           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sir John Withrow,                      :
                                       :
                            Petitioner :
                                       :
                     v.                : No. 1340 C.D. 2018
                                       : Submitted: March 1, 2019
Pennsylvania Board of                  :
Probation and Parole,                  :
                                       :
                            Respondent :

BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE ROBERT SIMPSON, Judge1
              HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                          FILED: October 17, 2019

              Sir John Withrow (Withrow) petitions for review from a final action of
the Pennsylvania Board of Probation and Parole (Board) that dismissed his appeal
challenging the calculation of his maximum sentence date as untimely.
              On May 25, 2011, Withrow pled guilty to two counts of possession of
controlled substances with the intent to deliver. He was sentenced to an aggregate
term of three years, four months to eight years, effective May 19, 2011, with a
minimum expiration date of September 19, 2014, and a maximum expiration date of
May 19, 2019. Certified Record (C.R.) at 1. Withrow was subsequently released on
parole on September 21, 2014. C.R. at 7. On December 8, 2014, he was ordered to
enter the “Halfway Back Program” at Gateway Braddock for a minimum of 90 days.


       1
        This matter was assigned to this panel before September 1, 2019, when Judge Simpson
assumed the status of senior judge.
C.R. at 12, 17, 39. On March 25, 2015, the Board declared Withrow delinquent for
various technical violations of his parole. C.R. at 13. He waived his rights to counsel
and to a violation hearing and admitted to the violations as charged. On May 27,
2015, the Board ordered Withrow recommitted to a Parole Violator Center (PVC)
for up to six months. C.R. at 20, 27, 30. He successfully completed this program
and was reparoled on July 27, 2015. C.R. at 31-33.
             On October 8, 2015, Withrow was arrested on new criminal charges
and the Board issued a detainer warrant that day. C.R. at 36. Withrow waived his
rights to counsel and to a detention hearing on October 22, 2015. C.R. at 42. By
decision recorded November 16, 2015, the Board ordered him detained pending
disposition of his new criminal charges. C.R. at 49.
             On May 2, 2016, Withrow pled guilty to possession of a prohibited
firearm, possession of a controlled substance, and driving without a license. C.R. at
50. He was sentenced to three to six years of incarceration plus two years of
probation and was given credit for 292 days of time already served. C.R. at 50-51.
Based on these convictions, the Board ordered Withrow recommitted as a convicted
parole violator to serve 24 months’ backtime, with no credit for the time that he spent
on parole. C.R. at 61-68, 82-85.
             The Notice of Board Decision was mailed on November 14, 2016. It
stated in part as follows:

             THIS DECISION INVOLVES AN ISSUE THAT IS
             SUBJECT TO THE BOARD’S ADMINISTRATIVE
             REMEDIES PROCESS. SEE 37 PA. CODE. SEC. 73.
             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)

                                          2
              DAYS OF THE MAILING DATE OF THIS DECISION.
              THIS REQUEST SHALL SET FORTH SPECIFICALLY
              THE FACTUAL AND LEGAL BASES FOR THE
              ALLEGATIONS. YOU HAVE THE RIGHT TO AN
              ATTORNEY IN THIS APPEAL AND ANY
              SUBSEQUENT APPEAL TO THE COMMONWEALTH
              COURT. YOU MAY BE ENTITLED TO COUNSEL
              FROM THE PUBLIC DEFENDER’S OFFICE AT NO
              COST. ENCLOSED WITH THIS BOARD DECISION
              IS AN ADMINISTRATIVE REMEDIES FORM AND
              ADDRESSES OF ALL THE CHIEF PUBLIC
              DEFENDERS IN THE COMMONWEALTH. ANY
              REQUEST FOR A PUBLIC DEFENDER SHOULD BE
              SENT DIRECTLY TO THE PUBLIC DEFENDER’S
              OFFICE IN THE COUNTY WHERE YOU
              CURRENTLY RESIDE.
C.R. at 85.
              On December 6, 2016, nine days prior to the appeal deadline, the
Allegheny County Public Defender’s Office (Public Defender’s Office) received a
letter from Withrow, asking it to file an administrative appeal on his behalf.
However, the Public Defender’s Office did not review Withrow’s request until
December 19, 2016, after the appeal deadline had passed. By letter dated December
20, 2016, the Public Defender’s Office responded to Withrow, acknowledging his
letter, his request for representation, and the office’s delay in responding. Citing a
lack of documentation and information, the letter advised Withrow that the Public
Defender’s Office would not be taking any action on his behalf concerning his
appeal. The letter also advised Withrow that he could request the Board to consider
his administrative appeal nunc pro tunc, asserting reasons why it should do so, or
that he could file a pro se petition for review with Commonwealth Court. Pro Se
Petition for Judicial Review, attachment to Appendix C, at 1.
              Thereafter, Withrow filed an administrative remedies form with the
Board, challenging the date of his recommitment, the computation of his maximum

                                          3
sentence date, and the Board’s refusal to grant him credit for time spent in the PVC.
C.R. at 88-89. The administrative remedies form was dated December 14, 2016, and
postmarked December 30, 2016. By response dated and mailed on August 16, 2018,
the Board dismissed Withrow’s petition for administrative review of the Board’s
November 14, 2016 determination as untimely. C.R. at 90.
               On September 20, 2018, Withrow, pro se, filed a petition for review, a
motion to proceed in forma pauperis, and a motion for appointment of counsel with
this Court. With court-appointed counsel, Withrow filed an amended petition for
review, arguing that his administrative appeal to the Board was untimely due to
circumstances beyond his control. Additionally, Withrow asserts that the Board
erred by failing to grant him credit for all time spent in custody, including time spent
at the halfway house and the PVC.2
               The Board responds that it properly denied Withrow’s appeal as
untimely. The Board asserts that the language in the Notice of Board Decision
informed Withrow that he must file a request for administrative relief with the Board
within 30 days of the mailing date of the decision and advised him of his right to an
attorney. The Board further observes that the letter from the Public Defender’s
Office advised Withrow that if he sent in his appeal late, he should request the Board
to accept it nunc pro tunc, and Withrow did not do so. The Board maintains that
because Withrow did not explain why his appeal was not received by the Board on




       2
          In reviewing a recommitment decision, this Court’s review is limited to determining
whether the necessary findings of fact are supported by substantial evidence, whether the decision
is in accordance with the law, and whether the Board violated any of the parolee’s constitutional
rights. Smith v. Pennsylvania Board of Probation and Parole, 81 A.3d 1091, 1093 n.1 (Pa.
Cmwlth. 2013).


                                                4
or before the December 14, 2016, filing deadline, the Board did not err in denying
Withrow’s appeal as untimely.3


       3
          The Board’s regulations provide 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 or
the appeal will be dismissed as untimely. 37 Pa. Code §73.1(a)(1), (b)(1); see also Section
6113(d)(1) of the Prisons and Parole Code, 61 Pa. C.S. §6113(d)(1); Smith v. Pennsylvania Board
of Probation and Parole, 81 A.3d 1091, 1094 (Pa. Cmwlth. 2013). The 30-day period for an
appeal of a revocation decision is jurisdictional and cannot be extended absent a showing of fraud,
a breakdown of the administrative process, non-negligent circumstances affecting the petitioner,
or the intervening negligence of the petitioner’s appointed counsel, which deprives the petitioner
of effective assistance of counsel. 81 A.3d at 1094. A delay in filing an appeal that is not
attributable to the parolee may be sufficient to warrant nunc pro tunc relief. Id.; Larkin v.
Pennsylvania Board of Probation and Parole, 555 A.2d 954, 957-58 (Pa. Cmwlth. 1989).
                Indigent parolees are entitled to the assistance of counsel both at parole revocation
hearings and in subsequent appeals as of right. Bronson v. Pennsylvania Board of Probation and
Parole, 421 A.2d 1021, 1026 (Pa. 1980), cert. denied, 450 U.S. 1050 (1981). The right to assistance
of counsel includes the right to assistance in the task of perfecting an appeal from a denial of
administrative relief by the Board. Bronson, 421 A.2d at 1026. If Withrow has been deprived of
effective assistance of counsel with respect to his administrative appeal, he has not waived his
right to challenge the Board’s recommitment order for failing to timely seek relief from that order.
Larkin, 555 A.2d at 957. In order to prevail on a claim of ineffective assistance of counsel, a
parolee must show that counsel made errors so serious that he or she was not functioning as
guaranteed by law, and that the deficient representation prejudiced the parolee’s defense. Larkin,
555 A.2d at 957.
                In Larkin, this Court considered a claim of ineffective assistance of counsel where
the petitioner alleged that he had requested another Public Defender’s Office to perfect an appeal
prior to the expiration of the 30-day appeal period and that that Public Defender’s Office failed to
do so; as a result the Board dismissed the petitioner’s appeal as untimely. We stated:

               If in fact the Petitioner did request his attorney to file an appeal, the
               failure to do so may have constituted ineffective assistance of
               counsel. And if the untimeliness of Petitioner’s appeal were the
               result of some third party’s intervening negligence, then an appeal
               nunc pro tunc under these circumstances would be appropriate. A
               showing must be made that fraud, duress or coercion caused the
               delay and for appeal purposes, negligence on the part of
               administrative officials may be deemed to be the equivalent of fraud.



                                                  5
               Preliminarily, we note that Withrow’s petition for review of the Board’s
August 16, 2018 determination was filed with this Court on September 20, 2018,
more than 30 days after entry of the Board’s order. “A petition for review of a quasi-
judicial order . . . shall be filed with the prothonotary of the appellate court within
30 days after the entry of the order.” Pa. R.A.P. 1512(a)(1). “An appellate court . . .
may not enlarge the time for filing . . . a petition for review.” Pa. R.A.P. 105(b).
               In Altieri v. Commonwealth, 495 A.2d 213 (Pa. Cmwlth. 1985), the
Board recommitted the petitioner to serve 24 months’ backtime as a technical parole
violator. In a subsequent modified order, the Board also recommitted the petitioner
to serve 24 additional months as a convicted parole violator. The petitioner filed
two requests for administrative relief, which the Board denied on November 22,
1983, and December 15, 1983. On February 29, 1984, the petitioner filed a petition
for review with this Court.
               We explained that “[t]he timeliness of an appeal and compliance with
the statutory provisions which grant the right of appeal go to the jurisdiction of the
court to hear and decide the appeal.” 495 A.2d at 214. A court has no power to
extend the period for taking an appeal, absent fraud or a breakdown in the court’s
operation. Id. We determined that the petition for review was filed well beyond the

Larkin, 555 A.2d at 957 (citations omitted). Here, the Board’s decision was mailed to Withrow
on November 14, 2016. Withrow sent a letter to the Public Defender’s Office requesting
representation for his administrative appeal of the Board’s decision. That letter was received by
the Public Defender on December 6, 2016, but the Public Defender did not review Withrow’s
request until 13 days after its receipt, and after the deadline to file an administrative appeal had
passed.
                As an appendix to his petition for review, Withrow included a copy of the letter
from the Public Defender’s Office as a proffer of evidence demonstrating that he timely sought
assistance in appealing the Board’s determination. Because that document is not part of the
certified record, we cannot consider it. As in Larkin and Smith, the record here is insufficient to
determine whether Withrow’s ineffective assistance of counsel claim has merit.


                                                 6
mandatory 30-day appeal period and that the petitioner had not alleged fraud or a
administrative breakdown that would justify an extension of time. Accordingly,
although the Board had not raised the timeliness issue, the Court raised it sua sponte
and dismissed the petitioner’s appeal as untimely filed.
              Similarly, here, while the Board has not raised the issue of timeliness,
we do so sua sponte.         As in Altieri, Withrow has not asserted extraordinary
circumstances warranting the grant of nunc pro tunc relief,4 and his failure to file a
timely petition for review deprives this Court of jurisdiction to consider the merits
of his contentions. 495 A.2d at 214. Therefore, we dismiss Withrow’s petition for
review as untimely filed. Altieri, 495 A.2d 214. See also Ricketts v. Central Office
Review Committee of the Department of Corrections, 557 A.2d 1180, 1181-82 (Pa.
Cmwlth. 1989) (dismissing sua sponte the petitioner’s untimely appeal from an
administrative agency’s decision for lack of subject matter jurisdiction); Wagner v.
Pennsylvania Board of Probation and Parole, 522 A.2d 155, 157 (Pa. Cmwlth.
1987) (subject matter jurisdiction may be raised at any time sua sponte by an
appellate court).
              Accordingly, we dismiss Withrow’s petition for review as untimely
filed.




                                            MICHAEL H. WOJCIK, Judge


         4
         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 petitioner, his attorney, or a third party. Cook v.
Unemployment Compensation Board of Review, 671 A.2d 1130, 1131 (Pa. 1996).

                                               7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Sir John Withrow,                   :
                                    :
                         Petitioner :
                                    :
                    v.              : No. 1340 C.D. 2018
                                    :
Pennsylvania Board of               :
Probation and Parole,               :
                                    :
                         Respondent :



                                  ORDER


           AND NOW, this 17th day of October, 2019, the petition for review, filed
September 20, 2018, is hereby DISMISSED as untimely filed.




                                    __________________________________
                                    MICHAEL H. WOJCIK, Judge
