M. Smith v. PBPP ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Matthew Smith, :
Petitioner :
:
v. :
:
Pennsylvania Board of :
Probation and Parole, : No. 1538 C.D. 2019
Respondent : Submitted: October 9, 2020
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge1
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: January 8, 2021
Matthew Smith (Smith) petitions for review of the October 9, 2019
decision of the Pennsylvania Board of Probation and Parole2 (Board) that denied his
petition for administrative review of the Board’s December 28, 2018 decision,
recommitting him to a state correctional institution (SCI) as a convicted parole
violator (CPV), and declining to award him credit for the time he spent at liberty on
1
The decision in this case was reached prior to January 4, 2021, when Judge Brobson
became President Judge.
2
Subsequent to the filing of the petition for review, the Pennsylvania Board of Probation
and Parole was renamed the Pennsylvania Parole Board. See Sections 15, 16, and 16.1 of the Act
of December 18, 2019, P.L. 776, No. 115 (effective February 18, 2020); see also Sections 6101
and 6111(a) of the Prisons and Parole Code, as amended, 61 Pa.C.S. §§ 6101, 6111(a).
parole because his new criminal conviction was similar to his original offense.
Smith contends that the Board abused its discretion by failing to give him credit for
his street time and modifying his parole violation maximum date to July 7, 2020.
Smith also claims the Board erroneously dismissed his May 2, 2019 pro se filing,
concluding that it was a second or subsequent request related to his appeal of the
Board’s December 28, 2018 decision regarding his street time credit. In actuality,
Smith’s May 2, 2019 pro se filing related to a subsequent decision of the Board that
modified his parole violation maximum date to March 18, 2021.
In addition to the petition for review, David Crowley, Esquire,3 filed a
petition for remand (Petition for Remand) and application for stay, requesting that
this Court stay the briefing schedule and remand this matter to the Board for it to
either answer Smith’s May 2, 2019 pro se filing or address its recalculation of
Smith’s parole violation maximum date to March 18, 2021. Attorney Crowley
explained that the Board entered a decision on December 28, 2018 (recorded on
December 19, 2018), which recalculated Smith’s parole violation maximum date to
July 7, 2020, and entered a subsequent decision, recorded on January 16, 2019,4
recalculating Smith’s parole violation maximum date to March 18, 2021, “DUE TO
DEPARTMENT OF CORRECTIONS SENTENCE RESTRUCTURE[.]” Certified
3
Attorney Crowley is a public defender in Centre County, Pennsylvania. He initially
represented Smith, based on Smith’s incarceration at SCI-Rockview. While review of Smith’s
petition for review was pending before this Court, Smith was reparoled to a residence in Lycoming
County. Accordingly, on May 26, 2020, we granted Attorney Crowley leave to withdraw his
appearance and directed the public defender of Lycoming County, Pennsylvania, to enter an
appearance for Smith. In accordance with our order, Nicole J. Spring, Esquire, entered her
appearance and filed a brief in support of the petition for review and the petition for remand
(Petition for Remand).
4
The Board’s January 16, 2019 decision does not include a mailing date. See Certified
Record (C.R.) at 82.
2
Record (C.R.) at 82. Attorney Crowley claimed that the Board erroneously
dismissed Smith’s May 2, 2019 pro se filing, which challenged the Board’s January
16, 2019 decision, because the Board believed that the request related to the
December 28, 2018 decision.
On February 18, 2020, this Court granted the application for stay of the
briefing schedule pending disposition of the Petition for Remand. On April 22,
2020, we lifted the stay and ordered that the Petition for Remand be decided with
the merits of the petition for review. Thus, the Petition for Remand is also currently
before this Court. For the reasons that follow, we grant the Petition for Remand and
affirm in part and reverse in part the Board’s October 9, 2019 decision.
Background
In 2015,5 Smith was arrested for possession with intent to deliver a
controlled substance and subsequently sentenced to probation by the Court of
Common Pleas of Lycoming County (trial court). See Trial Court Order, 2/8/2016,
at 1; App. to Smith’s Brief;6 see also C.R. at 1-3. Smith violated the terms of his
probation by, inter alia, possessing drug paraphernalia. As a result, his probation
was revoked, and, on February 18, 2016, he was sentenced by the trial court to an
5
Smith’s criminal history predates 2015. However, we only address the convictions
relevant to this appeal.
6
Although the Certified Record contains some information pertaining to Smith’s 2015
arrest and sentence of probation by the Court of Common Pleas of Lycoming County (trial court),
see C.R. at 1-3, we note that the trial court’s February 18, 2016 resentencing order, which Smith
has attached as an appendix to his appellate brief, does not appear in the Certified Record in this
matter. However, we may take judicial notice of the trial court’s resentencing order and do so here
merely for purposes of providing general background information relating to Smith’s criminal
history. See, e.g., Pennsylvania Rule of Evidence 201(b)(2), Pa.R.E. 201(b)(2) (permitting courts
to take judicial notice of facts that “can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned”); Krenzel v. Se. Pa. Transp. Auth., 840 A.2d 450 (Pa.
Cmwlth. 2003) (stating that judicial notice of judgments in other proceedings may be taken where
appropriate).
3
aggregate term of 1 year, 30 days to 4 years of incarceration on the original drug
conviction and the new drug paraphernalia conviction. Trial Court Order, 2/8/2016,
at 2; App. to Smith’s Brief; see generally C.R. at 1-3.
On June 18, 2017, Smith was released on parole. C.R. at 7. At that
time, his parole violation maximum date was May 17, 2019. Id. He remained on
parole until his arrest in Williamsport, Pennsylvania, on December 6, 2017, for
possession and delivery of crack cocaine, and related charges. C.R. at 11-12. The
Board lodged a detainer warrant that same day. C.R. at 16. On August 8, 2018,
Smith was found guilty of delivery of a noncontrolled substance, possession with
intent to deliver a noncontrolled substance,7 and criminal use of a communications
facility. C.R. at 28. On that date, he was released on his own recognizance by the
trial court and was thereafter transported to SCI-Rockview on August 13, 2018,
pursuant to the Board’s detainer warrant.8 C.R. at 29, 35. On September 11, 2018,
Smith waived his rights to counsel and a revocation hearing, and admitted that he
had been found guilty of new criminal charges. C.R. at 40. On October 29, 2018,
the trial court issued an order sentencing Smith to 18 to 36 months in an SCI. C.R.
at 62-65. Smith received credit toward his new sentence for time served in the
Lycoming County Prison from December 6, 2017, through August 7, 2018. C.R. at
63.
7
Smith was originally charged with delivering crack cocaine to a police informant, but was
ultimately found guilty of delivering a noncontrolled substance, i.e., a substance that “substantially
resembles a specific controlled substance.” See Section 13(a)(35)(i) of The Controlled Substance,
Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, as amended, 35 P.S. § 780-
113(a)(35)(i).
8
Smith was thus detained solely on the Board’s detainer warrant from August 8, 2018,
onward. C.R. at 29, 35.
4
By decision recorded on October 29, 2018, the Board recommitted
Smith to serve nine months’ backtime as a CPV, when available, pending sentencing
on his new conviction. C.R. at 60-61. Following sentencing by the trial court, the
Board issued its December 28, 2018 decision (recorded on December 19, 2018),
referring to its October 29, 2018 recommitment decision and stating that, in its
discretion, it was not awarding credit for the time Smith spent at liberty on parole
because his “NEW CONVICTION [was the] SAME/SIMILAR TO THE
ORIGINAL OFFENSE.” C.R. at 75-76. Accordingly, Smith’s maximum sentence
date was recalculated to July 7, 2020. Id.
Smith, through Attorney Crowley, filed a petition for administrative
review on January 28, 2019, which the Board received on January 30, 2019. C.R. at
83. Smith challenged the denial of credit for the time he spent at liberty on parole,
stating that the Board’s decision recorded on December 19, 2018, i.e., the December
28, 2018 decision, “purports to deny credit on the basis of the similar nature of the
new conviction, [but] that decision was not contemporaneous with the October [29],
2018 decision to recommit [Smith] which contravenes Pittman v. Pennsylvania
Board of Probation and Parole, . . . 159 A.3d 466 ([Pa.] 2017).” C.R. at 86.
Prior to Smith’s challenge of the Board’s December 28, 2018 decision,
the Board issued a modified order to recommit on January 16, 2019, which advised
that, “DUE TO DEPARTMENT OF CORRECTIONS SENTENCE
RESTRUCTURE, MODIFY BOARD ACTION OF 03/17/2017 TO REFLECT
THE NEW MAX DATE, 01/26/2020, AND THE BOARD ACTION OF 12/19/2018
TO REFLECT THE NEW PAROLE VIOLATION MAX DATE, 03/18/2021.”
C.R. at 80-82. As such, Smith’s parole violation maximum date of July 7, 2020, as
5
reflected in the decision recorded on December 19, 2018, was modified to March
18, 2021.
On May 2, 2019,9 the Board received a pro se “Inmate Inquiry” from
Smith. C.R. at 87-89. Smith complained therein that his street time was revoked
and that his parole violation maximum date was changed to July 7, 2020. Then, on
January 16, 2019, the Board “changed [] the 7-7-2020 date to 3-18-2021[.]” C.R. at
88. Smith thus asserted that the “3-18-2021 max out date is wrong” and needs to be
corrected. C.R. at 89.
On October 9, 2019, the Board issued a response to the petition for
administrative review filed by Attorney Crowley on January 28, 2019. First, the
Board advised that no action would be taken on Smith’s May 2, 2019 pro se filing
“because it is deemed second or subsequent” to Attorney Crowley’s January 28,
2019 filing. C.R. at 91. Second, the Board indicated that its December 28, 2018
decision, which referred to its October 29, 2018 recommitment decision, explained
the reason for denying Smith credit for time at liberty on parole as “new conviction
same/similar to the original offense.” Id. Further, the Board’s October 29, 2018
decision only addressed Smith’s recommitment to serve nine months’ backtime as a
CPV; it did not address his street time. Thus, according to the Board, Pittman was
satisfied. Third, the Board stated that Smith’s parole violation maximum date was
correctly recalculated to July 7, 2020, as he had 698 days remaining on his sentence
at the time he was paroled and was credited 81 days for the time he spent incarcerated
solely on the Board’s warrant from August 9, 2018, to October 29, 2018, which left
617 days remaining on his original sentence. Adding 617 days to October 29, 2018,
9
The letter is stamped as having been received by the Board’s Records Unit on April 30,
2019. C.R. at 87-90.
6
the date Smith became available to serve his original sentence, established a new
parole violation maximum date of July 7, 2020. C.R. at 92. The Board therefore
affirmed its December 28, 2018 decision.
On November 4, 2019, Smith, through Attorney Crowley, petitioned
this Court for review of the Board’s decision. Specifically, Smith sought review of
“the October 9, 2019 denial of Administrative Relief concerning Decisions of the
. . . Board . . . mailed December 28, 2018 [(recorded December 19, 2018)], which
revoked [Smith’s] parole and extended his parole violation maximum date.” Petition
for Review ¶ 4. Subsequently, on February 12, 2020, Attorney Crowley filed the
Petition for Remand.
Petition for Remand
In the Petition for Remand, Attorney Crowley contends that the Board’s
January 16, 2019 decision appears to have mooted Smith’s appeal of the December
28, 2018 decision, because the July 7, 2020 parole violation maximum sentence date
has now been modified to reflect a maximum date of March 18, 2021. Petition for
Remand ¶ 8. Attorney Crowley further contends that the Board erred in concluding
that Smith’s May 2, 2019 pro se filing was “second or subsequent” to Attorney
Crowley’s petition for administrative review of the Board’s December 28, 2018
decision, as the pro se filing was either a new petition challenging the new maximum
date or an amendment of the counseled petition for administrative review. Petition
for Remand ¶ 9. Attorney Crowley points out that Smith’s pro se filing clearly
referenced the Board’s January 16, 2019 decision, recalculating his parole violation
maximum date to March 18, 2021, and specifically claimed that the recalculation
was in error and must be corrected. Petition for Remand ¶¶ 5, 10. Attorney Crowley
additionally asserts that the January 16, 2019 decision is procedurally defective
7
because the decision does not “contain any information on the time limitations for
any challenge to this new computation[,]” and that he never received a copy of the
Board’s January 16, 2019 decision. Petition for Remand ¶ 7.
The Board responds that the sole issue raised in the petition for
administrative review of the Board’s December 28, 2018 decision was a Pittman
challenge, which is demonstratively meritless. See Board’s Response to Petition for
Remand filed 4/21/2020, at 3. Additionally, the Board asserts that Smith’s pro se
filing was properly rejected as a second or subsequent request for relief pursuant to
37 Pa. Code § 73.1. Id. The Board points out that Smith was represented by
Attorney Crowley in the administrative appeal challenging the December 28, 2018
decision, yet Smith attempted to file a pro se document. Id. The Board contends
that a parolee who has counsel cannot submit a pro se filing because hybrid
representation is not permitted. Id. at 4-5.
The Board is correct that “a parolee, by counsel unless unrepresented,
may petition for administrative review . . . within 30 days of the mailing date of the
Board’s determination[,]” and that any “[s]econd 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(b)(1), (3). However,
Smith’s May 2, 2019 pro se filing was clearly not a “second or subsequent” petition
for administrative review of the Board’s December 28, 2018 decision. Smith’s pro
se filing instead specifically questions the Board’s January 16, 2019 decision
recalculating his parole violation maximum date to March 18, 2021, and requests
correction of the recalculation. Accordingly, we conclude that the Board erred in
dismissing the pro se filing on the basis that it related to Smith’s petition for
8
administrative review of the Board’s December 28, 2018 decision regarding his
street time.
Despite concluding that the Board erred in dismissing Smith’s pro se
filing, we cannot, as Attorney Crowley suggested in the Petition for Remand, simply
remand this matter to the Board for consideration of the pro se filing. The Board
issued its decision on January 16, 2019, and even though that decision lacks a
timestamp indicating its mailing date, we note that Smith did not respond until May
2, 2019. A parolee must appeal a revocation decision within 30 days of the Board’s
order or the appeal will be dismissed as untimely. Section 6113(d) of the Prisons
and Parole Code, 61 Pa.C.S. § 6113(d); 37 Pa. Code § 73.1(b)(1); McCaskill v. Pa.
Bd. of Prob. & Parole, 631 A.2d 1092, 1095 (Pa. Cmwlth. 1993).
However, in the Petition for Remand, Attorney Crowley contends that
he never received a copy of the Board’s January 16, 2019 decision. He further
asserts that the decision does not contain information regarding the time limitation
for appealing it. We note that the Board has not responded to Attorney Crowley’s
claim that proper notice of the decision was not provided, despite this Court’s
direction in our April 22, 2020 order that the parties address both the petition for
review and the Petition for Remand in their briefs to this Court. Additionally, our
review of the January 16, 2019 decision, as contained in the Certified Record in this
matter, appears to support Attorney Crowley’s claim that the decision lacks a
mailing date and, thus, does not contain any information regarding the time
limitation for appealing it. See C.R. at 80-82. While the 30-day time period for
appealing a Board order is jurisdictional, it may be extended upon a showing of fraud
or a breakdown in the administrative process. Moore v. Pa. Bd. of Prob. & Parole,
503 A.2d 1099, 1101 (Pa. Cmwlth. 1986). A delay in filing an appeal that is not
9
attributable to the parolee, such as the intervening negligence of a third party or a
breakdown in the administrative process, may be sufficient to warrant nunc pro tunc
relief. Larkin v. Pa. Bd. of Prob. & Parole, 555 A.2d 954, 957-58 (Pa. Cmwlth.
1989). Attorney Crowley has made assertions in the Petition for Remand that, if
established, may be sufficient to warrant nunc pro tunc review. Accordingly, we
will grant the Petition for Remand and remand this matter to the Board for it to hold
an evidentiary hearing on whether Smith is entitled to nunc pro tunc review of the
Board’s January 16, 2019 decision recalculating his maximum date to March 18,
2021. If it is determined by the Board that the delayed filing of Smith’s pro se
request for relief occurred due to a breakdown in the administrative process or the
intervening negligence of a third party, Smith will be entitled to appeal the Board’s
January 16, 2019 decision nunc pro tunc, and the Board shall proceed to consider
the merits of Smith’s May 2, 2019 pro se filing and issue a new decision responding
thereto.
Merits of the Petition for Review
Attorney Crowley suggests that the Board’s December 28, 2018
decision became moot upon the Board’s issuance of its January 16, 2019 decision.
We disagree. The Board’s December 28, 2018 decision addressed whether Smith
was entitled to credit for the time he spent at liberty on parole. Therein, the Board
recalculated Smith’s parole violation maximum date because it denied credit for his
street time. By contrast, the Board’s January 16, 2019 decision recalculated Smith’s
parole violation maximum date for a different reason, the Department of
Corrections’ sentencing restructuring. C.R. at 82. We will therefore address the
10
merits of the petition for review in order to consider the Board’s December 28, 2018
decision.10
Smith contends that the Board abused its discretion by denying him
credit for his street time and modifying his parole violation maximum date to July
7, 2020.11 Smith does not deny that the Board’s December 28, 2018 decision
provided a contemporaneous statement explaining the reason for denying street time
credit in accordance with Pittman, 159 A.3d at 475 (requiring the Board to provide
a “contemporaneous statement” when it exercises its discretion to deny credit).
However, Smith argues that the Board abused its discretion12 by not considering his
conduct over the course of his parole. For example, Smith asserts that while on
parole, he successfully attended outpatient treatment at Genesis House and the Day
Reporting Center Program. Smith’s Brief at 14. Further, he claims that his
“adjustment to supervision during [his] time on parole was less wrought by
significant violations, as had been his past adjustment to supervision.” Id.
The Board notes that the only issue raised in the petition for
administrative review was based on Pittman. We agree, and as explained above,
Smith no longer claims the Board’s decision was not in accordance with Pittman.
Indeed, the December 28, 2018 decision denying Smith credit for the time he spent
10
This Court’s review of the Board’s decision is limited to determining whether the
necessary findings of fact are supported by substantial evidence and whether there was an error of
law or a constitutional violation. Walker v. Pa. Bd. of Prob. & Parole, 729 A.2d 634, 637 n.4 (Pa.
Cmwlth. 1999).
11
Smith also argues the Board erred in determining that his May 2, 2019 pro se filing was
“second or subsequent” to Attorney Crowley’s filing. C.R. at 91. Because we have already
addressed this issue in our disposition of the Petition for Remand, we need not revisit it.
12
“An abuse of discretion is not merely an error of judgment, but occurs only where the
law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result
of partiality, prejudice, bias or ill will, as shown by the evidence or the record.” Zappala v.
Brandolini Prop. Mgmt., Inc., 909 A.2d 1272, 1284 (Pa. 2006).
11
at liberty on parole specifically provided a contemporaneous reason for the Board’s
action. Moreover, in Barnes v. Pennsylvania Board of Probation and Parole, 203
A.3d 382, 390-91 (Pa. Cmwlth. 2019), we determined that the Board’s denial of
street time credit based on “new conviction same/similar to the original offense” was
sufficient under Pittman.
Smith now claims that the Board abused its discretion by denying him
street time credit because he was strictly supervised and did relatively well when
considering his overall record of parole violations. “The law is well settled that
issues not raised before the Board either at the revocation hearing or in the
petitioner’s administrative appeal are waived and cannot be considered for the first
time on appeal.” Chesson v. Pa. Bd. of Prob. & Parole, 47 A.3d 875, 878 (Pa.
Cmwlth. 2012). Because Smith raises this issue regarding the denial of his street
credit for the first time in his brief to this Court, it is waived.
Conclusion
In sum, we affirm the Board’s October 9, 2019 decision to the extent
that it denied Smith credit for the time he spent at liberty on parole, but reverse the
decision to the extent that it dismissed Smith’s May 2, 2019 pro se filing as a second
or subsequent request for relief from the Board’s December 28, 2018 decision. We
grant the Petition for Remand and remand this matter to the Board to hold an
evidentiary hearing to determine whether the reason(s) delaying the filing of Smith’s
May 2, 2019 pro se inmate request regarding the Board’s January 16, 2019 decision
are sufficient to warrant nunc pro tunc review.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Matthew Smith, :
Petitioner :
:
v. :
:
Pennsylvania Board of :
Probation and Parole, : No. 1538 C.D. 2019
Respondent :
ORDER
AND NOW, this 8th day of January, 2021, the Pennsylvania Board of
Probation and Parole’s (Board) October 9, 2019 decision is AFFIRMED in part, to
the extent that it denied Matthew Smith (Smith) credit for the time he spent at liberty
on parole, and REVERSED in part, to the extent that decision dismissed Smith’s
May 2, 2019 pro se filing as a second or subsequent request for relief from the
Board’s December 28, 2018 decision.
The Petition for Remand filed by Smith is GRANTED, and the matter
is REMANDED to the Board for an evidentiary hearing to determine whether the
reason(s) delaying the filing of Smith’s May 2, 2019 pro se inmate request regarding
the Board’s January 16, 2019 decision are sufficient to warrant nunc pro tunc relief.
Jurisdiction is relinquished.
__________________________________
CHRISTINE FIZZANO CANNON, Judge