T. Murray v. PPB

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Thomas Murray, :
:
Petitioner :
:
v. : No. 1485 C.D. 2021
: Submitted: October 28, 2022
Pennsylvania Parole Board, :
:
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: September 11, 2023
Thomas Murray (Inmate) petitions for review from a decision of the
Pennsylvania Parole Board (Board) that denied his request for administrative review
challenging the Board’s failure to properly calculate his maximum sentence date and
award credit for time served on the Board’s detainer and time served in good
standing on parole. Also before us is an Application for Leave to Withdraw
Appearance (Application) filed by Inmate’s court-appointed attorney, Tyler C.
Shultz, Esq. (Counsel), on the ground that Inmate’s appeal is without merit. We
affirm the Board’s decision and dismiss Counsel’s Application as moot.
Inmate was initially sentenced to an aggregate term of incarceration of
two years and three months to six years, with a minimum sentence date of February
27, 2017, and a maximum sentence date of November 27, 2020. Certified Record
(CR) at 1-2. On October 24, 2016, the Board issued an order paroling Inmate, and
he was released from prison on March 1, 2017. Id. at 4-16. On June 28, 2019,
Inmate was arrested in Washington County and charged with Driving Under the
Influence (DUI): Highest Rate of Alcohol-BAC .16+-3rd Offense. Id. at 21. The
Board issued a warrant to commit and detain Inmate on March 8, 2021. Id. at 16-
17. Inmate waived his right to a detention hearing the same day. Id. at 20. He
pleaded guilty to the offense and was sentenced to three to six months’ confinement.
Id. at 43.
By decision mailed on April 23, 2021, the Board revoked Inmate’s
parole and recommitted him as a convicted parole violator to serve six months’
backtime. CR at 61-62. The Board denied Inmate credit for the 1,367 days he spent
at liberty on parole between his release date of March 1, 2017, and the date upon
which his original maximum date expired, November 27, 2020. Id. at 59. By adding
the 1,367 days (3 years, 8 months, and 26 days), the Board recalculated his new
parole violation maximum date to be December 4, 2024. Id.
On September 14, 2021, Inmate submitted an Administrative Remedies
Form to the Board outlining a number of errors with respect to the Board’s
calculation of his sentence and maximum date, and its imposition of backtime. See
CR at 68-71. On October 13, 2021, the Board received another Administrative
Remedies Form that Inmate submitted again assailing the Board’s credit calculation
and its imposition of backtime. See id. at 72-73.1
1
The Board decision that Inmate appealed in the second Administrative Remedies Form
that he filed was dated August 30, 2021, which was a Board decision denying him release on
parole. See CR at 66. Nevertheless, as indicated, the substantive claims that he raised on that form
relate solely and exclusively to the Board’s credit calculation and its imposition of backtime in its
prior revocation determination. See id. at 72-73.
2
On December 3, 2021, the Board mailed Inmate a decision in which it
stated the following, in pertinent part:
In your September correspondence, you raise credit
concerns regarding your sentence calculations that are
reflected in your Board Action dated April 23, 2021. Your
correspondence is therefore treated as a petition for
administrative review from the Board decision recorded
April 23, 2021 (mailed April 30, 2021).
The Board’s regulation authorizing administrative
relief states that petitions for administrative review must
be received at the Board’s central office within 30 days of
the mailing date of the Board’s decision. [Section 73.1 of
the Board’s regulations,] 37 Pa. Code §73.1.[2] Your
2
Section 73.1(a)(1) and (4), and (b)(1) and (3) states, in relevant part:
(a) Appeals.
(1) An interested party, by counsel unless unrepresented,
may appeal a revocation decision. Appeals shall be received at the
Board’s Central Office within 30 days of the mailing date of the
Board’s order . . . .
***
(4) Second or subsequent appeals and appeals which are out
of time under these rules will not be received.
(b) Petitions for administrative review.
(1) A parolee, by counsel unless unrepresented, may petition
for administrative review under this subsection of determinations
relating to revocation decisions which are not otherwise appealable
under subsection (a). Petitions for administrative review shall be
received at the Board’s Central Office within 30 days of the mailing
date of the Board’s determination. . . .
***
(Footnote continued on next page…)
3
request for relief was not received by the Board, nor was
it submitted to prison official for mailing within the
established timeframe and must therefore be DISMISSED
as untimely.
This portion of the letter is a response to your
October 13, 2021 correspondence to your request [for]
relief from the Board decision recorded August 30, 2021[,]
which denied you parole.
The Board’s regulation authorizing administrative
relief does not apply to decision denying parole or to
requests to be reviewed again. Instead the regulation
applies to decisions revoking parole and recalculations
based on those recommitments. [See] 37 Pa. Code §73.1.
There is no constitutional right to parole under federal or
Pennsylvania law. Jago v. Van Curen, 454 U.S. 14 (1981);
Rogers v. Pennsylvania Board of Probation and Parole,
724 A.2d 319 (Pa. 1999). Nor is there any right to review
a parole denial because that decision falls within the
Board’s discretion. As such, the Board cannot accept your
attempt to challenge the parole denial.
Accordingly, your request for relief is hereby
DISMISSED as UNAUTHORIZED.
CR at 76-77.
On December 23, 2021, Inmate submitted the instant petition for
review3 in which he again assails the Board’s April 23, 2021 decision revoking his
(3) Second or subsequent petitions for administrative review
and petitions for administrative review which are out of time under
this part will not be received.
37 Pa. Code §73.1(a)(1) and (4), (b)(1) and (3).
3
“This Court’s review over actions of the Board is limited to determining whether the
decision was supported by substantial evidence, whether an error of law occurred or whether
constitutional rights were violated.” Gilmore v. Pennsylvania Parole Board (Pa. Cmwlth., No.
478 C.D. 2022, filed March 21, 2023), slip op. at 5 n.7 (citations and internal quotations omitted);
see also Pa.R.A.P. 126(b) (“As used in this rule, ‘non-precedential decision’ refers to . . . an
(Footnote continued on next page…)
4
parole, imposing backtime, and recalculating his maximum date. Specifically, in the
petition for review, Inmate claims that the Board erred when it “[c]alculated [a] new
max[imum] date untimely because [of] COVID[-19] restrictions”; “recalculated [a]
max[imum] date after [the] original max[imum] date expired”; “failed to give credit
for time as a [technical parole violator], [h]ouse arrest, and good time” for his
completion of a recommended program in the Recidivism Risk Reduction Incentive
program; and for “[g]oing beyond [the] presumptive range for [his] parole ‘Hit.’”
Petition for Review ¶6.
Thus, in this appeal, Inmate does not contest the bases upon which the
Board dismissed his Administrative Remedies Forms. Rather, he again asserts the
same allegations that he raised in these forms contesting the Board’s calculation of
his sentence and maximum date, and its imposition of backtime. Because it is
undisputed that the Board properly dismissed Inmate’s September 14, 2021 and
October 13, 2021 Administrative Remedies Forms as unauthorized, the Board’s
December 3, 2021 decision will be affirmed. Gilmore, slip op. at 7; Melendez v.
Pennsylvania Parole Board (Pa. Cmwlth., No. 929 C.D. 2021, filed March 9, 2023),
slip op. at 8.4
unreported memorandum opinion of the Commonwealth Court filed after January 15, 2008. . . .
Non-precedential decisions . . . may be cited for their persuasive value.”).
4
As this Court has recently explained:
[Section 73.1 of the Board’s regulations] is based on the fact that
“the timeliness of an appeal is jurisdictional, [and] the Board [i]s
without authority to consider” late-filed appeals. Ayers v.
P[ennsylvania Board] of Prob[ation and] Parole, 565 A.2d 1257,
1258 (Pa. Cmwlth. 1989); see also Pometti v. P[ennsylvania Board]
of Prob[ation and] Parole, 705 A.2d 953, 955 (Pa. Cmwlth. 1998)
(Footnote continued on next page…)
5
Accordingly, the Board decision is affirmed, and Counsel’s Application
is dismissed as moot.
MICHAEL H. WOJCIK, Judge
(“[T]he Board does not have the jurisdiction to hear an untimely
filed appeal.”).
Gilmore, slip op. at 6. In addition, we have observed “that there is no right to appellate review
from a Parole Board decision denying parole under either the Administrative Agency Law[, 2
Pa. C.S. §§501-508, 701-704,] or the Federal Constitution, since the decision does not constitute
an adjudication. See Rogers[, 724 A.2d at 322-23].” Melendez, slip op. at 7-8.
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Thomas Murray, :
:
Petitioner :
:
v. : No. 1485 C.D. 2021
:
Pennsylvania Parole Board, :
:
Respondent :
ORDER
AND NOW, this 11th day of September, 2023, the Pennsylvania Parole
Board’s decision mailed December 3, 2021, is AFFIRMED. The Application for
Leave to Withdraw Appearance filed by Tyler C. Shultz, Esq. is DISMISSED as
moot.
__________________________________
MICHAEL H. WOJCIK, Judge