Opinion
1322 C.D. 2020
09-30-2021
Gregory Jackson, Petitioner v. Pennsylvania Parole Board, Respondent
OPINION NOT REPORTED
Submitted: June 11, 2021
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE ELLEN CEISLER, Judge
MEMORANDUM OPINION
MARY HANNAH LEAVITT, PRESIDENT JUDGE EMERITA
Gregory Jackson petitions for review of an adjudication of the Pennsylvania Parole Board (Parole Board) denying his request for administrative relief from its decision that recommitted him as a convicted parole violator and recalculated his maximum sentence date. Jackson challenges the timeliness of his parole revocation hearing. In response, the Parole Board has filed an application to dismiss Jackson's petition for review because it was not filed within 30 days from the date of the Parole Board's adjudication and, thus, is untimely. After review, we grant the Parole Board's application and dismiss Jackson's petition for review.
Jackson was sentenced to serve 20 to 40 years of incarceration for his conviction for third degree murder and robbery. His maximum sentence date was April 4, 2031. On March 13, 2012, Jackson was paroled to an Immigration and Customs Enforcement Detainer. Jackson was deported later in 2012.
At some point thereafter, Jackson reentered the United States illegally. On September 28, 2017, Jackson was arrested in Pennsylvania for the manufacture, delivery or possession, with intent to deliver, controlled substances. Because Jackson did not post bail, he was detained on the new criminal charges. That same day, the Parole Board issued a warrant to commit and detain Jackson for his parole violations. The United States Immigration and Customs Enforcement Agency also lodged a detainer against Jackson.
On November 17, 2017, the Parole Board issued a warrant to detain Jackson pending disposition of the drug charges. On December 13, 2018, those criminal charges were dismissed, and the Parole Board cancelled its detainer warrant.
Thereafter, the Parole Board received notification that on September 26, 2018, a federal indictment charged Jackson with distribution of 50 grams or more of methamphetamine on or about September 28, 2017. Jackson was detained at the Dauphin County Prison on the federal charge. As a result of the new criminal charge, the Parole Board lodged a new detainer warrant against Jackson. Jackson waived the detention hearing, and on February 17, 2019, the Parole Board determined to hold Jackson on its detainer pending disposition of the federal criminal charges.
Subsequently, the Parole Board received notification that on November 14, 2018, Jackson was found guilty of the charge of distribution of 50 grams or more of methamphetamine and sentenced to 121 months in a federal prison. On October 11, 2019, Jackson was returned to the State Correctional Institution (SCI) at Camp Hill from the county prison. A parole revocation hearing was scheduled for December 20, 2019, before a panel of the Parole Board. At the parole revocation hearing, Jackson objected to the timeliness of the hearing.
On May 4, 2020, the Parole Board recommitted Jackson as a convicted parole violator and reparoled him to his federal detainer sentence upon the condition that there were no prison misconducts. Additionally, the Parole Board awarded Jackson credit for the time he spent at liberty on parole. The Parole Board recalculated Jackson's maximum sentence date on his original sentence as December 13, 2031.
When Jackson was paroled on March 13, 2012, his maximum sentence date was April 4, 2031. Following his recommitment as a convicted parole violator, Jackson received credit towards his original sentence for the time he spent at liberty on parole, i.e., from March 13, 2012, to January 14, 2019, or 4, 463 days. Adding the 4, 463 days to his custody for return date, or September 24, 2019, Jackson's parole violation maximum date is December 13, 2031.
Jackson requested an administrative review of his parole revocation, alleging that the hearing was untimely. Jackson contended that his parole agent, Kevin Swartz, received official verification of his conviction on December 20, 2018. However, his parole revocation hearing was not held for a year thereafter, well beyond the 120-day period required by the Parole Board's regulations. Because the Parole Board failed to hold a timely revocation hearing, Jackson argued that the parole violation charges should have been dismissed.
The Parole Board denied Jackson's request for administrative relief. It explained that at the time of Jackson's federal conviction, he was held in a county prison. Under its regulations, the Parole Board was required to hold Jackson's parole revocation hearing within 120 days of the date it received official verification of his return to an SCI, which took place on October 11, 2019. 37 Pa. Code §71.4(1)(i). His parole revocation hearing was conducted 70 days later, on December 20, 2019, and, thus, was timely.
"[T]he general rule is that a hearing is timely whenever it is held within 120 days of the parolee's actual return to a state correctional institution because a parolee's return to state custody marks the earliest day on which the [Parole] Board could have received official verification[.]" Barnes v. Pennsylvania Board of Probation and Parole, 203 A.3d 382, 387 n.2 (Pa. Cmwlth. 2019) (citing Johnson v. Pennsylvania Board of Probation and Parole, 19 A.3d 1178, 1180 (Pa. Cmwlth. 2011) (holding that revocation hearing was required to be held within 120 days of parolee's actual return to an SCI); Brooks v. Pennsylvania Board of Probation and Parole, 704 A.2d 721, 723 (Pa. Cmwlth. 1997) (stating that "the general rule is that the [120-day] period begins to run on the date that the parolee is actually returned to [an SCI]")).
Jackson has petitioned for this Court's review. In his appeal, Jackson argues that the Parole Board did not hold a timely parole revocation hearing. Jackson contends that the Parole Board was not permitted to wait until he was sentenced on the federal charges to conduct his parole revocation hearing.
This Court's review determines whether the Parole Board's adjudication is supported by substantial evidence, whether an error of law has been committed, or whether constitutional rights have been violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Moroz v. Pennsylvania Board of Probation and Parole, 660 A.2d 131, 132 (Pa. Cmwlth. 1995).
By order dated March 22, 2021, this Court indicated that Jackson's petition may be untimely and directed the parties to address whether the petition was untimely in their principal briefs or in an appropriate motion.
On April 21, 2021, the Parole Board filed an application to dismiss the petition for review for the stated reason that Jackson did not timely appeal its adjudication denying his request for administrative relief. Additionally, the Parole Board responded in its brief that Jackson's revocation hearing was conducted timely and in accordance with its regulations.
A petition for review must be filed within 30 days after the entry of the order from which an appeal is taken. Pa. R.A.P. 1512(a)(1). The failure to file a timely petition for review deprives this Court of jurisdiction to consider its merits. Hillanbrand v. Pennsylvania Board of Probation and Parole, 508 A.2d 375, 378 (Pa. Cmwlth. 1986) (untimely petition for review deprives this Court of jurisdiction to consider merits of petition). The Parole Board's adjudication denying Jackson's request for administrative relief was mailed November 23, 2020. Under Pa. R.A.P. 1512(a)(1), Jackson was required to file his petition for review within 30 days of the date the adjudication was mailed, or by December 23, 2020. Jackson filed his petition for review on December 29, 2020; therefore, it was untimely. Jackson responds that because he filed the petition without the assistance of counsel, while incarcerated and with limited access to resources, it would be "a gross mistreatment of justice" to deny him his right to appeal the Parole Board's adjudication. Response to Application at 2, ¶12.
It states:
(a) Appeals authorized by law.--Except as otherwise prescribed by paragraph (b) of this rule:
(1) A petition for review of a quasijudicial order, or an order appealable under 42 Pa.C.S. §763(b) (awards of arbitrators) or under any other provision of law, shall be filed with the prothonotary of the appellate court within 30 days after the entry of the order. Pa. R.A.P. 1512(a)(1).
In limited circumstances, the 30-day appeal period can be extended to allow a nunc pro tunc appeal. Tuggles v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No. 1744 C.D. 2019, filed June 2, 2021) (unreported), slip op. at 9. A nunc pro tunc appeal will be allowed in extraordinary circumstances, such as where there is fraud or a breakdown in the administrative process, or where the late filing is attributable to a non-negligent circumstance, such as the appellant's illness. Cook v. Unemployment Compensation Board of Review, 671 A.2d 1130, 1131 (Pa. 1996). "Additionally, courts have held that an appeal [nunc pro tunc] may be granted in a unique case upon a showing that unusual circumstances prevented a party from timely filing in order to prevent injustice." Hanoverian, Inc. v. Lehigh County Board of Assessment, 701 A.2d 288, 289 (Pa. Cmwlth. 1997).
An unreported panel decision of this Court, "issued after January 15, 2008," may be cited "for its persuasive value[.]" Section 414(a) of the Commonwealth Court's Internal Operating Procedures, 210 Pa. Code §69.414(a).
Jackson contends that being pro se, incarcerated, and having limited access to legal resources caused the delay in filing his appeal. However, pro se litigants are bound by the time requirements for filing an appeal. See Yelverton v. Workers' Compensation Appeal Board (Department of Public Welfare) (Pa. Cmwlth., No. 1669 C.D. 2007, filed February 12, 2008), slip op. at 3 n.4; Means v. Housing Authority of City of Pittsburgh, 747 A.2d 1286 (Pa. Cmwlth. 2000) (pro se appeal quashed for failure to file brief in accordance with briefing schedule set forth in Pennsylvania Rules of Appellate Procedure). Likewise, incarceration does not authorize a late appeal. See Puckett v. Department of Transportation, Bureau of Driver Licensing, 804 A.2d 140 (Pa. Cmwlth. 2002) (holding incarceration did not justify untimely appeal of license revocation). Nor does a limit on access to resources warrant a late appeal; that is another way of claiming that incarceration in itself exempts a litigant from filing an untimely appeal. Simply, Jackson has not identified an exceptional circumstance that would justify an appeal nunc pro tunc.
Further, Jackson does not argue that his appeal was timely filed under the "prisoner mailbox rule" because he either gave it to a prison official or put it in the prison mailbox on or before December 23, 2020. Sweesy v. Pennsylvania Board of Probation and Parole, 955 A.2d 501, 502 (Pa. Cmwlth. 2008). Jackson does not attach a certificate of mailing, cash slip, or any other proof of the timeliness of the mailing of his appeal.
In any case, there is no basis to Jackson's claim that his revocation hearing was not timely held. Generally, "[a] revocation hearing shall be held within 120 days from the date the [Parole] Board received official verification of the plea of guilty or nolo contendere or of the guilty verdict at the highest trial court level[.]" 37 Pa. Code §71.4(1). Because Jackson was confined in the Dauphin County Prison at the time of his conviction, the exception to the calculation of the 120-day period found in Section 71.4(1)(i) applies. Section 71.4(1)(i) states:
If a parolee is confined outside the jurisdiction of the Department of Corrections, such as confinement out-of-State, confinement in a Federal correctional institution or confinement in a county correctional institution where the parolee has not waived the right to a revocation hearing by a panel in accordance with Commonwealth ex rel. Rambeau v. Rundle, 455 Pa. 8, 314 A.2d 842 (1973), the revocation hearing shall be held within 120 days of the official verification of the return of the parolee to a State correctional facility.37 Pa. Code §71.4(1)(i) (emphasis added). In short, the 120-day period does not begin to run until the parolee is returned to "a State correctional facility." Id.
Jackson errs in his belief that the Parole Board had to conduct the revocation hearing within 120 days of official verification of his conviction. Johnson v. Pennsylvania Board of Probation and Parole, 19 A.3d 1178, 1180 (Pa. Cmwlth. 2011) (receipt of official verification of conviction irrelevant where parolee held in county prison; revocation hearing must be held within 120 days of official verification of parolee's return to an SCI). Rather, the Parole Board was required to hold the hearing within 120 days of Jackson's return to an SCI. The Pennsylvania Department of Corrections' "Moves Report" shows that Jackson returned to SCI Camp Hill on October 11, 2019. Certified Record at 120. Jackson's parole revocation hearing was held on December 20, 2019, which was 70 days after he returned to an SCI; thus, his hearing was timely under the Parole Board's regulations.
In sum, Jackson's petition for review was docketed on December 29, 2020, which is beyond 30 days from the Parole Board's adjudication mailed on November 23, 2020. Consequently, Jackson's appeal is untimely. For these reasons, we grant the Parole Board's application and dismiss Jackson's petition for review.
ORDER
AND NOW, this 30th day of September, 2021, the Pennsylvania Parole Board's Application to Dismiss is GRANTED, and Gregory Jackson's petition for review is DISMISSED.