IN THE COMMONWEALTH COURT OF PENNSYLVANIA
James Oliver, :
Petitioner :
:
v. :
:
Pennsylvania Board :
of Probation and Parole, : No. 1189 C.D. 2015
Respondent : Submitted: January 8, 2016
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: May 11, 2016
James Oliver (Oliver) petitions this Court for review of the Pennsylvania
Board of Probation and Parole’s (Board) May 26, 2015 order dismissing his
administrative appeal as untimely. Oliver presents two issues for this Court’s review:
(1) whether the Board erred by not crediting Oliver with his street time 1 on a
previously-completed sentence; and (2) whether the Board erred by concluding that
Oliver’s request for administrative review was untimely. After review, we affirm.
On April 4, 1994, Oliver pled guilty to the manufacture, sale, delivery or
possession with intent to deliver illegal drugs and was sentenced to 4 to 10 years’
incarceration. On March 27, 1998, Oliver was paroled. On April 11, 2000, the
Philadelphia Police Department arrested Oliver. By May 30, 2000 decision, the
Board detained Oliver pending the disposition of those criminal charges. On
December 19, 2001, the Board issued an order to recommit Oliver as a convicted
1
“‘Street time’ is a term for the period of time a parolee spends at liberty on parole.”
Dorsey v. Pa. Bd. of Prob. & Parole, 854 A.2d 994, 996 n.3 (Pa. Cmwlth. 2004).
parole violator to serve 12 months’ backtime at the Philadelphia County Prison. On
June 17, 2002, the Board set the parole violation maximum release date as December
17, 2006. On March 31, 2003, Oliver was reparoled to Kintock Community
Correction Center. On March 30, 2005, Oliver was recommitted as a technical parole
violator to serve three months’ backtime. Oliver’s parole violation maximum release
date remained December 17, 2006.
On June 6, 2005, Oliver was paroled to the Luzerne Treatment Center.
On October 15, 2005, the Board declared Oliver delinquent. On August 4, 2006, the
Philadelphia Police Department again arrested Oliver. On August 5, 2006, the Board
issued a warrant to commit and detain Oliver. By September 26, 2006 decision, the
Board detained Oliver pending new criminal charges that arose from that arrest. The
Board extended Oliver’s maximum release date to October 7, 2007. On November
14, 2006, Oliver was found guilty of his Philadelphia County charges. By March 8,
2007 decision, the Board recommitted Oliver as a technical parole violator to a term
of eight months and nine days. Oliver was paroled on October 15, 2007.
On December 9, 2008, the Board issued a warrant to detain and commit
Oliver for a parole violation. On December 11, 2008, Oliver waived his right to
counsel, a preliminary hearing, a panel hearing and a revocation hearing, and
admitted that he was convicted of aggravated assault, robbery, conspiracy and
weapons charges while he was on parole. By February 3, 2009 decision, the Board
recommitted Oliver as a convicted parole violator to 30 months’ backtime. By April
1, 2009 decision, the Board recommitted Oliver as a convicted and technical parole
violator to serve 30 months’ backtime with a parole maximum release date of May 7,
2011. On May 6, 2009, Oliver filed a pro se request for administrative relief
questioning whether his time spent at a half-way house was restrictive enough not to
be counted as liberty on parole and questioning his maximum parole date. An
evidentiary hearing was scheduled for October 23, 2009. Oliver requested a
2
continuance, and the hearing was held November 30, 2009. By January 14, 2010
decision, the Board determined that Oliver did not meet his burden of proving that he
is entitled to credit for his time spent at the Luzerne Treatment Center. Oliver did not
appeal from that decision.
By May 24, 2010 decision, the Board reparoled Oliver to his state
detainer sentence with a maximum release date of May 7, 2011. On March 25, 2015,
the Board received Oliver’s letter, wherein he requested a review of his May 7, 2011
maximum release date.2 The Board treated the request as an administrative appeal
from the Board’s April 8, 2009 decision which extended his maximum release date to
May 7, 2011. By response mailed May 26, 2015, the Board determined:
To the extent you are challenging the April 8, 2009 [B]oard
decision, the Board regulation authorizing administrative
relief states that second or subsequent administrative
appeals/petitions for administrative review will not be
received. 37 Pa. Code § 73.1. You already submitted a
request for administrative relief from the decision in
question, which was received on May 6, 2009. The Board
mailed a response to that request on June 25, 2009.
Therefore, the Board cannot accept your request for relief
because it is second or subsequent.
To the extent you are challenging the [Board decision
mailed] January 21, 2010 [recorded January 14, 2010], the
Board regulation governing administrative appeals states
that administrative appeals 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). This means you had
until February 20, 2010, to challenge this decision. Because
the Board did not receive your appeal on or before that date
2
Oliver included the following letters regarding his attempt to have his release date
addressed: a May 23, 2014 letter to the Board’s Director of Policy, Legislative Affairs and
Communications Sherry Tate asking whether his street time was properly taken from him when his
maximum release date was changed from January 25, 2004 to May 7, 2011; a May 26, 2014 request
for administrative review of his maximum release date (there is no record evidence that this was
ever delivered to the Board); and a March 10, 2015 letter to the Board’s Assistant Counsel
Lambrino.
3
and it was not submitted to prison officials for mailing by
that date, your appeal is untimely and cannot be accepted.
Accordingly, your administrative appeal is DISMISSED AS
SECOND OR SUBSEQUENT and UNTIMELY.
Certified Record (C.R.) at 151. Oliver appealed to this Court.3
Oliver first argues that the Board erred by not crediting him with his
street time on a previously-completed sentence. Specifically, Oliver contends that
because his maximum sentence date as of spring 2007 was October 7, 2007, and he
was found guilty on his additional charge in the fall of 2008, he could not be
sentenced to backtime for that violation because his maximum sentence had already
expired. Oliver asserts that, although he raised these issues in his May 6, 2009
request for administrative relief, they were not addressed at that time. However,
Oliver never appealed from the Board’s January 14, 2010 decision denying his
request for administrative relief and confirming his new maximum sentence date as
May 7, 2011.
Notwithstanding, although Oliver was found guilty for his additional
crime in the fall of 2008, he committed the crime on August 4, 2006. Thus, he had
not completed his sentence at the time that he violated his parole. Section 6138(a) of
the Prisons and Parole Code provides, in relevant part:
Convicted violators.—
(1) A parolee under the jurisdiction of the [B]oard released
from a correctional facility who, during the period of parole
or while delinquent on parole, commits a crime punishable
by imprisonment, for which the parolee is convicted or
found guilty by a judge or jury or to which the parolee
pleads guilty or nolo contendere at any time thereafter in a
3
“[O]ur scope of review of a Board order is limited to determining whether constitutional
rights were violated, errors of law were committed, or findings of fact were not supported by
substantial evidence.” Morgan v. Pa. Bd. of Prob. & Parole, 814 A.2d 300, 302 (Pa. Cmwlth.
2003).
4
court of record, may at the discretion of the [B]oard 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 [B]oard may, in its discretion, award credit to a
parolee recommitted under paragraph (2) for the time spent
at liberty on parole . . . .
61 Pa.C.S. § 6138(a) (text emphasis added). As this Court recently reiterated:
It is well settled law that the Board retains jurisdiction to
recommit an individual as a parole violator after the
expiration of the maximum term, so long as the crimes that
lead to the conviction occurred while the individual is on
parole. . . . The fact that [petitioner] did not enter his plea
until . . . after the expiration of the original term . . . is
irrelevant.
Price v. Pa. Bd. of Prob. & Parole, 117 A.3d 362, 367-68 (Pa. Cmwlth. 2015)
(quoting Miskovitch v. Pa. Bd. of Prob. & Parole, 77 A.3d 66, 73-74 (Pa. Cmwlth.
2013)). Further, the Board has the discretion whether to give Oliver credit for his
street time. 61 Pa.C.S. § 6138(a). Accordingly, the Board did not err when it did not
give Oliver credit for his street time, or when it sentenced Oliver to backtime for a
crime committed while he was on parole.
Oliver next contends that the Board erred by concluding that Oliver’s
request for administrative review was untimely. Specifically, Oliver maintains that
his appeal was timely because, on May 6, 2009, Oliver filed a pro se request for
administrative relief from the April 1, 2009 Board decision recommitting him as a
convicted and technical parole violator to serve 30 months’ backtime with a parole
maximum release date of May 7, 2011. Oliver asserts that since he raised two issues
in his administrative appeal - whether his time spent at a half-way house should have
5
been counted as liberty on parole and whether his maximum release date was
properly calculated - and the January 14, 2010 Board decision only addressed the first
issue, he did not appeal from that decision.
We acknowledge that Oliver was given an evidentiary hearing on the
sole issue of whether he was entitled to credit for his time spent at the Luzerne
Treatment Center, and that the January 14, 2010 Board decision addressed this issue
in particular. However, prior to that evidentiary hearing, the Board expressly notified
Oliver:
Because an evidentiary hearing is pending, the Board
cannot affirm or reverse the calculation set-forth in the
Board decision recorded April 1, 2009 (mailed 04/08/09) at
this time. See Arguelles v. [Pa.] [Bd.] of Prob[. &] Parole,
892 A.2d 912 (Pa. [Cmwlth.] 2006).[4] After a decision
from the above evidentiary hearing is rendered, you
may file another administrative appeal/petition for
administrative review from that decision if you do not
receive the relief requested.
C.R. at 156 (emphasis added). Oliver did not thereafter file another administrative
appeal/petition. Rather, Oliver waited until May 23, 2014, at which time he wrote a
letter to the Board’s Director of Policy, Legislative Affairs and Communications
Sherry Tate asking whether his street time was properly taken from him when his
maximum release date was changed from January 25, 2004 to May 7, 2011. Notably,
Oliver admits in this letter that he “tried to seek administrative review in 2009, but
was unsuccessful.” C.R. at 119. On March 15, 2015, the Board received Oliver’s
letter wherein he objected to the Board’s authority to recalculate his maximum
release date to May 7, 2011. The Board treated that letter as an administrative appeal.
Section 73.1(b) of the Board’s Regulations states:
Petitions for administrative review.
4
The Arguelles Court held: “If a local agency must engage in fact-finding to determine an
award calculation, administrative discretion is involved, [thus,] the order is not final[.]” Id. at 914.
6
(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. . . .
(2) The 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 will
be a sufficient reason for denying the petition.
(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.
(4) An employe of the Board designated by the Chairperson
may review and respond to a petition for administrative
review.
37 Pa. Code § 73.1 (bold emphasis added). Here, if Oliver was requesting
administrative review of the April 1, 2009 Board decision, because he had already
done so, the request was a second or subsequent petition. If, however, Oliver was
requesting administrative review of the January 14, 2010 Board decision, the request
was due on or before February 20, 2010 (30 days from the January 21, 2010 mailing
date), and therefore it was untimely. Accordingly, the Board did not err by
concluding that Oliver’s request for administrative review was either a second or
subsequent petition or untimely.
For all of the above reasons, the Board’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
James Oliver, :
Petitioner :
:
v. :
:
Pennsylvania Board :
of Probation and Parole, : No. 1189 C.D. 2015
Respondent :
ORDER
AND NOW, this 11th day of May, 2016, the Pennsylvania Board of
Probation and Parole’s May 26, 2015 order is affirmed.
___________________________
ANNE E. COVEY, Judge
J. Oliver v. PA BPP
Combined Opinion