A. Johnson v. PBPP ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Abdul Johnson, :
Petitioner :
:
v. : No. 947 C.D. 2019
: SUBMITTED: January 31, 2020
Pennsylvania Board of :
Probation and Parole, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: April 15, 2020
Petitioner Abdul Johnson (Johnson) petitions for review of Respondent
Pennsylvania Board of Probation and Parole’s (Board) July 1, 2019 ruling
confirming, for a second time, the Board’s April 16, 2019 decision. In that decision,
the Board recalculated Johnson’s minimum parole eligibility date regarding a
carceral sentence imposed in August 2010. We dismiss Johnson’s Petition for
Review, due to lack of jurisdiction.
Facts and Procedural History
On August 12, 2010, Johnson pleaded guilty in the Court of Common Pleas
of Delaware County (Trial Court) to one count each of involuntary manslaughter,
aggravated assault, and criminal conspiracy. Certified Record (C.R.) at 1. The Trial
Court sentenced Johnson to 7 to 14 years in state prison. Id. at 1-2. Johnson was
paroled on November 19, 2016, at which point his maximum date was November
19, 2023. Id. at 4, 7.
On June 14, 2017, Johnson was arrested in Chester, Pennsylvania, and
charged with several drug-related crimes. Id. at 15-20. The Board lodged a detainer
against Johnson that same day, in response to his arrest. Id. at 14. On June 19, 2017,
Johnson waived his right to a parole revocation hearing, as well as to representation
by counsel at that hearing. Id. at 21-22. On July 26, 2017, the Board ordered that
Johnson be detained “pending disposition of [these] criminal charges.” Id. at 33.
On January 9, 2018, Johnson pleaded guilty to one count of manufacture,
delivery, or possession with intent to manufacture or deliver and one count of use or
possession of drug paraphernalia. Id. at 67-68. The Trial Court sentenced Johnson
to 9 to 23 months in county prison and gave Johnson credit towards this sentence for
time served between June 14, 2017, the date of his arrest, and January 9, 2018, the
date of his guilty plea and sentencing. Id. at 50, 65, 68. On February 15, 2018,
Johnson again waived his right to a parole revocation hearing, as well as to
representation by counsel at that hearing, and admitted to the veracity of this
conviction. Id. at 50-53.
On March 30, 2018, the Board ordered Johnson to be recommitted as a
convicted parole violator (CPV) to serve 18 months of backtime. Id. at 75-76. In
addition, the Board calculated his minimum parole eligibility date as July 31, 2019,
set his maximum parole violation date as January 30, 2025, and declined to award
Johnson any credit for time served at liberty on parole, due to his “continued criminal
activity.” Id. at 75.
2
On March 7, 2019, while incarcerated at State Correctional Institution (SCI)
– Albion, Johnson applied for parole from his January 2018 sentence. Id. at 80. The
Trial Court granted this request via an order issued on March 28, 2019. Id.
On April 16, 2019, the Board issued a second decision, which modified the
March 30, 2018 decision that had ordered him to serve 18 months of backtime, by
recalculating Johnson’s minimum parole eligibility date for his August 2010
sentence as September 28, 2020, and Johnson’s maximum parole violation date for
that sentence as March 27, 2026. Id. at 83. The Board did not explain at that time
why it had elected to alter its previous decision.
On May 6, 2019, Johnson mailed a pro se administrative remedies form to the
Board, in which he claimed that he had actually been paroled by the Trial Court
immediately after he was sentenced on January 9, 2018, and was then sent to SCI-
Albion to serve the backtime imposed by the Board. Id. at 85-86. Johnson maintained
that the Trial Court had been “late” in signing his parole papers and that the sentence
imposed by the Trial Court was supposed to run concurrently with his CPV
backtime. Id. Johnson sent a second, counseled administrative remedies form to the
Board on May 15, 2019, in which he clarified the arguments he had made through
the first form by stating that the Board’s recalculation of his minimum parole
eligibility date was “inconsistent” with his January 2018 sentence. Id. at 87-91. On
May 29, 2019, the Board affirmed its April 16, 2019 decision, on the basis that it
had correctly calculated Johnson’s minimum parole eligibility date by adding 18
months to the date upon which he had been paroled by the Trial Court, i.e., March
28, 2019. Id. at 92-94.
3
Johnson did not appeal the Board’s May 29, 2019 ruling to our Court. Instead,
Johnson’s counsel emailed an undated, unverified1 “stipulation and order” to the
Board on June 18, 2019, which was allegedly signed by a “deputy district attorney,”
Johnson’s counsel, and the Trial Court. Id. at 99-103. This unverified “stipulation
and order” stated that the sentence imposed in January 2018 had an effective start
date of April 14, 2017,2 and that Johnson had actually been paroled from this
sentence on January 31, 2018. Id. at 103. This stipulation and order also purported
to rescind “[a]ny and all [p]aroling [o]rders declaring the effective date [of Johnson’s
parole from his January 2018 sentence] as March 28, 2019[.]” Id. The Board
responded on July 1, 2019, explaining to Johnson that it had construed his counsel’s
June 18, 2019 email communications as a “petition for review” of the Board’s May
29, 2019 ruling and that it could not honor the “retroactive parole” allegedly granted
to Johnson through the stipulation and order. Id. at 104. On that basis, the Board
affirmed, for a second time, its April 16, 2019 decision. Id. This appeal followed.
Discussion
Typically, we would proceed with discussion and analysis of the issues raised
by Johnson in his Petition for Review. However, such an effort is ultimately not
necessary in this matter, as we lack jurisdiction to consider Johnson’s Petition for
Review. The Board’s May 29, 2019 ruling was final and, therefore, Johnson had 30
days from the mailing date of that ruling to petition for review by our Court. See Pa.
R.A.P. 1512; Woodard v. Pa. Bd. of Prob. & Parole, 582 A.2d 1144, 1146 n.4 (Pa.
1
There is no definitive proof that this stipulation and order had actually been issued by the
Trial Court. It is undated, does not contain a stamp or other indicator showing that it was filed of
record, and was emailed directly from Johnson’s attorney to the Board.
2
This alleged effective date is, of course, impossible and clearly incorrect, given that
Johnson did not commit the crimes for which he was sentenced in January 2018 until June 14,
2017. See C.R. at 15-20, 50, 65, 67-68.
4
Cmwlth. 1990); Ozolins v. Dep’t of Educ., 372 A.2d 1230, 1231 (Pa. Cmwlth. 1977).
He did not do so. Instead, as recounted above, Johnson’s counsel submitted to the
Board what was, in essence, a second request for administrative relief. See C.R. at
99-103. This request was denied and Johnson then appealed this denial, rather than
the Board ruling that actually constituted a final order. See Petition for Review at 1
(“Johnson . . . hereby seeks review of the decision of the . . . Board . . . dated July 1,
2019 confirming [its] prior decision dated May 29, 2019[.]”). Therefore, we dismiss
Johnson’s Petition for Review due to lack of jurisdiction. See Robinson v. Pa. Bd. of
Prob. & Parole, 547 A.2d 838, 839 (Pa. Cmwlth. 1988), aff’d, 582 A.2d 857 (Pa.
1990) (quoting Altieri v. Pa. Bd. of Prob. & Parole, 495 A.2d 213, 214 (Pa. Cmwlth.
1985)) (“The timeliness of an appeal and compliance with the statutory provisions
which grant the right of appeal go to the jurisdiction of the court to hear and decide
the appeal. . . . The courts have no power to extend the period for taking appeals,
absent fraud or a breakdown in the court’s operation through a default of its
officers.”).3
______________________________
ELLEN CEISLER, Judge
3
Moreover, per its own administrative regulations, the Board did not have jurisdiction to
rule upon the merits of the arguments raised and the documents presented by Johnson’s counsel
via email on June 18, 2019, as this email was both untimely and constituted an impermissible
second request for relief from the Board. See 37 Pa. Code § 73.1(a)(1), (4), (b)(1), (3). Therefore,
the Board should have dismissed Johnson’s June 18, 2019 “petition for review” on procedural
grounds.
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Abdul Johnson, :
Petitioner :
:
v. : No. 947 C.D. 2019
:
Pennsylvania Board of :
Probation and Parole, :
Respondent :
ORDER
AND NOW, this 15th day of April, 2020, Petitioner Abdul Johnson’s Petition
for Review is DISMISSED for lack of jurisdiction.
__________________________________
ELLEN CEISLER, Judge