         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


David J. Miller,                       :
                        Petitioner     :
                                       :
            v.                         :   No. 848 C.D. 2018
                                       :   Submitted: December 7, 2018
Pennsylvania Board of                  :
Probation and Parole,                  :
                        Respondent     :


BEFORE: HONORABLE ROBERT SIMPSON, Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ELLEN CEISLER, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                       FILED: May 9, 2019


            Petitioner David J. Miller (Miller) petitions for review of a final
determination of the Pennsylvania Board of Probation and Parole (Board), dated
May 23, 2018, which dismissed as untimely Miller’s request for administrative
relief, challenging an action of the Board.     The Board’s challenged action
recommitted Miller as a convicted parole violator and recalculated his maximum
sentence date as October 23, 2021. We now affirm the final determination of the
Board.
            Miller had been incarcerated at a State Correctional Institution when
the Board granted him parole by notice dated January 10, 2014. (Certified Record
(C.R.) at 6.) The Board subsequently released Miller to a Community Corrections
Center on March 3, 2014. (Id. at 10.) At the time of his parole, the Board calculated
Miller’s maximum sentence date as April 16, 2019. (Id. at 9.)
               On April 18, 2015, the Board issued a detainer, and the Hazleton City
Police Department arrested Miller that same day on a number of technical parole
violations, including the use of cocaine and alcohol. (Id. at 16, 21.) Miller waived
his right to a parole revocation hearing and admitted the violations. (Id. at 21.) By
Board action recorded on May 11, 2015, the Board detained Miller and held a
decision in abeyance pending completion of recommended programming.
(Id. at 23.)    The record shows that, thereafter, on February 26, 2016, the
Pennsylvania State Police charged Miller with driving under the influence of alcohol
(DUI), and the Board issued another detainer. (Id. at 25.) After Miller waived his
right to a revocation hearing and admitted a violation, the Board recommitted Miller
to a State Correctional Institution for six months as a technical parole violator,
pending disposition of the criminal charge. (Id. at 27-28.) Miller pled guilty to the
charge of DUI (second offense), and the Court of Common Pleas of Luzerne County
sentenced him to three-to-six months. (Id. at 80.) Miller waived his right to a parole
revocation hearing as to the new conviction, and by Board action (recorded on
January 31, 2017, and mailed on March 24, 2017), the Board recommitted Miller as
a convicted parole violator to serve six months back time concurrent to his
recommitment as a technical parole violator. (Id. at 88-89.) At that time, the Board
recalculated Miller’s maximum sentence date as October 23, 2021. (Id.) The notice
of Board action instructed Miller that “failure to administratively appeal the decision
may affect your legal rights. If you wish to appeal this decision, you must file a
request for administrative relief with the Board within thirty (30) days of the mailing




                                          2
date of this decision.” (Id. at 89.) The Board enclosed an administrative remedies
form with the notice of action.
              Miller filed a request for administrative relief with the Board, which the
Board received on July 11, 2017. (Id. at 94.) The request for administrative relief
challenged the Board’s action mailed on March 24, 2017, arguing that the Board
used the wrong “custody for return” date and, therefore, erroneously extended his
new maximum sentence date. (Id.) Miller did not offer an explanation for the delay
in requesting administrative relief. (Id.) By final determination dated May 23, 2018,
the Board denied Miller’s petition as untimely. (Id. at 138.) In so doing, the Board
explained:
              The Board received an administrative remedies form from
              [] Miller on July 11, 2017, postmarked July 7, 2017. The
              decision that calculated [] Miller’s parole violation
              maximum date was mailed to him on March [2]4, 2017.
              The Board’s regulations provide that a petition for
              administrative review must be received at the Board’s
              Central Office within 30 days of the mailing date of the
              Board’s determination. 37 Pa. Code. § 73.1(b)(1).
              Accordingly, the petition for administrative review is
              DISMISSED as untimely.

(Id.)
              On appeal to this Court,1 Miller argues that the Board erred in
calculating Miller’s custody for return date and thereby erroneously extended his
new maximum sentence date. Miller also argues that the Board violated Miller’s
due process rights under the United States and Pennsylvania Constitutions by
extending his new maximum sentence date without giving him an opportunity to

        1
          Our scope of review of a decision by the Board is limited to determining whether
necessary findings of fact are supported by substantial evidence, whether the Board committed an
error of law, or whether constitutional rights of the parolee were violated. Section 704 of the
Administrative Agency Law, 2 Pa. C.S. § 704.

                                               3
contest the action. The Board responds that it properly dismissed his request for
administrative relief as untimely.
             Prisoners have the right to appeal adverse Board decisions, but they
must do so within 30 days of the mailing date of the decision.                   37 Pa.
Code § 73.1(a)(1); McCaskill v. Pa. Bd. of Prob. and Parole, 631 A.2d 1092, 1095
(Pa. Cmwlth. 1993), appeal denied, 644 A.2d 739 (Pa. 1994). When a prisoner does
not meet this deadline, the Board will not accept the appeal and must dismiss it as
untimely. 37 Pa. Code § 73.1(a)(4); McCaskill, 631 A.2d at 1095. Here, on
March 24, 2017, the Board mailed notice of its decision recorded on
January 31, 2017, but it did not receive Miller’s request for administrative relief until
July 11, 2017—109 days after the Board mailed its notice of the challenged action.
Thus, more than 30 days passed between the mailing of the Board’s action on
March 24, 2017, and the Board’s receipt of Miller’s request for administrative relief,
thereby rendering it untimely. The Board, therefore, did not err in dismissing
Miller’s request for administrative relief due to its untimeliness.
             Accordingly, we affirm the final determination of the Board.




                                           P. KEVIN BROBSON, Judge




                                           4
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


David J. Miller,                       :
                        Petitioner     :
                                       :
            v.                         :   No. 848 C.D. 2018
                                       :
Pennsylvania Board of                  :
Probation and Parole,                  :
                        Respondent     :



                                     ORDER


            AND NOW, this 9th day of May, 2019, the final determination of the
Pennsylvania Board of Probation and Parole is AFFIRMED.




                                       P. KEVIN BROBSON, Judge
