Opinion
No. 2012 C.D. 2013
03-17-2015
Brandon M. Wallace, 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 COVEY
Brandon M. Wallace (Wallace), an inmate at State Correctional Institution - Mahanoy, petitions this Court for review of the Pennsylvania Board of Probation and Parole's (Board) October 23, 2013 order dismissing his request for administrative relief as untimely. Wallace's counsel, Kent D. Watkins, Esquire (Counsel), has filed a petition to withdraw representation (Withdrawal Petition) and submitted a no-merit letter in support thereof. After review, we grant Counsel's application and affirm the Board's order.
On August 2, 2004, Wallace was paroled from an 8-year and 4-month to 20-year sentence for third-degree murder, and a consecutive 6-month sentence for carrying a firearm without a license. At that time, his maximum release date was July 18, 2016. As a result of new drug offenses committed in April 2005 while he was on parole, Wallace was recommitted as a convicted parole violator by Board decision issued July 7, 2005. Based upon his recommitment, Wallace's maximum release date was recalculated to May 23, 2017. However, by decision mailed December 6, 2005, the Board corrected Wallace's maximum release date to January 29, 2017.
Because Section 73.1(b)(1) of the Board's Regulations requires 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," to the extent that the dates on which the Board rendered its decisions differ from the mailing dates, we will specify herein the dates on which its decisions were mailed/issued. 37 Pa.Code § 73.1(b)(1) (emphasis added).
Wallace was reparoled on October 5, 2006 to a detainer sentence. On June 26, 2008, he was paroled from his detainer sentence to a home plan. As a result of additional new drug offenses committed while he was on reparole, by decision issued June 21, 2010, Wallace was recommitted as a convicted parole violator. According to the Board's January 25, 2011 decision, which was issued February 14, 2011, Wallace's maximum release date was recalculated to October 31, 2020. That letter stated:
IF YOU WISH TO APPEAL THIS DECISION, YOU MUST FILE A REQUEST FOR ADMINISTRATIVE RELIEF WITH THE BOARD WITHIN THIRTY 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 THE COMMONWEALTH COURT.Certified Record (C.R.) at 28. As a result of this notice, Wallace was informed that he had until March 16, 2011 to appeal from the recalculation of his October 31, 2020 maximum release date.
Wallace was notified by the Board's January 10, 2012 decision that he was denied reparole and that his maximum release date remained October 31, 2020. By January 30, 2012 letter to the Board Secretary, Wallace requested administrative relief "asking to please reconsider the decision rendered and offer [him] the opportunity to be reparoled . . . ." Counsel April 28, 2014 No-Merit Letter, Ex. A. Wallace stated in the letter that he thought the October 31, 2020 maximum release date was "a mistake." Id. By February 23, 2012 letter, the Board notified Wallace that his request for reconsideration of the Board's January 10, 2012 parole denial was denied because there is no right to administrative relief from a discretionary decision to refuse parole. Id.
By July 2, 2013 decision, the Board again denied Wallace reparole, and stated that his maximum release date is October 31, 2020. On July 31, 2013, the Board received a letter from Wallace challenging his October 31, 2020 date, in which he explained:
I am requesting credit to my original maximum sentence for time spent in official state custody. On 4-14-09[,] I was arrested on county charges that where [sic] later withdrawn, [Davidson v. Pennsylvania Bd. of Prob. & Parole, 722 A.2d 232 (Pa. Cmwlth. 1998)] asserts that preconfinement credit time should be afforded to me for this period. I also believe that credit should be giving [sic] from the period of 8-24-09[,] the date in which I was assumed into state custody[,] thru 7-7-10 my sentencing by way of your agency, delivering me to a state correctional institution.C.R. at 32. On October 23, 2013, the Board dismissed Wallace's appeal as untimely, stating:
Please be advised that Board regulations provide that petitions for administrative review must be received at the Board's Central Office within 30 days of the mailing date of the Board's determination. See 37 Pa. Code § 73.1(b); see also Flowers v. [Pennsylvania Bd. of Prob. & Parole], 565 A.2d 1985 (Pa. Cmwlth. 1989). You were clearly advised of your appeal rights on the face of the aforementioned Board decision; however, for whatever reason, you chose not to file a timely petition for administrative review. The consequence for making that choice is that your request for administrative relief is deemed untimely since the Board did not receive them [sic] within the applicable time period.C.R. at 34. Wallace appealed from the Board's decision to this Court. By December 30, 2013 order, this Court, inter alia, appointed Counsel for Wallace's appeal.
"Our review in a parole revocation action is limited to determining whether the findings were supported by substantial evidence, whether constitutional rights were violated, or whether the Board committed an error of law." Flowers v. Pennsylvania Bd. of Prob. & Parole, 987 A.2d 1269, 1271 n.3 (Pa. Cmwlth. 2010).
The Board filed a motion to limit the issue on appeal. On January 15, 2014, this Court granted the Board's application to stay transmission of the record pending disposition of the Board's motion to limit the issue. By January 30, 2014 order, this Court granted the Board's motion and limited the issue on appeal to whether the Board properly dismissed Wallace's appeal as untimely.
In his April 28, 2014 letter, Counsel detailed the history of Wallace's claim, and concluded that in light of his exhaustive examination of the record and research, Wallace's appeal "has no basis in law or in fact and is, therefore, frivolous." Counsel No-Merit Letter at 3. Counsel enclosed Wallace's January 30, 2012 letter and the Board's February 23, 2012 response (which were not included in the Board's Certified Record) with the letter. The letter further notified the Court and Wallace that Counsel would file the Withdrawal Petition, and advised Wallace of his right to retain substitute counsel or to proceed pro se. On April 30, 2014, this Court ordered Counsel's Withdrawal Petition to be considered along with the merits of Wallace's appeal.
We will first consider Counsel's Withdrawal Petition. Pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1998) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (Turner/Finley), an attorney seeking to withdraw representation must review the case zealously, and
then submit a 'no-merit' letter to the trial court, or brief on appeal to this Court, detailing the nature and extent of counsel's diligent review of the case, listing the issues which the petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw.Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007). "[C]ounsel must fully comply with the procedures outlined in Turner to ensure that each of the petitioner's claims has been considered and that counsel has a substantive reason for concluding that those claims are meritless." Hont v. Pennsylvania Bd. of Prob. & Parole, 680 A.2d 47, 48 (Pa. Cmwlth. 1996). "Counsel must also send to the petitioner: (1) a copy of the 'no-merit' letter/brief; (2) a copy of counsel's petition to withdraw; and (3) a statement advising petitioner of the right to proceed [pro se] or by new counsel." Wrecks, 931 A.2d at 721. "[T]he [C]ourt does not reach an examination of the merits of the appeal until it is satisfied that counsel has discharged its responsibility in complying with the technical requirements of . . . a no-merit letter." Wesley v. Pennsylvania Bd. of Prob. & Parole, 614 A.2d 355, 356 (Pa. Cmwlth. 1992).
Accordingly, we review Counsel's no-merit letter to determine whether it properly lists Wallace's issues and explains why the appeal lacks merit. The sole issue before this Court for review is whether the Board properly dismissed Wallace's appeal as untimely. Counsel's letter reflects a "diligent review of the case," addressing the issues raised and explaining why those issues do not have merit. Wrecks, 931 A.2d at 721. The letter sets forth the proper standard of review, and explains the basis for Counsel's statement that the Board properly dismissed Wallace's appeal as untimely. Further, the record demonstrates that Counsel sent Wallace the required documents. Finding that Counsel's letter satisfies the requirements of Turner and Finley, we review the merits of Wallace's appeal.
Wallace does not dispute that his administrative appeal was untimely. Rather, he maintains that the Board should have allowed him to proceed nunc pro tunc because there was a breakdown in the administrative process. Wallace maintains that Board personnel supplied information that caused his appeal to be filed with the wrong tribunal, and that the negligence of Board personnel resulted in the delayed processing of his otherwise timely appeal.
Section 73.1(b) of the Board's Regulations provides, in pertinent part:
(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 at 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 the petition for administrative review. This subsection supersedes 1 Pa. Code § 35.226 [relating to final agency orders].37 Pa. Code § 73.1(b) (emphasis added). "Where a prisoner fails to meet this deadline, this [C]ourt has held that the Board has no jurisdiction to entertain the appeal and should dismiss it as untimely." McCaskill v. Pennsylvania Bd. of Prob. & Parole, 631 A.2d 1092, 1095 (Pa. Cmwlth. 1993).
. . . .
(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.
We acknowledge that "[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 v. Pennsylvania Bd. of Prob. & Parole, 81 A.3d 1091, 1094 (Pa. Cmwlth. 2013).
A party seeking permission to file a nunc pro tunc appeal . . . needs to establish that: (1) [he] filed the appeal shortly after learning of and having an opportunity to address the untimeliness; (2) the elapsed time is one of very short
duration; and (3) the respondent will not suffer prejudice due to the delay.Id. at 1094 n.4 (quoting J.A. v. Dep't of Pub. Welfare, 873 A.2d 782, 785 n.4 (Pa. Cmwlth. 2005)). Thus, "the 'petitioner in an appeal nunc pro tunc must proceed with reasonable diligence once he knows of the necessity to take action.'" Id. (quoting Kamiski v. Montgomery Cnty. Bd. of Assessment Appeals, 657 A.2d 1028, 1031 (Pa. Cmwlth. 1995)).
However, Wallace was notified by the Board's decision issued February 14, 2011 that his maximum release date was October 31, 2020, and that he had 30 days to appeal from the decision. Based upon the record, the first time Wallace mentioned his October 31, 2020 maximum release date was nearly 1 year after it was calculated, on January 30, 2012 - in a letter seeking to have the Board reconsider its decision not to reparole him. Wallace did not raise the issue to the Board again until another 1½ years later, on July 31, 2013.
In his petition for review, Wallace again asserted why he was entitled to a credit for his pre-trial state custody, but never mentioned that he was prevented from seeking timely review of his maximum release date calculation. Rather, he argued that the Board should have considered his July 2013 letter an appeal nunc pro tunc. Wallace's July 2013 letter, however, merely restated his plea for credit for his time spent in state custody. The letter did not in any manner indicate that there was any third-party negligence or breakdown in the administrative process related to his attempts to get that credit. Thus, the Board had no basis on which to deem Wallace's July 2013 letter an appeal nunc pro tunc.
In his brief, Wallace for the first time claims that the Board negligently issued its February 14, 2011 recommitment order with the October 31, 2020 maximum release date before it received the March 26, 2012 verification that his state sentence was to be served concurrently with his federal sentence and, as a result, he sought correction of the order in the federal court instead of seeking the Board's review. Wallace Br. at 9. Wallace declared that he
labored in federal court for over three months, from [March] 3, 2011 to September 26, 2011, before he learned the [B]oard's recommitment was premature . . . . Now armed with the correct information[,] [Wallace] sent a letter to the [B]oard seeking correction of the maximum sentence. Despite having knowledge of its error due to its receipt of the official verification of sentence in the federal court, the [B]oard dismissed [Wallace's] challenge as untimely.Wallace Br. at 9-10. Wallace contends that "the Board's premature recommitment set into motion events that caused [him] to take his appeal to the wrong tribunal." Wallace Br. at 11. "Had the Board waited until the official verification of sentence was received from the [f]ederal [c]ourt before conducting its recommitment process[,] it is likely the correct calculation of the maximum sentence would have taken place." Id. Wallace also avers that this Court "can infer that the Board's actions amount to negligence, and that negligence resulted in delay in processing an otherwise timely appeal." Id. Wallace attached to his brief what purports to be May and August 2011 requests with supporting documents that he used to seek federal review and correction of his sentence. Those arguments and documents were neither referenced nor admitted before the Board.
Those documents were probably not available to Counsel at the time he conducted his evaluation.
Section 73.1(b)(2) of the Board's Regulations provides that "failure of a petition for administrative review to present with accuracy, brevity, clearness and specificity whatever is essential to a ready and adequate understanding of the factual and legal points requiring consideration" is a sufficient reason for denying the petition. 37 Pa. Code § 73.1(b)(2). Further, the law is well settled that issues not raised by a convicted parole violator in an administrative appeal to the Board are waived for purposes of appellate review. McCaskill; McDaniel v. Pennsylvania Bd. of Prob. & Parole, 587 A.2d 42 (Pa. Cmwlth. 1991). Because Wallace failed to claim in his administrative appeal or his petition for review that his appeal was late-filed due to the Board's negligence and/or administrative breakdown, that issue is waived.
Even if this Court were to determine that Wallace did not waive the issue of the Board's negligence or administrative breakdown, he provides no support for his conclusion that the Board erred by recommitting him before it received the March 26, 2012 federal verification that his state sentence was to be served concurrently with his federal sentence.
Moreover, Wallace clearly failed to "appeal shortly after learning of and having an opportunity to address the untimeliness," and the elapsed time was not "one of very short duration." Smith, 81 A.3d at 1094 n.4. Wallace does not deny that he received the Board's decision issued February 14, 2011, which clearly reflects that his new maximum release date was October 31, 2020, and that he had 30 days to appeal therefrom. He also relied upon a Pennsylvania Department of Corrections Sentence Status Summary issued March 3, 2011, on which is reflected the same October 31, 2020 maximum date. C.R. at 1-3. Arguably, even if Wallace did not become aware of the need to appeal the Board's maximum release date recalculation issued February 14, 2011 until he was "[a]rmed with the September 26 2011, federal sentence computation sheet[,]" he did not raise the issue to the Board until he sent his January 2012 reconsideration request. Wallace Br. at 7, 9. Wallace did not appeal from the Board's February 2012 denial of that request. Thereafter, Wallace waited another 1½ years to raise the issue again. Ultimately, Wallace's July 2013 administrative appeal of his October 31, 2020 maximum release date calculation was filed 868 days after his March 16, 2011 deadline. Accordingly, Wallace did not "proceed with reasonable diligence once he [knew] of the necessity to take action." Smith, 81 A.3d at 1094.
Although here Wallace admits that he knew of the Board's error after he received the September 26, 2011 federal computation sheet, his January 30, 2012 letter reflects that "[he] was informed" that his maximum release date was October 31, 2020 by the Board's January 10, 2012 decision again denying him reparole. Counsel April 28, 2014 No-Merit Letter, Ex. A. --------
For all of the above reasons, Counsel's application for leave to withdraw as counsel is granted, and the Board's dismissal of Wallace's appeal is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 17th day of March, 2015, Kent D. Watkins, Esquire's application for leave to withdraw as counsel is granted, and the Pennsylvania Board of Probation and Parole's October 23, 2013 dismissal of Brandon M. Wallace's administrative appeal is affirmed.
/s/_________
ANNE E. COVEY, Judge