Opinion
No. 1893 C.D. 2013
02-19-2015
John Moultrie, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
John Moultrie petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) denying his administrative appeal from an order recommitting him to serve backtime as a convicted parole violator. In addition, attorney James L. Best of the Office of Independent Defense Counsel of Northumberland County petitions this court for leave to withdraw as court-appointed counsel on the ground that Moultrie's appeal lacks merit. On appeal, Moultrie raises the issues of whether the Board erred in dismissing his administrative appeal as untimely filed and whether the Board erred in failing to give him credit for time on parole when it recalculated his maximum date. After review, we agree that the petition lacks merit. Therefore, we grant the application to withdraw and affirm the Board's determination.
Relevant to this appeal, Moultrie was convicted for committing several criminal offenses while he was on parole. Moultrie waived his parole revocation hearing and the Board recommitted Moultrie to serve six months backtime in a decision mailed on July 16, 2013. Because Moultrie was not given credit for the time he spent on parole, his maximum parole expiration date was recalculated to December 13, 2017. It is undisputed that Moultrie's subsequent pro se administrative appeal was post-marked August 23, 2013, and received by the Board on August 28, 2013. In his administrative appeal, Moultrie averred that on July 16, he was transferred from SCI-Graterford to SCI-Coal Township and that he first received his "green sheet" (the Board's order) on July 26. The Board dismissed the appeal as untimely because it was not received within 30 days of the date the Board mailed its recommitment order. See Board's Order mailed November 19, 2013. Moultrie's pro se petition for review followed and Best was subsequently appointed to represent him on appeal.
We note the decision indicates that Moultrie was located at SCI-Graterford.
In his pro se papers filed with this court, Moultrie essentially contends that his appeal to the Board was not untimely because his transfer to another correctional facility delayed his receipt of the order. Moultrie also contends that the Board abused its discretion when it failed to credit him for time spent on parole. In his no-merit letter, counsel details why he believes these contentions lack merit. Counsel served his petition to withdraw and the no-merit letter on Moultrie as well as this court's subsequent order advising Moultrie of his right to retain substitute counsel or to file a brief on his own behalf. Procedurally, counsel has satisfied the requirements for seeking to withdraw his representation. See Miskovitch v. Pa. Bd. of Prob. & Parole, 77 A.3d 66, 69 (Pa. Cmwlth. 2013), appeal denied, 87 A.3d 322 (Pa. 2014); Hughes v. Pa. Bd. of Prob. & Parole, 977 A.2d 19, 22 (Pa. Cmwlth. 2009). In reviewing counsel's petition, we independently evaluate the merits of Moultrie's appeal. Miskovitch, 77 A.3d at 70.
We note that new counsel has not entered an appearance and Moultrie has not filed a pro se brief.
Beginning with the issue of whether Moultrie's appeal was untimely, we note that it is well settled that an appeal from a Board recommitment order must be received by the Board within thirty days of the mailing date of the Board's order. See 37 Pa. Code § 73.1. An appeal period is jurisdictional and cannot be judicially extended "absent a showing of fraud or a breakdown of the administrative process." Smith v. Pa. Bd. of Prob. & Parole, 81 A.3d 1091, 1094 (Pa. Cmwlth. 2013). The Board's regulations also provide that if revocation of parole is ordered following a conviction for a new criminal offense, "the revocation decision shall be transmitted to the parolee and to counsel of record." 37 Pa. Code § 71.4(8).
There is no dispute that the Board received Moultrie's administrative appeal after the thirty-day period had passed. However, in his appeal papers filed with the Board and this court, Moultrie avers that the Board's decision was sent to the wrong address because he was transferred to a different correctional facility, thereby delaying his receipt of the decision. In Moore v. Pennsylvania Board of Probation and Parole, 503 A.2d 1099 (Pa. Cmwlth. 1986), this court concluded that the Board's failure to send its decision to the parolee's correct address could amount to an administrative breakdown warranting the allowance of an appeal nunc pro tunc. Id. at 1101. See also Calcagni v. Pa. Bd. of Prob. & Parole, 582 A.2d 1141 (Pa. Cmwlth. 1990). While the Board has not responded to this contention, in light of the underlying merits argument, we conclude that a remand is not necessary for consideration of these averments. Based on Moultrie's averments, even if his receipt of the order was delayed, he still had from July 26 until mid-August to file his appeal. However, even assuming, arguendo, that Moultrie is entitled to a nunc pro tunc appeal, his challenge to the recalculation of his maximum parole expiration date is without merit.
In his no-merit letter, counsel appears to have mis-read Moultrie's administrative appeal to state that he received the Board's order while incarcerated at SCI-Graterford.
Regarding the merits, Moultrie contends that the Board abused its discretion when it recalculated his maximum date without giving him credit for the time he spent on parole in "good standing." In support, he notes the recent amendment to Section 6138 of the Prison and Parole Code (Code), 61 Pa. C.S. § 6138, which allows the Board to afford credit for time spent on parole. Section 6138(a) (pertaining to convicted violators) provides in pertinent part:
(1) A parolee under the jurisdiction of the board released from a correctional facility who, during the period of parole . . . commits a crime punishable by imprisonment, for which the parolee is convicted . . . 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 . . . . [Footnote added].Prior to the addition of subsection (2.1), the Code mandated that a convicted parole violator forfeit all time spent at liberty on parole. Section 6138(a)(2). Accord Richards v. Pa. Bd. of Prob. & Parole, 20 A.3d 596, 599 (Pa. Cmwlth. 2011) (en banc). While Moultrie is correct that the Board now has discretion to award credit for time spent on parole, the Board commits an abuse of discretion only when it acts in "bad faith, fraudulently, capriciously or commits an abuse of its power." Baldelli v. Pa. Bd. of Prob. & Parole, 76 A.3d 92, 96 (Pa. Cmwlth. 2013), appeal denied, 83 A.3d 416 (Pa. 2014). "Due to the broad discretionary powers granted the Board, we will only find that the Board made an arbitrary, capricious or unreasonable determination in the absence of substantial evidence in the record to support that determination." Id. (internal quotations and citation omitted). Here, considering that credit for time spent at liberty on parole is purely a discretionary matter for the Board, and that Moultrie waived his revocation hearing, thereby passing on the opportunity to offer any evidence to create a record supporting an award of credit, we must conclude that no abuse of discretion has occurred. The record is simply devoid of any evidence to support a different conclusion.
Subsection 2.1 was added by Section 15 of the Act of July 5, 2012, P.L. 1050. --------
Based upon the foregoing, we grant the petition for leave to withdraw as counsel and affirm the Board's order.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 19th day of February, 2015, the petition of James L. Best, Esquire, for leave to withdraw as counsel for John Moultrie is hereby GRANTED, and the order of the Pennsylvania Board of Probation and Parole is AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge