IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Oscar R. Colon Baez, :

:

Petitioner :

:

 v. : No. 35 C.D. 2020

: Submitted: November 20, 2020

Pennsylvania Parole Board, :

:

Respondent :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: March 19, 2021

Oscar R. Colon Baez (Colon),

1 an inmate confined at the State 

Correctional Institution (SCI) at Forest, petitions for review of an order of the 

Pennsylvania Parole Board, recommitting him to serve 15 months’ backtime as a 

convicted parole violator (CPV), revoking the time that he spent at liberty on parole,

and recalculating his maximum sentence date to June 19, 2039. His counsel, Allison 

D. Hartle, Esquire (Counsel),

2 has filed a motion for leave to withdraw as counsel, 

1 Different names are used for Oscar R. Colon Baez in the Certified Record, such as “Oscar 

Colon,” “Oscar Colon-Baez,” “Oscar Rene Colon Baez,” and “Mr. Colon.” Because he refers to 

himself as “Mr. Colon,” we refer to him as “Colon” throughout this opinion. Certified Record 

(C.R.) at 114-17. 

2 Counsel was retained to represent Colon by the Forest County Public Defender’s Office.
2

along with a no-merit letter.3 For the following reasons, we dismiss the petition for 

review as untimely, and dismiss Counsel’s motion to withdraw as moot. 

In 1996, Colon pleaded guilty to four counts of robbery with serious 

bodily injury and four counts of criminal conspiracy related thereto before the Court 

of Common Pleas of Lancaster County. Certified Record (C.R.) at 1-2. He was 

sentenced to 8 to 30 years’ imprisonment. Id. at 3. At that time, his minimum 

sentence date was October 25, 2003, and his maximum sentence date was October 

25, 2025. Id. 

Colon was paroled on January 12, 2004. C.R. at 12, 16. He remained 

on parole through May 22, 2017, when the Board issued a detainer warrant because 

Colon was arrested on a new criminal charge. Id. at 16, 21. The Lancaster City 

Bureau of Police filed a criminal complaint and affidavit of probable cause accusing 

Colon of punching his ex-wife on the left side of her face and neck, causing bleeding 

from her left ear. Id. at 17-20. He was charged with “Simple Assault 

(M[isdemeanor] 2) *DOMESTIC VIOLENCE*[,]” and was confined in the 

Lancaster County Prison. Id. at 21. 

Colon waived his preliminary detention hearing and his right to 

counsel. C.R. at 27. On June 23, 2017, the Board issued a decision detaining him

pending disposition of the new criminal charge. Id. at 30. Ultimately, Colon pleaded 

guilty to simple assault under Section 2701(a)(1) of the Crimes Code, 18 Pa. C.S.

§2701(a)(1) (“attempts to cause or intentionally, knowingly or recklessly causes 

3 The “no merit” standard for leave to withdraw is applied in situations where, as here, the 

right to counsel is statutorily based. Zerby v. Shanon, 964 A.2d 956, 960 (Pa. Cmwlth. 2009). The 

“wholly frivolous” standard, a slightly higher standard, is applied where the right to counsel is 

constitutional. Id.
3

bodily injury to another”). C.R. at 31. On August 4, 2017, he received a one- to 

two-year sentence to be served in an SCI. Id. at 31, 34.4 

On August 15, 2017, Colon waived his right to a parole revocation 

hearing and his right to counsel, and he admitted to violating the terms and 

conditions of his parole. C.R. at 38. By decision mailed on October 3, 2017 

(recorded September 18, 2017), the Board recommitted Colon as a CPV to serve 15 

months’ backtime. Id. at 61-62. The Board did not award Colon credit for the time 

he spent at liberty on parole based on his assaultive behavior. Id. at 61-62. As such, 

the Board recalculated Colon’s maximum sentence date as June 19, 2039. Id. at 61. 

On November 7, 2017, Colon filed a pro se request for administrative 

relief from the Board’s decision. C.R. at 82-91. He claimed that the Board lacked

authority to change the maximum date of a judicially imposed sentence, and thus, 

cannot legally extend his sentence to June 19, 2039. He further asserted that the 

Board failed to consider his positive history of supervision while on parole and failed 

to explain its rationale for denying him credit.5 Colon also argued that the Board 

violated his constitutional right to due process and committed other constitutional 

violations. 

The Board responded in a decision mailed on November 18, 2019.6 

C.R. at 127-28. The Board explained to Colon that it was statutorily authorized to 

deny him credit for the time that he spent at liberty on parole due to his 

recommitment as a CPV, and to recalculate his maximum sentence date to reflect 

4 He received 74 days of credit toward the new sentence for the time he was confined from 

May 23, 2017, to August 4, 2017. C.R. at 31. 

5 See Colon’s Supplemental Brief to Administrative Review Appeal. C.R. at 116. 

6 No reason is given for the Board’s delay in responding to Colon.
4

that it denied such credit. Id. at 127. The Board further explained that Colon was 

advised of its authority in this regard and that Colon’s ability to challenge its decision 

satisfied his due process rights. The Board therefore concluded that its recalculation 

of Colon’s maximum sentence date did not violate any constitutional provisions or 

Colon’s constitutional rights. Id.

The Board next explained that its decision of whether to grant or deny 

a CPV credit for time spent at liberty on parole is a matter of discretion, and that it 

exercised its discretion here and articulated the reason it denied Colon credit

(“assaultive behavior”) in its October 3, 2017 decision. C.R. at 128. It further 

explained, however, that its listed reason “was a typographical error done due to 

technician error.” Id. As such, the Board attached a new decision (recorded on 

November 15, 2019), to its response, modifying its October 3, 2017 decision, 

correcting its typographical error, and correctly articulating that Colon “WAS ON 

PAROLE FOR MULTIPLE VIOLENT CRIMES AND WAS CONVICTED OF A 

DOMESTIC VIOLENCE CRIME.” Id. at 129.7 The Board therefore concluded that 

it did not abuse its discretion by failing to award Colon credit for his street time, and 

that Colon’s claim in that regard was now moot. Id. at 128. Accordingly, the Board 

affirmed its October 3, 2017 decision as to the recalculation of Colon’s maximum 

sentence date, and determined that the issue of whether the Board failed to exercise 

its discretion in revoking his street time was now moot. Id. 

7 The Board’s November 15, 2019 decision also reaffirmed an earlier action recorded on 

October 18, 2019, which granted Colon parole/reparole to his state detainer sentence. C.R. at 72-

74, 129. Colon was released to the state detainer sentence on November 6, 2019. Id. at 77.
5

Colon filed a pro se petition for review in this Court on January 15, 

2020, which we deemed filed as of January 7, 2020.8 Therein, Colon claimed that 

the Board abused its discretion by denying him credit for the approximately 13 years 

that he spent on parole in good standing. He also asked this Court to disregard the 

Board’s modified decision of November 15, 2019. 

On February 27, 2020, this Court appointed the Public Defender of 

Forest County to represent Colon and Counsel thereafter entered her appearance. 

Counsel subsequently filed the motion for leave to withdraw as counsel for Colon, 

along with a no-merit letter, asserting that Colon’s claims lack merit.

However, because we lack jurisdiction over this matter,9 we will not 

reach the merits of either Colon’s petition for review or Counsel’s motion for leave 

to withdraw. As this Court has explained:

“A petition for review of a quasijudicial order . . . 

shall be filed with the prothonotary of the appellate court 

within 30 days after the entry of the order.” Pa. R.A.P. 

1512(a)(1). “An appellate court . . . may not enlarge the 

time for filing . . . a petition for review.” Pa. R.A.P. 

105(b).

The timeliness of an appeal and compliance with the 

statutory provisions which grant the right of appeal 

go to the jurisdiction of the court to hear and decide 

the appeal. . . . The courts have no power to extend 

the period for taking appeals, absent fraud or a 

breakdown in the court’s operation through a 

default of its officers.

8 Pursuant to the “prisoner mailbox rule,” pro se legal filings of prisoners are deemed filed 

on the date they are “given to prison officials or put in the prison mailbox.” See Kittrell v. Watson, 

88 A.3d 1091, 1096 (Pa. Cmwlth. 2014); see also Pa. R.A.P. 121(f).

9 An appellate court may raise the lack of subject matter jurisdiction sua sponte at any time. 

Commonwealth v. Parella, 834 A.2d 1253, 1255 (Pa. Cmwlth. 2003).
6

Iannotta v. Philadelphia Transportation Company, [312 

A.2d 475, 476 (Pa. Cmwlth. 1973)] (citations omitted). 

See also Nixon v. Nixon, [198 A. 154 (Pa. 1938)].

Altieri v. Pennsylvania Board of Probation and Parole, 495 A.2d 213, 214 (Pa. 

Cmwlth. 1985). See also Ricketts v. Central Office Review Committee of the 

Department of Corrections, 557 A.2d 1180, 1181-82 (Pa. Cmwlth. 1989) 

(dismissing sua sponte a petitioner’s untimely appeal from an administrative 

agency’s decision for lack of subject matter jurisdiction).

As outlined above, Colon filed the instant pro se petition for review of 

the Board’s November 18, 2019 decision on January 7, 2020. Because Colon filed 

his petition for review of the Board’s decision beyond the 30-day statutory appeal 

period, and there is no allegation regarding fraud or a breakdown in operations with 

respect to the timeliness of its filing, this Court is without jurisdiction to consider its 

merits.

Accordingly, Colon’s petition for review is dismissed as untimely, and 

Counsel’s motion for leave to withdraw is dismissed as moot.

MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Oscar R. Colon Baez, :

:

Petitioner :

:

 v. : No. 35 C.D. 2020

: 

Pennsylvania Parole Board, :

:

Respondent :

O R D E R

AND NOW, this 19th day of March, 2021, the petition for review in the 

above-captioned matter is DISMISSED as untimely. The Motion to Withdraw as 

Counsel filed by Allison D. Hartle, Esquire is DISMISSED as moot.

__________________________________

MICHAEL H. WOJCIK, Judge