McCaskill v. Pennsylvania Bd. of Probation and Parole

• Decision Date: 16 September 1993
• Parties: Jackie D. McCASKILL, Petitioner, v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 1092

631 A.2d 1092

158 Pa.Cmwlth. 450

Jackie D. McCASKILL, Petitioner, v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.

Commonwealth Court of Pennsylvania.

Submitted on Briefs July 16, 1993.

Decided Sept. 16, 1993.

Mitchell A. Kaufman, Appellate Counsel, for petitioner.

Arthur R. Thomas, Asst. Chief Counsel, for respondent.

Before PALLADINO and FRIEDMAN, JJ., and NARICK, Senior Judge.

NARICK, Senior Judge.

Jackie D. McCaskill (McCaskill) appeals an order of the Pennsylvania Board of Probation and Parole (Board) which denied his request for administrative relief.

In March 1985, McCaskill was paroled from two concurrent sentences for attempted robbery and aggravated assault. His maximum term expiration date was set for August 1996.

In January 1986, McCaskill was convicted of escape and resisting arrest and sentenced to 3 1/2 to 7 years imprisonment. The Board, after a revocation hearing, recommitted McCaskill in October 1986, ordering him to serve 8 months backtime as a convicted parole violator (CPV), and recalculated his maximum term expiration date to March 1998 (1986 determination). (Original Record (O.R.) at 8). Contained in the notice of the Board's decision were instructions on the process of appealing such decision. McCaskill did not file an appeal.

In 1987, while incarcerated pursuant to the above arrests, McCaskill was convicted of possessing a controlled substance and sentenced to serve a term of imprisonment of 6 months to 1 year. By notice mailed to McCaskill, the Board recommitted him as a CPV and ordered him to serve an additional 4 months backtime for a total of 12 months backtime. Again, McCaskill filed no appeal from the Board's decision.

In December 1987, McCaskill's 1986 convictions for escape and resisting arrest were vacated. In January 1988, the Board issued a further determination with a recalculated maximum term expiration date of November 1998 (1988 determination). McCaskill did not file an appeal from this determination and was reparoled in July 1988.

In July and November 1990, McCaskill was arrested for violations of the Controlled Substance, Drug, Device and Cosmetic Act. ¹ McCaskill continued on parole status pending disposition of the charges.

On May 14, 1991, while awaiting trial for the July and November 1990 arrests, McCaskill was arrested a third time for violating the Drug Act. McCaskill was held in custody pursuant to this arrest from the date of the arrest, May 14, 1991, until June 12, 1991 (a total of 28 days).

On June 12, 1991, McCaskill pleaded guilty to charges arising from the July and November 1990 arrests (first guilty plea) and was sentenced to serve two concurrent terms of 2 1/2 to 5 years imprisonment (first drug sentence). The Board held a revocation hearing on September 11, 1991, recommitted McCaskill as a CPV, and ordered him to serve 9 months backtime.

On September 26, 1991, McCaskill pleaded guilty to the charges arising from the May 14, 1991 arrest and was sentenced to 1 to 2 years state time (second drug sentence), to run concurrently with the first drug sentence which was the result of the first two arrests.

Following another revocation hearing held on February 5, 1992, the Board issued a determination notice dated March 12, 1992. By such determination, the Board decided not to recommit McCaskill as a CPV with respect to the first guilty plea, but ordered him instead to serve the second drug sentence before his recommitment to serve the 9 months backtime, and before service of the first drug sentence.

On April 6, 1992, McCaskill filed an administrative appeal with the Board, alleging that the Board erred in its determination of the order in which his various sentences and backtime were to be served. The Board denied relief and McCaskill filed an appeal with this court.

On May 6, 1992, the Board withdrew its order pending clarification of McCaskill's sentences. Accordingly, we quashed McCaskill's appeal without prejudice.

In July 1992, the Board issued a new determination clarifying the order in which McCaskill's sentences were to be served. This determination stated that McCaskill was currently serving the second drug sentence, that such sentence would be followed by service of backtime which in turn, would be followed by the first drug sentence. The notice also indicated a recalculated maximum term expiration date of January 14, 2003.

In August 1992, McCaskill filed another request for administrative relief with the Board, objecting to the order of service of sentences and alleging that the recalculation of his maximum term expiration date should be May 14, 1999, "or thereabouts." (O.R. at 102). The Board again denied relief.

On appeal to this court, ² McCaskill makes three arguments: (1) that the Board erred in its recalculation of McCaskill's maximum term expiration date; (2) that the Board erred in its determination ordering McCaskill to serve his new sentences before his backtime; and (3) that the Board erred in converting McCaskill's concurrent sentences into consecutive sentences.

As to the first issued raised, McCaskill argues that the Board erred by extending his sentence beyond that imposed by the trial court or that authorized by law. Specifically, McCaskill contends that the Board erred in adding time to his maximum term expiration date because: (1) the convictions from 1986 were subsequently vacated in 1987; and (2) the convictions occurred when he was not at liberty on parole. The Board contends that McCaskill has waived these issues by failing to raise them in his administrative appeal. We agree.

It has been the holding of this court that issues not raised by a CPV before the Board in an administrative appeal are waived for purposes of appellate review by this court. McDaniel v. Pennsylvania Board of Probation and Parole, 137 Pa.Commonwealth Ct. 598, 587 A.2d 42 (1991). 37 Pa.Code § 71.5(h) requires a prisoner seeking administrative relief to specifically set forth the facts and legal basis for which relief should be granted. ³ McCaskill, in his August 1992 request for administrative relief (O.R. at 96-104), failed to specifically raise any allegations of error with respect to the Board's determinations that extended his maximum term expiration date pursuant to the 1986 convictions, or any convictions which occurred while he was not at liberty on parole. As McCaskill's request for administrative relief merely stated his opinion as to what the maximum term expiration date should be, such issues are waived for purposes of appeal to this court.

The Board's determination which included the 1986 convictions in recalculating McCaskill's maximum term expiration date, was issued in October 1986 and was never appealed by McCaskill. Further, McCaskill's only conviction which occurred while he was not at liberty on parole was the 1987 drug conviction. The Board's determination which included this conviction in its recalculated maximum term expiration date was issued in January 1988 and was again, never appealed by McCaskill.

Therefore, even if McCaskill had specifically alleged error stemming from the Board's 1986 and 1988 determinations, such issues would still be a nullity in the present appeal as they are untimely. Prisoners desiring to appeal a determination of the Board must file an administrative appeal within 30 days of the mailing date of the determination. 37 Pa.Code § 73.1(a)(1). Where a prisoner fails to meet this deadline, this court has held that the Board has no jurisdiction to entertain the appeal and should dismiss it as untimely. Threats v. Pennsylvania Board of Probation and Parole, 102 Pa.Commonwealth Ct. 315, 518 A.2d 327 (1986), rev'd on other grounds, 520 Pa. 182, 553 A.2d 906 (1989). As McCaskill failed to file a request for administrative relief within 30 days of the Board's 1986 or 1988 determinations, which he now claims were erroneous, the Board would have been required to dismiss such portions of his appeal as untimely. ⁴

McCaskill's second argument is that the Board erred in requiring him to serve a new sentence before he served his 9 months backtime. The Board in its brief to this court concedes that it erred in determining the order in which McCaskill was required to serve his sentences.

Section 21(a)(1) of Act of August 6, 1941, P.L. 861, as amended, 61 P.S. § 331.21a(a)(1), ⁵ mandates that where a new sentence, to be served in a state penal institution, is imposed on a parolee of a state penal institution, the service of the balance of the original sentence shall precede the service of the newly imposed sentence. This court has clarified this statutory requirement by holding that backtime and new sentences must be served in consecutive order. Commonwealth v. Dorian, 503 Pa. 116, 468 A.2d 1091 (1983).

McCaskill is therefore required to serve the 9 months backtime of his original sentence before serving the new concurrent sentences. Consistent with the law of this state, service of backtime shall begin at the date of recommitment, in the present case, September 11, 1991. See Campbell v. Pennsylvania Board of Probation and Parole, 48 Pa.Commonwealth Ct. 454, 409 A.2d 980 (1980). Therefore, we hold that in determining...