J.S. Boanes v. PBPP ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
James S. Boanes, :
Petitioner :
:
v. : No. 894 C.D. 2017
: Submitted: January 5, 2018
Pennsylvania Board of :
Probation and Parole, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: June 4, 2018
Petitioner James Boanes (Boanes) petitions for review of a notice of
decision of the Pennsylvania Board of Probation and Parole (Board), dated
June 13, 2017, which notified Boanes that the Board recalculated his maximum
sentence date more favorably to him as a result of Boanes’s administrative appeal of
a notice of Board decision, mailed December 13, 2016. In his petition for review,
Boanes seeks to challenge the Board’s recalculation of his maximum sentence date,
suggesting that he is entitled to an even more favorable date. Boanes’s appointed
counsel, Marc T. Valentine, Esquire (Counsel), however, filed a motion to withdraw
as counsel.1 Counsel asserts, as expressed in his “no-merit” letter, that the issues
Boanes raises in his petition for review are without merit. We now quash Boanes’s
petition for review and dismiss as moot Counsel’s motion to withdraw.
Because of a November 12, 1999 guilty plea, Boanes received a jail
sentence with a minimum term of two years and a maximum term of seven years. In
the following years, the Board paroled and recommitted Boanes as a technical parole
violator on numerous occasions, and Boanes received additional time to his
sentence, stemming from subsequent convictions of a variety of criminal charges.2
By notice of Board decision, mailed on December 13, 2016, the Board
notified Boanes that it was recommitting him to a state correctional institution
because of new criminal convictions. (Certified Record (C.R.) at 123-24.) This
notice listed Boanes’s recalculated maximum sentence date as September 23, 2023.
(Id.) Boanes filed a request for an administrative appeal,3 seeking a recalculation of
his maximum sentence date. (Id. at 125.) By letter mailed June 13, 2017 (Letter
Decision), the Board effectively granted his administrative appeal, responding, in
pertinent part:
In your petition, you declare your new maximum date of
September 23, 2023 cannot possibly be correct. In light of
1
It appears to the Court that the motion to withdraw may have been dictated but not read
prior to filing, as evidenced by the numerous instances where punctuation is spelled out in word
form—e.g., “parentheses” instead of “(”. We strongly encourage Counsel to proofread
submissions before filing.
2
It is unnecessary for the Court to recite the full extent of the circumstances and periods
of Boanes’s paroles, recommitments, and convictions for purposes of disposition of the matters
before us. For that reason, the opinion focuses on the most recent actions of the Board that are
relevant to the matter now before the Court.
3
Boanes initially filed an administrative appeal on December 16, 2016. Thereafter, Boanes
filed a second timely administrative appeal on December 27, 2016, requesting that the Board
disregard his previously filed administrative appeal and focus on the latter appeal filed by him.
2
your claim, the Board has reviewed the calculations, and
discovered a clerical error in your computation that added
time for prior liberty on parole, when in fact you were not
previously on parole.
(Id. at 136.) The Letter Decision also notified Boanes that the Board would
recalculate his maximum sentence date and provide him with a notice to that effect.
(Id.) The Letter Decision included the following language: “If you wish to appeal
this decision, you must file an appellate petition for review with the Commonwealth
Court within thirty (30) days of the mailing date of the Board’s response.” (Id.)
By notice of decision also mailed June 13, 2017 (Notice of Board
Decision), the Board notified Boanes that it had recalculated his maximum sentence
date to be November 28, 2020. (Id. at 137.) The Notice of Board Decision did not
set forth an explanation as to the basis for the newly recalculated maximum sentence
date. (Id.) The Notice of Board Decision included language notifying Boanes that
the decision involves an issue that is subject to the Board’s administrative remedies
process and, if he wished to appeal the decision, he must file a request for
administrative relief with the Board within thirty days of the mailing date of the
decision. (Id.)
Boanes then filed the instant petition for review in this Court,
challenging the June 13, 2017 Notice of Board Decision, not the Letter Decision,
arguing that his recalculated maximum sentence date should be May 8, 2017.4
Boanes also requested that this Court appoint counsel to represent him. This Court
issued an order, dated July 17, 2017, directing the Public Defender of Somerset
4
Boanes argues that (1) the Board erred in revoking any time served while Boanes was
outside of confinement, as Boanes contends that he was not “at liberty” at the time, and (2) the
Board erred by changing a maximum sentence date of a judicially-imposed sentence.
3
County to represent Boanes, and Counsel then filed the subject motion to withdraw
as counsel.
This matter is somewhat confusing because the Board issued two
decisions mailed on June 13, 2017—the Letter Decision and the Notice of Board
Decision. The Letter Decision essentially granted Boanes’s administrative appeal
by informing him that the Board had, in fact, incorrectly calculated his maximum
sentence date as September 23, 2023. The Letter Decision, however, did not set
forth the newly recalculated maximum sentence date or provide any specific
information as to how the Board would recalculate the date. Although the Letter
Decision instructed Boanes that an appeal of the decision should be filed with the
Commonwealth Court, Boanes was not aggrieved by that decision, and, therefore,
could not have appealed it. See Pa. R.A.P. 501. The Notice of Board Decision sets
forth the Board’s recalculation of Boanes’s new maximum sentence date as
November 28, 2020. It is the Notice of Board Decision that Boanes wishes to
challenge, and Boanes must file an administrative appeal with the Board in order to
challenge it. See 37 Pa. Code § 73.1. The Notice of Board Decision, therefore, is
not a final order appealable to this Court. See Pa. R.A.P. 341.
In this instance, it appears that Boanes failed to file with the Board a
timely administrative appeal of the Notice of Board Decision. “An appeal nunc pro
tunc may be allowed where the delay in filing the appeal was caused by
extraordinary circumstances involving fraud or some breakdown in the
administrative process, or non-negligent circumstances related to the appellant, his
or her counsel or a third party.” H.D. v. Dep’t of Pub. Welfare, 751 A.2d 1216, 1219
(Pa. Cmwlth. 2000). “Inadequate notice is [a] type of breakdown in the
administrative process that satisfies the standard for a nunc pro tunc appeal.” Beaver
4
Cty. Children & Youth Servs. v. Dep’t of Pub. Welfare, 68 A.3d 44, 48
(Pa. Cmwlth. 2013). Thus, a breakdown in the administrative process due to
inadequate notice of a parolee’s appeal rights may be sufficient to warrant nunc pro
tunc relief. Here, Boanes’s mistaken choice of forum for his appeal may be due in
large part to the Board’s confusing decisions mailed on the same date and directing
appeals to be filed in different forums. In fact, the Board appears to be confused as
well as to the appropriate forum for such an appeal.
Accordingly, we quash Boanes’s petition for review and dismiss as
moot Counsel’s motion to withdraw. Boanes may wish to file a request for nunc pro
tunc appeal with the Board, challenging its recalculation of his maximum sentence
date, as set forth in the Notice of Board Decision, dated June 13, 2017, as it appears
to this Court that such relief may be warranted.5
P. KEVIN BROBSON, Judge
5
“In any nunc pro tunc appeal, the petitioner must also show that: (1) he filed his appeal
shortly after learning of and having the opportunity to address his untimeliness; (2) the
untimeliness is of a short duration; and (3) the [respondent] will not be prejudiced by the delay.”
D.C. v. Dep’t of Human Servs., 150 A.3d 558, 562 (Pa. Cmwlth. 2016). Thus, should Boanes wish
to file a request for nunc pro tunc appeal with the Board, he should proceed without further delay.
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
James S. Boanes, :
Petitioner :
:
v. : No. 894 C.D. 2017
:
Pennsylvania Board of :
Probation and Parole, :
Respondent :
ORDER
AND NOW, this 4th day of June, 2018, Petitioner’s petition for review
is QUASHED, and the motion to withdraw as counsel, filed by Marc T. Valentine,
Esquire, is DISMISSED AS MOOT.
P. KEVIN BROBSON, Judge