decided: June 23, 1987.
STEPHEN SNIPES, PETITIONER
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.
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.
[ 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 § 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 our decision, however, was the recognition that in order for such representation to be required the parolee must request that legal counsel become involved.
In the instant case, Petitioner was represented by counsel at his revocation hearing. As noted previously, the order revoking his parole included notice that Petitioner
[ 107 Pa. Commw. Page 76]
was entitled to the assistance of counsel in pursuing a request for administrative relief. The order also includes a notation which indicates that a copy of the decision was sent to counsel who had represented Petitioner at the revocation hearing.*fn3 We are satisfied that the Board did all that could be required of it in this case to inform Petitioner of his right to counsel in the appeals process.*fn4 Following receipt of the revocation order and the notice provided therein, we believe it was then incumbent on Petitioner to promptly request further legal representation by his hearing counsel.*fn5 The record does not reveal that any such request was made.*fn6 We, accordingly, conclude that Petitioner has failed to establish adequate grounds for an appeal nunc pro tunc. Thus, we affirm the Board's denial of administrative relief as untimely filed as to all issues except the applicability of Rivenbark.
With respect to the Rivenbark issue, we conclude that the Board acted properly in addressing that issue
[ 107 Pa. Commw. Page 77]
on the merits. We have previously recognized that the Board may address requests for reconsideration, as opposed to those for administrative relief, beyond the thirty day appeal period provided by 37 Pa. Code § 71.5(h). Threats v. Pennsylvania Board of Probation and Parole, 102 Pa. Commonwealth Ct. 315, 518 A.2d 327 (1986). We believe that Petitioner's September 12 letter could be construed as such a request. Moreover, since Rivenbark, which was decided on December 10, 1985, is entitled to retrospective effect*fn7 we believe the Board acted properly in deciding to consider Petitioner's argument regarding the applicability of Rivenbark to his case. See Threats.
Petitioner's argument regarding Rivenbark relates solely to his three technical parole violations: No. 1 (leaving the district without prior written permission of parole staff); No. 2 (moving approved residence without permission); and No. 3(a) (failing to report regularly as instructed). He argues that since the technical violations all resulted from his action in leaving Pennsylvania and travelling to North Carolina, they constitute an improper duplication and may not support an increased period of recommitment. Thus, Petitioner contends that the rationale of Rivenbark should be extended to require that where a single act,*fn8 which does not itself constitute a crime, results in a violation of more than one condition of parole, the violations must be consolidated for purposes of imposing backtime. We must reject this argument.
[ 107 Pa. Commw. Page 78]
In Rivenbark, the Supreme Court held that "a parolee may not be recommitted as a technical violator based upon an act constituting a new crime of which he is convicted." Id. at 255, 501 A.2d at 1114. This ruling was not based on constitutional double jeopardy grounds, but rather, is supported by the statutory language of Section 21.1 of the Act of August 6, 1941 (Act),*fn9 61 P.S. § 331.21a. In construing that provision, the Supreme Court observed that Section 21.1(b) of the Act specifically excludes a parolee from recommitment as a technical violator when the technical violation also constitutes a crime for which he is convicted.*fn10
Our review of the Act reveals that there is no similar express prohibition regarding multiple technical violations which arise based on a single act of the parolee. We observe that the technical conditions themselves are not duplicative, but rather, coincidentally may arise as discrete aspects of a single action such as that taken by Petitioner in leaving his parole district for an extended period of time. Just as multiple convictions which arise from the same criminal event may support separate recommitment periods, Perry v. Pennsylvania Board of Probation and Parole, 86 Pa. Commonwealth Ct. 548, 485 A.2d 1231 (1984), we conclude that multiple technical violations may arise from a single action of a parolee and will support application of the multiple violation presumptive ranges set forth in 37 Pa. Code § 75.4. In sum, we fail to see how the statutory interpretation undertaken in Rivenbark has any application to the instant case.
[ 107 Pa. Commw. Page 79]
We, accordingly, will affirm the Board's denial of administrative relief.
The order of the Pennsylvania Board of Probation and Parole denying Petitioner's application for administrative relief is affirmed.