Mesko v. Pa. Bd. of Prob. & Parole

245 A.3d 1174

John R. MESKO, Petitioner

v.PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent

No. 1751 C.D. 2019

Commonwealth Court of Pennsylvania.

Submitted on Briefs July 17, 2020

Decided January 25, 2021

Jessica A. Fiscus, Erie, for Petitioner.

Timothy P. Keating, Assistant Counsel, Harrisburg, for Respondent.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE ELLEN CEISLER, Judge

OPINION BY JUDGE COHN JUBELIRER

John R. Mesko (Mesko) petitions for review of the November 21, 2019 Order of the Pennsylvania Board of Probation and Parole¹ (Board) that denied Mesko's Petition for Administrative Review (Petition) challenging the Notice of Board Decision mailed December 28, 2018 (December 28, 2018 Decision) declining to award Mesko credit for time spent at liberty on parole, recalculating Mesko's parole violation maximum date and reparole eligibility date, and ordering Mesko to serve 24 months of backtime concurrently to serving 5 months and 13 days based on his recommitment as a convicted parole violator (CPV). On appeal, Mesko's sole argument is that the public defender's office impermissibly denied him his constitutional and statutory right to counsel during the administrative review process. The Board does not dispute the validity of Mesko's claim that he was denied counsel but argues that Mesko waived this issue by not raising it in his administrative appeal and that Mesko suffered no prejudice from the denial of counsel. Because Mesko was wrongfully denied his right to counsel and did not waive this issue, we vacate the Board's Order and remand this matter for further proceedings.

I. BACKGROUND

The pertinent facts are as follows. On March 4, 2014, the Board paroled Mesko from his original sentence,² which had a maximum date of December 5, 2016, and he was released on May 12, 2014. Mesko then applied for Interstate Compact Transfer to live in Ohio with his cousin, and Ohio accepted supervision and confirmed his arrival on August 28, 2014.

Relevant to this matter, on January 27, 2017, Mesko was arrested following new sets of criminal charges stemming from three separate incidents that occurred in 2016, prior to the expiration of his maximum sentence date. He also allegedly absconded from his Ohio residence in 2016, likewise prior to the expiration of his maximum sentence date. The Board issued a Warrant to Commit and Detain in which the Board noted Mesko's maximum sentence would be extended due to a period of delinquency and the new maximum would be computed upon the Board's final action. The Board notified Mesko of a detention hearing based upon his three sets of new criminal charges and for his alleged technical violation of changing his residence without permission. After Mesko waived his rights to counsel and a hearing and also signed an admission form to the technical violation, the Board recommitted Mesko as a technical parole violator to serve six months or the unexpired term, whichever was less,³ for changing his residence without permission and established a new maximum parole violation date of July 12, 2017, which remained subject to change if Mesko was convicted of his pending charges. The Board then cancelled the Warrant to Commit and Detain effective July 12, 2017.⁴

On October 2, 2018, Mesko pled guilty to and was convicted of one charge each of possession of drug paraphernalia, receiving stolen property, and theft by unlawful taking, all stemming from the 2016 charges. These convictions resulted in sentences of six months to one year, two to four years, and one to two years of incarceration, respectively, to be served concurrent to one another. Thereafter, the Board again issued a Warrant to Commit and Detain and provided Mesko with a Notice of Charges and Hearing reflecting these new convictions and sentences. Mesko waived his rights to counsel and a revocation hearing and admitted to the above convictions. The Board issued the December 28, 2018 Decision recommitting Mesko as a CPV and ordering Mesko to serve 24 months of backtime concurrently to the 5 months and 13 days of backtime ordered for the technical parole violation. (Certified Record (C.R.) at 169.) The Board declined to award Mesko credit for the time he spent at liberty on parole due to his absconding and recalculated Mesko's new parole eligibility date as April 23, 2020, and his new maximum date as November 19, 2020.⁵ (Id. at 169-70.) The Board's December 28, 2018 Decision informed Mesko of his ability to appeal this decision and that he "ha[s] the right to an attorney in this appeal and in any subsequent appeal to the Commonwealth Court," noting that "[he] may be entitled to counsel from the public defender's office at no cost." (Id . at 170 (emphasis added).)

Mesko filled out and signed an administrative remedies form on January 7, 2019, asserting three reasons for his administrative appeal. (Id . at 173.) On the form, Mesko checked the boxes claiming an error of law, a violation of constitutional law, and a recommitment challenge. (Id. ) In the "Explanation" section of the form, Mesko alleged that he already had been penalized for absconding, that he already had completed his sentence following the previous maximum date of July 12, 2017, and that the Board did not have authority to alter a judicially imposed sentence and doing so was unconstitutional. (Id .) The administrative remedies form noted in italicized, small-point print at the bottom of the first page that Mesko "may be entitled to counsel from the [p]ublic [d]efender's [o]ffice at no cost." (Id . (emphasis added).) The envelope that Mesko mailed the administrative remedies form in is postmarked as January 8, 2019. (Id . at 174.) The Board's Legal Division stamped Mesko's administrative remedies form as having been received on January 14, 2019. (Id . at 173.) On April 8, 2019, Mesko mailed a letter to the Board inquiring into the status of his appeal, which he claimed was filed January 12, 2019, and asking for its quick resolution. (Id . at 175-76.) On November 21, 2019, the Board denied Mesko's administrative appeal and affirmed the December 28, 2018 Decision.⁶ (Response to Administrative Remedies Form, id . at 177-78.) Mesko now petitions this Court for review.

II. PARTIES’ ARGUMENTS

Mesko's sole argument on appeal is that he was denied his right to counsel during the administrative review process in violation of the Public Defender Act⁷ and Mesko's constitutional right to counsel, and he asks this Court to remand for the filing of an administrative appeal with assistance of counsel or an evidentiary hearing as to whether Mesko properly requested counsel for such proceedings and was impermissibly denied. Exhibit D to his petition for review filed with this Court is a letter response from the public defender's office responding to Mesko's "Letter Dated January 7, 2019." (Ex. D to Petition for Review (Pet.).) In the letter, the public defender's office claimed that it "does not get involved at the Administrative Relief Stage." (Id .) The letter further instructed Mesko that he "must ... make that filing" himself and that if he was "unsuccessful, the office would represent [him] in any appeal to the Commonwealth Court." (Id .) This letter is likewise attached to Mesko's Amended Petition for Review—prepared and filed with the assistance of counsel—in which Mesko again claimed his right to counsel during the administrative review process was abridged by the public defender's office's refusal to provide counsel. (Mesko's Amended Petition for Review (Am. Pet.) at 2, 6.)

Although the above letter is not part of the certified record, the Board, importantly, concedes it "has no basis to believe that this document is not legitimate" and asserts that an evidentiary hearing on the matter is unnecessary as it has "no information which would challenge the claim that the letter sent to [Mesko] denying him counsel is anything other than legitimate." (Board's Brief (Br.) at 8, 9 n.2.) The Board further asserts that it would not have objected had Mesko sought to supplement the record with the letter. (Id . at 8.) Instead, the Board argues that this claim was waived as a result of Mesko failing to raise it in his administrative appeal. The Board further claims that, if not waived, this claim fails because Mesko cannot show any prejudice stemming from the ineffectiveness of counsel under Commonwealth v. Washington , 592 Pa. 698, 927 A.2d 586 (2007) (applying the test enumerated in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ), as the issues he raises are meritless. (Board's Br. at 11.)

III. DISCUSSION

We begin with a reminder of our scope of review in parole revocation cases, which "is limited to a determination of whether necessary findings are supported by substantial evidence, [whether] an error of law was committed, or whether constitutional rights of the parolee were violated ." Johnson v. Pa. Bd. of Prob. & Parole , 706 A.2d 903, 904 (Pa. Cmwlth. 1998) (emphasis added). Here, Mesko alleges his constitutional rights were violated as he was denied the assistance of counsel. The Board responds that Mesko waived this issue for failure to preserve it in his administrative appeal. It is well settled that "issues not raised by a CPV before the [B]oard in an administrative appeal are waived for purposes of appellate review by this [C]ourt." McCaskill v. Pa. Bd. of Prob. & Parole , 158 Pa.Cmwlth. 450, 631 A.2d 1092, 1094-95 (1993). In determining whether an issue has been properly preserved for our review, Section 703(a) of the Administrative Agency Law provides:

[a] party who proceeded before a Commonwealth agency under the terms of a particular statute shall not be precluded from questioning the validity of the statute in the appeal, but such party may not raise upon appeal any other question not raised before the agency (notwithstanding the fact that the agency may not be competent to resolve such question) unless

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