IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Richard Beaver, :
Petitioner :
: No. 469 C.D. 2021
v. :
: Submitted: September 24, 2021
Pennsylvania Parole Board, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: December 30, 2021
Richard Beaver (Beaver), an inmate at the State Correctional Institution
(SCI) at Mercer (SCI-Mercer), petitions for review of an April 5, 2021 order of the
Pennsylvania Parole Board (Board), which affirmed its February 12, 2021 decision.
On appeal, Beaver argues that the Board erred by finding that he failed to provide
sufficient evidence to show that he filed a timely request for administrative relief from
the Board’s decision mailed on February 9, 2018. Upon review, we affirm.
This matter returns to this Court following our remand to the Board with
instructions that it hold an evidentiary hearing to determine the timeliness of Beaver’s
request for administrative relief challenging the Board’s February 9, 2018 decision,
which recommitted him to an SCI as a convicted parole violator to serve his unexpired
term. See Beaver v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No.
975 C.D. 2019, filed August 26, 2020) (Beaver I). Following remand, the Board issued
a decision on February 12, 2021, in which it made findings of fact and conclusions of
law on the timeliness issue. (Certified Record (C.R.) at 242-44.) The Board
determined that Beaver failed to meet his burden of proving that he timely mailed his
request to the Board within the 30-day appeal period. Id. Beaver filed a counseled
administrative appeal of that decision, and the Board affirmed in a decision mailed on
April 5, 2021. Id. at 245-47, 249-50. Beaver then petitioned for this Court’s review.
In Beaver I, we summarized the pertinent facts of Beaver’s case as
follows:
On September 15, 2012, Beaver was found guilty of aggravated
assault and sentenced to a minimum sentence of two years to a
maximum of five years. On March 16, 2015, Beaver was paroled.
On August 8, 2015, the Board recommitted Beaver as a technical
parole violator and extended his maximum sentence date of
September 15, 2017, to October 16, 2017, to account for the 31 days
from July 8, 2015, to August 8, 2015, that he was delinquent.
(C.R.[, filed at No. 975 C.D. 2019,] at 41.) The Board did not forfeit
the 114 days of street time that Beaver spent in good standing from
March 16, 2015, to July 8, 2015.
On October 22, 2015, Beaver was reparoled. On October 27, 2017,
Beaver was convicted of robbery and sentenced to serve 4 to 10
years in state prison. On February 1, 2018, the Board recommitted
Beaver as a convicted parole violator to serve his unexpired term of
1 year, 6 months, and 29 days on his 2012 sentence and recalculated
his maximum sentence date to July 23, 2019. In doing so, the Board
credited Beaver’s sentence for the 259 days he was incarcerated
from February 10, 2017, to October 27, 2017. The Board forfeited
the 114 days of street time it had previously awarded him in
connection with his recommitment as a technical parole violator.
C.R. 162. The Board’s decision was mailed on February 9, 2018,
and it advised Beaver that he had 30 days from the mailing date to
file a timely request for administrative review.
On March 11, 2019, Beaver sent the Board an “inquiry concerning
lack of response to my Administrative Remedies Form, mailed on
March 5, 2018.” C.R. 168. According to Beaver, the March 5,
2
2018, administrative remedies form challenged the Board’s
authority to forfeit the 114 days of street time that he spent in good
standing during the parole period that preceded his recommitment
as a technical parole violator and the Board’s failure to give Beaver
credit for all periods of incarceration on his sentence from February
8, 2017, to February 9, 2018. The March 11, 2019, inquiry letter
cited Penjuke v. Pennsylvania Board of Probation and Parole, 203
A.3d 401, 420 (Pa. Cmwlth. 2019), appeal denied, 228 A.3d 254
(Pa. 2020), in which this Court held that when the Board recommits
a convicted parole violator, it cannot revoke sentence credit that the
parolee had been granted in a prior recommitment as a technical
parole violator.
Receiving no response, Beaver sent another letter on May 2, 2019,
titled “amended administrative remedies request due to [the
Board’s] failure to respond to initial request of March 5, 2018, and
subsequent follow-up of March 22, 2019.” C.R. 175. The letter
again challenged the Board’s failure to award Beaver credit for his
street time and raised a new issue that the Board failed to hold the
revocation hearing within the 120-day time period required by
Section 71.4(1)(i) of its regulations, 37 Pa. Code §71.4(1)(i).
On June 24, 2019, the Board dismissed Beaver’s request for
administrative review as untimely. The Board contended that it did
not receive Beaver’s request within 30 days of the mailing date of
its decision, and there was no indication that Beaver submitted the
petition to prison officials for mailing during that time period.
Board Adjudication, 6/24/2019, at 1.
Beaver I, slip op. at 1-3 (footnotes omitted). The Board therefore dismissed Beaver’s
petition as untimely, and Beaver petitioned this Court for review. Id. Concluding that
it could not be determined from the certified record whether Beaver filed his March 5,
2018 appeal pro se and, if so, upon which date Beaver placed his appeal of the Board’s
decision in the prison mailbox, a panel of this Court vacated the Board’s June 24, 2019
decision and remanded the matter to the Board with instructions that it hold an
evidentiary hearing to determine the timeliness of Beaver’s request for administrative
relief from the Board’s February 9, 2018 decision. See Beaver I, slip op. at 4-5.
3
Following remand, the Board held an evidentiary hearing at SCI-Mercer
on January 22, 2021, at which Beaver appeared with counsel and testified. (C.R. at 2-
3.) Elliot Smeal (Smeal) appeared and testified on the Board’s behalf. Id. At the
hearing, the Hearing Examiner identified the timeliness of the administrative appeal as
the only issue to be considered. Id. at 7. Beaver testified first that he had three sworn
affidavits, one of which was his own. Id. at 16. Chief Counsel for the Board objected
to the affidavits on hearsay grounds and stated that Beaver could simply testify instead
of moving his affidavits into the record. Id. The Hearing Examiner did not directly
rule on the objection. Beaver nevertheless proceeded to testify that he deposited his
administrative appeal into the institution’s mailbox on March 5, 2018, but after that
date, he did not hear anything from the Board. Id. at 16-17, 23-24. He then explained
that it was not until March 11, 2019, that he sent a follow-up to the Board mentioning
his March 2018 administrative appeal, and that he again did not receive a response. Id.
Beaver further explained that he mailed a second piece of correspondence to the Board
on May 2, 2019. Id. at 18, 27. He testified to receiving the Board’s February 9, 2018
decision on February 14, 2018, and that although he did not receive an administrative
remedies form with the decision, he went to the library and got one and thereafter
mailed the March 2018 appeal pro se. Id. at 18-19, 23. Chief Counsel for the Board
then asked Beaver whether he had a receipt or other piece of paper stating that he put
his appeal in the mailbox, to which Beaver responded that he did not. Id. at 26. Beaver
then confirmed for Chief Counsel that Beaver sent correspondence to the Board on
March 11, 2019, requesting a response to his March 2018 appeal, and that he did not
attach a copy of that appeal when he sent his March 11, 2019 correspondence. Id.
Beaver claimed to have a copy of everything, and further confirmed that he sent the
May 2, 2019 correspondence, to which he also did not attach a copy of the March 5,
4
2018 appeal. Id. at 27. Beaver stated that he did, however, “state in no uncertain terms
that [he] mailed the March 5th” appeal. Id. Beaver’s counsel then indicated she had
nothing further in terms of evidence or testimony. Id.
Chief Counsel then called Smeal, who identified himself as “the keeper of
the Board’s administrative remedies process.” (C.R. at 29.) Smeal explained that he
processes incoming administrative appeals, each of which are date stamped, logged
into a tracking system, and tracked throughout the review process. Id. Smeal testified
that he and other staff checked to see if the Board received an appeal from Beaver
within 30 days of the Board’s February 9, 2018 decision, and testified that no appeal
was received. Id. at 29-30. Smeal stated it is the Board’s regular practice to document
when appeals are received, and to keep copies of appeals and other correspondence
received. Id. at 30. On cross-examination, Smeal explained that mail is received either
by regular postage or certified mail, in which case it would have the correct label and
tracking number on the bottom of it. Id. at 31. Further, he stated that the Board keeps
records of both correspondence and envelopes. Id. At the close of testimony, the
Hearing Examiner entered various documents into the record, including a prehearing
memorandum, this Court’s prior decision in the case, and the original documents
contained within the original certified record. Id. at 34-37.
Following the hearing, the Board issued a decision on February 12, 2021,
in which it made the following findings of fact and conclusions of law regarding the
timeliness issue:
Findings of Fact
Mr[.] Richard Beaver, 215FV, failed to show burden of proof [sic]
or evidence that he submitted the administrative remedies form
within the 30[-]day period of time as per 37 Pa. Code [§]73. The
5
Parole Board’s witness testified as to the process for filing an
administrative remedies relief form and that there was no letter
received by the Board Secretary’s Office prior to the 30[-]day
time[]frame of 03/09/2018. In fact, the first administrative
remedies relief form received by the Parole Board Secretary’s
Office was 03/18/2019; over 1 year later. Mr. Beaver did not
provide a copy of his 03/05/2018 administrative remedies relief
form, did not provide a receipt of this administrative remedies relief
from [sic] he claims to have mailed on 03/05/2018, and did not
provide testimony to persuade the Board of this fact.
Conclusions of Law
1. A convicted parole violator who seeks credit against his/her
parole violation maximum sentence has the burden of showing
he/she filed the administrative remedies relief form within [] 30
days of the mailing of the Board decision as[] per 37 Pa.[ ]Code
[§]73.
2. The determination of whether Mr. Richard Beaver filed his
administrative remedies relief form within the 30[-]day deadline, as
per 37 Pa. Code [§]73, has not been proven. There was no evidence
and the testimony of Mr. Richard Beaver did not persuade the
Board of that fact.
3. Mr. Richard Beaver did not file his administrative remedies
form in a timely manner and therefore he can[]not request credit for
time at liberty on parole.
(C.R. at 243 (capitalization omitted).) Beaver then filed a counseled administrative
appeal challenging the Board’s February 12, 2021 decision. Id. at 245-47.
In a decision mailed on April 5, 2021, the Board affirmed its February 12,
2021 decision. (C.R. at 249-50.) In so doing, “[t]he Board determined that sufficient
evidence was presented at the January 22, 2021 evidentiary hearing to determine that
Mr. Beaver did not submit his Administrative Remedies Form within 30 days of the
mailing date of the Board[’s February 9, 2018] decision pursuant to 37 Pa. Code §73.1.”
6
Id. at 249. The Board further explained that “[t]he evidence and testimony presented
at the evidentiary hearing established that Mr. Beaver did not prove that he previously
submitted an Administrative Remedies Form on March 5, 2018, or any time prior to
March 18, 2019.” Id. The Board concluded that Beaver did not meet his burden of
proof that he timely submitted his request for administrative relief to the Board, and
therefore, the Board affirmed its February 12, 2021 decision. Id. at 249-50. Beaver
petitioned this Court for review of the Board’s April 5, 2021 decision.
On appeal,1 Beaver argues that he provided sufficient evidence at the
January 22, 2021 evidentiary hearing, showing that he timely filed his administrative
appeal of the Board’s February 9, 2018 decision, and that the Board erred in concluding
otherwise. (Beaver’s Br. at 11.) Specifically, Beaver contends that an affidavit can be
sufficient evidence to establish the date an appeal is deposited in the prison mailbox,
and that him testifying in lieu of submitting an affidavit stating that he deposited his
petition for administrative review in the mail on March 5, 2018, provided sufficient
evidence that he timely filed his administrative appeal. Id. at 13-14. He claims that he
has little control over what happens to his mail once it leaves his possession, and that
“[w]ide deference should be given to inmates . . . who make good faith efforts to file
appeals.” Id. at 14.
1
Our standard of review in parole revocation cases “is limited to determining whether the
Board committed a constitutional violation or an error of law and whether the findings of fact are
supported by substantial evidence.” Lee v. Pennsylvania Board of Probation and Parole, 885 A.2d
634, 637 (Pa. Cmwlth. 2005). “We have previously defined ‘substantial evidence’ to be such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion, requiring something
more than a scintilla creating a mere suspicion of the existence of the fact to be established.”
McCauley v. Pennsylvania Board of Probation and Parole, 510 A.2d 877, 879 (Pa. Cmwlth. 1986)
(citing Chapman v. Pennsylvania Board of Probation and Parole, 484 A.2d 413, 416 (Pa. Cmwlth.
1984)).
7
In response, the Board submits that its determination that Beaver failed to
file a timely administrative appeal is supported by substantial evidence. The Board
points out that, at the hearing, Beaver admitted on cross-examination that he did not
have a receipt showing that he mailed his administrative appeal on March 5, 2018, and
that he did not provide a copy of the alleged March 5, 2018 administrative appeal
document in his March 11 and May 2, 2019 correspondence to the Board. (Board’s
Br. at 5-6.) Beaver also did not offer a copy of the alleged appeal document at the
remand hearing. Id. at 5. Moreover, Smeal testified that he checked the Board’s appeal
tracking system and found no record indicating that Beaver filed an administrative
appeal within 30 days of the Board’s February 9, 2018 decision. Id. at 5-6. The Board
contends that it properly performed its role as the ultimate fact-finder in this case by
crediting Smeal’s testimony, Beaver’s admissions on cross-examination, and the
documents admitted into the record, and by finding Beaver’s testimony not credible.
Id. at 7-8. The Board also maintains that a reasonable mind would find the credited
evidence and record sufficient to support the conclusion that Beaver failed to file a
timely administrative appeal after he received the Board’s February 9, 2018 decision.
Id. at 9.
We begin with a review of the applicable legal standards. The Board’s
regulations provide that administrative appeals and petitions for administrative review
of a Board decision relating to parole revocation must be received within 30 days of
the mailing date of the Board’s order. 37 Pa. Code §73.1(a)(1), (b)(1); see also 61
Pa.C.S. §6113(d)(1); Smith v. Pennsylvania Board of Probation and Parole, 81 A.3d
1091, 1094 (Pa. Cmwlth. 2013). Further, second or subsequent appeals or petitions for
administrative review and those that are out of time under these rules will not be
received. 37 Pa. Code §73.1(a)(4), (b)(3). In cases involving pro se filings by
8
incarcerated individuals, we consider the applicability of the prisoner mailbox rule,
which provides that a pro se legal document is deemed to be filed on the date it is
delivered to the proper prison authority or deposited in the prison mailbox. Kittrell v.
Watson, 88 A.3d 1091, 1096 (Pa. Cmwlth. 2014). The rule focuses on the litigant’s
placing the document in the hands of the appropriate office or officer rather than actual
receipt of the document, and a prisoner bears the burden of establishing compliance
with the rule. Id.; Sweesy v. Pennsylvania Board of Probation and Parole, 955 A.2d
501, 502 (Pa. Cmwlth. 2008). A prisoner may meet this burden by providing “any
reasonably verifiable evidence of the date that the prisoner deposits the appeal,” which
includes but is not limited to “certificates of mailing, cash slips, affidavits, [or] prison
operating procedures.” Sweesy, 955 A.2d at 503 (citing Commonwealth v. Jones, 700
A.2d 423, 426 (Pa. 1997)). A late-filed appeal may be considered nunc pro tunc,
however, “if the delay in filing was caused by extraordinary circumstances involving
fraud or a breakdown in the administrative process or non-negligent circumstances
related to the [petitioner], his attorney, or a third party.” McCullough v. Pennsylvania
Board of Probation and Parole, 256 A.3d 466, 471 (Pa. Cmwlth. 2021) (citing Criss
v. Wise, 781 A.2d 1156 (Pa. 2001); and Cook v. Unemployment Compensation Board
of Review, 671 A.2d 1130 (Pa. 1996)).
Here, the Board’s recommitment decision was mailed on February 9,
2018, and, therefore, Beaver had until March 12, 2018, to file his request for
administrative relief. Beaver testified that he mailed his administrative appeal to the
Board pro se on March 5, 2018; therefore, he argues that the prisoner mailbox rule
applies in this case. However, there is no record evidence, such as a cash slip,
9
affidavit,2 or the appeal document itself, demonstrating when Beaver delivered his
appeal to prison authorities or deposited it in the prison mailbox. At the hearing in this
matter, Beaver admitted that he did not have a receipt showing that he mailed his
administrative appeal on March 5, 2018, and that he did not attach a copy of the alleged
March 5, 2018 administrative appeal document to his March 11 and May 2, 2019
correspondence to the Board. (C.R. at 26-27.) Beaver also did not offer a copy of the
alleged appeal document at the evidentiary hearing for entry into the record in this
matter. Accepting Beaver’s contention that he mailed the appeal on March 5, 2018,
based simply on his statement to that effect in his testimony, would require this Court
to speculate, without any proof, that Beaver did in fact mail his appeal on that date.
Such speculation would ignore Sweesy, in which this Court ruled that it is a prisoner’s
burden to prove timely mailing by producing “reasonably verifiable evidence” of
mailing. Sweesy, 955 A.2d at 503. Given that there is no evidence demonstrating when
Beaver mailed his appeal to the Board, aside from his testimony, which the Board found
not credible, Beaver has not met his burden. Thus, because Beaver has not
demonstrated that he filed his administrative appeal within the 30-day statutory appeal
period, or that he even filed one at all, Beaver has not provided any other evidence that
he timely mailed his administrative appeal to the Board. Moreover, there is no
allegation of fraud or a breakdown in operations with respect to the timeliness of its
2
At the hearing, Beaver mentioned that he had three affidavits, one of which was his own and
purported to establish that he mailed his administrative appeal to the Board on March 5, 2018. (C.R.
at 16.) We acknowledge that affidavits may be considered “reasonably verifiable evidence” to
establish timely mailing. See Sweesy, 955 A.2d at 503. However, Beaver’s counsel never requested
that the affidavits be moved into evidence at the evidentiary hearing, and the Hearing Examiner thus
never admitted them into the permanent record in this matter. Beaver, moreover, proceeded to testify
as to the timeliness of his administrative appeal, apparently in lieu of submitting the affidavits, and
he appears to admit in his brief to this Court that his “testimony alone is the equivalent of an affidavit.”
(Beaver’s Br. at 14.) Accordingly, we discern that the only “evidence” presented by Beaver in this
case was his testimony that he mailed his administrative appeal to the Board on March 5, 2018.
10
purported filing, such that nunc pro tunc relief would be warranted. Accordingly, the
Board properly dismissed Beaver’s appeal as untimely.
Accordingly, we affirm the Board’s order.
________________________________
PATRICIA A. McCULLOUGH, Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Richard Beaver, :
Petitioner :
: No. 469 C.D. 2021
v. :
:
Pennsylvania Parole Board, :
Respondent :
ORDER
AND NOW, this 30th day of December, 2021, the April 5, 2021 order
of the Pennsylvania Parole Board is AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge