A. Glushko v. PBPP ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Andrew Glushko, :
Petitioner :
:
v. : No. 1127 C.D. 2017
: Submitted: January 26, 2018
Pennsylvania Board of Probation :
and Parole, :
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: March 6, 2018
Andrew Glushko (Glushko) petitions for review from an order of the
Pennsylvania Board of Probation and Parole (Board) that dismissed as untimely his
petition for administrative review following a Board recommitment order. Glushko
does not dispute his petition for administrative review was untimely; however, he
asserts the Board erred in refusing to correct a clerical error in its recommitment
order. Upon review, we affirm.
I. Background
In 2008, Glushko was charged with unlawful contact with a minor and
related offenses; thereafter, a jury found him guilty following a trial. In 2009,
Glushko received an aggregated four-to-eight-year prison sentence. Glushko’s
original minimum sentence date was October 19, 2013, and his original maximum
sentence date was October 19, 2017.
In March 2014, the Board released Glushko on parole. About six
months later, Glushko was arrested on several technical parole violations. Glushko
waived his right to a violation hearing and to counsel, and he admitted to four
technical parole violations. Ultimately, the Board recommitted Glushko as a
technical parole violator to serve six months’ backtime.
In March 2015, the Board again released Glushko on parole. About a
month later, the Pennsylvania State Police (PSP) arrested Glushko on new criminal
charges, including failure to register as a sex offender and failure to provide accurate
registration information. As a result of the new charges, Glushko was detained in
Monroe County Jail. The Monroe County Court of Common Pleas set bail at
$10,000; Glushko did not post bail. The Board also lodged a warrant to commit and
detain Glushko pending disposition of the new charges.
In November 2015, Glushko pled guilty to failure to register with the
PSP. Shortly thereafter, Glushko was sentenced to two to four years in state prison
on the new charges.
The Board subsequently provided Glushko with a notice of charges and
its intent to hold a revocation hearing based on his new conviction. Glushko waived
his right to a panel hearing. The Board held a revocation hearing at which Glushko
was represented by counsel.
After the hearing, the Board recommitted Glushko as a convicted parole
violator to serve six months’ backtime. The Board’s decision, mailed May 18, 2016,
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formally recommitted Glushko as a convicted parole violator and recalculated his
maximum sentence date from October 19, 2017 to May 7, 2019. It also listed
Glushko’s custody for return date as April 5, 2016.
Further, the Board’s decision stated:
IF YOU WISH TO APPEAL THIS DECISION, YOU
MUST FILE A REQUEST FOR ADMINISTRATIVE
RELIEF WITH THE BOARD WITHIN THIRTY (30)
DAYS OF THE MAILING DATE OF THIS DECISION.
THIS REQUEST SHALL SET FORTH SPECIFICALLY
THE FACTUAL AND LEGAL BASIS FOR THE
ALLEGATIONS. YOU HAVE THE RIGHT TO AN
ATTORNEY IN THIS APPEAL AND IN ANY
SUBSEQUENT APPEAL TO THE COMMONWEALTH
COURT. …
Certified Record (C.R.) at 119. Glushko did not file a petition for administrative
review with the Board within 30 days of the Board’s May 18, 2016 decision.
Thereafter, on April 26, 2017, nearly a year after its May 18, 2016
decision, the Board received Glushko’s petition for administrative review. In his
petition, Glushko asserted the Board’s May 18, 2016 decision contained a clerical
error, and, therefore, the Board had jurisdiction to correct it. Specifically, he asserted
the Board’s May 2016 decision erroneously listed his custody for return date as April
5, 2016, but he could not have been in the Board’s custody until April 18, 2016, the
date the Board recorded its decision recommitting him as a convicted parole violator.
In response, the Board issued a decision finding that Glushko’s April 2017
administrative appeal sought relief of the Board decision mailed May 18, 2016; as a
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result, it dismissed Glushko’s appeal as untimely. Glushko now petitions for review
to this Court.
II. Discussion
A. Contentions
On appeal,1 Glushko does not dispute the Board’s determination that he
did not file a timely petition for administrative review. Instead, he asserts the Board
made a clerical error in its recommitment order regarding his custody for return date.
More particularly, he argues the correct custody for return date is April 18, 2016, the
date the Board recorded its decision recommitting Glushko as a convicted parole
violator on his new conviction, rather than April 5, 2016, the date utilized by the
Board here.
Although his petition for administrative review was untimely, Glushko
contends the Board has the inherent power to correct clerical errors in its orders at
any time. Lord v. Pa. Bd. of Prob. & Parole, 580 A.2d 463 (Pa. Cmwlth. 1990)
(discussing Murgerson v. Pa. Bd. of Prob. & Parole, 579 A.2d 1335 (Pa. Cmwlth.
1990); McFarland v. Pa. Bd. of Prob. & Parole, 569 A.2d 374 (Pa. Cmwlth. 1989);
Winters v. Pa. Bd. of Prob. & Parole, 518 A.2d 618 (Pa. Cmwlth. 1987)).
Glushko maintains that time spent serving a new sentence, prior to
revocation of an inmate’s parole, must be credited to the new sentence. Plummer v.
Pa. Bd. of Prob. & Parole, 926 A.2d 561 (Pa. Cmwlth. 2007); Hill v. Pa. Bd. of Prob.
& Parole, 683 A.2d 699 (Pa. Cmwlth. 1996); Campbell v. Pa. Bd. of Prob. & Parole,
1
Our review is limited to determining whether constitutional rights were violated, whether
the adjudication was in accordance with law, and whether necessary findings were supported by
substantial evidence. Miskovitch v. Pa. Bd. of Prob. & Parole, 77 A.3d 66, 74 (Pa. Cmwlth. 2013).
4
409 A.2d 980 (Pa. Cmwlth. 1980). Because this rule is so well-established, Glushko
argues, the Board clearly intended to begin Glushko’s recommitment on the date it
actually revoked his parole, April 18, 2016. Glushko argues that, beginning his
sentence earlier than this date, results in his new sentence effectively being shortened
by almost two weeks—two weeks he will be required to serve at a later date.
Therefore, Glushko contends the Board must correct its clerical error and allot the
proper time to his new sentence.
B. Analysis
Pursuant to the Board’s regulations, a parolee must appeal a decision
revoking his parole within 30 days of the mailing date of the Board’s order or the
appeal will be dismissed as untimely. 37 Pa. Code §73.1(b)(1); see also Smith v. Pa.
Bd. of Prob. & Parole, 81 A.3d 1091 (Pa. Cmwlth. 2013); Cadogan v. Pa. Bd. of
Prob. & Parole, 541 A.2d 832 (Pa. Cmwlth. 1988). The 30-day appeal period is
jurisdictional and cannot be extended absent a showing of fraud or a breakdown in
the administrative process sufficient to warrant relief nunc pro tunc or “now for
then.” Smith; Moore v. Pa. Bd. of Prob. & Parole, 503 A.2d 1099 (Pa. Cmwlth.
1986).
Here, Glushko did not file an administrative appeal with the Board
within 30 days of its decision mailed on May 18, 2016. Glushko does not argue that
he failed to receive proper notice of the decision. Further, the notice of the Board’s
decision contained clear language indicating Glushko was required to file his appeal
within 30 days. Additionally, Glushko’s brief to this Court does not assert fraud or
a breakdown in the administrative process. At no point does he explain the nearly
one-year delay in filing his petition for administrative review.
5
Instead, he argues the Board has the inherent power to correct clerical
errors in its orders at any time, see e.g., Lord,2 and the Board here made a clerical
error in its recommitment order regarding his custody for return date. To that end,
Glushko asserts the correct custody for return date is April 18, 2016, the date the
Board’s recommitment decision was recorded, rather than April 5, 2016, as
determined by the Board. This argument fails.
Section 6138 of the Prisons and Parole Code governs recommitment of
convicted parole violators. It states, as relevant (with emphasis added):
(a) 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 court
of record, may at the discretion of the [B]oard be
recommitted as a parole violator.
2
In Lord v. Pennsylvania Board of Probation & Parole, 580 A.2d 463, 466 (Pa. Cmwlth.
1990), this Court stated (with emphasis added):
[The parolee] also contends that the Board’s rescission of his parole
was untimely because the Board regulation found at 37 Pa. Code §
73.1(a) provides that Board orders must be appealed within thirty
days of their mailing date. In other words, [the parolee] contends
that the Board’s action in this matter constituted an appeal by the
Board of its own order. However, the language of this section
clearly indicates it applies only to administrative appeals of Board
revocation decisions. Because the Board’s action in this case
amounted only to the correction of a clerical error, the thirty day
appeal period in Section 73.1 does not apply.
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(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, unless any of
the following apply:
(i) The crime committed during the period of
parole or while delinquent on parole is a
crime of violence as defined in 42 Pa.C.S. §
9714(g) (relating to sentences for second and
subsequent offenses) or a crime requiring
registration under 42 Pa.C.S. Ch. 97 Subch.
H1 (relating to registration of sexual
offenders).
(ii) The parolee was recommitted under
section 6143 (relating to early parole of
inmates subject to Federal removal order).
****
(4) The period of time for which the parole violator
is required to serve shall be computed from and
begin on the date that the parole violator is taken
into custody to be returned to the institution as a
parole violator.
(5) If a new sentence is imposed on the parolee, the
service of the balance of the term originally
imposed by a Pennsylvania court shall precede the
commencement of the new term imposed in the
following cases:
(i) If a person is paroled from a State
correctional institution and the new sentence
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imposed on the person is to be served in the
State correctional institution.
(ii) If a person is paroled from a county
prison and the new sentence imposed upon
him is to be served in the same county
prison.
(iii) In all other cases, the service of the new
term for the latter crime shall precede
commencement of the balance of the term
originally imposed.
61 Pa. C.S. §6138(a)(1), (2), (2.1), (4), (5).
The requirement that a convicted parole violator serve the balance of
his original sentence before beginning service of a newly-imposed sentence is only
operative when “parole has been revoked and the remainder of the original sentence
becomes due and owing.” Campbell, 409 A.2d at 982 (quoting Richmond v.
Commonwealth, 402 A.2d 1134, 1135 (Pa. Cmwlth. 1979)) (emphasis added);
accord McCaskill v. Pa. Bd. of Prob. & Parole, 631 A.2d 1092 (Pa. Cmwlth. 1993);
Oliver v. Pa. Bd. of Prob. & Parole, 570 A.2d 1390 (Pa. Cmwlth. 1990).
The remainder of an original sentence becomes due and owing upon
authorized Board action. Section 6113(b) of the Prisons and Parole Code authorizes
the Board to act on revocation decisions in panels consisting of two persons. 61 Pa.
C.S. §6113(b). Here, a hearing examiner held Glushko’s revocation hearing and
determined his parole should be revoked. A little over two weeks later, a Board
member agreed with the hearing examiner’s determination, as evidenced by the
member’s April 5, 2016 signature on the revocation hearing report. C.R. at 104.
Once the Board obtained the second required signature, it was authorized to revoke
8
Glushko’s parole. 61 Pa. C.S. §6113(b). As a result, the Board properly determined
that the remainder of Glushko’s original sentence became due and owing on April
5, 2016. C.R. at 120; see Wilson v. Pa. Bd. of Prob. & Parole, 124 A.3d 767 (Pa.
Cmwlth. 2015); Campbell.
Indeed, “this Court has long held that a convicted parole violator’s
custody for return date is determined by the date of the revocation of parole.” Wright
v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 877 C.D. 2015, filed November 5,
2015), slip op. at 8, 2015 WL 6829240 at *4 (unreported).3 As explained above, the
Board revoked Glushko’s parole on April 5, 2016, when it obtained the required
signatures to do so; thus, the Board properly utilized that date as Glushko’s custody
for return date. Id. As such, the Board made no clerical error regarding Glushko’s
custody for return date.
Accordingly, we affirm.4
3
We cite Wright v. Pennsylvania Board of Probation & Parole (Pa. Cmwlth., No. 877 C.D.
2015, filed November 5, 2015), 2015 WL 6829240 (unreported), as persuasive precedent. 210 Pa.
Code §69.414(a).
4
Glushko asserts that under Plummer v. Pennsylvania Board of Probation and Parole, 926
A.2d 561 (Pa. Cmwlth. 2007), Hill v. Pennsylvania Board of Probation and Parole, 683 A.2d 699(Pa. Cmwlth. 1996), and Campbell v. Pennsylvania Board of Probation and Parole, 409 A.2d 980(Pa. Cmwlth. 1980), the rule applied in calculations of minimum and maximum sentence dates is
that the Board must credit the time a parolee spends in custody between the date of conviction on
the new charge and the date the Board recommits a parolee as a convicted violator to the new
sentence. Despite this general assertion, Glushko offers no specific, developed explanation as to
how the Board failed to comply with this rule here. Instead, he challenges only his return for
custody date, which as explained above, the Board calculated properly.
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ROBERT SIMPSON, Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Andrew Glushko, :
Petitioner :
:
v. : No. 1127 C.D. 2017
:
Pennsylvania Board of Probation :
and Parole, :
Respondent :
ORDER
AND NOW, this 6th day of March, 2018, the order of the Pennsylvania
Board of Probation and Parole is AFFIRMED.
ROBERT SIMPSON, Judge