IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jerry Breck III

, :

Petitioner :

:

v. : No. 1124 C.D. 2021

: Pennsylvania Parole Board, : Submitted: July 1, 2022

Respondent :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ELLEN CEISLER, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE McCULLOUGH FILED: May 25, 2023

Jerry Breck III (Breck) petitions for review of the Pennsylvania Parole

Board ’s (Board) March 31, 2021 decision dismiss ing as untimely his administrative
appeal from the Board’s July 8, 2019 recommitment decision

. Because we conclude

that Breck’s Petition for Review was untimely

, we do not have jurisdictio n and must quash this appeal.

I. FACTS AND PROCEDURAL HISTORY
On August 1, 2014, Bre ck was sentenced in the Ven ango County Court of

Common Pleas to an aggregate state sentence of 5 to 16 years ’ incarceration based on

his conviction of four counts of drug

- related offenses. (Certified Record (C.R.) 1

- 2

. )

Breck subsequently was released on parole on February 23, 2015, with a maximum
sentence date of March 15, 2023. (C.R. 1, 6

. ) On July 11, 2017, Breck was indicted

for a drug

- related crime in the United State s District Court for the Middle District of2

Pennsylvania (federal court)

. (C.R. 32

- 3 3

. ) The federal court issued an arrest warrant

and order of detention on July 13, 2017. (C.R. 34, 67. ) On February 1, 2019, Breck
pled guilty to a single federal drug offense, and o n May 7, 2019, was sentenced to 156

months ’ incarceration in a federal correction al institution (FCI). He received credit for

time served beginning July 13, 2017, the date of his detention on the federal charges.
(C.R. 50, 51

- 57

. )

On May 16, 2019, in proceedings before the Board, Breck waived his
rights to counsel and a hearing and admitted that the federal conviction was a parole

violation. (C.R. 41

. ) On July 8, 2019, t he Board issued a recommitment decision in

which it recommitted Breck “to a state correctional institution as a convicted parole

violator to serve 24 months, when available, pending parole or completion of [Breck’s]
federal sentence [and] [Breck’s] return to a state correctional institution”
(Recommitment O rder). (C.R. 77.) The Board personally delivered the
Recommitment Order to Breck on July 11, 2019, which delivery Breck acknowledged
the same date. ( Id. ; C.R. 87. )

Approximately one year later, 1 Breck submitted an Administrative

Remedies Form to the B oard dated July 15, 2020, and postmarked on August 20, 2020,

in which he challeng ed the Board’s Recommitment Order (administrative appeal)

. (C.R. 77, 97.) The Board recei ved the administrative appeal on August 27, 2020

. (C.R.
77.) Breck therein conten ded that the Board’s decision to recommit him to serve a
term of 24 months’ incarceration at a state correctional institution after the completion

1 Breck was “in transit” to FCI

- Schuylkill, where he is serv ing his federal sentenc e , from May 13, 2019

, until July 22 , 2019. (Petition for Review, attachment s (unpaginated)

. )3

of, or his parole from, his federal sentence, violated section 6138 (a)(5.1) of the Prisons

and Parole Code

, 2 61 Pa.C.S. § 6138(a)(5.1)

. 3

The Board responded to Breck’s administrative appeal on March 31, 2021.

The Board noted that its July 8, 2019 Recommitment Order was received by Breck on
July 11, 2019 , and that, p ursuant to 37 Pa. Code § 73.1, Breck had 30 days from that
date, or until August 12, 2019 , to file his administrative appeal. Because he submitted
his administrative appeal approximately 11 months after the expiration of the appeal
period, the Board dismissed the appeal as untimely. (C.R. 100

- 01.) Breck then filed

his Petition for Review , dated October 4, 2021, in this Court on October 13, 2021. 4 By

orders exited on November 5, 2021

, and December 17, 2021, we appointed Breck
counsel, granted him leave to file an amended petition for review, and directed that the
parties address either in their principal briefs or by separate motion the timeliness of
Breck’s Petition for Review. Breck did not file an amended petition for review , and
neither party filed a motion to quash on timeliness grounds.

2 61 Pa.C.S. §§ 101

- 6309.

3 Section 6138(a)(1) provides that the Board may, at its discretion, revoke the parole of an offender if, while on parole, the offender commits a crime punishable by imprisonment to which the offender pleads guilty. 61 Pa.C.S. § 6138(a)(1). Section 6138(a)(5.1) goes on to provide that, “[i]f the offender is sentenced to serve a new term of total confinement by a [f]ederal court or by a court of another jurisdiction because of a . . . plea under paragraph (1), the offender shall serve the balance of the original term before serving the new term.” 61 Pa.C.S. § 6138(a)( 5.1)

. In a letter included in his administrative appeal, Breck indicated that he filed the administr ative appeal because he c annot participate in certain programs at FC I

- Schuylkill while he ha s an active Board detainer. He therefore argued that he should serve the balance of his state time before beginning his federal sentence. (C.R. 78.)

4 Between March 31, 2021, and October 4, 2021, Breck sent correspondence from FCI

Schuylkill to several public defender s’ offices and the Venango County Court of Common Pleas seeking legal ad vice and representation for an appeal of the Board’s March 31, 2021 decision

. See Petition for Review, attachments (unpaginated). He did not, however, file a petition for review in this Court during that period and offers no explanation for the delay.4 II. ISSUES
In his counseled brief, Breck identifies a single issue for review, namely,

whether his otherwise untimely administrative appeal should h ave been accepted nunc

pro tunc because the Board’s Recommitment Order was issued while he was in transit

to FCI

- Schuylkill

. In response, the Board contends that 1) Breck’s appeal in this Court
must be quashed as untimely, and 2) even if the appeal is not quashed, Breck is not

entitled to nunc pro tunc relief on his administrative appeal to the Board.

III. DISCUSSION

Timeliness of Breck’s Appeal to This Court

A petitioner must file a petition for review with this Court within 30 days
after the entry of a Board decision denying a request f or administrative relief

. S ee Pennsylvania Rule of Appellate Procedure (Pa.R.A .P.) 1512(a)(1) ( “[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” ); Hill v. Pennsylvania Board of

Probation & Parole , 683 A.2d 699, 701 (Pa. Cmwlth. 1996).

Breck did not file his Petition for Review in this Court unt il, at the earliest,
October 4, 2021, approximately six months after the Board ’ s March 31, 2021 decision. 5

T h us , on its face, the Petition for Review is untimely. Although Breck addresses in his
brief the timeliness of his administrative appeal to the Board and gives reasons why it

should have been considered nunc pro tunc , he offers no argument o r evidence
indicating why his appeal in this Court should be considered timely . Nor does he

request nunc pro tunc relief on any basis. We have scoured the C ertified R ecord and

5 Although the Board’s dec ision is dated March 31, 2021, it does not include a mailing date. (C.R. 101

- 02.) Nevertheless, it is clear from the record that Breck received the Board’s decision in April 2021, as that is when he began sendin g correspondence from FCI

- Schuylkill referr ing to the Board’s March 31, 2021 decision

. See , e.g. , Letter to Venango County Court of Common Pleas, dated April 20, 2021

, Petition for Review, attachments (unpaginated)

.5

Breck’s Petition for Review and can find no basis on which to conclude that the appeal
is timely. Accordingly, we are without jurisdiction and must quash the appeal

. 6

________________________________ PATRICIA A. McCULLOUGH, Judge

6 Because we do not have jurisdiction over Breck’s appeal, we do not address whether h e was entitled to nunc pro tunc relief in the filing of his administrative appeal to the Parole Board. Nevertheless, we not e that, even had we concluded that nunc pro tun c relief was appropriate and the Board should have considered the merits of Breck’s administrative appeal, he would not be entitled to relief in any event. Breck was detained on a federal warrant and order of detention issued July 13, 2017. (C.R. 34, 67

. ) He was sentenced on his federal conviction on May 6, 201 9

, and was given credit for time served since the date he was first detained on the federal charges , or on July 13, 2017. (C.R. 51

- 52

. ) Thus, Breck does not appear to have been at any point after July 13, 2017, available for the Board to detain and return him to a state correctional institution to serve the balance of his

state sentences. Under those circumstances, 61 Pa.C.S. § 6138(a)(5.1) does not require or authorize the Board to retrieve a pa role violator from federal custody to serve a state sentence . Rather, the Board may issue a detainer and await either the offender’s completion o f , or parole from, his federal

sentence

. See Stroud v. Pennsylvania Board of Probation & Parole , 196 A.3d 667, 672

- 74 (Pa. Cmwlth. 2018) ; Brown v. Pennsylvania Board of Probation & Parole , 184 A.3d 1021 (Pa. Cmwlth. 2017); Foster v. Pennsylvania Parole Board (Pa. Cmwlth.

, No. 1022 C.D. 2020, filed May 25, 2021), 2021 WL 2099605.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jerry Breck III

, :

Petitioner :

:

v. :

: No. 1124 C.D. 2021 Pennsylvania Parole Board, :

Respondent :

ORDER

AND NOW, this 25th day of May

, 202 3

, the Court having concluded

that Petitioner Jerry Breck III’s petition for review is untimely and, therefore, this
Court does not have jurisdiction , it hereby is ORDERED that th is appeal is
QUASHED.

________________________________ PATRICIA A . McCULLOUGH, Judge