Appeal from the Order of the Pennsylvania Board of Probation and Parole, in the case of Alfred Larkin, Parole No. 4250-S, dated June 29, 1988.
Eugene F. Taggart, Assistant Public Defender, for petitioner.
Timothy P. Wile, Assistant Chief Counsel, with him, Robert A. Greevy, Chief Counsel, for respondent.
Judges Barry and Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Smith.
[ 124 Pa. Commw. Page 185]
Alfred Larkin (Petitioner) appeals from an order of the Pennsylvania Board of Probation and Parole (Board) dismissing his administrative appeal as untimely. Petitioner contends that he has been denied his right to effective assistance of counsel by virtue of the Board's refusal to hear his request for administrative relief and that he should be permitted to appeal the Board's order nunc pro tunc.
Petitioner, although diagnosed as suffering from pre-AIDS syndrome, admitted at his violation hearing that he had engaged in sexual relations with an adult partner while on parole. Petitioner testified at hearing that he had engaged in sexual intercourse with a consenting female partner who was fully aware of his medical condition. The Board thereafter recorded an order on April 25, 1988 recommitting Petitioner as a technical parole violator
[ 124 Pa. Commw. Page 186]
to serve his unexpired term of seventeen months and twenty-eight days. The Board concluded that Petitioner's sexual conduct constituted assaultive behavior in violation of condition 5(c) of his parole. The Board's decision was mailed to Petitioner and his counsel, an Assistant Public Defender in Delaware County's Office of the Public Defender, on May 13, 1988.
On June 21, 1988, Petitioner's counsel mailed to the Board an administrative appeal from the Board's April 25, 1988 order. Petitioner's administrative appeal, received by the Board on June 27, 1988, asserted that the Board committed an abuse of discretion and error of law. The Board by order of June 29, 1988 dismissed Petitioner's appeal as untimely as that appeal was received more than thirty days after the mailing date of the order being appealed. Under 37 Pa. Code § 73.1(a)(1) and § 73.1(b)(1), the Board is without jurisdiction to entertain the merits of an untimely appeal. Petitioner appealed to this Court for relief.*fn1
Petitioner asserts that he sought the assistance of the Public Defender through an undated letter which announced his request for administrative relief and that his request arrived in the Public Defender's office "sometime before the expiration of the 30-day appeal period." Petitioner's Brief, p. 6. Petitioner's attorney, who counseled Petitioner during his violation hearing, asserts in Petitioner's brief that an assistant public defender was not assigned to Petitioner's case until June 13, 1988, one day after the lapse of the statutory appeals period. Petitioner
[ 124 Pa. Commw. Page 187]
contends that the apparent failure of the Public Defender's Office to appoint an attorney "more expeditiously" to assist Petitioner prejudiced his right to appeal. Additionally, Petitioner alleges that he has suffered a loss of his ...