          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Lamarr Sistrunk,                         :
                         Petitioner      :
                                         :
               v.                        :
                                         :
Pennsylvania Board of Probation and      :
Parole,                                  : No. 723 C.D. 2016
                         Respondent      : Submitted: November 4, 2016


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE ANNE E. COVEY, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                              FILED: November 30, 2016


            Lamarr Sistrunk (Sistrunk) petitions pro se for review from a decision
of the Pennsylvania Board of Probation and Parole (Board) dismissing his
application for administrative relief as untimely. We affirm.


            On February 2, 2010, the Board granted Sistrunk conditional parole
and he was paroled to Keystone Correctional Services, Inc. on August 2, 2010.
Subsequently, Sistrunk was arrested by the York City Police Department on July 1,
2011, and detained in the York County Prison on two counts of manufacture,
delivery or possession with intent to manufacture or deliver crack cocaine and
possession of marijuana. The Board issued its detainer against him that same day.
              On July 7, 2011, the Board issued Sistrunk a notice of charges and
hearing, and Sistrunk waived his right to a detention hearing and right to counsel.
By Board decision recorded on August 18, 2011, Sistrunk was detained pending
disposition of his new criminal charges. On April 13, 2012, Sistrunk was found
guilty of two counts of manufacture, delivery or possession with intent to
manufacture or deliver crack cocaine and was sentenced to five to ten year’s
confinement.


              On July 10, 2012, Sistrunk again waived his right to a revocation
hearing before the Board and his right to counsel and admitted he was convicted of
the above criminal charges.        By decision dated August 8, 2012,1 the Board
recommitted Sistrunk as a convicted parole violator (CPV) to serve 18 months
backtime when available. The Board then sent Sistrunk notice that the unserved
balance of his original sentence was 1,516 days (or 4 years, 1 month and 24 days),
and that his recalculated parole violation maximum date was October 1, 2016. On
October 12, 2012, the Board issued a decision2 confirming its action dated August
8, 2012, confirming Sistrunk’s parole violation maximum date of October 1, 2016,
and listing his reparole eligibility date as February 7, 2014. Both the August 8,
2012 and October 12, 2012 notices of the Board’s decisions contained the
following statement:


       1
        Notice of the Board’s August 8, 2012 decision was mailed to Sistrunk at the York
County Prison on August 9, 2012.

       2
         Notice of the Board’s October 12, 2012 decision was mailed to Sistrunk at the State
Correctional Institution at Camp Hill on October 19, 2012.




                                             2
              IF YOU WISH TO APPEAL THIS DECISION, YOU
              MUST FILE A REQUEST FOR ADMINISTRATIVE
              RELIEF WITH THE BOARD WITHIN THIRTY DAYS
              OF THIS ORDER. THIS REQUEST SHALL SET
              FORTH SPECIFICALLY THE FACTUAL AND
              LEGAL BASIS FOR THE ALLEGATIONS. SEE 37
              PA CODE SEC. 73. YOU HAVE THE RIGHT TO AN
              ATTORNEY IN THIS APPEAL AND IN ANY
              SUBSEQUENT        APPEAL      TO      THE
              COMMONWEALTH COURT.


(Certified Record at 96, 97.)


              Sistrunk was constructively paroled to his detainer sentence on
February 19, 2014, and began serving time on his new conviction. His minimum
release date for his new conviction is March 13, 2017, and his maximum release
date is January 13, 2023.


              On March 19, 2016, the Board received correspondence from Sistrunk
contesting the Board’s October 19, 2012 decision to recommit him as a CPV,
almost three-and-a-half years after the decision was issued. The Board dismissed
this application for administrative relief as untimely filed. This appeal followed.3


              Pursuant to the Board’s regulations, a parolee must appeal a decision
revoking his or her parole within 30 days of the mailing date of the Board’s order

       3
          Our review is limited to determining whether the Board’s decision is supported by
substantial evidence, whether an error of law was committed, or whether constitutional rights
have been violated. Smith v. Pennsylvania Board of Probation and Parole, 81 A.3d 1091, 1093
n.1 (Pa. Cmwlth. 2013) (citation omitted).




                                             3
or the appeal will be dismissed as untimely. 37 Pa. Code § 73.1(b)(1); see also
Smith v. Pennsylvania Board of Probation and Parole, 81 A.3d 1091, 1094 (Pa.
Cmwlth. 2013); Cadogan v. Pennsylvania Board of Probation and Parole, 541
A.2d 832, 833 (Pa. Cmwlth. 1988). The 30-day time period is jurisdictional and
cannot be extended absent a showing of fraud or a breakdown in the administrative
process sufficient to warrant nunc pro tunc relief. Smith, 81 A.3d at 1094 (citing
Moore v. Pennsylvania Board of Probation and Parole, 503 A.2d 1099, 1101 (Pa.
Cmwlth. 1986)).


             Here, Sistrunk admittedly did not file an administrative appeal with
the Board within 30 days of its decisions mailed on August 9, 2012, and October
19, 2012, respectively. Sistrunk does not argue that he failed to receive proper
notice and there is nothing in the record indicating that notice was not properly
sent. Both notices of the Board’s decisions contain clear language indicating that
Sistrunk must file his appeal within 30 days. In addition, Sistrunk’s brief to this
Court fails to allege fraud or a breakdown in the administrative process, let alone
make the general assertion that his appeal should be permitted nunc pro tunc. At
no point does he explain the more than three-year delay in filing. He merely
argues, for the first time on appeal, that the legality of an underlying sentence may
be raised at any time. This argument is without merit and, moreover, has been
waived as it was not raised before the Board in Sistrunk’s administrative appeal.
See Newsome v. Pennsylvania Board of Probation and Parole, 553 A.2d 1050,
1052 (Pa. Cmwlth. 1989) (citing Section 703(a) of the Administrative Agency
Law, 2 Pa. C.S. § 703(a)).




                                         4
              Because his appeal was not submitted within 30 days of the Board’s
revocation order, we discern no error in the Board’s dismissal of Sistrunk’s
administrative appeal as untimely.


              Accordingly, the order of the Board is affirmed.4



                                            ___________________________________
                                            DAN PELLEGRINI, Senior Judge




       4
         Sistrunk argues in his brief to this Court that the Board does not have the authority to
alter the maximum release date of “his judicially imposed sentence” and that the Board
improperly calculated his reparole eligibility date. (Petitioner’s Brief at 2.) Because of the
manner in which we resolve this matter, we do not reach these issues.



                                               5
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Lamarr Sistrunk,                        :
                        Petitioner      :
                                        :
               v.                       :
                                        :
Pennsylvania Board of Probation and     :
Parole,                                 :
                         Respondent     : No. 723 C.D. 2016




                                     ORDER


             AND NOW, this 30th day of November, 2016, the decision of the
Pennsylvania Board of Probation and Parole in the above-captioned matter is
affirmed.



                                      ___________________________________
                                      DAN PELLEGRINI, Senior Judge
