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Case Law - save on Lexis / WestLaw. IN THE COMMONWEALTH COURT OF PENNSYLVANIA Ronald Smith, a/k/a Reynald Smith, : Petitioner : : v. : No. 1249 C.D. 2004 : Submitted: December 23, 2004 Pennsylvania Board of Probation and : Parole, : Respondent : BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE JESS S. JIULIANTE, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SMITH-RIBNER FILED: February 18, 2005 Ronald Smith, also known as Reynald Smith (Smith), petitions for review of a determination of the Pennsylvania Board of Probation and Parole (Board) that dismissed his administrative appeal as untimely. Smith states the question as whether the Board acted negligently by failing to give him credit on recommitment for time served in a community corrections center. The Board counter-states the question as whether an appeal is frivolous where it seeks review of a dismissal as untimely of a petition for administrative review of a recalculation order where the petition was filed three years, seven months and one day after the mailing date of that order. The Board paroled Smith on June 22, 1998 from his original concurrent four-year sentences for possession with intent to deliver and criminal conspiracy subject to a special parole condition that required him to live at the Liberty Management community corrections center with drug/alcohol treatment for a minimum of four months and until job, home and drug treatment stabilized. Certified Record (R.) 9 - 10. Smith was convicted on November 15, 1999 of crimes committed while on parole, for which he received sentences of three years, six months to thirteen years and three years, six months to seven years. R. 13. The Board issued an order September 7, 2000 recommitting Smith as a convicted parole violator to serve his unexpired term of one year, eleven months and nineteen days, setting a parole violation maximum date of April 15, 2002. R. 14. The Board issued a second order September 25, 2000, modifying the previous order by changing the parole violation maximum date to October 17, 2001. Smith was not given credit toward his recommitment for the time he spent at the community corrections center. He did not file a request for administrative relief within thirty days of the date of the order, as instructed to do if he wished to appeal. On April 27, 2004, which was three years, seven months and one day after the Board mailed the modified recalculation order on September 26, 2000, the Board received a petition for administrative review from Smith dated and postmarked April 23, 2004. R. 17 - 20. The petition asserted entitlement to credit for seven months that Smith spent at Liberty Management based upon this Court's decision in McMillian v. Pennsylvania Board of Probation and Parole, 824 A.2d 350 (Pa. Cmwlth. 2003), appeal dismissed as moot, ___ Pa. ___, 861 A.2d 262 (2004), making a general assertion that conditions were sufficiently restrictive so that he was not at liberty on parole while he was there. However, the petition advanced no explanation of why an appeal nunc pro tunc should be granted. By determination mailed May 21, 2004, the Board dismissed the petition for administrative review as untimely without addressing the merits, citing Cadogan v. Pennsylvania Board of Probation and Parole, 541 A.2d 832 (Pa. Cmwlth. 1988). 2 Smith petitioned for review. The Board filed a motion to limit the issue in this appeal to whether the Board correctly dismissed the petition for administrative review as untimely. On August 31, 2004, the Court issued a per curiam order granting the motion of the Board "without prejudice to petitioner to raise any appropriate defense in its brief."1 Through appointed counsel, Smith first argues that under the decision in McMillian (mistakenly described as a Supreme Court decision) the Board is required to give credit on recommitment as a convicted parole violator for time spent in a community corrections center. Second, Smith asserts that when the Board is negligent in administering its procedures, the Court may hear a petitioner's appeal nunc pro tunc. Smith cites Moore v. Pennsylvania Board of Probation and Parole, 503 A.2d 1099, 1011 (Pa. Cmwlth. 1986): "[A]lthough judicial extensions of time for taking an appeal will not be granted in the absence of fraud or its equivalent, negligence on the part of administrative officials may be deemed to be the equivalent of fraud." Smith states that the Board has not denied that error occurred in the administrative system, and he asserts that failure to correct the error is equivalent to negligence on the part of administrative officials. Therefore, the Court should grant Smith's appeal nunc pro tunc. The Board notes that 37 Pa. Code §73.1(b) provides in paragraph (1) that 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" and in 1The Court's review of a decision of the Board is limited to determining whether necessary findings of fact are supported by substantial evidence, whether a practice or procedure of the agency has been violated and whether there has been an error of law or a constitutional violation. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Presley v. Pennsylvania Board of Probation and Parole, 748 A.2d 791 (Pa. Cmwlth. 2000). 3 paragraph (3) that "[s]econd or subsequent petitions for administrative review ... which are out of time under this part will not be received." It argues that McCaskill v. Pennsylvania Board of Probation and Parole, 631 A.2d 1092 (Pa. Cmwlth. 1993), controls. There the Court noted that the Board has no jurisdiction to entertain a petition for administrative review of a Board recalculation order that is received beyond the specified thirty-day period, and the Board should dismiss such a petition as untimely. In Moore, upon which Smith relies, the "negligence on the part of administrative officials" that justified allowance of nunc pro tunc appeal related to the manner of providing notice of the Board's decision to the petitioner, which resulted in delayed actual notice. Although he was incarcerated in the Philadelphia County Prison, the notice was sent to him at the State Correctional Institution at Graterford; and although notice was sent to the office of the public defender it was not sent to the attorney who represented the petitioner in the proceedings. Smith's contention that the Board was "negligent" in its recalculation order does not relate to the manner in which notice of the Board's decision was provided.2 Smith has articulated no basis upon which an appeal nunc pro tunc filed years after the recalculation order should be granted, and the Board's order dismissing his petition for administrative review is affirmed. DORIS A. SMITH-RIBNER, Judge 2Smith's interpretation of McMillian as automatically requiring credit on recommitment for all time spent at a community corrections center has proved to be incorrect. See Torres v. Pennsylvania Board of Probation and Parole, 861 A.2d 394 (Pa. Cmwlth. 2004), and Wagner v. Pennsylvania Board of Probation and Parole, 846 A.2d 187 (Pa. Cmwlth. 2004). 4 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Ronald Smith, a/k/a Reynald Smith, : Petitioner : : v. : No. 1249 C.D. 2004 : Pennsylvania Board of Probation and : Parole, : Respondent : O R D E R AND NOW, this 18th day of February, 2005, the order of the Pennsylvania Board of Probation and Parole is affirmed. DORIS A. SMITH-RIBNER, Judge
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