the maximum date of his original sentence based upon his 2008 recommitment to serve nine months backtime as a TPV. C.R. at 82. Inmate does not contest that the Board mailed the recalculation decision on January 24, 2013 to SCI-Albion, where he was incarcerated. In addition, Inmate does not argue he did not timely receive the recalculation decision. Thus, the Statement of the Case section in Inmate's brief provides (with emphasis added):
[Inmate] received a greensheet regarding [B]oard action recorded on August 23, 2013 denying him parole/reparole. This notice listed his parole violation maximum date as September 29, 2025, as did a prior notice mailed January 24, 2013 where [Inmate] was recommitted via the Board action dated July 14, 2008 to serve 9 months backtime.Pet'r's Br. at 3.
Nonetheless, Inmate argues the Board's August 2013 notice of the Board's denial of parole/re-parole was the first notice he recalled receiving that changed the maximum date of his sentence. Inmate therefore asserts he should be able to appeal the change in his maximum date within 30 days of the August 2013 notice.
We disagree. The Board first mailed its latest recalculation decision on January 24, 2013. Consequently, Inmate needed to submit his petition for review to the Board's Central Office no later than Monday, February 25, 2013. 37 Pa. Code §73.1(b)(1); Smith v. Pa. Bd. of Prob. & Parole, 81 A.3d 1091 (Pa. Cmwlth. 2013); McCaskill v. Pa. Bd. of Prob. & Parole, 631 A.2d 1092 (Pa. Cmwlth. 1993). The 30-day appeal period is jurisdictional and cannot be extended absent a showing of fraud or a breakdown in the administrative process. Smith; Moore v. Pa. Bd. of Prob. & Parole, 503 A.2d 1099 (Pa. Cmwlth. 1986). "A delay in filing an appeal that is not attributable to the parolee, 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." Smith, 81 A.3d at 1094 (emphasis added) (citing Larkin v. Pa. Bd. of Prob. & Parole, 555 A.2d 954 (Pa. Cmwlth. 1989)).
Here, Inmate's mere allegation that he does not recall receiving the January 2013 notice does not, by itself, constitute sufficient cause for extending the appeal period by 214 days and allowing a nunc pro tunc appeal. Cadogan v. Pa. Bd. of Prob. & Parole, 541 A.2d 832 (Pa. Cmwlth. 1988). As noted above, Inmate does not contest the fact that the Board mailed the January 24, 2013 recalculation decision on that date to SCI-Albion, where he was incarcerated. Indeed, Inmate does not specifically assert he did not timely receive the January 2013 decision; rather, he does not recall receiving it.
In Cadogan, we rejected the parolee's contention that his late appeal should be allowed because there was no proof that he actually received notice of the Board's decision. Our holding in Cadogan is equally applicable here, where Inmate does not contest that the Board properly mailed him a copy of its January 2013 decision while he was incarcerated at SCI-Albion.
Finally, although the Board's August 23, 2013 decision denying re-parole also included Inmate's new maximum date, the Board previously notified Inmate of his recalculated maximum date in its January 2013 decision. In Winslow v. Pennsylvania Board of Probation and Parole, (Pa. Cmwlth., No. 1220 C.D. 2007, filed May 12, 2008), 2008 WL 9398634, a memorandum opinion, we rejected a parolee's challenge to a recalculation of sentence where the parolee failed to challenge a prior decision setting forth the recalculation. Citing Cadogan, we reasoned that any issues related to the prior decision that are raised in a subsequently appealed decision must be considered waived because the appeal period for the prior decision expired. Although Winslow is an unreported memorandum opinion, we nevertheless find its rationale persuasive in the present case. See Commonwealth Court Internal Operating Procedure No. 414, 210 Pa. Code §69.414 (an unreported panel decision of the Commonwealth Court, issued after January 15, 2008, may be cited for its persuasive value). Therefore, we hold the Board properly dismissed Inmate's petition for administrative relief as untimely. Cadogan.
III. Conclusion
Discerning no error in the Board's decision dismissing Inmate's petition for administrative relief as untimely, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 17th day of February, 2015, for the reasons stated in the foregoing opinion, the order of the Pennsylvania Board of Probation and Parole is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge