Opinion
No. 1509 C.D. 2011
05-23-2012
William Thomas, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
William Thomas petitions for review of an Order of the Pennsylvania Board of Probation and Parole (Board) dismissing his request for administrative relief as untimely. We affirm.
The Board filed an Application to Limit the Issue on August 19, 2011 seeking to limit the issue in this matter to the timeliness of Thomas' request for administrative relief. By Order filed October 3, 2011, this Court denied the application without prejudice to the Board to file a motion to quash or to address the limitation or waiver of issues in its brief on the merits. On October 5, 2011, the Board filed a Motion to Quash Thomas' Petition for Review to this Court due to Thomas' untimely request for administrative relief. Since Thomas' Petition for Review was timely filed with this Court, by Order filed October 27, 2011, this Court denied the Board's Motion to Quash without prejudice to the Board to argue in its brief on the merits that the Board's action in dismissing Thomas' request for administrative relief should be affirmed for failure to preserve any issue that may properly be brought before this Court.
By decision mailed November 23, 2010, the Board recommitted Thomas, under institution sentence number EZ-6258, to serve nine months backtime as a technical parole violator, when available, pending parole from or completion of his state correctional institution sentence number JL-9706. The November 23, 2010 decision notified Thomas that if he wished to appeal the Board's decision, he must file a request for administrative relief within thirty days. Thomas' request for administrative relief from the Board's November 23, 2010 decision was postmarked on June 20, 2011 and received by the Board on June 22, 2011. Thus, by Order mailed July 13, 2011, the Board dismissed Thomas' request as untimely pursuant to 37 Pa. Code § 73.1(a). Thomas now petitions this Court for review.
Section 73.1 of Title 37 of the Board's regulations governs both appeals and petitions for administrative review of revocation decisions. Section 73.1(a) provides, in pertinent part, that an interested party may appeal a revocation decision; however, the appeal must "be received at the Board's Central Office within 30 days of the mailing date of the Board's order." 37 Pa. Code § 73.1(a). Notwithstanding the Board's July 13, 2011 determination that Thomas' request for administrative relief was untimely, the Board explained to Thomas why he had to serve the imposed 9 months backtime after he is paroled from or completes his sentence at institution sentence number JL-9706. (Board Decision, July 13, 2011, at 1.)
Our scope of review of a decision by the Board is limited to determining whether necessary findings of fact are supported by substantial evidence, whether an error of law was committed, or whether the constitutional rights of the parolee were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704, Gaito v. Pennsylvania Board of Probation and Parole, 563 A.2d 545, 547 (Pa. Cmwlth. 1989).
Thomas contends that the Board erred in dismissing his appeal as untimely because he is not challenging the imposition of the 9 months backtime for technical parole violations but, instead, is challenging the requirement that he complete or be paroled from institution sentence number JL-9706 before he may serve this backtime. Citing this Court's decision in Harper v. Pennsylvania Board of Probation and Parole, 565 A.2d 1244 (Pa. Cmwlth. 1989), Thomas argues that: (1) because he is not challenging the Board's decision to recommit him, an appeal under 37 Pa. Code § 73.1(a) is not an appropriate remedy; and (2) the date when a recommitment period ends is clearly a determination relating to the parole revocation decision; therefore, pursuant to 37 Pa. Code § 73.1(b)(1), his petition to the Board for administrative relief was the appropriate remedy for his objection to the Board's November 23, 2010 decision recommitting him as a technical parole violator. Thomas argues that "[s]imilarly, [he] is objecting to the allocation of time served towards his original sentence, particularly the time on constructive parole until his technical parole violation." (Thomas' Br. at 10.)
We note that in Thomas' request to the Board for administrative relief, Thomas states that "[a]dministrative relief is requested/reconsideration for the following reasons" and he avers that the Board has the authority to address his request for administrative relief as a request for reconsideration which is not subject to the thirty day appeal period. (Request for Administrative Appeal at 1-2, Certified Record, Item 19.) As support for this assertion, Thomas cites this Court's decision in Snipes v. Pennsylvania Board of Probation and Parole, 527 A.2d 1080, 1082 (Pa. Cmwlth. 1987) (this Court reaffirmed that the Board may address a request for reconsideration beyond the thirty day appeal period provided by the Board's regulations). (Request for Administrative Appeal at 2, Certified Record, Item 19.) However, Thomas does not aver in his Petition for Review or argue before this Court that his pro se request for administrative relief from the Board's November 23, 2010 decision should have been treated by the Board as a request for reconsideration rather than an administrative appeal. Accordingly, Thomas has waived this issue. See Pa. R.A.P. 1513(d) (stating that the petition for review shall contain a statement of the objections to the determination under review); see also Brehm v. Workers' Compensation Appeal Board (Hygienic Sanitation Company), 782 A.2d 1077, 1081 n.15 (Pa. Cmwlth. 2001) (stating that the failure to preserve an issue in the petition for review results in a waiver of the issue); Aveline v. Pennsylvania Board of Probation and Parole, 729 A.2d 1254, 1256 n.5 (Pa. Cmwlth. 1999) (issues not raised, or developed, within a party's brief are waived for appellate review). Moreover, even if Thomas had not waived this issue, the Board did not err by not considering Thomas' request for administrative relief as a timely request for reconsideration of its November 23, 2010 decision. Thomas did not contend in his request that there had been a subsequent retroactive change in the law which would produce a different result from the Board's decision. (Request for Administrative Appeal at 1-2, Certified Record, Item 19.); See Flowers v. Pennsylvania Board of Probation and Parole, 565 A.2d 185, 186 (Pa. Cmwlth. 1989) (the Board did not abuse its discretion by denying petitioner's request for reconsideration as untimely where petitioner did not argue "that there has been a subsequent change in the law which could be applied retroactively to produce a different result from the [B]oard's disposition."). --------
In Harper, 565 A.2d at 1245, the petitioner applied for a writ of mandamus to compel the Board to set a parole date in its recommitment order following the revocation of the petitioner's parole. The Board objected to the petitioner's application asserting that an action in mandamus could not lie because an administrative appeal was available to the parolee. Upon review, this Court held that:
[b]ecause Petitioner is not disputing the Board's decision to recommit, an appeal from the decision, under 37 Pa. Code § 73.1(a), is not an appropriate remedy. However, the date when a recommitment period ends is clearly a determination relating to the parole revocation decision. 37 Pa. Code § 73.1(b)(1) provides in pertinent part that "a parolee . . . may petition for administrative review . . . of determinations relating to revocation decisions . . . ." We conclude that administrative review is an adequate and appropriate remedy for Petitioner's objection. Consequently mandamus cannot lie.Id. Therefore, while Thomas is correct in his recitation of the law, the flaw in his argument is that 37 Pa. Code § 73.1(b)(1), governing petitions for administrative review of revocation decisions, like 37 Pa. Code § 73.1(a), mandates that "[p]etitions for administrative review shall be received at the Board's Central Office within 30 days of the mailing date of the Board's determination." Accordingly, the Board did not abuse its discretion by dismissing, as untimely, Thomas' request for administrative relief from the Board's November 23, 2010 decision, which was received by the Board on June 22, 2011.
We therefore affirm the Board's Decision, mailed July 13, 2011.
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RENÉE COHN JUBELIRER, Judge ORDER
NOW, May 23, 2012, the Order of the Pennsylvania Board of Probation and Parole mailed July 13, 2011 in the above-captioned matter is AFFIRMED.
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RENÉE COHN JUBELIRER, Judge