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

258 A.3d 1159 (Table)

Herm TUGGLES, Petitioner

v.PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent

No. 1744 C.D. 2019

Commonwealth Court of Pennsylvania.

Submitted: July 24, 2020

Filed: June 2, 2021

MEMORANDUM OPINION BY JUDGE McCULLOUGH

Petitioner Herm Tuggles² (Tuggles) petitions for review nunc pro tunc of Respondent Pennsylvania Board of Probation and Parole's³ (Parole Board or Board) June 26, 2019 decision, which dismissed, as untimely, his administrative appeal of the Parole Board's May 11, 2016 decision to recommit him as a convicted parole violator (Recommitment Order).

The Parole Board has filed a motion to quash the instant appeal as untimely. Tuggles’ appointed counsel, Jessica A. Fiscus, Esquire (Counsel), has submitted an application to withdraw, along with a Turner letter.⁴ Counsel argues that this Court should deny the Parole Board's motion to quash and treat Tuggles’ instant petition for review nunc pro tunc as timely filed. She asserts that prison officials at SCI-Albion carelessly and negligently hand-delivered the Parole Board's June 26, 2019 decision to another inmate's cell and this, in turn, caused Tuggles’ untimely filing in this Court.

With respect to the underlying substantive merits, Counsel argues that the Parole Board erred when it dismissed Tuggles’ administrative appeal as untimely because the Parole Board sent notice of its May 11, 2016 Recommitment Order to the wrong prison. Counsel asserts that this mishap constituted a breakdown in the administrative process, which, in turn, caused Tuggles to file his administrative appeal late. Counsel contends that, while Tuggles’ administrative appeal should be treated as timely, the underlying issues regarding (1) credit for time spent at liberty on parole; (2) recalculation of maximum sentence; and (3) calculation of backtime are nevertheless frivolous and without merit. Counsel therefore seeks to withdraw from her representation of Tuggles.

Upon review, we deny the Parole Board's motion to quash Tuggles’ nunc pro tunc appeal, deny Counsel's application to withdraw, reverse the Parole Board's June 26, 2019 order, and remand the matter to the Parole Board to address the merits of Tuggles’ administrative appeal of the Recommitment Order.

Facts and Procedural History

On September 10, 2012, the Court of Common Pleas of Philadelphia County (trial court) sentenced Tuggles at Docket Number 12986 of 2011 to an aggregate sentence of 22½ months to 120 months’ imprisonment for criminal conspiracy, 18 Pa.C.S. § 903(c), and possession with the intent to deliver a controlled substance, 35 P.S. § 780-113(a)(30).⁵ (Certified Record (C.R.) at 1.) The trial court awarded Tuggles credit for the dates he spent incarcerated on this offense: August 20, 2011, through September 10, 2012. Id. Thereafter, on February 11, 2013, the trial court sentenced Tuggles at Docket Number 4692 of 2009, after a probation revocation, to one to two years’ imprisonment for possessing an instrument of crime, 18 Pa. C.S. § 907(a). (C.R. at 1.) The trial court ordered Tuggles to serve that sentence consecutively to the sentence imposed at Docket Number 12986 of 2011. Id. The Department of Corrections calculated that Tuggles’ minimum sentence would expire on July 5, 2014, and his maximum sentence would expire on August 20, 2023. Id . at 2.

On April 9, 2014, the Parole Board elected to parole Tuggles at the expiration of his minimum sentence on July 5, 2014, to "Board/backtime detainer sentence only, parole release subject to detainers." Id . at 4. On May 15, 2014, the Parole Board amended its prior decision to parole Tuggles "to an approved plan upon condition that there are no misconducts." Id . at 7. The Parole Board released Tuggles on July 6, 2014, to an approved residence. Id . at 8, 9.

On September 27, 2014, the Parole Board issued a warrant to commit and detain Tuggles due to new charges in Philadelphia County for three violations of the Pennsylvania Uniform Firearms Act of 1995,⁶ specifically, persons not to possess a firearm, 18 Pa.C.S. § 6105, carrying a firearm without a license, 18 Pa.C.S. § 6106, and carrying a firearm on the public streets in Philadelphia, 18 Pa.C.S. § 6108, for an incident that occurred on September 26, 2014. Id. at 12-14. On September 27, 2014, the trial court set bail, which Tuggles never posted. Id. at 38.

On October 2, 2014, Tuggles’ parole agent recommended that the Parole Board detain him pending the disposition of the new charges, citing the seriousness of the alleged offense, Tuggles’ early failure on parole, and the alleged involvement of a weapon. Id. at 21. On November 10, 2014, the Parole Board issued a decision to detain Tuggles pending disposition of these new charges. Id . at 16.

On November 20, 2015, the trial court found Tuggles guilty on all charges. Id. at 47. On January 14, 2016, the trial court sentenced Tuggles to 5 to 10 years’ imprisonment for persons not to possess a firearm, a concurrent term of 3 years and 6 months’ to 7 years’ imprisonment for possessing a firearm without a license, and no further penalty for carrying a firearm in public. Id. at 17, 48. The trial court also awarded Tuggles credit for time served. Id .

On March 25, 2016, the Parole Board filed a notice of charges and hearing, in which it sought to revoke Tuggles’ parole due to the new convictions. Id . at 23. Tuggles waived his right to a revocation hearing and to counsel and admitted to the new convictions on March 31, 2016. Id . at 26. Two panel members recommended Tuggles’ recommitment to a state correctional institution as a convicted parole violator, the loss of all credit for time spent at liberty on parole, and the service of "24 months (and/or) review." Id . at 27-34. The stated reasons for the recommendations included Tuggles’ threat to community safety, lack of amenability to parole supervision, and new arrest within three months of his release. Id . at 30, 34. The second panel member signed this recommendation on May 3, 2016. Id . at 34.

On May 11, 2016, the Parole Board entered a Recommitment Order, recommitting Tuggles to serve 24 months of backtime as a convicted parole violator and adopting the reasons advanced in the hearing report for its decision. Id. at 53-54. The Parole Board established Tuggles’ parole re-eligibility date as May 3, 2018, and his new maximum date as June 17, 2025. Id . at 54. The Parole Board mailed notice of the Recommitment Order to Tuggles on June 17, 2016, to SCI-Graterford – Institution No. KS9026. Id. at 55-56.

Tuggles’ Administrative Appeal

Approximately one year later, Tuggles submitted an Administrative Remedies Form, challenging the May 11, 2016 Recommitment Order. Id . at 62. Tuggles’ administrative appeal indicated that he was confined at SCI-Albion, Institution #KS8026. Id. Tuggles marked the box seeking to advance a "Recommitment Challenge." Id . Tuggles’ administrative appeal was postmarked on July 3, 2017, and was received by the Parole Board on July 5, 2017. Id . at 62-63.

On February 26, 2019, the Parole Board notified Tuggles at SCI-Albion, Institution #KS8026, of its decision to reparole him to commence service of a pending state detainer sentence.⁷ Id. at 56. On March 15, 2019, the Parole Board reparoled him to serve his state detainer sentence. Id. at 58-59.

Parole Board's June 26, 2019 Decision Dismissing Tuggles’ Administrative Appeal as Untimely

On June 26, 2019, the Parole Board dismissed Tuggles’ administrative appeal as untimely, asserting that Tuggles failed to challenge the Parole Board's Recommitment Order within 30 days. Id . at 64. The Parole Board's June 26, 2019 decision mailed on July 26, 2019, stated that "[i]f you wish to appeal this decision ... you must file an appellate petition for review with Commonwealth Court within thirty (30) days of the mailing date of the Board's response." Id.

Tuggles’ Petition for Review Nunc Pro Tunc of the Parole Board's June 26, 2019 Decision

More than two months after the filing deadline, Tuggles submitted a pro se letter to this Court, which was docketed on November 4, 2019, seeking review of the Parole Board's June 26, 2019 decision, which dismissed his administrative appeal as untimely. Addressing only why he failed to challenge the Parole Board's Recommitment Order within 30 days, Tuggles asserted that he did not receive timely notification of the May 11, 2016 Recommitment Order because the Parole Board mailed it to the wrong prison. Tuggles explained:

The reason why my [administrative appeal] was late is because my official notice of board decision recorded May 11, 2016 has an error. The error is that my institution # is incorrect (KS-9026). My correct # is KS-8026. I did not receive it in a timely manner so there's no possible way I could have summited [sic] an [administrative appeal] in a timely fashion.

(Pro Se Letter, docketed 11/4/19, at 1.)

On November 7, 2019, this Court mailed Tuggles correspondence, providing him with instructions on how to correctly file a petition for review, but also informing him that November 4, 2019, the date that his pro se letter was docketed, was preserved as the date of filing of his appeal. In accordance with these instructions, Tuggles filed his Ancillary Petition for Review Nunc Pro Tunc on December 11, 2019. On January 2, 2020, this Court appointed the Erie County Public Defender's Office to represent Tuggles and directed Counsel to file an amended petition for review, if necessary, within 30 days.

On January 22, 2020, the Parole Board filed a motion to quash/application to stay, wherein it asserted that Tuggles failed to timely appeal its June 26, 2019 decision to this Court. By Order dated January 29, 2020, we directed the Board to transmit the record to this Court and denied the Parole Board's motion to quash without prejudice pending receipt of the record.

On April 20, 2020, Counsel filed a second amended petition for review, which addressed the Parole Board's motion to quash. Counsel explained that "prison officials...