Opinion
No. 2177 C.D. 2011
07-25-2012
Anthony K. Spells, 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
Anthony K. Spells (Petitioner) petitions this court for review of the order of the Pennsylvania Board of Probation and Parole (Board) dismissing as untimely his administrative appeal from the Board's revocation order mailed October 3, 1991. After review, we affirm.
Petitioner was originally sentenced on January 9, 1984 by the trial court to a term of five-to-ten years for robbery with serious bodily injury, and burglary. He was paroled on June 30, 1988 and subsequently recommitted by the Board to serve twelve-months back time as a technical parole violator. Petitioner was reparoled on August 16, 1989, and then detained by the Board's action recorded February 2, 1991, pending disposition of Dauphin County criminal charges. Petitioner was subsequently convicted in federal court on firearms offenses.
Petitioner was sentenced by Judge Ronald L. Buckwalter, of the Court of Common Pleas of Lancaster County. Sentence Status Summary; Certified Record (C.R.) at 1.
In the meantime, the Board held a revocation hearing and, by decision of the Board recorded August 28, 1991 and mailed October 3, 1991, recommitted Petitioner as a convicted parole violator to serve the unexpired term for the 1984 Lancaster County robbery conviction and sentence when available. Following sentencing on the Dauphin County conviction, Petitioner was transported to SCI-Camp Hill on September 29, 1992, where, he alleges, he learned of the revocation decision. Petitioner was then released to a federal detainer and began serving a sentence of 21 years 10 months in federal prison on October 7, 1992.
In his Petition for Administrative Relief Nunc Pro Tunc, Petitioner states that he was arrested on December 24, 1990 in Dauphin County and charged with burglary and firearms offenses, for which he was found guilty on June 24, 1991. Petitioner alleges he was thereafter arrested by federal officials and charged with firearms offenses as a result of this same Dauphin County incident. Petitioner alleges he was found guilty of the federal charges on April 29, 1992 and sentenced on July 29, 1992. Petitioner was subsequently sentenced on the Dauphin County charges on September 22, 1992. It was when he was transported to SCI-Camp Hill on September 29, 1992 that Petitioner alleges he was notified of the revocation decision, when "a parole agent attempted to serve a copy of the decision stamped October 3, 1991." C.R. at 34.
Petitioner was returned to state custody at SCI-Camp Hill on May 5, 2010 to serve his unexpired term under his original sentence for robbery. Thereafter, in a decision mailed October 22, 2010, the Board modified its October 3, 1991 action by "changing the recommitment period to 6 months and adding mitigating reason of: served approximately 18 continuous years in Federal Prison System." Notice of Board Decision, October 22, 2010; C.R. at 21. Petitioner's request for administrative relief from this decision was denied by the Board by letter mailed January 5, 2011.
Petitioner, pro se, filed a Petition for Administrative Relief Nunc Pro Tunc from the Board's October 3, 1991 decision on September 20, 2011. Petitioner argued, among other things, that the Board failed to give him a copy of this decision in a timely manner. Petitioner asserted, as grounds for allowing the appeal nunc pro tunc, that because he did not learn about the October 3, 1991 decision until September 29, 1992, he was unable to timely file his appeal within 30 days; that just 9 days after learning of the decision, he was turned over to federal custody, where he had no access to Pennsylvania law books; that all attempts to contact the Board through federal prison officials "was met with a responce [sic] that the issues would be dealt with once Petitioner was returned to state custody"; and, finally, that after he returned to state custody, he met with his attorney just "moments before a revocation hearing" in order to brief the attorney on the background of his case and give him all pertinent papers. Petition for Administrative Relief Nunc Pro Tunc; C.R. at 35.
The Board dismissed Petitioner's administrative appeal as untimely. In its decision, the Board found that the Petitioner's appeal would have to have been received by it on or before November 4, 1991, or submitted to prison officials by that date. The Board concluded that he had "not alleged sufficient grounds to justify accepting [his] appeal nunc pro tunc because even if [he] did not learn about the decision until September 29, 1992 as [he] claim[s], [his] appeal would still be untimely." Board's Letter dated October 26, 2011; C.R. at 40.
In Smith v. Pennsylvania Board of Probation and Parole, 546 Pa. 115, 683 A.2d 278 (1996), our Supreme Court held that a state appellate court shall consider a pro se prisoner's appeal from a governmental agency decision to be filed when such appeal is deposited with prison officials or placed in the prison mailbox. In Pettibone v. Pennsylvania Board of Probation and Parole, 782 A.2d 605, 608 (Pa. Cmwlth. 2001), this court extended the "prisoner mailbox rule" to pro se administrative appeals filed with the Board.
Petitioner filed a petition for review with this court. Upon motion of the Respondent Board, this court limited the issues to whether the Board properly dismissed his administrative appeal as untimely and whether Petitioner alleged sufficient grounds for acceptance of his appeal nunc pro tunc.
See this court's January 4, 2012 order.
Petitioner argues that through no fault of his own, he missed the thirty-day appeal period and, therefore, should be permitted to appeal nunc pro tunc. Petitioner asserts that the courts have extended the time for taking an appeal where the party can show that fraud, duress or coercion caused the delay, citing Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 1133 (1979). Petitioner argues that the administrative breakdown occurred when he did not receive the October 3, 1991 revocation decision within the 30-day appeal period and that it had already expired when he received a copy of the decision from a parole agent on September 29, 1992. Petitioner contends that the courts have held that negligence on the part of administrative officials may be deemed to be the equivalent of fraud. Branch v. Workmen's Comp. Appeal Bd. and Somerset Knitting Mills, 393 A.2d 55 (Pa. Cmwlth. 1978). Petitioner claims that he made several attempts to contact the Board about his appeal and was "informed" by a federal prison official that the appeal "would be dealt with upon his return to state custody." Petitioner's Brief, at 11. Petitioner argues that if the untimeliness of the appeal is the result of some third party's intervening negligence, then an appeal nunc pro tunc would be appropriate. Walker v. Unemployment Comp. Bd. of Review, 461 A.2d 346 (Pa. Cmwlth. 1983).
The Board counters that it properly dismissed Petitioner's pro se administrative appeal from the [October 3, 1991] revocation decision personally served on him on September 29, 1992, as untimely because it was not filed before the 30-day appeal period had expired, as required by former 61 P.S. § 331.4(d), now 61 Pa. C.S. § 6113(d)(1). The Board states that in order for his appeal to have been timely, it had to have been filed or placed in the prison mailbox within 30 days of September 29, 1992, or by October 29, 1992. The Board argues that Petitioner presented nothing other than his "bald assertion that some unidentified person at some unspecified time told him that 'the issues would be dealt with once [he] was returned to state custody'" to support his request for leave to file his appeal nunc pro tunc. Board's Brief, at 6. The Board contends that Petitioner has given no explanation for why he waited until September 20, 2011, or almost a year and a half after his return to state custody in May 2010, before he filed his administrative appeal of a revocation decision that had been personally served on him on September 29, 1992. We agree.
A party seeking permission to file an appeal nunc pro tunc must also establish that "(1) the appeal was filed within a short time after learning of and having an opportunity to address the untimeliness; (2) the elapsed time period is of very short duration; and (3) the appellee will not be prejudiced by the delay." H.D. v. Pa. Dep't. of Pub. Welfare, 751 A.2d 1216, 1219 (Pa. Cmwlth. 2000). The time for taking an appeal cannot be extended as a matter of grace or mere indulgence. Bass. Without a showing that fraud, duress or coercion caused the delay, an appeal nunc pro tunc will not be granted. Branch. Here, even accepting Petitioner's allegation that there was negligence on the part of administrative officials in failing to notify him of the October 3, 1991 revocation decision until September 29, 1992, he does not adequately explain the reason why he waited until September 20, 2011 to appeal the Board's decision. His mere assertion, without supporting evidence, that "[a]ll attempts to contact the Board through federal prison officials was met with a responce [sic] that the issues would be dealt with once Petitioner was returned to state custody" alone fails to establish his entitlement to file an appeal nunc pro tunc. Petition for Administrative Relief Nunc Pro Tunc, paragraph 23 (e); C.R. at 35. Moreover, even after he was returned to state custody on May 5, 2010, after serving more than 18 years in federal prison, Petitioner did not act promptly to file a nunc pro tunc appeal. Instead, he waited more than 16 months before filing his appeal on September 20, 2011.
The Board admits that the decision was mailed to Petitioner "at the wrong prison . . . ." Board's Brief, at 2. --------
Because the record supports the Board's conclusion that Petitioner has not established sufficient grounds for an appeal nunc pro tunc, the Board's order is affirmed.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 25th day of July 2012, the order of the Pennsylvania Board of Probation and Parole in the above-captioned matter is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge