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STEPHEN SNIPES v. COMMONWEALTH PENNSYLVANIA (06/23/87)

decided: June 23, 1987.

STEPHEN SNIPES, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



Appeal from the Order of the Pennsylvania Board of Probation and Parole in the case of Stephen Snipes, Parole No. 7795-P, dated September 18, 1986.

COUNSEL

Robert B. Stewart, III, Chief Public Defender, for petitioner.

Arthur R. Thomas, Assistant Chief Counsel, with him, Robert A. Greevy, Chief Counsel, for respondent.

Judges MacPhail and Barry, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 107 Pa. Commw. Page 73]

Stephen Snipes (Petitioner) appeals from the September 18, 1986 denial of his application for administrative relief by the Pennsylvania Board of Probation and Parole (Board). We affirm.

[ 107 Pa. Commw. Page 74]

On June 13, 1985, Petitioner was ordered to serve 78 months backtime as a technical and convicted parole violator. The Board order included notice that if Petitioner wished to appeal the decision, a request for administrative relief must be filed within thirty days. Although not included in the certified record, Petitioner alleges that he wrote a letter to the Board on December 7, 1985 expressing his confusion over the wording of the Board's order. The record does include a letter from counsel with the Philadelphia Defender's Association,*fn1 dated March 7, 1986, requesting a review of Petitioner's file and raising the possibility of a violation of our Supreme Court's ruling in Rivenbark v. Pennsylvania Board of Probation and Parole, 509 Pa. 248, 501 A.2d 1110 (1985). The Board responded to this communication on April 1, 1986, rejecting therein any challenge on the basis of Rivenbark. Subsequently, Petitioner requested administrative relief on September 12, 1986 by a letter in which he outlined his contentions regarding several issues including the applicability of Rivenbark to his case. The Board responded on September 18, 1986 by again rejecting the Rivenbark argument and dismissing all other issues as untimely.

Petitioner filed a pro se petition for review with this Court following the Board's September 18, 1986 denial of administrative relief. The Public Defender of Huntingdon County has been appointed to represent Petitioner in the instant appeal. In response to the appeal petition, the Board filed a motion to limit the issue on appeal to that of timeliness with the exception of the issue of the applicability of Rivenbark. We granted the

[ 107 Pa. Commw. Page 75]

    motion to limit by per curiam order dated February 18, 1987.

We will, accordingly, first address the issue of the timeliness of Petitioner's request for administrative relief keeping in mind that 37 Pa. Code ยง 71.5(h) clearly limits the time period for filing such requests to thirty days following entry of the Board's order. As reflected by the procedural history detailed above, the earliest possible date on which a request for administrative relief was filed was December 7, 1985, almost six months after the Board's June 13 revocation order. Moreover, the request for administrative relief which is the subject of the instant appeal was not filed until September 12, 1986, some fifteen months following the Board's order.

Though Petitioner's request for administrative relief would, therefore, appear to be untimely, Petitioner argues that his late filing should not be fatal to his case, since he was operating without the benefit of counsel when he filed for administrative relief.*fn2 Petitioner contends that our recent holding in Blair v. Pennsylvania Board of Probation and Parole, 102 Pa. Commonwealth Ct. 478, 518 A.2d 899 (1986), supports his position. In Blair, we noted that indigent parolees are entitled to the effective assistance of counsel at parole revocation hearings and in prosecuting subsequent appeals as of right. Implicit in ...


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