           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Richard D. Beaver,                            :
                            Petitioner        :
                                              :
              v.                              :   No. 975 C.D. 2019
                                              :   Submitted: June 5, 2020
Pennsylvania Board of                         :
Probation and Parole,                         :
                            Respondent        :

BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                       FILED: August 26, 2020

              Richard D. Beaver, an inmate at the State Correctional Institution at
Mercer (SCI-Mercer), petitions for review of an adjudication of the Pennsylvania
Board of Probation and Parole (Board)1 denying his administrative appeal as
untimely. Beaver asserts that he filed the administrative appeal within the 30-day
deadline. He further asserts that the Board erred in recalculating his maximum
sentence date. Upon review, we vacate the Board’s order and remand the matter for
further proceedings.
              On September 15, 2012, Beaver was found guilty of aggravated assault
and sentenced to a minimum sentence of two years to a maximum of five years. On
March 16, 2015, Beaver was paroled. On August 8, 2015, the Board recommitted


1
 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 (Parole Code), as amended, 61 Pa.C.S. §§ 6101, 6111(a).
Beaver as a technical parole violator and extended his maximum sentence date of
September 15, 2017, to October 16, 2017, to account for the 31 days from July 8,
2015, to August 8, 2015, that he was delinquent. Certified Record at 41 (C.R.__).
The Board did not forfeit the 114 days of street time that Beaver spent in good
standing from March 16, 2015, to July 8, 2015.
             On October 22, 2015, Beaver was reparoled. On October 27, 2017,
Beaver was convicted of robbery and sentenced to serve 4 to 10 years in state prison.
On February 1, 2018, the Board recommitted Beaver as a convicted parole violator
to serve his unexpired term of 1 year, 6 months, and 29 days on his 2012 sentence
and recalculated his maximum sentence date to July 23, 2019. In doing so, the Board
credited Beaver’s sentence for the 259 days he was incarcerated from February 10,
2017, to October 27, 2017. The Board forfeited the 114 days of street time it had
previously awarded him in connection with his recommitment as a technical parole
violator. C.R. 162. The Board’s decision was mailed on February 9, 2018, and it
advised Beaver that he had 30 days from the mailing date to file a timely request for
administrative review.
             On March 11, 2019, Beaver sent the Board an “inquiry concerning lack
of response to my Administrative Remedies Form, mailed on March 5, 2018.” C.R.
168. According to Beaver, the March 5, 2018, administrative remedies form
challenged the Board’s authority to forfeit the 114 days of street time that he spent
in good standing during the parole period that preceded his recommitment as a
technical parole violator and the Board’s failure to give Beaver credit for all periods
of incarceration on his sentence from February 8, 2017, to February 9, 2018. The
March 11, 2019, inquiry letter cited Penjuke v. Pennsylvania Board of Probation
and Parole, 203 A.3d 401, 420 (Pa. Cmwlth. 2019), appeal denied, 228 A.3d 254


                                          2
(Pa. 2020), in which this Court held that when the Board recommits a convicted
parole violator, it cannot revoke sentence credit that the parolee had been granted in
a prior recommitment as a technical parole violator.2
              Receiving no response, Beaver sent another letter on May 2, 2019, titled
“amended administrative remedies request due to [the Board’s] failure to respond to
initial request of March 5, 2018, and subsequent follow-up of March 22, 2019.” C.R.
175. The letter again challenged the Board’s failure to award Beaver credit for his
street time and raised a new issue that the Board failed to hold the revocation hearing
within the 120-day time period required by Section 71.4(1)(i) of its regulations, 37
Pa. Code §71.4(1)(i).
              On June 24, 2019, the Board dismissed Beaver’s request for
administrative review as untimely. The Board contended that it did not receive
Beaver’s request within 30 days of the mailing date of its decision, and there was no
indication that Beaver submitted the petition to prison officials for mailing during
that time period. Board Adjudication, 6/24/2019, at 1.
              Beaver filed a petition for review with this Court,3 arguing that the
Board erred in dismissing his petition for administrative review as untimely. On
January 13, 2020, Beaver filed an application for relief asking this Court to remand
the matter to the Board to determine the timeliness of his petition for administrative
review, in which he asserts that he timely mailed his petition to the Board on March


2
  Subsequently, in Passarella v. Pennsylvania Board of Probation and Parole, 217 A.3d 919 (Pa.
Cmwlth. 2019), this Court held that the new rule of law announced in Penjuke applied to cases
pending on appeal at the time of the rule’s announcement.
3
  Our review determines whether constitutional rights were violated, whether the adjudication was
in accordance with the law, and whether necessary findings of fact were supported by substantial
evidence. Miskovitch v. Pennsylvania Board of Probation and Parole, 77 A.3d 66, 70 n.4 (Pa.
Cmwlth. 2013).
                                               3
5, 2018.4 Beaver also contends that the Board erred in declining to award him street
time credit and failed to articulate a sufficient reason for doing so pursuant to
Pittman v. Pennsylvania Board of Probation and Parole, 159 A.3d 466 (Pa. 2017).
               Generally, in order for an administrative appeal to be timely filed, the
appeal must be received by the Board prior to the expiration of the 30-day appeal
period. 37 Pa. Code §73.1(b);5 Christjohn v. Pennsylvania Board of Probation and
Parole, 755 A.2d 92 (Pa. Cmwlth. 2000). In Smith v. Pennsylvania Board of
Probation and Parole, 683 A.2d 278, 281 (Pa. 1996), the Pennsylvania Supreme
Court held that a prisoner’s pro se appeal of an agency decision to an appellate court
“shall be deemed to be filed on the date that he delivers the appeal to prison
authorities and/or places his notice of appeal in the institutional mailbox.” The
Supreme Court reasoned that the mailbox rule was necessary to ensure fairness to
pro se prisoners who cannot file their appeals in person and must “‘entrust their
appeals to the vagaries of the mail and the clerk’s process for stamping incoming
papers.’” Id. (citation omitted). Citing the Supreme Court’s rationale in Smith, this
Court extended the prisoner mailbox rule to a prisoner’s pro se administrative appeal
to the Board. Pettibone v. Pennsylvania Board of Probation and Parole, 782 A.2d
605, 607-08 (Pa. Cmwlth. 2001). The prisoner mailbox rule does not apply to
administrative appeals that are filed by offenders who are represented by counsel.
Christjohn, 755 A.2d at 93.
               Here, the Board dismissed Beaver’s petition for administrative review
as untimely filed. Beaver claims, however, that he mailed the petition within the 30-

4
  By order of January 22, 2020, this Court ordered that Beaver’s application be decided with the
merits.
5
  Section 73.1(b) of the Board’s regulations provides that an appeal or petition for administrative
review of a revocation decision must be received within 30 days of the mailing date of the Board’s
order. 37 Pa. Code §73.1(b).
                                                4
day appeal period and seeks the benefit of the prisoner mailbox rule. We cannot
determine from the certified record whether Beaver filed his March 5, 2018, appeal
pro se and, if so, the date on which Beaver placed his appeal of the Board’s decision
in the prison mailbox. As such, the Board must make an evidentiary record upon
which an appellate court may review the Board’s determination of untimeliness.
             Accordingly, we vacate the Board’s June 24, 2019, adjudication and
remand this matter to the Board for a hearing to determine the timeliness of Beaver’s
request for administrative relief from the Board’s February 9, 2018, decision.

                                   _____________________________________
                                   MARY HANNAH LEAVITT, President Judge




                                         5
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Richard D. Beaver,                        :
                          Petitioner      :
                                          :
             v.                           :   No. 975 C.D. 2019
                                          :
Pennsylvania Board of                     :
Probation and Parole,                     :
                          Respondent      :

                                       ORDER

             AND NOW, this 26th day of August, 2020, the application for relief
filed by Richard D. Beaver on January 13, 2020, is GRANTED. The order of the
Pennsylvania Board of Probation and Parole (Board), dated June 24, 2019, in the
above-captioned matter is VACATED, and this matter is REMANDED for the
Board to make factual determinations in accordance with this opinion. The Board
must issue a decision on the merits of the administrative appeal if it deems the appeal
was filed timely.
             Jurisdiction relinquished.

                                    _____________________________________
                                    MARY HANNAH LEAVITT, President Judge
