J. Shaw v. PBPP ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jimmy Shaw, :
Petitioner :
:
v. : No. 1853 C.D. 2017
: SUBMITTED: April 13, 2018
Pennsylvania Board of Probation :
and Parole, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: July 17, 2018
Jimmy Shaw (Shaw) petitions pro se for review of an order of the
Pennsylvania Board of Probation and Parole (Board) denying his administrative
appeal from an order recommitting him as a convicted parole violator and setting his
parole violation maximum date to October 11, 2019. We vacate the Board’s order
and remand for an evidentiary hearing regarding the timeliness of Shaw’s petition
for review.
The pertinent background is as follows. In March 2016, police arrested
Shaw and charged him with escape. (Certified Record (C.R.) at 203.) The Board
filed a warrant to commit and detain him and the Court of Common Pleas of
Philadelphia County set bail at $100,000, which he failed to post. Following the
Board’s provision of notice of charges and intent to hold a violation/detention
hearing, Shaw waived his right to counsel, right to a panel hearing, and right to a
violation hearing. (Id. at 164-66 and 170). In addition, he admitted to violating
condition #7, unsuccessful discharge from self-help program. (Id. at 164.)
In April 2016, the Board recommitted Shaw to serve nine months as a
technical parole violator and detained him pending the disposition of the new
criminal charges. (Id. at 179-80.) In September 2016, he pled guilty to escape and
was sentenced to two years of probation. (Id. at 203-04.) In December 2016, the
Board provided Shaw with a notice of charges and intent to hold a revocation hearing
for the conviction. (Id. at 194.) Shaw waived his right to counsel and right to a
revocation violation hearing. In addition, he admitted to his conviction for escape.
(Id. at 192-93.)
In February 2017, the Board recommitted Shaw as a convicted parole
violator to serve twelve months concurrently for a total of twelve months backtime.
Stating that he was not amenable to parole supervision and deleting the reparole
portion of its April 2016 action, it changed his parole violation maximum date to
October 11, 2019. (Id. at 219.) In March 2017, Shaw filed a petition for
administrative review challenging the recalculation. (Id. at 226-41.) On November
6, 2017, the Board explained the recalculation of his sentence and affirmed its
February 2017 action. (Id. at 247.) Shaw’s petition for review, postmarked
December 12, 2017, followed. Notwithstanding the Board’s failure to challenge the
timeliness of Shaw’s petition for review, we turn first to that determinative issue.
The time for petitioning for review is thirty days after the entry of the
order below. Pa. R.A.P. 1512(a)(1). Entry occurs when the government unit mails
the order and, accordingly, that date commences the appeal period. Pa. R.A.P.
108(a). Appeal periods are jurisdictional and this Court may quash an untimely
appeal sua sponte. Donatucci v. Pa. Labor Relations Bd., 547 A.2d 857 (Pa.
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Cmwlth. 1988). In cases involving pro se filings by incarcerated individuals, we
consider the applicability of the prisoner mailbox rule providing 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, 1097
(Pa. Cmwlth. 2014). Filing focuses on the litigant 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. Evidence of
such compliance may include “a properly executed prisoner cash slip or other
reasonably verifiable evidence of the date the prisoner deposited the pro se filing
with the prison authorities.” Pa. R.A.P. 121(a).
In the present case, the final decision bore a November 6, 2017, mailing
date thereby necessitating that Shaw file his petition by December 6, 2017. This
Court, however, recorded a filing date of December 12. By way of analysis, we note
that the verification and service dates indicate December 3 and the delivery envelope
with this Court contains a postmarked “PA Department of Corrections Inmate Mail”
certified mailing date of December 12. Accordingly, we remand this matter for an
evidentiary hearing, to be recorded and transcribed, within forty-five days of the date
of this opinion, to afford Shaw an opportunity to proffer evidence as to when he
placed his petition for review in the prison mailbox or delivered it to prison officials.
Further, we direct the Board to make findings of fact thereon and certify the record
to this Court, so that we may determine whether the prisoner mailbox rule cures the
apparent untimeliness of the petition for review and, accordingly, whether this Court
has jurisdiction. See Sweesy v. Pa. Bd. of Prob. & Parole, 955 A.2d 501, 503 (Pa.
Cmwlth. 2008) (due to the Court’s inability to ascertain from the record when the
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prisoner placed his appeal of the Board’s decision in the prison mailbox, we vacated
and remanded the matter for a factual determination).
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jimmy Shaw, :
Petitioner :
:
v. : No. 1853 C.D. 2017
:
Pennsylvania Board of Probation :
and Parole, :
Respondent :
ORDER
AND NOW, this 17th day of July, 2018, the order of the Pennsylvania
Board of Probation and Parole is hereby VACATED, and this matter is
REMANDED to the Board to hold a hearing within forty-five (45) days of the date
of this opinion in accordance with the foregoing directives.
Jurisdiction retained.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge