Taylor v. Pennsylvania Board of Probation & Parole

FRIEDMAN, Judge,

dissenting.

I respectfully dissent. The majority dismisses Jerome Taylor’s (Taylor) appeal as moot, holding that although Taylor raises questions of great public importance that are capable of repetition, the “prisoner mailbox rule” issue is not likely to evade review.1 However, even if the issue involving the “prisoner mailbox rule” is not likely to evade review, the “closed case” question2 is likely to evade review. Thus, instead of dismissing Taylor’s appeal as moot, I would address both issues now.

I. Mootness

The majority states that “the issues raised in Taylor’s appeal [involve] questions of great public importance and are capable of repetition ... [but] are not likely to evade review.” (Majority op. at 675.) The majority then states that there will be instances “where a parolee will be able to challenge the denial of an administrative appeal as untimely on the basis of the ‘prisoner mailbox rule’ before the parolee’s maximum term expires.” (Majority op. at 675.) However, the majority does not address whether there will be instances where a parolee can challenge the Board’s jurisdiction to revoke a prisoner’s parole and to impose backtime after the Board has closed the parolee’s case due to the expiration of the parolee’s maximum term. I believe that such a question is likely to evade review.

First, the Board stated during oral argument before this court that the Board’s central office routinely closes cases when a parolee’s maximum term expires. Thus, these appeals always involve the expiration of a parolee’s maximum term of confinement. Second, the Board stated at oral argument that, despite the Board’s “orders” closing cases, the Board’s field offices continue to pursue delinquent parolees. Thus, these appeals always involve some unresolved technical parole violation. The Board’s regulations authorize the Board to recommit a parolee to serve a maximum of eighteen months backtime for a technical parole violation. 37 Pa.Code §§ 75.3(e), 75.4. However, in the ordinary course of events, by the time this court is able to review whether the Board has jurisdiction to revoke parole and impose backtime after the Board has closed a *676case, the parolee will have served at least eighteen months backtime.

The Board has fourteen days, or approximately half a month, from the date of detention to hold a preliminary hearing on a technical parole violation. 37 Pa.Code § 71.2(3). The Board then has 120 days, or four months, from the date of the preliminary hearing to hold a hearing on the technical parole violation. 37 Pa.Code § 71.2(10). Although the Board is required to act “promptly,” 37 Pa.Code § 71.2(17), the Board is under no particular time constraints with respect to the issuance of a decision following the violation hearing; here; the Board issued its decision after four months.3 The parolee has thirty days, or one month, from the mailing date of the Board’s decision to file an appeal from a decision revoking parole. 37 Pa.Code § 73.1. Again, the Board is under no time constraints with respect to the issuance of a decision following a request for administrative relief; here, the Board issued its decision after four months.4 The parolee has thirty days, or one month, to file an appeal to this court from a denial of administrative relief. Pa. R.A.P. 1512(a)(1). The total amount of elapsed time to this point is fourteen and a half months.

Once a parolee has appealed to this court, the Board is given forty days to certify the record to this court. Pa. R.A.P. 1541, 1931(a). Then, after certification of the record, the petitioner has forty days to file a brief. Pa. R.A.P. 2185(a). The respondent is given another thirty.days to file a brief. Id. The petitioner may file a reply brief within fourteen days after service of the respondent’s brief. Id. Thus, not considering the possibility of an extension of time for filing any of these documents, the final brief will be filed eighteen and a half months after the parolee began serving backtime. Because the maximum amount of backtime for a technical parole violation is eighteen months, a parolee’s challenge to the Board’s jurisdiction to revoke parole and impose backtime will always evade this court’s review.

Because the “closed case” issue is likely to escape this court’s review, I would not dismiss this appeal as moot.

II. “Prisoner Mailbox Rule”

Before addressing the “closed case” issue, I must address whether Taylor’s appeal has been timely filed, i.e., whether the “prisoner mailbox rule” applies to administrative appeals to the Board.

Although this court has not specifically held that the “prisoner mailbox rule” applies to administrative appeals to the Board, the Pennsylvania Supreme Court has held that the “prisoner mailbox rule” applies to administrative appeals to this court. Smith v. Pennsylvania Board of Probation and Parole, 546 Pa. 115, 683 A.2d 278 (1996) (holding that a pro se prisoner’s appeal shall be considered filed for purposes of Pa. R.A.P. 1514 when such appeal is deposited with prison officials or placed in the prison mailbox). Moreover, since its holding in Smith, the Pennsylvania Supreme Court has “extended] the prisoner mailbox rule to all appeals by pro se prisoners.”5 Commonwealth v. Jones, *677549 Pa. 58, 64, 700 A.2d 423, 426 (1997) (emphasis added).

Because the “prisoner mailbox rule” applies to all appeals by pro se prisoners and because Taylor is a pro se prisoner here, the “prisoner mailbox rule” applies. The “prisoner mailbox rule” states that a prisoner’s pro se appeal is deemed filed on the date that the prisoner deposits the appeal with prison authorities and/or places it in the prison mailbox. Jones. Here, the parties have stipulated that Taylor gave his administrative appeal to prison authorities for mailing on February 24, 1997, which is twenty-eight days from January 27, 1997, the mailing date of the Board’s decision. Thus, Taylor’s administrative appeal was timely filed.6

Accordingly, I would reverse the Board’s November 6, 1998 decision dismissing Taylor’s appeal as untimely.

III. “Closed Case”

Because Taylor has filed a timely administrative appeal, I shall address whether the Board has jurisdiction to revoke a prisoner’s parole and to extend his maximum term of confinement after the Board has closed the parolee’s case.7

The record indicates that, on December 21, 1993, the Board “rendered the following decision in [Taylor’s] case: Declare delinquent effective 10-14-93 and if not arrested or located by 01-29-96, cancel delinquency and close case.” (S.R. at 22.) The document contains the signature of James W. Riggs, Board Secretary. (S.R. at 22.) There is nothing in the record indicating that the Board did not cancel Taylor’s delinquency and close Taylor’s case on January 29, 1996. The Board’s December 21, 1993 order is part of the record certified to this court, and there is not a subsequent decision in the record rescinding that order.8 Therefore, when the Board issued its warrant and arrested Taylor on September 12, 1996, there was no delinquency, and Taylor had served his maximum term. Because Taylor was no *678longer on parole, the Board lacked jurisdiction to revoke his parole or to extend his maximum term of confinement.9

Accordingly, I would reverse the Board’s decision of June 6, 1997 dismissing Taylor’s appeal on the merits.

Judge PELLEGRINI joins in this dissenting opinion.

. A court will refuse to dismiss an appeal as moot only if the issues involved are capable of repetition yet likely to evade review and are of important public interest, or where a party will suffer some detriment without the court’s decision. Goldsmith v. Lower Moreland School District, 75 Pa.Cmwlth. 288, 461 A.2d 1341 (1983).

. Taylor argues in his appeal to this court that the Board lacks jurisdiction to revoke a prisoner’s parole and to extend the prisoner’s parole violation maximum date after the Board has closed the parolee’s case.

. The violation hearing was held in September 1996; the Board rendered a decision in December 1996; and the Board mailed the decision in January 1997. (S.R. at 27, 41.)

. Taylor filed his appeal in February 1997, and the Board issued its decision in June 1997. (O.R. at 5.)

. In support of its holding, the court relied upon a passage from the United States Supreme Court case of Houston v. Lack, 487 U.S. 266, 270-71, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), which states:

The situation of prisoners seeking to appeal without the aid of counsel is unique. Such prisoners cannot take the steps other litigants can take to monitor the processing of their notices of appeal and to ensure that the court clerk receives and stamps their notices of appeal before the 30-day deadline. Unlike other litigants, pro se prisoners cannot personally travel to the courthouse to see that the notice is stamped "filed” or to establish the date on which the court received the notice. Other litigants may choose to entrust their appeals to the *677vagaries of the mail and the clerk's process for stamping incoming papers, but only the pro se prisoner is forced to do so by his situation. And if other litigants choose to use the mail, they can at least place the notice directly into the hands of the United States Postal Service (or a private carrier); and they can follow its progress by calling the court to determine whether the notice has been received and stamped, knowing that if the mail goes awry they can personally deliver notice at the last moment or that their monitoring will provide them with evidence to demonstrate either excusable neglect or that the notice was not stamped on the date the court received it.

. Having determined that Taylor filed a timely administrative appeal with the Board, I note that our scope of review of Taylor’s appeal from the Board’s June 6, 1997 decision, which dismissed Taylor’s administrative appeal on the merits, is limited to determining whether constitutional rights were violated, whether an error of law was committed or whether the necessary findings are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.

. The Board contends that Taylor has waived this issue because he did not raise the matter at his hearing. (Board’s brief at 8.) However, the Board concedes that Taylor did not know that his case had been closed until after the hearing. (Board’s brief at 9.) Therefore, Taylor could not have raised the matter at his hearing.

The Board also contends that Taylor has waived this issue because he did not raise the matter in his administrative appeal. (Board’s brief at 8.) The Board is mistaken. Taylor’s administrative appeal clearly states that the Board erred in its decision to recommit Taylor and to extend his maximum release date when his case had been closed. (O.R. at 3; Petition for Administrative Relief at 2.)

. In McFarland v. Pennsylvania Board of Probation and Parole, 130 Pa.Cmwlth. 639, 569 A.2d 374 (1989), a staff technician closed McFarland’s case on the Board’s computer system. A panel of the Board subsequently rescinded the unauthorized decision to close McFarland’s case, and McFarland challenged the Board’s authority to do so. This court affirmed the Board’s rescission of the action, holding that the Board alone has the authority to close a parolee’s case. Here, the Board rendered a decision to cancel Taylor’s delinquency and to close Taylor’s case if Taylor was not arrested or located by January 29, 1996. The Board did not rescind that order.

. The Board argues in its brief that the December 21, 1993 decision was never "entered” under 42 Pa.C.S. § 5572 because it was not served on Taylor. (Board's brief at 9.) This is irrelevant. The statutory provision at 42 Pa.C.S. § 5572 only governs the time of entry of an order of a government unit for purposes of filing an appeal from that order. See Section 5571(a) of the Judicial Code, 42 Pa.C.S. § 5571(a). It has nothing to do with whether those to whom the order is directed must comply with the order.

Moreover, if the Board is correct that its December 21, 1993 decision has no binding effect because it was not served on Taylor, then that portion of the Board's December 21, 1993 decision declaring Taylor to be delinquent also has no binding effect. If the Board did not "enter” an order declaring Taylor to be delinquent, then the Board had no reason to arrest Taylor after the expiration of his maximum term. In sum, the Board cannot claim that the December 21, 1993 decision has binding effect with respect to the declaration of delinquency and not with respect to the closing of the case. Clearly, the Board’s position on this matter is flawed.