T.J. Congo v. PA BPP
T.J. Congo v. PA BPP - 692 C.D. 2016
Pa. Commw. Ct.Jun 5, 2017Background
- Congo was originally sentenced for burglary and paroled in 2004; he was recommitted as a parole violator multiple times after new offenses.
- By Board action mailed May 26, 2011, the Board recomitted Congo for 9 months backtime and set parole-related dates; Congo did not appeal that 2011 decision.
- Congo was reparoled October 21, 2011, later violated parole again, and by Board action mailed March 17, 2016 was recommitted for 24 months backtime.
- In February 2016 Congo (pro se) filed a petition for administrative review challenging the Board’s calculation of credit for custody time from August 2006–December 2008 (including time at Kintock‑Erie CCF).
- The Board dismissed Congo’s 2016 petition as untimely, reasoning the credit claim should have been raised from the May 26, 2011 Board action; Congo appealed to this Court.
- The Court appointed counsel, who filed a Turner no‑merit letter and motion to withdraw; the Court conducted an independent review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of administrative appeal | Congo: challenge to sentence legality/newly discovered information allowed him 60 days from discovery to file | Board: claim should have been filed within 30 days of the May 26, 2011 mailing; 2016 filing was untimely | Court: appeal untimely; 30‑day jurisdictional deadline applies and bars review |
| Entitlement to custody credit for time at Kintock‑Erie CCF | Congo: entitled to credit for custody from Aug 2006–Dec 2008 including CCF time | Board: claim not timely; even if timely, CCF time likely not equivalent to prison custody | Court: declined to reach merits because claim was time‑barred |
| Counsel withdrawal under Turner | Attorney Best: no‑merit letter shows diligent review and explains lack of meritorious claim; provided required notices to Congo | Congo: did not retain new counsel or file brief | Court: found Turner technical requirements met and permitted counsel to withdraw |
| Relief by nunc pro tunc or discovery rule | Congo: discovery rule applies to allow late filing | Board: no allegation of fraud or administrative breakdown to justify nunc pro tunc relief | Court: discovery/PCRA rule inapplicable to administrative appeals; no basis for nunc pro tunc relief |
Key Cases Cited
- Turner v. Commonwealth, 544 A.2d 927 (Pa. 1988) (requirements for counsel seeking to withdraw via a no‑merit letter)
- Hughes v. Pennsylvania Bd. of Prob. & Parole, 977 A.2d 19 (Pa. Cmwlth. 2009) (Turner procedure applied in parole‑board appeals)
- Zerby v. Shanon, 964 A.2d 956 (Pa. Cmwlth. 2009) (Turner/no‑merit standards reaffirmed)
- Jefferson v. Pennsylvania Bd. of Prob. & Parole, 705 A.2d 513 (Pa. Cmwlth. 1998) (supporting standards for no‑merit letters)
- Lawrence v. Pennsylvania Bd. of Prob. & Parole, 145 A.3d 799 (Pa. Cmwlth. 2016) (30‑day filing rule for appeals from parole‑board decisions is jurisdictional)
- Smith v. Pennsylvania Bd. of Prob. & Parole, 81 A.3d 1091 (Pa. Cmwlth. 2013) (time period for administrative appeal is jurisdictional; nunc pro tunc relief requires fraud or administrative breakdown)
- Merriwether v. Pennsylvania Bd. of Prob. & Parole, 693 A.2d 1000 (Pa. Cmwlth. 1997) (if board lacks jurisdiction due to untimeliness, merits need not be reached)
- Armstrong v. Pennsylvania Bd. of Prob. & Parole, 26 A.3d 484 (Pa. 2011) (Board permissibly denied credit for time at Kintock‑Erie CCF where facility not equivalent to prison)