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 r eview 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 spen t 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” throughou t 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 d ismiss 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 relate d thereto before the Court of Common Pleas of Lancaster County . Certified Record (C.R.) at 1

- 2. He was

sentence d t o 8 to 30 years ’ i mprisonment

. Id. at 3. At that time, his minimum sentence date was October 25, 2003
, and his maximum sentence date was O ctober
25, 2025. Id.

Colon was parole d 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. T he 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, caus ing bleeding

fr om her left ear

. Id. at 17

- 20. He was charged with “Simple Assa ult (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 J une 23, 201 7, the Board issued a decision detaining him pending dis position of the new criminal charge

. Id. at 30. Ultimately, Colon pleaded guilty to simple assault under Section 2701(a)(1) of the Crimes C ode, 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

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

- t o

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 o n 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 Colo n 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 o f a judicially imposed sentence
, and thus,

cannot legally extend his sentence to June 19, 2039. He furthe r 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 N ovember 18 , 2019. 6

C.R. at 1 27

- 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 maximu m 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 ne xt 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 it s October 3, 2017 decision. C.R. at 128. It further explained , however, that it s 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, mo difying 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 th e 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. I d.

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 t he 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
, 2 020, which we deemed filed as of January 7 , 2020. 8 Therein, Colon claim ed that the Board abused its discretion by denying him credit for the approximately 13 years

that he spent on parole in good standing . H e also asked th is Court to disregard the
Board ’s modified decision of N ovember 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 Colo n’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 pri son 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 Ri cketts 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 fo r leave to withdraw is dismissed as moot.

MICHAEL H. WOJCIK, JudgeIN 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 19 th day of March , 20 2 1
, the petition for review in the
above

- captioned matter is DISMISSED as untimely. T he Motion to Withdraw as

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

.

__________________________________ MICHAEL H. WOJCIK, Judge