R. Christopher, III v. PA Parole Board

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Richard A. Christopher III, :
Petitioner :
:
v. : No. 1880 C.D. 2019
: SUBMITTED: February 12, 2021
Pennsylvania Parole Board, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: March 17, 2021
Petitioner Richard A. Christopher III (Christopher) petitions for review of
Respondent Pennsylvania Parole Board’s (Board) November 26, 2019 ruling. In this
ruling, the Board affirmed its February 26, 2019 decision recommitting Christopher
as a convicted parole violator (CPV) to serve 12 months of backtime and
recalculating the maximum date on multiple carceral sentences that were imposed
upon him in 2014 as April 16, 2026. After thorough review, we quash Christopher’s
Petition for Review on jurisdictional grounds.
I. Facts and Procedural History
On August 28, 2014, Christopher pled guilty in the Court of Common Pleas
of Adams County (Adams County) to one count each of access device fraud and
criminal conspiracy. Certified Record (C.R.) at 1. In conjunction with this guilty
plea, Adams County also revoked Christopher’s probationary sentences relating to
two previous convictions, for terroristic threats with intent to terrorize another and
simple assault, and imposed an aggregate sentence of 27 to 120 months in state
prison. Id. at 1-2. On October 14, 2014, Christopher pled guilty in the Court of
Common Pleas of York County (York County) to one count each of possession with
intent to deliver and criminal conspiracy, for which he received an aggregate carceral
sentence of 15 to 30 months in state prison, to be served concurrently with his Adams
County sentence. Id. The Board subsequently paroled Christopher on May 23, 2016,
at which point the maximum dates on his York County and Adams County sentences
were, respectively December 26, 2016, and August 3, 2023. Id. at 5-9.
On August 9, 2018, Christopher was arrested in Berwick Township, Adams
County, Pennsylvania, and was charged with driving under the influence and other,
related offenses. Id. at 31-36, 39. Five days later, on August 14, 2018, Christopher
was arrested in Penn Township, York County, Pennsylvania, and, as with the
previous incident, was charged with driving under the influence and other, related
offenses. Id. at 15-23, 39. The following day, August 15, 2018, the Board issued a
warrant to commit and detain Christopher on account of these arrests. Id. at 24, 39.
On August 16, 2018, Christopher waived his right to a detention hearing before the
Board, as well as to representation by counsel. Id. at 26-27. The Board subsequently
ordered Christopher to be detained pending resolution of the charges that had been
lodged against him. Id. at 45.
On December 5, 2018, Christopher pled guilty in York County to 1 count each
of driving under the influence and driving while operating privilege is suspended or
revoked, and received an aggregate carceral sentence of 72 hours to 6 months, with
credit for 3 days spent in presentence confinement. Id. at 55. On December 14, 2018,
Christopher pled guilty in Adams County to 1 count each of driving under the
influence and driving while operating privilege is suspended or revoked, and
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received an aggregate carceral sentence of 12 to 24 months, with credit for 10 days
spent in presentence confinement. Id. at 59-60.
The Board then issued a notice of charges and hearing, which Christopher
received on December 20, 2018. Id. at 67. That same day, Christopher waived his
right to a parole revocation hearing, as well as to counsel, and admitted to the
veracity of his guilty pleas. Id. at 69-72. On February 26, 2019, the Board issued a
decision through which it recommitted Christopher to serve 12 months of backtime
as a CPV on his August 2014 Adams County sentence, gave him one day’s worth of
backtime credit, awarded him no credit for time served at liberty on parole (i.e.,
“street time”), and recalculated the maximum date on his August 2014 Adams
County sentence as April 16, 2026, as well as his reparole eligibility date as February
4, 2020. Id. at 114-17.
On March 4, 2019, Christopher administratively appealed the Board’s
February 26, 2019 decision. Id. at 118-22. Christopher argued that the Board had
miscalculated his maximum date, as his parole officer had allegedly told Christopher
that the Board “[was not] going to take [his] street time” as a consequence of his
parole violation. Id. at 118-19. In addition, Christopher claimed that the Board had
incorrectly calculated his reparole eligibility date, awarded him too little backtime
credit, and had imposed upon him backtime that exceeded the amount permitted
under the Board’s guidelines. Id. Christopher then sent the Board a follow-up letter
on April 6, 2019, in which he raised substantially similar arguments. Id. at 121-22.
On November 26, 2019, the Board denied Christopher’s administrative appeal
and affirmed its February 26, 2019 decision in full. Id. at 123-24. Christopher then
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sent a petition for review to Adams County, which was docketed on December 30,
2019. Adams County then dismissed this petition for review on January 3, 2020.1
On January 23, 2020, Christopher filed a pro se petition for review with our
Court, under docket number 58 M.D. 2020 as an original jurisdiction matter. On
January 29, 2020, we dismissed that petition for review via a per curiam order for
lack of original jurisdiction. Com. v. Christopher (Pa. Cmwlth. No. 58 M.D. 2020),
Ord., 1/29/20, at 1. On February 7, 2020, Christopher requested reconsideration of
this dismissal, explaining that he had incorrectly filed his initial petition for review
in Adams County, but that he had made that erroneous filing in a timely manner.
Christopher, Application for Reconsideration at 1. We then granted reconsideration
via another per curiam order on February 24, 2020. In relevant part, this order read:
It appearing that [Christopher] seeks appellate review of a
decision of the Pennsylvania [Parole] Board . . . mailed on
November 26, 2019, this matter is transferred to this
Court’s appellate jurisdiction at No. 1880 [C.D.] 2019.
The Court preserves the filing date of December 30, 2019,
the date [Christopher] mistakenly filed a petition for
review in . . . Adams County.
[Christopher] is directed to file and serve an amended
petition for review, naming the Pennsylvania [Parole]
Board . . . as respondent within 30 days from the exit date
of this order. [Christopher] shall file copies of mailing
slips to show when he mailed his petition for review to
[Adams County] or otherwise explain the delay in
filing his petition for review.
Christopher, Ord., 2/24/2020, at 1 (emphasis added).
Christopher complied with this order by filing the instant pro se Petition for
Review under docket number 1880 C.D. 2019 on March 12, 2020; even so, he did
1
The facts pertaining to Christopher’s filing of his initial petition for review with Adams
County are drawn from the relevant criminal records, which can be found under docket number
CP-01-CR-0001052-2018. We are permitted to take judicial notice of this information. See, e.g.,
Pa. R.E. 201(b)(2); Doxsey v. Com., 674 A.2d 1173, 1174 (Pa. Cmwlth. 1996).
4
not provide evidence or an explanation therein establishing that he had timely filed
his initial petition for review with Adams County. On April 20, 2020, we appointed
the Public Defender of Northampton County to represent Christopher in this matter.
We subsequently vacated this order on September 22, 2020, and directed the Public
Defender of York County to assume responsibility for representing Christopher.
II. Discussion
Under other circumstances, we would consider the merits of the arguments
put forth by Christopher. However, we are without jurisdiction to do so, as
Christopher failed to file his initial petition for review in Adams County within the
legally allotted time window.2
Under the Pennsylvania Rules of Appellate Procedure, a party must petition
for appellate review of a quasijudicial order, such as the Board’s November 26, 2019
ruling, within 30 days of that order’s entry. Pa. R.A.P. 1512(a)(1). A party’s failure
to abide by this requirement deprives the relevant appellate court of jurisdiction over
the affected matter. St. Clair v. Pa. Bd. of Prob. & Parole, 493 A.2d 146, 154 (Pa.
Cmwlth. 1985). This stricture is loosened somewhat for inmates, in recognition of
the rather singular impediments posed by incarceration to pro se litigants’ ability to
access the court system.
The situation of prisoners seeking to appeal without the
aid of counsel is unique. Such prisoners cannot take the
steps other litigants can take to monitor the processing of
their notices of appeal and to ensure that the court clerk
receives and stamps their notices of appeal before the 30–
2
While the Board does not mention the question of timeliness, Christopher preemptively
addressed it in his brief. See Christopher’s Br. at 16-18. Furthermore, even if Christopher had not
brought this issue to our attention, we still would have been able to raise it ourselves. See Monroe
Cnty. Bd. of Assessment Appeals v. Miller, 570 A.2d 1386, 1388 (Pa. Cmwlth. 1990) (“It is well-
settled that the timeliness of an appeal is a jurisdictional question which cannot be waived, and it
may be raised at any stage of the proceedings by any party or by the court sua sponte.”).
5
day deadline. Unlike other litigants, pro se prisoners
cannot personally travel to the courthouse to see that the
notice is stamped “filed” or to establish the date on which
the court received the notice. Other litigants may choose
to entrust their appeals to the vagaries of the mail and the
clerk’s process for stamping incoming papers, but only the
pro se prisoner is forced to do so by his situation. And if
other litigants do choose to use the mail, they can at least
place the notice directly into the hands of the United States
Postal Service (or a private carrier); and they can follow
its progress by calling the court to determine whether the
notice has been received and stamped, knowing that if the
mail goes awry they can personally deliver notice at the
last moment or that their monitoring will provide them
with evidence to demonstrate either excusable neglect or
that the notice was not stamped on the date the court
received it.
Smith v. Pa. Bd. of Prob. & Parole, 683 A.2d 278, 281 (Pa. 1996) (quoting Houston
v. Lack, 487 U.S. 266, 270-71 (1988)). Accordingly, appeals made by pro se
incarcerated litigants are subject to what is commonly known as “the prisoner
mailbox rule.” Com. v. Jones, 700 A.2d 423, 426 (Pa. 1997).
Under the prisoner mailbox rule, a legal document is
deemed “filed” on the date it is delivered to the proper
prison authority or deposited in the prison mailbox. . . . A
cash slip constitutes sufficient evidence to show
compliance with the prisoner mailbox rule. . . . An
affidavit as to the date of mailing may also be considered.
. . . In order to benefit from the rule, [a pro se prisoner]
bears the burden of proving that he timely deposited his . .
. appeal in the prison mailbox.
Kittrell v. Watson, 88 A.3d 1091, 1097 (Pa. Cmwlth. 2014) (internal citations and
parenthetical omitted); accord Pa. R.A.P. 121(f).
Here, Christopher had to file his initial petition for review no later than
December 26, 2019, i.e., 30 days after the mailing date of the Board’s at-issue ruling,
November 26, 2019. As already noted, Adams County did not receive that petition
for review until December 30, 2019, or 4 days after the appeal window had closed.
6
Under the prisoner mailbox rule, this late receipt did not, in itself, render that petition
for review untimely, but the burden rested upon Christopher to provide evidence
showing that he handed his appeal paperwork to prison personnel or mailed it
himself prior to the deadline. Despite our express entreaty to do so, Christopher
failed to provide us with any such evidence.
Christopher nevertheless argues that his initial Adams County petition for
review was timely filed, in light of the Superior Court’s holding in Commonwealth
v. Patterson, 931 A.2d 710 (Pa. Super. 2007).3 In Patterson, a pro se incarcerated
litigant was required to file his appeal no later than September 22, 2006, which was
a Friday, but the record reflected that the trial court did not receive the inmate’s
notice of appeal until September 25, 2006, a Monday. 931 A.2d at 714. The Superior
Court concluded that this filing was timely under the prisoner mailbox rule, despite
the absence of evidence firmly establishing when the appeal had been mailed,
because “September 23rd and 24th were weekend days. Thus, in order for the trial
court to have received the notice of appeal by September 25th, it is likely that
[Patterson] mailed his notice of appeal on or before September 22nd.” Id. In essence,
the Superior Court deemed it virtually impossible for Patterson to have sent his
notice of appeal after the 30-day window had closed, in light of the date it was
received, and, therefore, concluded that it was timely. Id.Here, however, the window for Christopher’s appeal closed on Thursday,
December 26, 2019, and Adams County received his initial petition for review on
Monday, December 30, 2019. While the difference of a single weekday may appear
insignificant at first blush, it remains that this opens up the possibility that
3
While it is well-settled that Superior Court decisions are not binding upon our Court, we
recognize that they may serve as persuasive authority, which we may reference for guidance as
needed. Muntz v. Dep’t of Transp., 630 A.2d 524, 525 (Pa. Cmwlth. 1993).
7
Christopher did not send that petition for review until after his appeal rights had
lapsed. Given the aforementioned lack of substantive evidence regarding the date
upon which Christopher sent his initial petition for review to Adams County, we
could not accept Christopher’s argument without engaging in speculation or
conjecture. For us to do so would improperly relieve him of his burden to prove
timeliness. See Kittrell, 88 A.3d at 1097. Consequently, Patterson is distinguishable
from this matter and provides no basis, even on a persuasive level, for us to conclude
that Christopher filed his initial petition for review with Adams County in a timely
manner under the prisoner mailbox rule.
III. Conclusion
In light of the foregoing analysis, we quash Christopher’s Petition for Review
due to lack of appellate jurisdiction.
__________________________________
ELLEN CEISLER, Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Richard A. Christopher III, :
Petitioner :
:
v. : No. 1880 C.D. 2019
:
Pennsylvania Parole Board, :
Respondent :
ORDER
AND NOW, this 17th day of March, 2021, it is hereby ORDERED that
Petitioner Richard A. Christopher III’s Petition for Review is QUASHED due to
lack of appellate jurisdiction.
__________________________________
ELLEN CEISLER, Judge