J.M. Black v. PPB

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joseph M. Black, :
Petitioner :
:
v. : No. 1191 C.D. 2021
: Submitted: July 22, 2022
Pennsylvania Parole Board, :
Respondent :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WALLACE FILED: September 29, 2022
Joseph Black (Petitioner) petitions for review of an order of the Pennsylvania
Parole Board (Board) that dismissed a challenge to the recalculation of his maximum
sentence date as untimely. After review, we quash the appeal for lack of jurisdiction.
In March of 2015, Petitioner pled guilty to various theft-related offenses and
received a sentence of incarceration with a minimum release date of July 8, 2016
and a maximum sentence date of January 8, 2025. On February 28, 2017, the Board
released Petitioner on parole. Petitioner remained on parole until his July 2020
conviction for summary harassment1 in connection with a domestic violence
incident. Before this incident but while he remained on parole, Petitioner had three
stints of temporary incarceration that did not result in the revocation of his parole.
1
18 Pa.C.S. § 2709(a).
Two of these were for new charges that were ultimately withdrawn; the other was
for technical violations of the conditions of Petitioner’s parole. Altogether, these
periods of incarceration totaled 497 days. See Certified Record (C.R.) at 101
(calculating credit due Petitioner for “confinement time” incurred on parole).
On July 13, 2020, Munhall Borough police arrested Petitioner after catching
him in the act of strangling his wife, which led him to plead guilty to summary
harassment.2 Based on his new conviction, the Board mailed two copies of the same
order to Petitioner, 3 one on September 29, 2020, and the other on October 9, 2020
(Revocation Order), revoking his parole and recommitting him to a state correctional
institution to serve six months’ backtime. 4, 5 The Board noted Petitioner would serve
this time “when available, pending sentencing on” his new conviction. C.R. at 97.
The Revocation Order did not recalculate Petitioner’s maximum sentence date.
On October 27, 2020, the Board received a petition for administrative review
from Petitioner challenging the Revocation Order (First Board Petition). Petitioner
argued he pled guilty under the impression that his conviction for summary
harassment would only render him a technical parole violator. He wrote that his
attorney was “unaware” of changes to the Prisons and Parole Code, 61 Pa.C.S. §§
101-7301, that provided for his recommitment as a convicted parole violator (CPV)
2
Petitioner was sentenced on October 14, 2020.
3
The deadline for an appeal from a decision of the Board is calculated from the date the decision
is mailed, not the date it is decided. 37 Pa. Code § 73.1(a)(1).
4
The difference between the two copies of the Revocation Order, other than the mailing dates, is
that the September 29, 2020 copy was signed by Acting Board Secretary, Scott A. Woolf, and the
October 9, 2020 copy was signed by Board Secretary, Deborah L. Carpenter.
5
“Backtime” is “an additional part of the term [of incarceration] which the parolee would have
been compelled to serve” if he was never paroled in the first place. 37 Pa. Code § 75.2; see also
37 Pa. Code § 61.1.
2
and therefore “misled” him. C.R. at 111; see also 61 Pa.C.S. § 6138(a)(1.1)
(providing that conviction for summary harassment may lead to recommitment as a
convicted parole violator). Additionally, despite the absence of a recalculated
maximum sentence date in the Revocation Order, Petitioner alleged error in “the
new calculated max date.” C.R. at 111.
On December 21, 2020, the Board mailed another order recalculating
Petitioner’s new maximum sentence date to January 12, 2027 (Recomputation
Order). Petitioner did not file a petition for administrative review of this decision.
Later, in an order issued on April 6, 2021,6 the Board denied a request from Petitioner
for reparole (Reparole Denial Order). In addition to stating its rationale for denying
an additional period of parole, the Reparole Denial Order reiterated the new
maximum sentence date calculated by the Recomputation Order. Petitioner then
filed a petition for administrative review of the Reparole Denial Order on the sole
basis that the maximum sentence date contained therein was incorrect (Second
Board Petition). Specifically, Petitioner argued the new date should reflect credit
for street time7 that the Board had already awarded him in connection with his
periods of temporary detention in 2018 and 2019. See C.R. at 114 (arguing that the
Board “is not permitted to ‘reach back’ and revoke” previously awarded credit for
time spent at liberty on parole).
The Board mailed an order on October 6, 2021 (Final Board Decision), that
addressed both of Petitioner’s requests for administrative review. Regarding the
First Board Petition’s allegation that Petitioner was misled as to whether he could
6
The record does not indicate when this decision was mailed to Petitioner.
7
“Street time” is a colloquial term that refers to time a parolee spends while released, or “at
liberty,” on parole. See Penjuke v. Pa. Bd. of Prob. & Parole, 203 A.3d 401, 403 (Pa. Cmwlth.
2019).
3
be recommitted as a CPV when he pled guilty, the Board observed Petitioner had
the right to a revocation hearing where he might have presented this argument, but
he waived that right and admitted to the conviction. Furthermore, the Board noted
this crime was clearly delineated as a crime for which CPV status was authorized by
61 Pa.C.S. § 6138(a)(1.1) at the time of Petitioner’s offense.
The Board also determined the First Board Petition’s challenge to Petitioner’s
new maximum sentence date was “premature” because that date was not recalculated
until the Board mailed the Recomputation Order on December 21, 2020.8 C.R. at
121-22. Pursuant to Board regulations, Petitioner had 30 days, or until January 20,
2021, to file a timely petition for administrative review of this decision. See 37 Pa.
Code § 73.1(b)(1). Because Petitioner did not take any steps to address the alleged
error in the recomputation of his maximum sentence date until he filed the Second
Board Petition in April of 2021, the Board dismissed his challenge as untimely.
With the assistance of counsel, Petitioner now appeals to this Court. On
appeal from a decision of the Board, our review is limited to determining whether
the Board violated Petitioner’s constitutional rights, adhered to statutory law,
followed the procedures for agency adjudications outlined in the Administrative
Agency Law,9 and supported its factual findings with substantial evidence. 2 Pa.C.S.
§ 704.
Before this Court, Petitioner raises a single issue: whether the Board
unlawfully rescinded credit it had allegedly already granted him for time spent at
8
The Board indicated that, when it issued the Revocation Order, it deferred recalculation of
Petitioner’s maximum sentence date because it was waiting for Petitioner to be sentenced on his
conviction for summary harassment. The Allegheny County Court of Common Pleas sentenced
Petitioner on October 14, 2020.
9
See 2 Pa.C.S. §§ 501-08.
4
liberty on parole when it recommitted him based on his new criminal conviction.
While the parties have briefed the merits of this issue, it is not properly before the
Court. As the Board noted below, Petitioner never filed an administrative appeal of
the Recomputation Order, the issuance of which marked the moment when the Board
denied Petitioner credit for street time. See C.R. at 103. In its final decision, the
Board correctly determined that Petitioner’s attempt to raise concerns about the
recalculation of his maximum sentence date via the First Board Petition was
“premature,” as that recalculation, and the concomitant denial of credit for time spent
at liberty on parole, did not actually occur until the Board issued the Recomputation
Order.10 C.R. at 117. When Petitioner later attempted to raise the credit-denial issue
in the Second Board Petition, he was essentially challenging previous action taken
by the Board via the Recomputation Order. This he cannot do.
This Court has long held that decisions revoking an individual’s parole and
imposing backtime—like the Revocation Order—and decisions recalculating that
individual’s maximum sentence date—like the Recomputation Order—are distinct
Board actions that must be appealed separately. Wright v. Pa. Bd. of Prob. & Parole,
743 A.2d 1004, 1006 (Pa. Cmwlth. 1999). The Board’s regulations provide that
petitions for administrative review “shall be received at the Board’s Central Office
within 30 days of the mailing date” of the challenged decision. 37 Pa. Code §
73.1(b)(1). We have held that this deadline is jurisdictional, meaning the Board
10
We are aware that, on September 10, 2020, a hearing examiner completed a report
recommending that Petitioner be denied credit for his street time and that one Board member joined
this recommendation. C.R. at 87-92. However, the record contains no indication this
recommendation constituted a final decision of the Board, or that the report was ever mailed to
Petitioner. This conclusion is supported by the Final Board Decision’s statement that the Board
had not yet “finalized” its recalculation of Petitioner’s maximum sentence date until it issued the
Recomputation Order, and that Order’s announcement that the Board had decided to deny credit
for street time.
5
lacks authority to consider untimely petitions. McCullough v. Pa. Bd. of Prob. &
Parole, 256 A.3d 466, 471 (Pa. Cmwlth. 2021) (citation omitted).
Pursuant to 37 Pa. Code § 73.1(b)(1), Petitioner had until January 20, 2021,
to submit a timely challenge to the Recomputation Order’s denial of credit for time
spent at liberty on parole. As noted, Petitioner did not submit any request for review
directly addressing this decision. Instead, after the Board issued the Reparole Denial
Order on April 6, 2021, Petitioner filed the Second Board Petition on April 21, which
challenged his recalculated maximum sentence date by arguing it was tainted by an
unlawful denial of credit. See C.R. at 114 (arguing that “the only means for this
maximum date of sentence to be reached would be if the Board revoked the time
spent at liberty on parole . . .”). Crucially, the Reparole Denial Order did not purport
to change Petitioner’s maximum sentence date in any way—it merely carried
forward the new maximum date calculated by the Recomputation Order. See C.R.
at 109-10. As such, the Board correctly determined it lacked jurisdiction to consider
Petitioner’s challenge. By extension, we also lack jurisdiction to consider the merits
of this claim and must therefore quash the appeal. See Martin v. Zoning Hearing
Bd. of W. Vincent, 230 A.3d 540, 544 (Pa. Cmwlth. 2020) (“If an adjudicative body
below lacks subject matter jurisdiction, an appellate court does not acquire
jurisdiction by an appeal.”) (quoting Pa. Higher Educ. Assistance Agency v. Lal, 714
A.2d 1116, 1118 (Pa. Cmwlth. 1998)); see also Lee v. Pa. Bd. of Prob. & Parole,
6
251 A.3d 842, 847 n.7 (Pa. Cmwlth. 2021) (quashal appropriate where parolee’s
claim is untimely under Board regulations).11
______________________________
STACY WALLACE, Judge
11
As noted, the Board’s denial of credit for street time is the only issue raised in the Petition for
Review in this Court. Petitioner does not reprise his earlier claim that he was misled by his attorney
about the parole consequences of his guilty plea.
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joseph M. Black, :
Petitioner :
:
v. : No. 1191 C.D. 2021
:
Pennsylvania Parole Board, :
Respondent :
ORDER
AND NOW, this 29th day of September, 2022, the Petition for Review
filed by Petitioner Joseph M. Black is QUASHED for lack of jurisdiction.
______________________________
STACY WALLACE, Judge