D.J. Grant v. PBPP ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Demetrius J. Grant, :
:
Petitioner :
:
v. : No. 794 M.D. 2018
: Submitted: July 29, 2022
Pennsylvania Board of Probation :
and Parole, :
:
Respondent :
OPINION NOT REPORTED
MEMORANDUM OPINION
PER CURIAM FILED: August 11, 2023
Before the Court is the Application for Summary Relief (ASR)1 filed
by the Pennsylvania Parole Board (Board)2 to the pro se Petition for Review (in the
Nature of a Complaint in Mandamus) (PFR) filed in our original jurisdiction by
1
Pa.R.A.P. 1532(b) states, in relevant part: “At any time after the filing of a petition for
review in an . . . original jurisdiction matter, the court may on application enter judgment if the
right of the applicant thereto is clear.” Judgment may be entered “‘if a party’s right to judgment
is clear and no material issues of fact are in dispute.’ ‘In ruling on [ASRs], we must view the
evidence of record in the light most favorable to the non-moving party and enter judgment only if
there is no genuine issue as to any material facts and the right to judgment is clear as a matter of
law.’” Eleven Eleven Pennsylvania, LLC v. Commonwealth, 169 A.3d 141, 145 (Pa. Cmwlth.
2017) (citations omitted).
2
Following the filing of the petition for review, the Pennsylvania Board of Probation and
Parole was renamed the Pennsylvania Parole Board. See Sections 15 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, 61 Pa. C.S. §§6101, 6111(a).
Demetrius J. Grant (Inmate), an inmate at the State Correctional Institution (SCI) at
Albion. We grant the Board’s ASR, and dismiss Inmate’s PFR.
In Grant v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth.,
No. 2043 C.D. 1997, filed May 1, 1998), Inmate sought nunc pro tunc appellate
review of the 1995 Board revocation decision recommitting him to serve the
unexpired term on his original sentence, which is at issue in the instant proceeding.3
Specifically, we summarized the facts of the case as follows:
The Board conducted a parole revocation hearing on July
6, 1995, and on August 17, 1995, the Board mailed its
revocation decision to [Inmate]. On September 15, 1995,
[Inmate] filed a request for administrative relief. He
sought a reversal of the recommitment order for failure to
provide him with hearing counsel and errors on the green
sheet regarding the number of counts of aggravated assault
and firearms violations. On December 15, 1995, the
Board issued a corrected green sheet that properly listed
three counts of aggravated assault rather than four and two
counts of firearms violations rather than three. The
correction having been made, on December 22, the Board
mailed its denial of any further relief. In its decision
mailed on December 22, the Board notified [Inmate] that
3
In considering the Board’s ASR, it is appropriate for this Court to take judicial notice of
our prior memorandum opinion and order in Grant. See, e.g., Pa.R.E. 201(b)(2) (permitting courts
to take judicial notice of facts that may be “determined from sources whose accuracy cannot
reasonably be questioned”); Moss v. Pennsylvania Board of Probation and Parole, 194 A.3d 1130,
1137 n.11 (Pa. Cmwlth. 2018) (“[T]his Court may take judicial notice of information contained in
the publicly[]available docket of [the underlying proceedings],” and “‘[i]t is well settled that this
Court may take judicial notice of pleadings and judgments in other proceedings . . . where, as here,
the other proceedings involve the same parties.’”) (citations omitted); Elkington v. Department of
Corrections (Pa. Cmwlth., No. 478 M.D. 2018, filed May 27, 2021), slip op. at 9 n.4 (“Although
not introduced by the parties, the underlying criminal proceedings are directly related to the claims
made here and are referenced throughout the pleadings, and this Court may take judicial notice of
the dockets of other courts of the Commonwealth.”) (citations omitted); see also Pa.R.A.P. 126(b)
(“As used in this rule, ‘non-precedential decision’ refers to . . . an unreported memorandum
opinion of the Commonwealth Court filed after January 15, 2008. Non-precedential decisions . .
. may be cited for their persuasive value.”).
2
any appeal must be taken within thirty days. However,
[Inmate] did not petition for our review. Rather, on
January 10, 1996, [Inmate] filed a request for
administrative relief from the order mailed December 22,
1995. The Board considered this request to be a second
petition for relief from the recommitment ordered on
August 17, 1995, and therefore, dismissed the petition.
Meanwhile, concerning a separate and unrelated
conviction[,] the Board scheduled a revocation hearing for
April 2, 1996, which was continued when [Inmate’s]
attorney became unavailable due to illness, and continued
again on May 7, 1996, when [Inmate’s] attorney failed to
appear. On May 9, 1996, [Inmate] filed a request for
administrative relief from the continuance. The hearing
was not rescheduled. Rather, on June 27, 1997, the Board
mailed to [Inmate] a decision, as follows: “Refer to Board
action of 7-6-95 to recommit to a [SCI] as a convicted
parole violator to serve [the] unexpired term – 6 years, 2
months, 20 days. Note the [new conviction], and take no
further actions on this conviction.”
On July 25, 1997, Grant filed with the Board a
request for administrative relief from the decision of June
27, 1997. Since the June 27 decision was merely to close
the file without action on the latest conviction, [Inmate]
was plainly not aggrieved by this order. It would appear,
however, that this request was, in fact a third request for
relief from the December 22, 1995 recommitment order.
On August 6, 1997, the Board responded by dismissing his
requests of both May 9, 1996, and July 25, 1997, as being
second requests not permitted under [Section 73.1(b)(3) of
the Board’s regulations,] 37 Pa. Code §73.1(b)(3).[4] Also
on July 25, 1997, [Inmate] filed the instant “Petition for
Review Nunc Pro Tunc.” [Inmate] seeks review of the
Board’s decision mailed on December 22, 1995.
Grant, slip op. at 2-4 (emphasis added).
4
Section 73.1(b)(3) of the Board’s regulations states: “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(b)(3).
3
Ultimately, we quashed Inmate’s petition for review as untimely,
stating, in relevant part:
The Board, in its decision of December 22, 1995,
informed [Inmate] that he had thirty days in which to
appeal its recommitment order. He failed to do so and
instead, on subsequent occasions beyond the thirty day
period, he filed with the Board additional requests for
administrative relief. The Board, pursuant to [Section
73.1(b)(3) of its regulations,] 37 Pa. Code §73.1(b)(3),
properly dismissed these petitions. The time in which
[Inmate] could have sought review by this [C]ourt is long
past. The Board’s decision of June 27, 1997, to take no
further action on a separate conviction, did not enlarge the
time in which [Inmate] could seek our review of the
Board’s recommitment order issued nearly two years
before.
Grant, slip op. at 5.5
5
In Grant, as in this case, Inmate sought review, inter alia, based on the purported invalid
waiver of his right to counsel at the July 6, 1995 revocation hearing. In his counseled appellate
brief in Grant, Inmate argued, in relevant part, that he “was obviously not represented by counsel
at his initial revocation hearing of July 6, 1995 and the validity of the waiver of counsel is at issue
before this Court. ([Reproduced Record at] 75).” Inmate’s Reply Brief at 7. However, with
respect to the merits of Inmate’s claim in Grant, the Board stated in its appellate brief:
[Inmate] argues that he did not knowingly and intelligently waive
representation of counsel for the Revocation Hearing. On July 6,
1995, the date of the hearing, [Inmate] signed the following “Waiver
of Representation by Counsel”:
Having been fully advised of my right to counsel of
my choice to represent me at a hearing before the
Board, and of my right to appointed counsel if I
cannot afford counsel of my choice, I hereby waive
this right and request that my hearing be held without
counsel.
(Certified Record, p.75).
(Footnote continued on next page…)
4
On January 2, 2019, Inmate then filed the instant PFR again seeking
review of the Board’s 1995 recommitment order. In relevant part, the PFR alleges
that because his claim regarding the lack of counsel at his July 6, 1995 revocation
hearing was not expressly addressed in the Board’s December 22, 1995 corrected
revocation decision, that decision is not a final appealable order under Section 763(a)
of the Judicial Code, 42 Pa. C.S. §763(a),6 nor an appealable interlocutory order
under Pa.R.A.P. 311, 312, or 313.7 PFR ¶9. Inmate further asserts that the Board
has refused to issue a final decision on the merits of all of the claims that he raised
in his administrative appeal of the Board’s 1995 revocation decision, despite his
repeated requests for the Board to do so. Id. ¶¶9-11. Inmate states that he filed the
PFR due to the Board’s failure to perform its mandatory duty by issuing a final
decision on the merits of all of his claims, and that no other adequate remedies at
law exist to compel such Board action. Id. ¶¶13-17. Based on the foregoing, Inmate
seeks the following relief: (1) judgment against the Board directing it to act upon
Inmate’s administrative appeal; and (2) judgment against the Board for damages for
The waiver of counsel representation was acknowledged at the
hearing. (Certified Record, p.33).
Brief for Respondent at 8.
6
Section 763(a)(1) of the Judicial Code states, in pertinent part: “[T]he Commonwealth
Court shall have exclusive jurisdiction of appeals from final orders of government agencies in . . .
[a]ll appeals from Commonwealth agencies under [Sections 701 to 704 of the Administrative
Agency Law, 2 Pa. C.S. §§701-704,] or otherwise and including appeals . . . from any other
Commonwealth agency having Statewide jurisdiction.” 42 Pa. C.S. §763(a)(1).
7
Pa.R.A.P. 311 outlines the types of orders from which an interlocutory appeal may be
taken as of right. In turn, Pa.R.A.P. 312 provides the types of orders from which an interlocutory
appeal may be taken with court permission. Finally, Pa.R.A.P 313 relates to orders that are
appealable as “collateral order[s].”
5
failure to perform a duty required by law pursuant to Section 8303 of the Judicial
Code, 42 Pa. C.S. §8303.8 See id. at 3.
In response, on February 13, 2021, the Board filed the instant ASR
asserting, inter alia, that our prior memorandum opinion in Grant “makes it clear
that [Inmate] failed to avail himself of the opportunity to address his concerns in a
timely manner,” and that “[i]f [Inmate] disagreed with th[is] Court’s opinion, he
should have sought relief in the Supreme Court of Pennsylvania.” ASR ¶5. As a
result, the Board claims that “[s]ummary relief should be granted because there is
no basis for [Inmate] to revive his lapsed appeal rights in this matter.” Id. ¶8.
As this Court has recognized, the Board’s 1995 revocation decision is
a final order that could have been appealed to this Court. Bronson v. Board of
Probation and Parole, 421 A.2d 1021, 1024-25 (Pa. 1980); see also Grant, slip op.
at 5 (“The Board, in its decision of December 22, 1995, informed [Inmate] that he
had thirty days in which to appeal its recommitment order. . . . The time in which
[Inmate] could have sought review by this [C]ourt is long past.”). Moreover, and
more importantly, the Supreme Court has also specifically noted that “[o]ne who
allows his statutory appeal rights to expire cannot at a later date successfully claim
those appeal rights under the guise of a petition for writ of mandamus.” Lizzi v.
Unemployment Compensation Board of Review, 353 A.2d 440, 441 (Pa. 1976).
In short, as outlined in our prior opinion, Inmate should have appealed
the Board’s 1995 revocation decision to this Court, raising any and all allegations of
Board error with respect to the revocation of his parole. Inmate may simply not use
8
Section 8303 of the Judicial Code states: “A person who is adjudged in an action in the
nature of mandamus to have failed or refused without lawful justification to perform a duty
required by law shall be liable in damages to the person aggrieved by such failure or refusal.” 42
Pa. C.S. §8303.
6
a proceeding in mandamus to revive any appellate claims that he might have asserted
in any such appeal to this Court.
In fact, Inmate has previously sought to collaterally attack the Board’s
1995 revocation decision in a prior petition for review that he filed in this Court on
June 22, 2011. In that petition, Inmate alleged, inter alia, that the Board’s 1995
revocation decision was void because the Board was without jurisdiction to conduct
the July 6, 1995 revocation hearing in the first instance as he was serving a Georgia
judgment of sentence at that time, and that such a jurisdictional issue may be raised
at any time. However, in relevant part, our order dismissing his prior petition states:
[U]pon consideration of the petition for review, in which
[Inmate] is challenging the recalculation of his parole
violation maximum date, such an action is properly
brought in this [C]ourt’s appellate jurisdiction, McMahon
v. [Pennsylvania Board of Probation and] Parole, 470
A.2d 1337 (Pa. 1983); [Bronson], and this [C]ourt’s
original jurisdiction cannot be used to revive lapsed appeal
rights, [Lizzi]. Accordingly, the petition for review is
dismissed for lack of original jurisdiction.
Grant v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No. 282 M.D.
2011, filed June 23, 2011).9 Likewise, the instant PFR will also be dismissed as an
9
See also Capinski v. Upper Pottsgrove Township, 164 A.3d 601, 609 n.12 (Pa. Cmwlth.
2017), in which we stated:
[The opinion in Avis Rent A Car System, Inc. v. Department of State,
State Board of Vehicle Manufacturers’ Dealers and Salespersons,
507 A.2d 893, 896-97 (Pa. Cmwlth. 1986),] stands for the
proposition that a mandamus action is barred, as it always is, where
there is an administrative remedy prescribed by statute and the
outcome can be appealed to this Court. See also Highway Paving
Company v. State Board of Arbitration of Claims, [180 A.2d 896,
897 (Pa. 1962)] (“[The a]ppellant’s attempt to resort to mandamus
is merely a veiled substitute for an appeal and is, therefore,
improper.”).
7
improper attempt to revive Inmate’s waived appellate claim regarding the purported
violation of his right to counsel at the July 6, 1995 revocation hearing.
Accordingly, the Board’s ASR is granted, and Inmate’s PFR is
dismissed.
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Demetrius J. Grant, :
:
Petitioner :
:
v. : No. 794 M.D. 2018
:
Pennsylvania Board of Probation :
And Parole, :
:
Respondent :
PER CURIAM
ORDER
AND NOW, this 11th day of August, 2023, the Application for
Summary Relief filed by the Pennsylvania Board of Probation and Parole is
GRANTED, and the Petition for Review (in the Nature of a Complaint in
Mandamus) filed by Demetrius J. Grant is DIMISSED.