IN THE COMMONWEALTH COURT OF PENNSYLVANIA

James Oliver, :

Petitioner :

:

v. :

:

Pennsylvania Board :

of Probation and Parole, : No. 1189 C.D. 2015

Respondent : Submitted: January 8, 2016

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY 

JUDGE COVEY FILED: May 11, 2016

James Oliver (Oliver) petitions this Court for review of the Pennsylvania 

Board of Probation and Parole’s (Board) May 26, 2015 order dismissing his 

administrative appeal as untimely. Oliver presents two issues for this Court’s review: 

(1) whether the Board erred by not crediting Oliver with his street time1on a 

previously-completed sentence; and (2) whether the Board erred by concluding that 

Oliver’s request for administrative review was untimely. After review, we affirm.

On April 4, 1994, Oliver pled guilty to the manufacture, sale, delivery or 

possession with intent to deliver illegal drugs and was sentenced to 4 to 10 years’

incarceration. On March 27, 1998, Oliver was paroled. On April 11, 2000, the 

Philadelphia Police Department arrested Oliver. By May 30, 2000 decision, the 

Board detained Oliver pending the disposition of those criminal charges. On 

December 19, 2001, the Board issued an order to recommit Oliver as a convicted 

 

1

“‘Street time’ is a term for the period of time a parolee spends at liberty on parole.” 

Dorsey v. Pa. Bd. of Prob. & Parole, 854 A.2d 994, 996 n.3 (Pa. Cmwlth. 2004).
2

parole violator to serve 12 months’ backtime at the Philadelphia County Prison. On 

June 17, 2002, the Board set the parole violation maximum release date as December 

17, 2006. On March 31, 2003, Oliver was reparoled to Kintock Community 

Correction Center. On March 30, 2005, Oliver was recommitted as a technical parole 

violator to serve three months’ backtime. Oliver’s parole violation maximum release 

date remained December 17, 2006. 

On June 6, 2005, Oliver was paroled to the Luzerne Treatment Center. 

On October 15, 2005, the Board declared Oliver delinquent. On August 4, 2006, the 

Philadelphia Police Department again arrested Oliver. On August 5, 2006, the Board 

issued a warrant to commit and detain Oliver. By September 26, 2006 decision, the 

Board detained Oliver pending new criminal charges that arose from that arrest. The 

Board extended Oliver’s maximum release date to October 7, 2007. On November 

14, 2006, Oliver was found guilty of his Philadelphia County charges. By March 8, 

2007 decision, the Board recommitted Oliver as a technical parole violator to a term 

of eight months and nine days. Oliver was paroled on October 15, 2007.

On December 9, 2008, the Board issued a warrant to detain and commit 

Oliver for a parole violation. On December 11, 2008, Oliver waived his right to 

counsel, a preliminary hearing, a panel hearing and a revocation hearing, and 

admitted that he was convicted of aggravated assault, robbery, conspiracy and 

weapons charges while he was on parole. By February 3, 2009 decision, the Board 

recommitted Oliver as a convicted parole violator to 30 months’ backtime. By April 

1, 2009 decision, the Board recommitted Oliver as a convicted and technical parole 

violator to serve 30 months’ backtime with a parole maximum release date of May 7, 

2011. On May 6, 2009, Oliver filed a pro se request for administrative relief

questioning whether his time spent at a half-way house was restrictive enough not to 

be counted as liberty on parole and questioning his maximum parole date. An 

evidentiary hearing was scheduled for October 23, 2009. Oliver requested a 
3

continuance, and the hearing was held November 30, 2009. By January 14, 2010

decision, the Board determined that Oliver did not meet his burden of proving that he 

is entitled to credit for his time spent at the Luzerne Treatment Center. Oliver did not 

appeal from that decision.

By May 24, 2010 decision, the Board reparoled Oliver to his state 

detainer sentence with a maximum release date of May 7, 2011. On March 25, 2015, 

the Board received Oliver’s letter, wherein he requested a review of his May 7, 2011 

maximum release date.

2

 The Board treated the request as an administrative appeal 

from the Board’s April 8, 2009 decision which extended his maximum release date to 

May 7, 2011. By response mailed May 26, 2015, the Board determined:

To the extent you are challenging the April 8, 2009 [B]oard 

decision, the Board regulation authorizing administrative 

relief states that second or subsequent administrative 

appeals/petitions for administrative review will not be 

received. 37 Pa. Code § 73.1. You already submitted a

request for administrative relief from the decision in 

question, which was received on May 6, 2009. The Board 

mailed a response to that request on June 25, 2009.

Therefore, the Board cannot accept your request for relief 

because it is second or subsequent.

To the extent you are challenging the [Board decision 

mailed] January 21, 2010 [recorded January 14, 2010], the 

Board regulation governing administrative appeals states 

that administrative appeals must be received at the Board’s 

Central Office within 30 days of the mailing date of the 

Board’s order. 37 Pa. Code § 73.1(a). This means you had 

until February 20, 2010, to challenge this decision. Because 

the Board did not receive your appeal on or before that date 

 

2 Oliver included the following letters regarding his attempt to have his release date 

addressed: a May 23, 2014 letter to the Board’s Director of Policy, Legislative Affairs and 

Communications Sherry Tate asking whether his street time was properly taken from him when his 

maximum release date was changed from January 25, 2004 to May 7, 2011; a May 26, 2014 request 

for administrative review of his maximum release date (there is no record evidence that this was 

ever delivered to the Board); and a March 10, 2015 letter to the Board’s Assistant Counsel 

Lambrino. 
4

and it was not submitted to prison officials for mailing by 

that date, your appeal is untimely and cannot be accepted.

Accordingly, your administrative appeal is DISMISSED AS 

SECOND OR SUBSEQUENT and UNTIMELY.

Certified Record (C.R.) at 151. Oliver appealed to this Court.3

Oliver first argues that the Board erred by not crediting him with his 

street time on a previously-completed sentence. Specifically, Oliver contends that 

because his maximum sentence date as of spring 2007 was October 7, 2007, and he 

was found guilty on his additional charge in the fall of 2008, he could not be 

sentenced to backtime for that violation because his maximum sentence had already 

expired. Oliver asserts that, although he raised these issues in his May 6, 2009 

request for administrative relief, they were not addressed at that time. However, 

Oliver never appealed from the Board’s January 14, 2010 decision denying his 

request for administrative relief and confirming his new maximum sentence date as 

May 7, 2011.

Notwithstanding, although Oliver was found guilty for his additional 

crime in the fall of 2008, he committed the crime on August 4, 2006. Thus, he had 

not completed his sentence at the time that he violated his parole. Section 6138(a) of 

the Prisons and Parole Code provides, in relevant part:

Convicted violators.—

(1) A parolee under the jurisdiction of the [B]oard released 

from a correctional facility who, during the period of parole 

or while delinquent on parole, commits a crime punishable 

by imprisonment, for which the parolee is convicted or 

found guilty by a judge or jury or to which the parolee 

pleads guilty or nolo contendere at any time thereafter in a 

 

3

“[O]ur scope of review of a Board order is limited to determining whether constitutional 

rights were violated, errors of law were committed, or findings of fact were not supported by 

substantial evidence.” Morgan v. Pa. Bd. of Prob. & Parole, 814 A.2d 300, 302 (Pa. Cmwlth. 

2003).
5

court of record, may at the discretion of the [B]oard be 

recommitted as a parole violator.

(2) If the parolee’s recommitment is so ordered, the 

parolee shall be reentered to serve the remainder of the 

term which the parolee would have been compelled to 

serve had the parole not been granted and, except as 

provided under paragraph (2.1), shall be given no credit 

for the time at liberty on parole.

(2.1) The [B]oard may, in its discretion, award credit to a 

parolee recommitted under paragraph (2) for the time spent 

at liberty on parole . . . .

61 Pa.C.S. § 6138(a) (text emphasis added). As this Court recently reiterated:

It is well settled law that the Board retains jurisdiction to 

recommit an individual as a parole violator after the 

expiration of the maximum term, so long as the crimes that 

lead to the conviction occurred while the individual is on 

parole. . . . The fact that [petitioner] did not enter his plea 

until . . . after the expiration of the original term . . . is 

irrelevant.

Price v. Pa. Bd. of Prob. & Parole, 117 A.3d 362, 367-68 (Pa. Cmwlth. 2015) 

(quoting Miskovitch v. Pa. Bd. of Prob. & Parole, 77 A.3d 66, 73-74 (Pa. Cmwlth.

2013)). Further, the Board has the discretion whether to give Oliver credit for his 

street time. 61 Pa.C.S. § 6138(a). Accordingly, the Board did not err when it did not 

give Oliver credit for his street time, or when it sentenced Oliver to backtime for a 

crime committed while he was on parole.

Oliver next contends that the Board erred by concluding that Oliver’s 

request for administrative review was untimely. Specifically, Oliver maintains that 

his appeal was timely because, on May 6, 2009, Oliver filed a pro se request for 

administrative relief from the April 1, 2009 Board decision recommitting him as a 

convicted and technical parole violator to serve 30 months’ backtime with a parole 

maximum release date of May 7, 2011. Oliver asserts that since he raised two issues

in his administrative appeal - whether his time spent at a half-way house should have 
6

been counted as liberty on parole and whether his maximum release date was 

properly calculated - and the January 14, 2010 Board decision only addressed the first 

issue, he did not appeal from that decision.

We acknowledge that Oliver was given an evidentiary hearing on the 

sole issue of whether he was entitled to credit for his time spent at the Luzerne 

Treatment Center, and that the January 14, 2010 Board decision addressed this issue 

in particular. However, prior to that evidentiary hearing, the Board expressly notified 

Oliver:

Because an evidentiary hearing is pending, the Board 

cannot affirm or reverse the calculation set-forth in the 

Board decision recorded April 1, 2009 (mailed 04/08/09) at 

this time. See Arguelles v. [Pa.] [Bd.] of Prob[. &] Parole, 

892 A.2d 912 (Pa. [Cmwlth.] 2006).[4] After a decision 

from the above evidentiary hearing is rendered, you 

may file another administrative appeal/petition for 

administrative review from that decision if you do not 

receive the relief requested.

C.R. at 156 (emphasis added). Oliver did not thereafter file another administrative 

appeal/petition. Rather, Oliver waited until May 23, 2014, at which time he wrote a 

letter to the Board’s Director of Policy, Legislative Affairs and Communications 

Sherry Tate asking whether his street time was properly taken from him when his 

maximum release date was changed from January 25, 2004 to May 7, 2011. Notably, 

Oliver admits in this letter that he “tried to seek administrative review in 2009, but 

was unsuccessful.” C.R. at 119. On March 15, 2015, the Board received Oliver’s 

letter wherein he objected to the Board’s authority to recalculate his maximum 

release date to May 7, 2011. The Board treated that letter as an administrative appeal. 

Section 73.1(b) of the Board’s Regulations states:

Petitions for administrative review.

 

4

The Arguelles Court held: “If a local agency must engage in fact-finding to determine an 

award calculation, administrative discretion is involved, [thus,] the order is not final[.]” Id. at 914.
7

(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. When a timely 

petition has been filed, the determination will not be 

deemed final for purposes of appeal to a court until the 

Board has mailed its response to the petition for 

administrative review. . . . 

(2) The failure of a petition for administrative review to 

present with accuracy, brevity, clearness and specificity 

whatever is essential to a ready and adequate understanding 

of the factual and legal points requiring consideration will 

be a sufficient reason for denying the petition.

(3) Second or subsequent petitions for administrative 

review and petitions for administrative review which are 

out of time under this part will not be received.

(4) An employe of the Board designated by the Chairperson 

may review and respond to a petition for administrative 

review.

37 Pa. Code § 73.1 (bold emphasis added). Here, if Oliver was requesting 

administrative review of the April 1, 2009 Board decision, because he had already 

done so, the request was a second or subsequent petition. If, however, Oliver was 

requesting administrative review of the January 14, 2010 Board decision, the request 

was due on or before February 20, 2010 (30 days from the January 21, 2010 mailing 

date), and therefore it was untimely. Accordingly, the Board did not err by 

concluding that Oliver’s request for administrative review was either a second or 

subsequent petition or untimely.

For all of the above reasons, the Board’s order is affirmed. 

___________________________

ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

James Oliver, :

Petitioner :

:

v. :

:

Pennsylvania Board :

of Probation and Parole, : No. 1189 C.D. 2015

Respondent :

O R D E R

AND NOW, this 11th day of May, 2016, the Pennsylvania Board of 

Probation and Parole’s May 26, 2015 order is affirmed.

___________________________

ANNE E. COVEY, Judge