J.L. Aursby v. PPB

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jeffrey L. Aursby, :
Petitioner :
:
v. :
:
Pennsylvania Parole Board, : No. 635 C.D. 2021
Respondent : Submitted: February 18, 2022
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: October 5, 2022
Before the Court are the petition for review (Petition) filed by Jeffrey
L. Aursby (Aursby), pro se, from the April 5, 2021 decision of the Pennsylvania
Parole Board (Board) denying his administrative appeal from the Board’s December
4, 2019 decision recommitting him as a convicted parole violator, and the Board’s
motion to quash the Petition as untimely filed.1 Upon review, we grant the Board’s
motion to quash and dismiss Aursby’s Petition.2
1
Although Aursby identifies the Board’s recommitment decision by the date of December
2, 2019, see Petition for Review (Petition) at 1; Aursby’s Br. at 2, this decision is referenced herein
by its mailing date of December 4, 2019. See Section 73.1(a) of the Board’s Regulations, 37 Pa.
Code § 73.1(a) (providing that appeals from revocation decisions “shall be received at the Board’s
Central Office within 30 days of the mailing date of the Board’s order”) (emphasis added).
2
A motion for rehearing filed by Aursby is also before the Court. However, for the reasons
discussed infra, that motion is dismissed as moot.
I. Background
In 2013, Aursby was convicted of multiple criminal offenses and
sentenced to 5 to 10 years’ imprisonment. Sentence Status Summary, 2/5/14 at 1-2,
Certified Record (C.R.) at 1-2. In February 2017, the Board paroled Aursby to a
community corrections center with specialized violence prevention programming.
Board Decision, 10/27/16 at 1, C.R. at 4; Order to Release on Parole/Reparole,
10/27/16, C.R. at 7. In August 2018, Aursby was arrested and charged with multiple
new offenses. Criminal Arrest and Disposition Report, 9/20/18 at 1, C.R. at 36. The
Board issued a warrant to commit and detain Aursby. Warrant to Commit and
Detain, 8/30/18, C.R. at 31. Aursby was subsequently detained and waived his right
to a detention hearing. Waiver of Representation by Counsel/Waiver of Detention
Hearing, 9/19/18, C.R. at 34; Board Action, 10/1/18, C.R. at 49. In September 2018,
Aursby was charged with additional new criminal offenses, of which he was
convicted in July 2019; he received a new sentence of 80 to 160 months’
imprisonment. Trial/Plea/Sentence at 1, C.R. at 61; Mag. Dist. Judge, Crim. Docket
at 2, C.R. at 95; Montgomery Cnty. Common Pleas Court, Crim. Docket at 3, C.R.
at 99. In October 2019, the Board held a parole revocation hearing. Parole
Revocation Hearing, Transcript of Testimony (T.T.), 10/17/19 at 1, C.R. at 67.
Aursby was returned to the custody of the Pennsylvania Department of Corrections
(the Department) later that month. Moves Report, 12/2/19, C.R. at 66.
By decision mailed December 4, 2019, the Board recommitted Aursby
as a convicted parole violator to serve 18 months’ backtime, identifying a parole
violation maximum sentence date of September 20, 2024. Board Decision, 12/4/19
at 1, C.R. at 113; see also Order to Recommit, 7/27/20 at 1, C.R. at 117. Aursby filed
a timely administrative appeal, asserting that the Board relied on evidence “illegally
2
obtained without a search warrant[.]” Administrative Remedies Form, 12/20/19 at 1,
C.R. at 124. In August 2020, the Board established a new minimum sentence date of
March 31, 2021. Board Decision, 8/10/20 at 1, C.R. at 119. The Board denied Aursby
credit for time spent at liberty on parole due to his new conviction of an offense
involving the possession of a weapon. Id. On August 25, 2020, Aursby filed a second
administrative appeal from the Board’s December 4, 2019 recommitment decision.
See Administrative Remedies Form, 8/25/20, C.R. at 134-35.
By decision mailed April 5, 2021, the Board affirmed its December 4,
2019 and August 10, 2020 decisions. Board’s Decision, 4/5/21 at 1-2, C.R. at 147-
48.3 On June 7, 2021, Aursby petitioned this Court for review of the Board’s April
5, 2021 decision affirming his recommitment as a convicted parole violator.4 See
3
Aursby’s present appeal concerns only the Board’s affirmance of its December 4, 2019
decision. See Petition at 1. In March 2022, after briefing on the Petition was complete and the
case had been submitted to a panel of this Court for disposition, Aursby filed a document with the
Court titled “Ex [P]arte Reexamination-Speaking [M]otion of an [sic] [M]anifest Error
[C]alculation,” in which he sought to challenge the recalculation of his maximum sentence date
that occurred on August 10, 2020, from which he took no administrative appeal. We decline to
consider this filing, as Aursby neither preserved this question for appellate review nor properly
amended his Petition. See McCaskill v. Pa. Bd. of Prob. & Parole, 631 A.2d 1092, 1095 (Pa.
Cmwlth. 1993) (holding that petitioner waived a challenge to the Board’s recalculation of his
maximum term expiration date by failing to raise the issue in a timely administrative appeal from
the Board’s decision); Edwards v. Unemployment Comp. Bd. of Rev., 3 A.3d 690, 694-95 (Pa.
Cmwlth. 2010) (explaining that a “petitioner may not amend his petition for review beyond the
30-day filing period in order to raise new issues,” in that “once the time for filing a petition for
review has expired, the filing of an amended petition is of no import. To the extent it would add
additional issues, it is improper; to the extent it does not, it is surplusage.”).
4
On August 2, 2021, this Court entered an order appointing a public defender as counsel
for Aursby. See Cmwlth. Ct. Order, 8/2/21. However, Aursby petitioned this Court to proceed
pro se, noting that the appointed public defender had deemed his case meritless. See Petition,
8/13/21 at 1. Aursby submitted an appellate brief, which this Court rejected as noncompliant with
multiple provisions of the Pennsylvania Rules of Appellate Procedure. See Cmwlth. Ct. Order,
9/13/21. We advised Aursby that failure to submit a corrected, amended brief by October 14, 2021
would result in dismissal of his appeal. See id. Aursby thereafter requested that this Court appoint
him counsel, asserting the attorney previously appointed had advised him that his claim lacked
3
Petition, 6/7/21. Aursby requested that this Court deem his Petition timely due to
“limitations” caused by COVID-19 restrictions at the prison, and because he “tried
to seek relief in this matter[]” through the “institution parole agent,” a public
defender, and an administrative appeal, but “all gave [a] negative response.” Petition
at 1.
On August 17, 2021, this Court issued an order stating that Aursby’s
appeal may be untimely and instructing the parties to address that issue in either their
principal briefs on the merits or in an appropriate motion. See Cmwlth. Ct. Order,
8/17/21 (citing Pa.R.A.P. 1512(a)(1)). On October 4, 2021, the Board filed a motion
to quash Aursby’s Petition as untimely, and requested that this Court stay all
proceedings, including the requirement to file briefs, pending disposition of its
motion. See Motion to Quash/Appl. for Stay, 10/4/21 at 1-4. We granted the Board’s
request for a stay. Cmwlth. Ct. Order, 10/6/21. Aursby opposed the Board’s motion
to quash and requested that this Court lift the stay, which we declined to do. See
“Motion to Prevent Respondent’s ‘Motion to Quash, Lift Respondent’s Stay’ and
Compelling State-Interest Test,” 10/13/21 at 1; Cmwlth. Ct. Order, 10/20/21.5
On October 19, 2021, Aursby filed a motion requesting that this Court
conduct a hearing on the merits, asserting that delays caused by COVID-19
restrictions and the Smart Communications mailing system utilized by the
Department contributed to the untimeliness of his Petition. See Motion for
Rehearing and/or Alter and Amend Judgment (Motion for Rehearing), 10/19/21 at
merit. See Application, 9/20/21. Aursby also requested a 30-day extension to file his amended
brief. See id. We denied Aursby’s request for the appointment of counsel but extended the
deadline to file the amended brief to October 29, 2021. See Cmwlth. Ct. Order, 9/28/21.
We also extended the deadline by which to file an answer to the Board’s motion to quash.
5
See Cmwlth. Ct. Order, 10/20/21.
4
1-3. On November 18, 2021, we issued an order stating that the Board’s motion to
quash and Aursby’s Motion for Rehearing would be decided with the merits.
Cmwlth. Ct. Order, 11/18/21.6
II. Issues
Before this Court,7 Aursby argues that the Board violated his due
process rights in various ways in connection with the October 2019 parole revocation
hearing. See Aursby’s Br. at 8. Aursby contends that the Board failed to provide
him with written notice of the purported parole violations in advance of the hearing,
did not disclose before the hearing the evidence upon which it relied in recommitting
him as a convicted parole violator, and subsequently failed to provide him with a
written statement explaining this evidence and the reasons supporting the revocation
of his parole. See id. at 8-9. Moreover, Aursby maintains that the Board failed to
afford him the opportunity to appear in person, to present evidence in support of his
6
On January 11, 2022, Aursby filed a document with this Court, titled “Ex Parte Special
Motion,” in which he contended that his challenge to the evidence supporting his criminal
conviction did not constitute a collateral attack upon that conviction, because “any proceeding that
is started on unlawful evidence will activate a violation of due process and[/]or inadmissible
evidence.” Ex Parte Special Motion, 1/11/22 at 2, ¶ 2.C. Further, Aursby asserted that his failure
to raise a hearsay objection at the October 2019 parole revocation hearing should not preclude this
Court’s consideration of that objection, maintaining that “a manifest constitutional error can be
reviewed by a court of appeal(s) even if the applicant did not object[.]” Id. at 2, ¶ 2.A (citing
Board’s Br. at 8 n.3). Aursby also reiterated his claim that the evidence relied upon in revoking
his parole was “unlawful” and “should have been suppressed[.]” Id. at 3, ¶ 2.D. As Aursby filed
this document 14 days after the Board filed its appellate brief on December 28, 2021, and
responded to matters asserted in the Board’s appellate brief that were not addressed in his principal
appellate brief, we treat this filing as a reply brief. See Pa.R.A.P. 2113(a) & 2185(a)(1).
7
Our review of the Board’s decision denying administrative relief is limited to determining
whether necessary findings of fact are supported by substantial evidence, whether an error of law
was committed, or whether constitutional rights have been violated. Fisher v. Pa. Bd. of Prob. &
Parole, 62 A.3d 1073, 1075 n.1 (Pa. Cmwlth. 2013); see also Section 704 of the Administrative
Agency Law, 2 Pa.C.S. § 704.
5
position, to rebut the Board’s evidence, or to confront and cross-examine adverse
witnesses. See id.
Aursby also asserts that the Board violated his constitutional rights by
failing to suppress evidence “that was illegally obtained without an approved, signed
or sealed search warrant” when law enforcement conducted an illegal search after
impounding his car and discovering a firearm and a controlled substance. Id. at 11-
13 (citations omitted). Aursby maintains that the record of his conviction based on
the unlawful possession of a firearm constitutes “tainted evidence” that is “illegally
insufficient [sic]” and should have been suppressed during the criminal proceedings
against him and at the revocation hearing because the firearm was unlawfully
obtained by law enforcement. Id. at 10-12 & 20. Aursby states that he attempted to
challenge the Board’s evidence at the revocation hearing. Id. at 10. Moreover,
Aursby maintains that the Board erred in relying on hearsay evidence. Id. at 9. Thus,
Aursby asserts that “all evidence introduced at the parole revocation hearing and [in
the] criminal proceeding[s] should be suppressed” and that he should be
“discharged.” Id. at 14. Aursby requests “[i]n the alternative” that this Court vacate
the Board’s “recommitment sentence of 18 months” and remand this matter to the
criminal court “for further proceedings.” Id.
The Board counters that this Court should quash Aursby’s June 7, 2021
Petition as untimely, as it was filed more than 30 days beyond April 5, 2021, the date
on which the Board issued the challenged decision. Board’s Br. at 7 (citing
Pa.R.A.P. 105(b) & 1512(a); Altieri v. Pa. Bd. of Prob. & Parole, 495 A.2d 213, 214
(Pa. Cmwlth. 1985)). Thus, the Board contends that this Court lacks jurisdiction
over Aursby’s appeal. Id. at 8. The Board also asserts that Aursby failed to preserve
for appellate review his assertion that the Board violated his due process rights in
6
connection with the October 2019 parole revocation hearing by failing to provide
him with written notice of the charges filed against him and by relying on
inadmissible hearsay evidence in recommitting him as a convicted parole violator.
Id. at 8. Regardless, the Board notes that it did provide written notice of the charges
prior to the revocation hearing, on September 9, 2019. Id. at 8 n.2 (citing Notice of
Charges and Hearing, 9/9/19, C.R. at 53). Further, the Board notes that Aursby
failed to assert a hearsay objection to any of the Board’s evidence at the October
2019 parole revocation hearing. Id. at 8-9 and 8 n.3 (citing Maxfield v. Pa. Bd. of
Prob. & Parole, 538 A.2d 628, 631 (Pa. Cmwlth. 1988); Section 703(a) of the
Administrative Agency Law, 2 Pa.C.S. § 703(a); Pa.R.A.P. 1551(a)). The Board
also contends that Aursby is asserting an impermissible collateral attack on the
criminal convictions supporting its recommitment decision. Id. at 11 (citing
Chapman v. Pa. Bd. of Prob. & Parole, 484 A.2d 413, 417 (Pa. Cmwlth. 1984)).
Thus, the Board requests that this Court quash Aursby’s appeal as untimely or, in
the alternative, affirm its December 4, 2019 recommitment decision. Id. at 12.
III. Discussion
“A petition for review of a quasijudicial order . . . shall be filed with the
prothonotary of the appellate court within 30 days after the entry of the order.”
Pa.R.A.P. 1512(a)(1). “An appellate court . . . may not enlarge the time for filing . . .
a petition for review[.]” Pa.R.A.P. 105(b). As this Court has explained, “[t]he
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.”
Altieri, 495 A.2d at 214 (quoting Iannotta v. Phila. Transp. Co., 312 A.2d 475, 476
(Pa. Cmwlth. 1973) (citations omitted)); see also J.C. v. Dep’t of Pub. Welfare, 720
7
A.2d 193, 197 (Pa. Cmwlth. 1998) (observing that “[i]t is well established that the
failure to timely appeal an administrative agency’s action is a jurisdictional defect”).
However, an appeal nunc pro tunc may be permitted when a delay in
filing the appeal is caused by extraordinary circumstances involving fraud,
administrative breakdown on the part of a court or administrative tribunal, or non-
negligent conduct, either by a third party or by the petitioner. See Mountain Home
Beagle Media v. Unemployment Comp. Bd. of Rev., 955 A.2d 484, 487 (Pa. Cmwlth.
2008); Seddon v. Pa. Liquor Control Bd., 609 A.2d 619, 621 (Pa. Cmwlth. 1992);
see also Altieri, 495 A.2d at 214 (quoting Iannotta, 312 A.2d at 476) (“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.”). Further, under the
“prisoner mailbox” rule, a pro se petitioner who is incarcerated at the time he seeks
to file an appeal is deemed to have filed the appeal on the date he deposits it with
prison authorities or places it in the prison mailbox; however, the petitioner bears
the burden of proving that he in fact delivered the appeal within the appropriate time
period. Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997).
Here, Aursby petitioned this Court for review of the Board’s April 5,
2021 order on June 7, 2021, a date that is “well beyond the mandatory [30-]day
appeal period.” Altieri, 495 A.2d at 214. Aursby asserts in his Petition that
“limitations” caused by COVID-19 restrictions at the prison contributed to the
untimeliness of his appeal. Petition at 1. However, Aursby fails to mention this
assertion in his appellate brief, much less develop it with any specificity8 or
8
For instance, Aursby fails to identify which of the Department’s COVID-19 protocols
purportedly contributed to the untimeliness of his Petition. Further, Aursby fails to explain the
nature of the alleged administrative breakdown—e.g., whether the COVID-19 protocol delayed
his receipt of the Board’s April 5, 2021 decision or impeded his ability to mail his Petition in a
timely fashion.
8
supporting legal authority. He likewise fails to develop any argument for the
application of the prisoner mailbox rule. Although he contends in his Motion for
Rehearing that the Smart Communications mailing system utilized by the
Department affected the timeliness of his Petition, see Motion for Rehearing,
10/19/21 at 1-3, Aursby fails to provide any specifics or supporting legal authority
in support of his assertion; thus, that assertion is waived. See Commonwealth v.
Johnson, 985 A.2d 915, 924 (Pa. 2009) (citations omitted) (“[W]here an appellate
brief fails to provide any discussion of a claim with citation to relevant authority or
fails to develop the issue in any other meaningful fashion capable of review, that
claim is waived. It is not the obligation of [an appellate court] . . . to formulate
[petitioner’s] arguments for him.”). Accordingly, Aursby has waived any argument
that his Petition should be deemed timely. See Pa.R.A.P. 2116(a) (stating that “[n]o
question will be considered unless it is stated in the statement of questions involved
or is fairly suggested thereby”); Pa.R.A.P. 2119(a) (providing that the argument
contained within an appellate brief must contain “such discussion and citation of
authorities as are deemed pertinent”).
As Aursby failed to establish that an administrative breakdown or other
extraordinary circumstances justify nunc pro tunc relief, we agree with the Board
that we lack jurisdiction over his untimely Petition.9 See Mountain Home Beagle
9
Further, we agree with the Board that Aursby failed to raise before the Board and, thus,
waived for appellate review his assertion that the Board violated his due process rights by failing
to provide advance written notice of the claimed parole violations prior to the October 2019 parole
revocation hearing, and by relying on inadmissible hearsay evidence in recommitting him as a
convicted parole violator. See Section 703(a) of the Administrative Agency Law, 2 Pa.C.S. § 703(a)
(a “party may not raise upon appeal any other question not raised before [a Commonwealth]
agency”); Pa.R.A.P. 1551(a) (providing that “[r]eview of quasijudicial orders shall be conducted
by the court on the record made before the government unit. Only questions raised before the
government unit shall be heard or considered”); McCaskill v. Pa. Bd. of Prob. & Parole, 631 A.2d
1092, 1094-95 (Pa. Cmwlth.1993) (explaining that “[i]t has been the holding of this [C]ourt that
9
Media, 955 A.2d at 487. Therefore, we grant the Board’s motion to quash Aursby’s
Petition as untimely and dismiss the Petition. Accordingly, we dismiss, as moot,
Aursby’s Motion for Rehearing. The “Ex [P]arte Reexamination-Speaking [M]otion
of an [sic] [M]anifest Error [C]alculation” filed March 18, 2022 is stricken as
improper.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
issues not raised by a [convicted parole violator] before the Board in an administrative appeal are
waived for purposes of appellate review by this [C]ourt”).
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jeffrey L. Aursby, :
Petitioner :
:
v. :
:
Pennsylvania Parole Board, : No. 635 C.D. 2021
Respondent :
ORDER
AND NOW, this 5th day of October, 2022, the Pennsylvania Parole
Board’s motion to quash the petition for review (Petition) filed by Jeffrey L. Aursby
(Aursby) on June 7, 2021 is GRANTED, and Aursby’s Petition is DISMISSED as
untimely filed. The Motion for Rehearing filed by Aursby is DISMISSED as moot.
The “Ex [P]arte Reexamination-Speaking [M]otion of an [sic] [M]anifest Error
[C]alculation” filed March 18, 2022 is STRICKEN as improper.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jeffrey L. Aursby, :
Petitioner :
: No. 635 C.D. 2021
v. :
: Submitted: February 18, 2022
Pennsylvania Parole Board, :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
DISSENTING OPINION
BY JUDGE McCULLOUGH FILED: October 5, 2022
This Court is obligated to construe pro se filings liberally, and, so long
as we can discern the issue raised, we should (or rather must) address it. See Smithley
v. Unemployment Compensation Board of Review, 8 A.3d 1027, 1029 n.6 (Pa.
Cmwlth. 2010); accord, e.g., Richardson v. Pennsylvania Insurance Department, 54
A.3d 420, 425-26 (Pa. Cmwlth. 2012).
Here, Jeffrey L. Aursby (Petitioner), pro se, filed a Motion for
Rehearing (Motion), asserting that delays caused by COVID-19 restrictions and the
Smart Communications mailing system utilized by the Department of Corrections
resulted in an untimely filed petition for review in this Court. Unlike the Majority,
which quashes the appeal, I would grant the Motion and remand the matter to the
Pennsylvania Parole Board (Board) to conduct a hearing to determine whether
Petitioner is entitled to nunc pro tunc relief. See Smith v. Pennsylvania Board of
Probation and Parole, 81 A.3d 1091, 1094-95 (Pa. Cmwlth. 2013). Although
Petitioner’s Motion may not contain the desired amount of explanatory detail, it is
common knowledge that the COVID-19 pandemic has resulted in profound
restrictions in the prison system in general, affecting inmates’ ability to prepare the
necessary paperwork and/or file legal documents with the courts of this
Commonwealth. See, e.g., Commonwealth v. Carter (Pa. Super., No. 398 MDA
2021, filed February 25, 2022) (unreported) (Colins, S.J.), slip op. at 5-6 (granting
nunc pro tunc relief where the COVID-19 pandemic caused a lockdown of the prison
and prevented the inmate from filing a timely notice of appeal); Katie Meyer, ‘More
harm than good’: Most Pa. prisoners are vaxxed, but isolating COVID rules remain
(WHYY News, filed June 18, 2021)1 (“When the pandemic first hit, prisons locked
down completely. Virtually all the activities many incarcerated people are allowed
to do—going to the prison library, doing various jobs, taking classes, going outside
to the yard—were suspended.”); id. (explaining that around the time Petitioner filed
his petition for review with this Court, “a number of the system’s COVID-19
prevention measures [were] still in place”). Given these circumstances, I believe
Petitioner should be afforded the opportunity to present evidence regarding the
circumstances of the COVID-19 restrictions at his state correctional institution.
Hence, I respectfully dissent.
________________________________
PATRICIA A. McCULLOUGH, Judge
1
Available at: https://whyy.org/articles/more-harm-than-good-most-pa-prisoners-are-
vaxxed-but-isolating-covid-rules-remain/ (last visited October 4, 2022).
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