Smith v. Pennsylvania Board of Probation & Parole

FRIEDMAN, Judge,

dissenting.

Because I believe that Ronald Smith’s (Parolee) cash slip here is sufficient to evince the date of mailing of his petition for review, I must dissent.

As the majority points out, our rules of appellate procedure specifically provide that a petition for review shall be deemed filed on the date the petition is deposited in the mail, “as shown on a U.S. Postal Service Form 3817 certificate of mailing.” Pa.R.A.P. 1514(a). However, in Sheets v. Department of Public Welfare, 84 Pa. Commonwealth Ct. 388, 479 A2d 80 (1984), we indicated that although Pa.R.A.P. 1514(a) specifically refers to the use of Form 3817, we would accept a properly postmarked U.S. Postal Form 3800 (receipt of certified mail) to evince the date of mailing of a petition for review. By doing so, we adopted a less restrictive interpretation of the appellate rules of procedure to enable an individual to secure a date for filing within the thirty day period by means of other duly executed forms that positively show the date an individual mails a petition for review. In fact, in Miller v. Unemployment Compensation Board of Review, 505 Pa. 8, 476 A.2d 364 (1984), our Supreme Court held that despite a petitioner’s failure to use Form 3817,

*907[t]he periods of time set by the General Assembly for filing appeals are jurisdictional and efficient court administration requires rules permitting summary determination of whether these requirements have been met. Nevertheless, adherence to such rales prescribing the only evidence of timely mailing which will be acceptable should not result in dismissal if timeliness can be determined by reference to the internal records of the court, and petitioner’s counsel can bring the relevant facts and records which show timeliness to the court's attention....

Id. at 11, 476 A.2d at 365. That is precisely what presentation of Parolee’s cash slip does here and, thus, I would accept it as the functional equivalent of a postal proof of service form.

I am aware of the Department of Corrections’ rules governing an inmate’s mail privileges. Commonwealth of Pennsylvania, Department of Corrections, Inmate Mail Privileges, DC-ADM 803 Administrative Directive, § V(C)(l)-(3). Nevertheless, according to these rules, an inmate can only utilize U.S. Postal Forms 3817 or 3800 if he has funds available in his personal account. However, at oral argument, neither party could tell this court whether Parolee had sufficient funds to acquire those forms or even if those forms were available at Grater-ford.

In Turner v. Board of Probation and Parole, 137 Pa.Commonwealth Ct. 609, 587 A.2d 48 (1991), this court recognized a prisoner’s right to counsel. The majority assumes that Parolee here could have used that public defender as a mail carrier. However, I cannot agree that the mere fact that Parolee was entitled to representation by counsel means that a public defender is available for the ministerial purpose of delivering mail, and I cannot agree that by failing to designate the public defender as his personal postal service employee Parolee is deprived of an opportunity to be heard by this court. Public defenders are not postal workers, and to assign them such duties would overburden those already underfinanced and overworked attorneys.

Our Supreme Court has stated:

We do not condone untimeliness. In cases such as this, however, where the record shows clearly and without dispute that a petition for review was timely mailed prior to the 30-day jurisdictional deadline, where counsel for the appellant apprises the court of the record in that respect and timeliness can be determined from an examination of the records of the court, a fair and just interpretation of our rules makes a dismissal improper.
We need not have drafted our rules to equate the date of mailing with the date of filing. Nevertheless, our rales do allow filing by mail, and our courts cannot consistently judge a petition as timely by the date of its mailing and at the same time reject that petition when the record is sufficient to show a timely mailing.

Miller, 505 Pa. at 14-15, 476 A.2d at 367.

Here, a government document, i.e., Department of Corrections Form DC-138A “Cash Slip,” signed by a Department of Corrections’ official, clearly indicates that Parolee’s account was charged for a mailing on April 14, 1994 within the thirty day period for appeal. Parolee contends that the document mailed was his petition for review, and there is no evidence to the contrary. In fact, because the Prothonotary of the Philadelphia County Court of Common Pleas apparently destroyed the envelope bearing the postmark, the only non-testimonial evidence which could have definitively supported or refuted Parolee’s testimony was destroyed. Hence, there is no evidence, testimonial or documentary, to refute Parolee’s own testimony that his petition for review is what he mailed on April 14, 1994. Moreover, the facts of this case are more compelling than those in Miller because Parolee here was incarcerated and, thus, limited in access to the required postal forms. Accordingly, I believe there is sufficient proof to indicate that Parolee filed his petition in accordance with Pa.R.A.P. 1514(a) and I would hold that his petition was timely filed. See Miller. In so holding, I would now overturn our previous ruling in Turner.

Because I would not quash this appeal, I would address the merits of this case. Here, *908based on Parolee’s admission of three technical parole violations, the Board found Parolee delinquent, recommitting him pursuant to Section 21.1(b) of the Parole Act.1 According to Section 21.1(b) of the Parole Act, if a parolee is recommitted by the Board for a breach of the terms and conditions of parole other than the committing of a new crime, the parolee receives credit against the maximum sentence for the time spent on parole in good standing. However, an offender recommitted and found to be delinquent by the Board does not receive credit against the original maximum sentence. Thus, the parolee is penalized for his delinquency and suffers an extension of his maximum sentence. Koresko v. Board of Probation and Parole, 484 Pa. 136, 398 A.2d 981 (1979).

Parolee asks us to determine whether the Board violated his due process rights at the parole violation hearing because it provided Parolee with only a standard notice of charges and failed to notify him, in writing, that he was alleged to have been delinquent, that the Board was pursuing a delinquency finding and that a finding of delinquency would result in the loss of street time.2 Parolee argues that he was never properly informed that the Board’s charges included a penalty of loss of street time, thereby extending his maximum period of incarceration. Parolee believes that this extension of his maximum incarceration period, as a result of a finding by the Board that he is a technical parole violator in delinquent status, is a penalty just as serious as the recommitment time itself. Consequently, Parolee maintains that the Board should have provided him with written notice of its intention to treat him as a delinquent. Had he known of such consequences of admitting to the parole violations, Parolee would not have pled as he did. He, thus, maintains that his admitting to the technical parole violations was made unknowingly and involuntarily based on the Board’s failure to notify him of his delinquent status. I agree.

In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the Court set forth the minimal due process requirements that a pai'ole revocation hearing must meet to satisfy the Fourteenth Amendment of the U.S. Constitution. Those requirements include:

(1) written notice to the parolee of the alleged parole violations,
(2) disclosure to the parolee of evidence against him,
(3) opportunity to be heard in person and to present witnesses and documentary evidence,
(4) right to confront and cross-examine adverse witnesses,
(5) neutral and detached hearing body, and
(6) written statement by the fact-finder as to the evidence relied on and reasons for revoking parole.

Moreover, the Pennsylvania Supreme Court has held that the requirements of due process include informing a defendant of the range of penalties involved in the crime with which he is being charged. Commonwealth v. Zanine, 444 Pa. 361, 282 A.2d 367 (1971); see, e.g., United States v. Wadsworth, 830 F.2d 1500, 1504 (9th Cir.1987) (emphasis added) (holding that “a defendant can knowingly *909and intelligently waive his right to counsel only after his [sic] is aware of the nature of the charges against him, the possible penalties, and the dangers and disadvantages of self-representation”); see also Lanzetta v. Board of Probation and Parole, 130 Pa.Commonwealth Ct. 312, 568 A.2d 283 (1989).

Here, the Board did not inform Parolee that he was alleged to have been delinquent, that the Board was pursuing a delinquency finding, and that such a finding would result in loss of street time and an extension of his maximum sentence. Moreover, my review of the violation hearing transcript reveals no reference to delinquency. As such, I believe that Parolee was never informed, either in writing or during the hearing itself, that he was being charged with delinquency, nor was he informed of the penalties associated with being adjudicated delinquent.3 Therefore, Parolee’s admission to the technical violations was rendered without necessary information, and the Board’s failure to inform Parolee of the consequences of his plea violates his due process rights.

Accordingly, I would reverse the Board’s order.

. Act of August 6, 1941, P.L. 861, as amended, 61 P.S. § 331.21a.

Section 21.1(b) of the Parole Act (emphasis added) states, in pertinent part:
(b) Technical Violators. Any parolee under the jurisdiction of the Pennsylvania Board of Parole released from any penal institution in the Commonwealth who, during the period of parole, violates the terms and conditions of his parole, other than by the commission of a new crime of which he is convicted or found guilty ... may be recommitted after hearing before the board. If he is so recommitted, he shall be given credit for the time seived on parole in good standing but with no credit for delinquent time....

. The Board argues that Parolee did not raise this due process issue in his administrative petition for review, thereby waiving the issue on appeal to this court. However, my review of the applicable documents indicates that Parolee did in fact raise a due process argument at the relevant stages of this proceeding. Therefore, I believe that he has not waived the issue for purposes of appellate review. See McCaskill v. Pennsylvania Board of Probation and Parole, 158 Pa.Commonwealth Ct. 450, 631 A.2d 1092 (1993), appeal denied, 537 Pa. 655, 644 A.2d 739 (1994).

. I note that the Board’s action originally declaring Parolee delinquent was not introduced at the hearing.