           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Wilson Rivera,                                 :
                      Petitioner               :
                                               :
              v.                               :   No. 1122 C.D. 2017
                                               :   Submitted: April 6, 2018
Pennsylvania Board of Probation and            :
Parole,                                        :
                 Respondent                    :

BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE ROBERT SIMPSON, Judge
              HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                             FILED: July 19, 2018

              Wilson Rivera petitions for review of an adjudication of the
Pennsylvania Board of Probation and Parole (Parole Board) dismissing as untimely
his request for an administrative review of the Board’s calculation of his maximum
sentence date. Rivera contends that because he did not receive the Parole Board’s
recommitment decision with the new sentence calculation in time to meet the 30-
day appeal deadline, he is entitled to a nunc pro tunc appeal. Concluding that an
evidentiary record is required to decide Rivera’s appeal, we vacate and remand.
              Rivera is a registered sexual offender.1         In 2008, he was charged by
the Reading Police Department with failure to comply with his registration
requirements. He pled guilty in the Court of Common Pleas of Berks County and




1
  Rivera was convicted by the State of Ohio. In 2006, he became eligible for parole. In order to
live with his brother in Reading, Pennsylvania, he transferred his parole supervision to
Pennsylvania.
received a two-to-ten-year sentence. At that time, his maximum sentence date was
November 17, 2018. On June 9, 2011, Rivera was released on parole.
               On January 11, 2013, the Parole Board lodged a detainer warrant
against Rivera for several technical parole violations:                  displaying assaultive
behavior; being the subject of a protection from abuse order; and testing positive for
alcohol and cocaine. On February 21, 2013, the Parole Board recommitted Rivera
as a technical parole violator to serve six months backtime. The Parole Board further
directed that Rivera would be automatically reparoled on July 11, 2013, if he
completed the backtime without committing an infraction that triggered discipline.
On July 11, 2013, Rivera was reparoled to the Wernersville Community Corrections
Center.
               On September 8, 2015, Rivera was arrested and charged with burglary,
simple assault, criminal trespass and harassment. The Parole Board lodged a
detainer warrant against him, pending the disposition of the new criminal charges.2
On April 14, 2016, Rivera pled guilty to criminal trespass and simple assault and
was sentenced to two to four years of incarceration. Rivera waived his right to a
revocation hearing. On June 16, 2016, the Parole Board recommitted Rivera to serve
24 months backtime as a convicted parole violator and recalculated his maximum


2
  The Parole Board also charged Rivera with a technical violation because he was arrested for
assaulting a woman he specifically agreed to have no contact with pursuant to Condition No. 7 of
his parole agreement. Rivera waived his right to counsel at his technical parole violation hearing
and admitted to violating Condition No. 7. Rivera did not offer any mitigating evidence for the
violation. The Parole Board issued a decision recommitting him to serve nine months backtime.
Rivera requested administrative review because the decision stated that he had been convicted in
a court of record, was a threat to the community, and was not amenable to parole supervision. The
Board Secretary modified the Parole Board decision by deleting the statement that Rivera had been
convicted in a court of record. This was characterized as a typo; further administrative relief was
denied.

                                                2
sentence date to March 26, 2023. The Parole Board mailed its decision to Rivera on
June 30, 2016.
             Rivera, pro se, requested administrative review of the Parole Board’s
decision. His letter stated that he did not receive the Parole Board’s decision until
July 26, 2016, which Rivera’s letter characterized as “28 days after [it was] mailed.”
Certified Record at 117 (C.R. __). Rivera did not know why he received the Parole
Board’s decision “so late.” Id.
             On the merits of his appeal, Rivera asked “for all [of his] street time
back.” C.R. 141. He observed that because the sentencing judge gave him credit
for 249 days, that time should have been treated as time served. The Parole Board’s
Chief Counsel, Administrative Review Designee, responded that Rivera’s
administrative appeal was received August 11, 2016, and postmarked August 9,
2016. Rivera was obligated to appeal within 30 days of the mailing date of the Parole
Board’s determination, which was June 30, 2016. Because Rivera failed to meet this
deadline for filing an appeal, his request for administrative relief was dismissed.
             The administrative reviewer’s response went on to explain the Board’s
calculation of Rivera’s maximum sentence date. When Rivera was paroled on July
11, 2013, he had 1955 days remaining on his original sentence. Previously, he had
been on parole from June 9, 2011, through January 11, 2013, when he was detained
on technical parole violations. Because he was in prison from September 8, 2015,
until April 14, 2016, on new criminal charges, that time was credited to his new
sentence, not his original sentence. The Board calculated a new maximum sentence
date of March 26, 2023, by adding Rivera’s street time from July 11, 2013, to
September 7, 2015, and from June 9, 2011, to January 11, 2013, to the 1955 days
remaining on his original sentence.


                                          3
               Rivera petitioned for this Court’s review. He has raised one issue, i.e.,
whether it was error to dismiss his administrative appeal as untimely.3
               Rivera argues that he did not receive the Parole Board’s decision until
July 29, 2016. Notably, in his letter to the Parole Board, he stated that he received
the decision on July 26th, which he then identifies as 28 days after the June 30th
mailing, i.e., July 28, 2016. Whether Rivera received the Parole Board decision on
the 26th, 28th, or 29th, the essence of his argument is the same. Rivera asserts that he
received the Parole Board decision too late to file an appeal prior to the deadline.
               Rivera is incarcerated at SCI-Graterford. He argues that the prison has
numerous problems with mail delivery. Rivera asks this Court to remand for
administrative review. In the alternative, he asks for an evidentiary hearing to
establish, with Department of Corrections’ mail records, the date on which the Parole
Board’s decision was delivered to him.
               The Parole Board responds that Rivera’s appeal was properly
dismissed. Rivera admits he does not know why he received the Parole Board’s
decision late and has offered no evidence to support his claim. Further, the Parole
Board properly calculated Rivera’s maximum sentence date, which makes a nunc
pro tunc appeal pointless.4


3
 Our review of the grant or denial of nunc pro tunc relief determines whether an abuse of discretion
occurred or an error of law was committed. Puckett v. Department of Transportation, Bureau of
Driver Licensing, 804 A.2d 140, 143 n.6 (Pa. Cmwlth. 2002).
4
  In Commonwealth v. 2002 Subaru Impreza VIN No. JF1GG68552G821124 (Pa. Cmwlth., No.
448 C.D. 2013, filed December 18, 2013) (unreported), the Commonwealth asserted that because
the claimant could not prevail on the merits, a nunc pro tunc claim was irrelevant. This Court
rejected this argument. We explained that the merit of the underlying appeal is not a factor in
determining whether an appeal nunc pro tunc is warranted. Holding that the trial court erred by
considering the merits, we remanded the matter to the trial court to address the claimant’s petition
for leave to appeal nunc pro tunc. See also 210 Pa. Code §69.414(a) (stating that an unreported
panel decision of this Court issued after January 15, 2008, may be cited for its persuasive value).
                                                 4
             A parolee must appeal a parole revocation within 30 days of the Parole
Board’s order or it will be dismissed as untimely. Section 6113(d) of the Prisons
and Parole Code, 61 Pa. C.S. §6113(d). The Parole Board’s regulation on petitions
for administrative review states as follows:

             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. When a timely petition has been filed,
             the determination will not be deemed final for purposes of appeal
             to a court until the Board has mailed its response to the petition
             for administrative review.

37 Pa. Code §73.1(b)(1).
             It is undisputed that Rivera’s request for administrative review was not
filed within 30 days of the Parole Board’s decision. However, an appeal nunc pro
tunc may be allowed where the delay in filing was caused by extraordinary
circumstances involving fraud or a breakdown in the administrative process or non-
negligent circumstances related to the appellant, his attorney, or a third party. Cook
v. Unemployment Compensation Board of Review, 671 A.2d 1130, 1131 (Pa. 1996).
             Rivera claims his mail was delayed through no fault of his own. As an
inmate, he has no control over how or when his mail is delivered. In Bradley v.
Pennsylvania Board of Probation and Parole, 529 A.2d 66 (Pa. Cmwlth. 1987), we
held that a delay in filing an appeal caused by prison officials’ failure to deliver an
inmate’s mail warranted nunc pro tunc review. There, an inmate was transferred
from SCI-Graterford to SCI-Dallas. Because prison officials declined to forward his
mail to SCI-Dallas, the inmate did not learn that his request for administrative relief
had been denied until after the 30-day appeal period had run. The inmate requested
nunc pro tunc relief. The Parole Board argued that it was the inmate’s obligation to
notify the Parole Board of the address change, and he did not do so. Although the

                                          5
Parole Board mailed the notice to the address in its file, we held that the inmate was
entitled to a nunc pro tunc hearing. The Department of Corrections knows where
the inmates in its custody are housed, and it should have forwarded the mail.
Because the delay in the appeal “was caused by negligence in the prison system for
which the [inmate] should not be penalized[,]” the inmate was granted nunc pro tunc
relief. Id. at 68.
              In Smith v. Pennsylvania Board of Probation and Parole, 81 A.3d 1091,
(Pa. Cmwlth. 2013), the inmate’s administrative appeal was dismissed as untimely
by the Parole Board. The inmate claimed that the delay was caused by prison
officials, who did not respond to his request for the administrative appeal forms, and,
further, by his placement in administrative custody during the appeal period. This
Court remanded the matter to the Parole Board. We concluded that an evidentiary
hearing was necessary to determine whether the inmate’s claims warranted nunc pro
nunc relief. We explained that “[t]he failure of the [Parole] Board to hold an
evidentiary hearing for [the inmate] to present evidence on whether the reasons he
asserts for the untimeliness of the [p]etition constitutes a breakdown in the
administrative process or were the negligent actions of a third party has left this
Court with nothing to consider except [the inmate’s] bare factual allegations.” Id. at
1095 (internal footnote omitted).
              Here, Rivera claims that the delay in filing his administrative appeal
was not due to any negligence on his part but, rather, by a delay in the receipt of his
mail. The Parole Board did not hold an evidentiary hearing for Rivera to present
evidence on whether he is entitled to a nunc pro tunc appeal. In the absence of a
record, all we have are Rivera’s “bare factual allegations.” Smith, 81 A.3d at 1095.
This makes appellate review impossible.


                                          6
             Accordingly, the Parole Board’s dismissal of Rivera’s administrative
appeal as untimely must be vacated and the matter remanded to the Parole Board for
an evidentiary hearing and determination of whether Rivera has established grounds
for nunc pro tunc relief.

                                  _____________________________________
                                  MARY HANNAH LEAVITT, President Judge

Judge Simpson concurs in the result only.




                                        7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Wilson Rivera,                           :
                   Petitioner            :
                                         :
            v.                           :   No. 1122 C.D. 2017
                                         :
Pennsylvania Board of Probation and      :
Parole,                                  :
                 Respondent              :

                                   ORDER

            AND NOW, this 19th day of July, 2018, the order of the Pennsylvania
Board of Probation and Parole (Parole Board), dated June 16, 2017, is hereby
VACATED, and the matter is REMANDED to the Parole Board to conduct an
evidentiary hearing in accordance with the attached opinion.
            Jurisdiction relinquished.


                                  _____________________________________
                                  MARY HANNAH LEAVITT, President Judge
