*1 McCASKILL, Petitioner, Jackie D. PENNSYLVANIA BOARD OF PROBATION PAROLE, Respondent.
AND Pennsylvania. Commonwealth Court of July Submitted on Briefs 1993. Sept.
Decided *2 Kaufman, Counsel, petitioner. for Appellate A. Mitchell Thomas, Counsel, respondent. for Arthur R. Asst. Chief NARICK, JJ., FRIEDMAN, PALLADINO and Before Judge. Senior
NARICK, Judge. Senior (McCaskill) an order of the appeals D. Jackie (Board) and Parole Board of Probation administrative for relief. denied from two concurrent paroled In March McCaskill was His assault. attempted robbery aggravated for sentences August date was set expiration term In January escape McCaskill was convicted of resisting years 3]é arrest and sentenced to to 7 imprisonment. hearing, after a revocation recommitted McCaskill him ordering October to serve 8 months backtime as á (CPV), convicted violator and recalculated his maximum (1986 determination). term date to March 1998 (O.R.) 8). (Original Record at Contained the notice of the Board’s decision were instructions on the process appealing appeal. such decision. McCaskill did not file an arrests, while incarcerated to the pursuant above possessing McCaskill was convicted of a controlled substance and sentenced to serve a term of imprisonment of months to McCaskill, 1 year. By notice mailed to the Board recommit- him him ted as a CPV and ordered to serve an additional months Again, backtime for a total of months backtime. McCaskill filed no from the Board’s decision. *3 1987, In December 1986 escape McCaskill’s convictions for n 1988, resisting arrest were vacated. In the Board issued a further determination -with a recalculated (1988 maximum term expiration date of November 1998 deter- mination). McCaskill did not file an from this appeal determi- nation and was reparoled July 1988. 1990,
In July November McCaskill was arrested for Substance, violations of Drug, the Controlled Device and Cosmetic Act.1 McCaskill continued on parole pending status disposition charges. of the 14, 1991, May awaiting July
On while trial for the arrests, November 1990 McCaskill was arrested third time violating Drug the Act. McCaskill in custody was held arrest, 14, to pursuant May this arrest from the date of the (a 1991, 12, days). until June 1991 total of 28 12, 1991, On June pleaded guilty charges McCaskill to (first arising July from the and November 1990 arrests guilty plea) and 2$ was sentenced to serve two concurrent terms of (first sentence). to years imprisonment drug The Board 14, 1972, 233, amended, April §§ 1. Act of P.L. as 35 P.S. 780-101— Act). (Drug 780-144 11,1991, September on recommitted hearing revocation held a months CPV, him to serve 9 aas and ordered backtime. 1991, to the 26, pleaded guilty September
On sen- May 14, 1991 arrest and was arising the from charges (second sentence), to drug to to state time years tenced the first sentence which was concurrently drug with the run of the two arrests. result first February hearing held
Following another revocation notice dated March Board a determination the issued determination, not to re- such the Board decided By the guilty first respect McCaskill as a CPY with commit drug him instead serve second but ordered plea, months to serve the 9 sentence his recommitment before drug backtime, first sentence. and before service 6, 1992, appeal McCaskill filed an administrative April On in its alleging Board erred determina- with of the order in which various sentences backtime tion The Board denied relief and McCaskill were to be served. this court. appeal filed an with 6, 1992, its May pending withdrew order
On Accordingly, we McCaskill’s sentences. clarification prejudice. without quashed clarify- the Board issued a new determination July to be order McCaskill’s sentences were ing the cur- This determination stated that served. sentence, that such sentence rently serving the second *4 turn, of would by be followed service backtime would The notice also by followed the first sentence. be expiration date of a maximum term indicated recalculated request for admin- August McCaskill filed another objecting to the order istrative relief with the alleging the recalculation service of sentences and that 14, 1999, May “or term date should be expiration (O.R. 102). relief. again at The Board denied thereabouts.” court,2 makes three argu On to this McCaskill appeal (1) the Board erred in its recalculation of McCas ments: that (2) date; that the Board erred expiration kill’s maximum term to serve his new ordering in its determination (3) backtime; and that the Board erred in sentences before his concurrent sentences into consecutive converting McCaskill’s sentences. raised, argues issued that the
As to the first beyond his sentence by extending imposed Board erred Specifically, or law. by by the trial court that authorized in adding contends that the Board erred time to his (1) the convictions maximum term date because: (2) 1987; vacated in subsequently from 1986 were he not at on liberty parole. convictions occurred when by these issues The Board contends that McCaskill has waived appeal. agree. to raise them in his administrative We failing not holding It has been the of this court that issues raised are by a before the Board an administrative CPV review this court. purposes appellate waived for Parole, Probation and McDaniel v. (1991). Pa. 137 Pa.Commonwealth Ct. 587 A.2d 71.5(h) § requires prisoner seeking Code administrative legal to forth the facts and basis for specifically relief set McCaskill, in his granted.3 August which relief should be (O.R. 96-104), request for administrative relief at failed specifically any allegations respect raise of error with to expi- Board’s that extended his maximum term determinations convictions, any to the 1986 or convic- pursuant ration date not at As liberty parole. tions which occurred while he was merely for administrative relief stated his scope 2. This Court’s of review of a Board’s order is limited determin- violated, ing rights whether constitutional were errors of law were committed, findings unsupported by compe- or of fact were substantial Law, Agency of the Administrative 2 Pa.C.S. tent evidence. Section 704 § 704. 71.5(h) provides pertinent part: § 3. 37 Pa.Code application specifically [for administrative shall set forth relief] legal allegations. the factual and basis for the
455 term date should expiration opinion as to what the of to this court. for be, purposes appeal issues are waived such 1986 which included the Board’s determination expira maximum term in McCaskill’s recalculating convictions date, appealed 1986 and never was issued in October was tion Further, which only conviction by McCaskill. the 1987 liberty was while he was not at occurred included which The Board’s determination conviction. in term its recalculated maximum this conviction appeal never again, 1988 and was date was issued ed McCaskill. error
Therefore,
alleged
if
had specifically
even McCaskill
determinations,
from the Board’s 1986
1988
stemming
as
nullity
appeal
would still
a
the present
such issues
be
desiring to
a determina-
untimely.
appeal
are
Prisoners
they
30
within
appeal
of the Board must file an administrative
tion
37 Pa.Code
mailing
date of the determination.
days of
deadline,
73.1(a)(1).
this
§
a
fails to
prisoner
Where
meet this
jurisdiction
has no
to entertain
court has held
the Board
Threats
untimely.
it as
and should dismiss
appeal
Parole,
Board
Probation
102 Pa.Com-
Pennsylvania
on other
rev’d
(1986),
A.2d 327
monwealth Ct.
518
(1989).
grounds,
As McCaskill
Pa.
days
within 30
file a
for administrative relief
failed to
determinations,
he now
1986 or 1988
the Board’s
erroneous,
required
would
been
claims were
the Board
have
as
portions
appeal
untimely.4
dismiss such
erred
is that
argument
McCaskill’s second
him
he served
to serve a new sentence before
requiring
in a
also
issues an order
4. This court has
held that where
tribunal
has
jurisdictional
issuing
such order
time limit
case after
expired, any
nullity.
order
Tillman v.
such
is a
Parole,
A.2d 949
48 Pa.Commonwealth Ct.
Probation
(1980).
was not
request for
relief
Because McCaskill’s
administrative
1992, years after the
1986 determi-
filed with the Board until
Board’s
issued,
years
and 4
after the
1988 determination
nation was
Board’s
issued,
have
any allegations concerning such
would
determinations
untimely
required
been
to dismiss the
and the Board would have
been
it related to
issues.
as
those
The Board in its brief to this court
9 months backtime.
*6
in
in
determining
that
it erred
the order
concedes
to serve his sentences.
required
McCaskill was
21(a)(1)
1941,
as
6,
861,
August
of Act of
P.L.
Section
amended,
331.21a(a)(l),5
§
a new
mandates that where
P.S.
sentence,
institution,
in
penal
imposed
served
a state
is
be
institution,
penal
of a state
the service of the
parolee
shall
the service of
original
precede
balance of the
sentence
court has clarified this
newly imposed
the
sentence. This
and new
requirement
by holding that backtime
statutory
consecutive order. Common
in
must be served
sentences
(1983).
Dorian,
v.
wealth
503 Pa.
Finally, argues requiring backtime, and the drug serve the second sentence before the backtime, after drug effectively first sentence converted his concurrent sentences into consecutive sentences. power McCaskill contends that the Board does not have the therefore, July do this and that the Board’s 1992 determina tion was error. should agrees
The Board that McCaskill’s second sentence run his first concurrently Accordingly, with sentence. will remand for the Board to correct the order in which we time is to be served.
ORDER NOW, day this the order of September, AND 16th in the Pennsylvania Board of Probation and Parole above- Commonly referred to as the "Parole Act.” case is remanded and this vacated hereby matter is captioned is to Petitioner in which the order to correct for the Board opinion. foregoing with accordance his sentences serve relinquished. Jurisdiction dissenting.
FRIEDMAN, concurring Judge, of Probation I that agree (1) McCaskill serve (Board) ordering erred Parole consecutively when 1991 convictions upon the based sentences concurrently be served those sentences court ordered the trial before new sentence (2) serve his that McCaskill ordering majority recog- As the nine months backtime. serving his them, I correct the Board to and orders those errors nizes those deals with opinion which portion of the agree with that *7 however, that agree, I cannot therein. join and questions exten- challenge the Board’s right to has waived his opin- Hence this maximum date. violation parole sion ion. in the record this that
I make the observation must first Furthermore, in both the confusing. is at best matter in its brief to this record and contained the documents the order which that of its part for explanation offers no court date, arguing only maximum the violation parole extend does addressing the not has been waived and this question that merits. charged with arrested McCaskill was parole,
While on arrest; charges of those he was convicted resisting escape to be 1986, Board found McCaskill of the October alia, ordered, inter that Board violator. The parole convicted be extended. maximum date violation parole and the offenses was convicted violator, again convicted parole to be a found McCaskill again order by violation date maximum extending parole was arrested parole, 1988. While on January to the Board’s led of offenses which with a number charged March order dated Board issued an in this case. The action violation parole mention of the made no for administrative a request McCaskill filed date. maximum order, that arguing from the March 1992 relief grants this court relief the reasons that precisely erred mat- “clarify” order to today. The Board then withdrew its order, however, changes The made no substantive ters. new date that it increased McCaskiirs except relief, In his for administrative request 2003. McCaskill stated: that, ... order issued Petitioner the new argues
(7/23/92), nothing to address the errors as enumerated does (sic) Instead, even it has situation exasperated above. further.
a). has extended Parole Viola- petitioner’s The [order] argues maximum to the date of 11-4-03. Petitioner tion (5/14/99) or maximum date should be thereabouts. 7.)1 (McCaskill’s relief, 8/20/92, p. for administrative request McCaskill does not mention specifically It is true that 1986 criminal subsequent prosse vacation and nolle does, for administrative relief. He charges his however, parole the extension of his violation maxi- question mum the 1986 convictions had been nullified. It is date after alleged error undisputed specifically also that McCaskill maximum date at extending the Board in violation do so. The Board fails to offer opportunity he had to first concerning extending whatsoever its basis for any explanation that date. the failure to majority’s concerning discussion *8 In particularly troubling.
the 1986 and 1988 Board orders is orders, the Board determined that each of those would a parole was a convicted violator. McCaskill need to be to in 1986 that he would be crystal argue ball able Furthermore, trial 1987. granted new December entirely order in 1988 dealt with unrelated Board’s prosse the Commonwealth did not nolle charges. Finally, (Sentence charges May 1986 criminal until 1988. Status 5/25/88.) date, Before that McCaskill could Change Report, actually question 1. The order stated that the date in was "011403”. obviously gave 11- misread the order when he that date as petition. 04-2003 in his had been charges 1986 criminal have known not in his favor. finally resolved case that hearing in this at his violation asserted of the relevant that some to consider had failed
the Board liberty. but not at parole he was while occurred events however, the authori- is brief, states, disputed, is he “What maximum date violation parole Board to extend of the ty during period the same occurring for events repeatedly liberty, not at Mr. McCaskill when periods parole (McCaskill’s the Common- brief to imprisoned.” in fact but 9.) question, addressed this Court, The Board never p. wealth I believe the cloak of “waiver”. rely upon choosing instead we can actions so that its required explain is Ac- of those actions. legal propriety review the effectively Board’s order portion I vacate that would cordingly, require date and violation to the pertaining conclusions of law findings factual the Board to make based thereon. POESNECKER, Dr. Harold E.
Dr. Gerald Buttram, Briggs R. E. Vernon Fedele, RICCHIO, Kindle C. P. Frank Jack Paul Poulos, Appellants. Peter A. Pennsylvania. Court Commonwealth Argued 1993. June Sept. Decided