IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Leandros Echavarria, : : No. 604 C.D. 2015
Petitioner : Submitted: December 31, 2015

:

v. :

: Pennsylvania Board : of Probation and Parole, :

: Respondent :

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge 1

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY SENIOR JUDGE FRIEDMAN FILED: February 25, 2016

Leandros E c havarria petitions for review of the March 26, 2015, order of

the Pennsylvania Board of Probation and Parole (Board), dismissing E c havarria’s

petition for administrative re lief as untimely. We affirm.

On December 13, 2001, Echavarria was sentenced to 3 to 10 years in

prison for aggravated assault and robbery with a maximum release date of October

24, 2011. On November 7 , 2005, Echavarria was paroled to a community corrections

center

.

1 This case was assigned to Senior Judge Friedman before January 31, 2016, when Judge Leadbetter assumed the status of senior judge.2

On May 6 , 20 06 , the Board d eclared Echavarria delinquent. On

Nov ember 10, 2006, Philadelphia police arrested Echavarria. On December 28,

2006, the Board recommitted Echavarria to a state correctional institution (SCI) as a

technical parole violator to serve 12 months ’ backtime , when available, for multiple

technical parole violations, and recalculated his maximum release date to April 30,

2012. On April 15 , 2010 , the Board paroled Echavarria to a community corrections

center

.

On April 28, 2011, Philadelphia police arrested Echavarria for

agg ravated assault, criminal conspiracy, robbery, carjacking, possessing instruments

of crime, simple assault

, and recklessly endangering another person. On April 29,

2011, the Board lodged a detainer against Echavarria.

On May 6, 2011, the Board notifie d Echavarria of the parole violation

charges against him and of a detention hearing scheduled for May 10, 2011. On that

same date, Echavarria signed a waive r of counsel and the detention hearing. On

November 14, 2011, the trial court found Echavarria gui lty of robbery, conspiracy,

and possessing instruments of crime. On January 10, 2012, the trial court sentenced

Echavarria to 10 to 20 years in a SCI.

On February 7, 2012, the Board notified Echavarria of the parole

violation charges against him and t hat a revocation hearing was scheduled for

February 23, 2012

, due to his new criminal convictions. On that same date,

Echavarria signed a waiver of counsel and the revocation hearing and admitt ed t hat

he was convicted of new criminal charges in violation of his parole.3

Based upon the waiver, the Board, by decision mailed April 2, 2012,

recommitted Echavarria as a convicted parole violator ( CPV ) to serve his unexpired

term and recalculat ed Echavarria’s maximum release date to April 27, 2014. The

Board’s revocation decision states :

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 B A SIS
FOR T HE 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.

(Bd

. ’s Decision, 4/2/12, at 1.) Echavarria did not file a request for administrative

relief with the Board within 30 days of the April 2, 2012

, decision.

However, n early three years later, o n February 4 , 2015, Echavarria filed

a petition for administrative relief with the Board

, objecting to the Board’s a uthori ty

to extend his maximum release date. On March 26, 2015, t he Board dismissed

Echavarria’s petition as untimely because he filed it more than 30 days after the

mailing date of the Board’s April 2 , 2012, decision. Echavarria now petition s for

review of that order

. 2

2 Our review is limited to determining whether constitutional rights were violated, whether

an error of law was committed

, o r whether the necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.4

Before this court, Echavarria argue s that the Board erred in dismissing

his petition for administrative re lief as untimely. We disagree.

T he Board mailed its revocation decision to Echavarria on April 2, 2012.

In accordance with the Board’s regulations, Echavarria had 30 days

, or until May 2,

2012, to request administrative re lief

. See 37 Pa. Code §73.1(b)(1) and ( 3 ). 3

Echavarria did not file his petition until February 4, 2015. The Board lacks

jurisdiction to decide a petition for administrative re lief received after the 30

- day

appeal period has expired. Pometti v. Pennsylvania Board of Probation and Parole

, 705 A.2d 953, 955 (Pa. Cmwlth. 1998). “This time period is jurisdictional and

cannot be extended absent a showing of fraud or a breakdown of the administrative

process .” Smith v. Pennsylvania Board of Probation and Parole , 81 A.3d 1091, 1094

(Pa. Cmwlth. 2013).

3 37 Pa. Code §73.1(b)(1) and ( 3 ) provide:

(b) Petitions for administrative review.

(1) A parolee, by counsel unless unrepresented, may petition for administrative review under this subsection of determinations relating to revocation decisions which are not otherwise appealable under subsection
(a). Petitions for administrative review shall be received at the Board’s Central Office within 30 days of the mailing date of the Board’s determination

.

* * *

(3) Second or subsequent petitions for administrative review and petitions for administrative review which are out of time under this pa rt will not be received.5

Echavarria contends , however, that there was a breakdown in the

administrative process and, therefore, he is permitted to file a n untimely petition for

admi nistrative relief . Echavarria alleges that the Board ’s revocation decision failed

to: (1) notify him of the Board’s April 2, 2012, decision ; (2) provide him with a

comprehensive guide on how to file a request for administrative relief; (3) provide

him wit h an appeal form ; (4) provide him with a copy of section 6138(a) of the

Prisons and Parole Code, 61 Pa. C.S. §6138(a); and (5) provide him a list of names

and addresses of the public defenders so that he could seek assistance in this appeal

process. (Echa varria’s Br. at 13.)

In his brief, Echavarria concedes that the Board’s de cision was mailed to

him on April 2, 2012, and that his appeal wa s untimely. ( Id. at 11.) Thus, there is no

dispute that Echavarria was notified of the Board’s re vocation decision. A s to

Echavarria’s four remaining allegations , t he Board regulations do not require that the

Board provide Echavarria any of th is information in its revocation decision

. See 37

Pa. Code §§71.2(1)

- (8), 71.3(9), 71.4(1)

- (2), (8), and 73.1(b)(1)

- ( 4).

Before a parolee is recommitted as a CPV, the Board must hold a

revocation hearing. 37 Pa. Code §71.4(1). Before the revocation hearing, the Board

must notify the parolee of his or her right s to: (1) a revocation hearing, (2) notice of

the date o f the hearing, (3) be heard by a panel, (4) retain counsel, (5) free counsel if

he or she is unable to afford counsel, (6) the name and address of the public defender,

and (7) speak and present witnesses and evidence. 37 Pa. Code §71.4(2)(i)

- (ii), (iv).

Further

, the Board must advise the parolee that “[t]here is no penalty for requesting

counsel” and that “[t]he purpose of the hearing is to determine whether to revoke6

parole and that if revocation is ordered, the parolee will receive no credit for time

sp ent at liberty on parole.” 37 Pa. Code §71.4(2)(iii), (v).

Thus, prior to a revocation hearing, the Board’s regulations require that a

parolee be informed, inter alia , of his or her right to counsel and the name and

address of the public defender. Ho wever, the regulations do not require a revocation

decision to include this information. The regulations only require that “[i]f

revocation is ordered, the revocation decision shall be transmitted to the parolee and

to counsel of record. ” 37 Pa. Code §71 .4(8). Here, the Board mailed its decision to

Echavarria. No other information was required. Thus, the Board did not err in failing

to provide the information that Echavarria alleges was required in its revocation

decision that recommit ted Echavarria as a CPV

. 4

Further, because Echavarria is essentially asking for nunc pro tunc relief,

we will also address that issue. W hen requesting an appeal nunc pro tunc , the

petitioner “‘must proceed with reasonable diligence once he knows of the necessity to

take action.’” Smith , 81 A.3d at 1094 n.4 (citation omitted)

.

“ A party seeking permission to file a nunc pro tunc appeal

. . . needs to establish that: (1) [he] filed the appeal shortly after learning of and having an opportunity to address the
untim eliness; (2) the elapsed time is one of very short duration; and (3) the respondent will not suffer prejudice due to the delay. ”

4 Further, Echavarria cites no authority for his proposition that the Board is required to provide such information in its re vocation decision.7

Id. ( c itation omitted). Echavarria’s request for administrative re lief was received by

the Board nearly three years after Ec havarria received the Board’s April 2, 2012,

r evocation decision recommitting him as a CPV

. The time between the Board’s April

2, 2012, decision and Echavarria’s request for administrative re lief was not “‘ of very

short duration. ’ ” Id. ( c itation omitted). Thus, the Board properly dismiss ed

Echavarria’s request for administrative re lief of th e April 2, 2012, decision as

untimely.

Accordingly, we affirm.

___________________________________ ROCHELLE S. FRIEDMAN, Senior JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Leandros Echavarria, : : No. 604 C.D. 2015
Petitioner :

:

v. :

: Pennsylvania Board : of Probation and Parole, :

: Respondent :

O R D E R

AND NOW, this 25 th day of February , 201 6

, we hereby affirm the

March 26, 2015, order of the Pennsylvania Board of Probation and Parole.

___________________________________ ROCHELLE S. FRIEDMAN, Senior Judge