The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Nakia William Garrus, :
Petitioner :
:
v. : No. 1271 C.D. 2021
:
Pennsylvania Parole Board, : Submitted: November 4, 2022
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: November 16, 2023
Nakia William Garrus (Petitioner) petitions for review of the
Pennsylvania Parole Board’s (Board) decision mailed October 14, 2021, which denied
and dismissed his second, third and fourth requests for administrative relief from the
Board’s order, recorded September 19, 2019, recalculating his maximum sentence date
of November 30, 2022. In addition, David Crowley, Esquire (Counsel), Petitioner’s
court-appointed public defender, has filed an Application to Withdraw on the basis that
the appeal is frivolous and lacks merit. Upon review, we dismiss Petitioner’s Petition
for Review (PFR) and Counsel’s Application to Withdraw as moot.
I. Facts and Procedural History
In May 2001, Petitioner was convicted of voluntary manslaughter and
sentenced to 25 to 50 years’ confinement. (Certified Record (C.R.) at 1.) On May 28,
2013, Petitioner was resentenced to 10 to 20 years’ confinement. (C.R. at 4.) At the
time of his resentencing, Petitioner’s maximum sentence date was April 6, 2020. (C.R.
at 5.)
On September 8, 2015, the Board paroled Petitioner to a community
corrections facility (CCF). Id. at 13. On March 14, 2016, he was recommitted to serve
6 months’ backtime as a technical parole violator (TPV) for acting in an assaultive
manner toward a parole officer during intake after his release from the CCF. Id. at 1.
He was reparoled on August 26, 2016. Id. at 75.
On October 21, 2018, Petitioner was arrested for unsworn falsification to
authorities, false identification to law enforcement, retail theft and receipt of stolen
property. Id. at 44-43, 50. The Board lodged a detainer against Petitioner that same
day. Id. at 39. Petitioner posted bail on the new charges on October 29, 2018. Id. at
43. In a decision recorded January 14, 2019, the Board detained Petitioner pending
disposition of the new charges, recommitted him as a TPV for nine months for
changing his residence without permission, and granted him reparole after six months
if he successfully completed prescribed programs. Id. at 64. On February 13, 2019,
Petitioner filed an administrative remedy form with the Board challenging the Board’s
January 14, 2019 decision recommitting him as a TPV. Id. at 99.
On January 16, 2019, Petitioner pleaded guilty to unsworn falsification to
authorities and the remaining charges were nolle prossed. Id. at 67. The sentencing
court sentenced Petitioner to time served to 23 months. Id. at 68. The Board credited
Petitioner’s original sentence for the time he spent incarcerated before posting bail, i.e.,
October 21, 2018 to October 29, 2018.
On April 4, 2019, the Board notified Petitioner that it was charging him
as a convicted parole violator (CPV), due to his new conviction. Petitioner waived his
rights to counsel and a revocation hearing. Id. at 71. By decision recorded May 15,
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2019, the Board modified and deleted the reparole portion of its January 14, 2019 order.
Id. at 87. The Board recommitted Petitioner to serve 9 months’ backtime as a TPV and
12 months’ backtime as a CPV, for a total of 21 months’ backtime. The Board based
its backtime assessment on Petitioner’s poor adjustment under supervision, early
failure of parole and reparole, failure to comply with sanctions, his declaration of
delinquency and his prior parole failures. The Board recalculated Petitioner’s original
sentence maximum release date to April 13, 2022, but stated it was subject to change.
Id. at 87-88.
On June 13, 2019, Petitioner filed an administrative remedies form
challenging the Board’s May 15, 2019 decision increasing his backtime in light of his
designation as a CPV. Id. at 101. On June 20, 2019, he filed a petition for
administrative remedies with the Board challenging the Board’s January 14, 2019 and
May 15, 2019 decisions, and requesting that his original maximum release date be
recalculated because his backtime should be served concurrently with his new
sentence. Id. at 103-07. On July 5, 2019, he filed an “administrative appeal letter”
again claiming that the Board erred in recalculating his backtime. Id. at 112-13.
On September 4, 2019, the sentencing court entered an order paroling
Petitioner on Bill #7245-18, effective January 16, 2019. Id. at 85. By decision dated
September 19, 2019, the Board restated its May 15, 2019 decision and added that
Petitioner would not receive credit for the time spent at liberty on parole because he
previously absconded while under supervision. Id. at 91. The Board credited Petitioner
for time he spent in pretrial custody solely on the Board’s warrant from October 29,
2018, to January 16, 2019. Id. On October 7, 2019 the Huntington County Public
Defender filed an administrative appeal from the September 19, 2019 recommitment
challenging the recalculation of the maximum date. Id. at 140. On January 22, 2020,
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Petitioner filed another administrative appeal from the May 15, 2019 recommitment
decision. Id. at 129-30. On that same date, January 22, 2020, the Board entered a
decision rescinding the Board action of January 14, 2019, due to receipt of additional
information and modifying the Board actions of May 15, 2019 and September 19, 2019,
by removing all references to the Board’s action dated January 14, 2019, to recommit
him as a TPV to serve 9 months’ backtime. Id. at 96. On January 23, 2020, the Board
entered another decision rescinding the Board action of January 22, 2020 decision, due
to missing information. Id. at 97. It modified its January 14, 2019, May 15, 2019, and
September 19, 2019 decisions by removing all references therein to recommitting
Petitioner as a TPV. Id. The Board modified its September 19, 2019 decision to
declare that Petitioner was recommitted to a state correctional institution to serve 12
months of backtime as a CPV. Id. Petitioner’s original sentence maximum release
date remained November 30, 2022. The January 23, 2020, Board decision recommitted
Petitioner to a state correctional institution as a CPV to serve 12 months’ backtime and
made him ineligible for reparole until June 16, 2020. Id.
On January 28, 2020, the Board mailed Petitioner its response to his
February 13, June 13 and June 20, 2019 requests for administrative relief, denying
Petitioner credit for the time he served at liberty on parole and stating that it properly
recalculated his maximum sentence release date to November 30, 2022, because
Petitioner had received a new conviction and as such, was found to be a CPV. Id. at
110-11.
On February 5, 2020, Petitioner filed an appeal from the Board’s January
28, 2020 decision with this Court, challenging the recalculation of his sentence
maximum release date to November 30, 2022. Specifically, he argued that the Board
erred by (1) failing to grant him credit for the time he spent at liberty on parole; (2) not
4
calculating his custody time correctly and requiring him to serve his new sentence
consecutively to his original sentence; and (3) altering his judicially imposed sentence.
In a decision filed February 3, 2021, this Court affirmed the Board. See Garrus v.
Board of Pennsylvania Probation and Parole (Pa. Cmwlth., No, 198 C.D. 2020, filed
February 3, 2021).
Despite the fact that this Court affirmed the Board’s January 28, 2020
decision, Petitioner mailed another administrative appeal to the Board, postmarked
April 19, 2021, once again challenging the Board’s January 28, 2020 recalculation of
his sentence maximum release date to November 30, 2022. (C.R. at 154-55.) On May
26, 2021, the Board recorded a decision denying Petitioner reparole from his
recommitment. Id. at 152. On June 7, 2021, Petitioner filed an administrative appeal
from that decision, again arguing that the Board erred in calculating recalculation of
his sentence maximum release date to November 30, 2022. Id. at 159-63.
On October 14, 2021, the Board dismissed Petitioner’s April 19, 2021 and
June 7, 2021 administrative appeals “as unauthorized” on the basis that the Board’s
January 28, 2020 response to his multiple administrative appeals was a final
adjudication and not subject to further Board review. Id. at 189-90. The Board
explained that the Board’s regulation authorizing administrative relief, 37 Pa. Code §
73.1,1 “does not allow for second or subsequent requests for relief, nor does it allow
for challenges to the Board’s final adjudication.” Id. at 189-190. The Board further
informed Petitioner:
This is a response to the correspondence received from you
on April 27, 2021 (postmarked 4/19/2021) . . . and June 11,
2021 (postmarked 6/7/2021) wherein you seek credit toward
1
37 Pa. Code § 73.1(4) provides in relevant part: “Second or subsequent appeals and appeals
which are out of time under these rules will not be received.”
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your recalculated maximum date of November 30, 2022.
Your request for relief is deemed a petition for administrative
review from the Board decision recorded September 19,
2019 (delivered 9/23/2019). Your request is denied.
The Board’s regulation authorizing administrative relief does
not allow for second or subsequent requests for relief, nor
does it allow for challenges to the Board’s final adjudication.
37 Pa. Code § 73.1. The record reveals that on January 28,
2020, the Board mailed to you its final determination
regarding the recommitment recorded September 19, 2019
(delivered 9/23/2019). As such, your requests received on
the above dates are therefore deemed second or subsequent
requests for relief, they are not properly before the Board,
and they cannot be accepted. Because they cannot be
accepted, the Board need not address any of the issues raised
therein.
Accordingly, your request for relief from your recalculated
maximum date is hereby DISMISSED as unauthorized.
Id. at 189 (emphasis in original).
On November 13, 2021, Petitioner filed the instant PFR from the Board’s
Order, mailed on October 14, 2021. On January 18, 2022, this Court appointed the
Centre County Public Defender to represent Petitioner in this matter, granting leave to
amend the petition within 30 days. The PFR was timely amended on February 16,
2022, averring that the Board had illegally extended the original maximum sentence
release date to November 30, 2022.
On April 29, 2022, Attorney David Crowley, a public defender assigned
to represent Petitioner, sent a Turner2 Letter explaining in great detail all legal issues
concerning Petitioner’s appeals of the Board’s decision mailed on October 14, 2021,
2
Commonwealth v. Turner, 544 A.2d 927, 928-29 (Pa. 1988).
6
and why they all lacked substantive merit. Petitioner moved forward acting pro se and
filed a document titled, “Respondent Amended Petition for Review” (Amended PFR).
II. Issues
Insofar as we can interpret Petitioner’s Amended PFR, he argues that on
January 28, 2020, the Board illegally extended his original sentence to November 30,
2022, by failing to award him credit with all the time to which he was entitled for the
time he spent confined from the date of his arrest on new criminal charges to the date
of his conviction on such charges.3
III. Discussion
A. Mootness
At the outset, it is important to note that Petitioner’s November 30, 2022
original sentence maximum release date has passed.4 There is nothing in the Certified
Record to indicate that Petitioner committed any additional crimes or had new charges
that could extend the maximum term of the original sentence. Therefore, it appears
Petitioner has already completed the full term of that sentence and is no longer under
the custody and control of the Commonwealth.
Generally, a case will be dismissed as moot if there exists no
actual case or controversy. Fraternal Order of Police v. City
of Philadelphia, 789 A.2d 858 (Pa. Cmwlth. 2002). The
existence of a case or controversy requires
(1) a legal controversy that is real and not
hypothetical, (2) a legal controversy that affects
3
This Court’s standard of review is limited to determining whether constitutional rights were
violated, whether an error of law was committed, or whether necessary findings of fact are supported
by substantial evidence. 2 Pa. C.S. § 704.
4
Petitioner does not appear to be currently incarcerated. See Inmate/Parolee Locator, Pa.
Department of Corrections, https://inmatelocator.cor.pa.gov (last visited November 15, 2023).
7
an individual in a concrete manner so as to
provide the factual predicate for a reasoned
adjudication, and (3) a legal controversy with
sufficiently adverse parties so as to sharpen the
issues for judicial resolution.
Dow Chemical Co. v. United States Environmental
Protection Agency, 605 F.2d 673, 678 ([3d] Cir. 1979). A
controversy must continue through all stages of judicial
proceedings, trial and appellate, and the parties must
continue to have a “personal stake in the outcome” of the
lawsuit. Lewis v. Continental Bank Corp., 494 U.S. 472,
477-478 (1990). Courts will not enter judgments or decrees
to which no effect can be given. Britt v. Department of Public
Welfare, 787 A.2d 457 (Pa. Cmwlth. 2001). An exception to
mootness will be found where (1) the conduct complained of
is capable of repetition yet likely to evade judicial review; (2)
the case involves issues of great public importance; or (3) one
party will suffer a detriment in the absence of a court
determination. Horsehead Resource Development
Company, Inc. v. Pennsylvania Department of
Environmental Protection, 780 A.2d 856 (Pa. Cmwlth.
2001).
Mistich v. Pennsylvania Board of Probation & Parole, 863 A.2d 116, 119-20 (Pa.
Cmwlth. 2004).
Here, Petitioner has finished serving the sentence that gave rise to the
challenged maximum sentence date and we cannot grant the requested relief. Although
the credit issues that Petitioner raises in this appeal are likely capable of repetition, they
will not evade review and have been addressed in a number of other appeals from Board
decisions denying administrative relief. Petitioner will not suffer any detriment
8
without this Court’s decision because he is no longer serving his original state sentence
and we cannot grant the requested relief.5
Accordingly, Petitioner’s Amended PFR is dismissed as moot. Because
our dismissal of the appeal also renders moot Counsel’s Withdrawal Application, we
dismiss it as well.
________________________________
PATRICIA A. McCULLOUGH, Judge
5
As noted above, Petitioner has appealed from the Board’s order mailed on October 14, 2021,
which dismissed Petitioner’s April 19, 2021 and June 7, 2021 administrative appeals “as
unauthorized” on the basis that the Board’s January 28, 2020 response to his multiple administrative
appeals was a final adjudication and not subject to further Board review. Thus, the only issue properly
before this Court on appeal pertains to the Board’s October 14, 2020 decision. Even if the appeal was
not moot, we would find that the Board did not err in dismissing Petitioner’s subsequent
administrative challenges as procedurally improper. The Board’s regulations specifically prohibit the
filing of second or subsequent appeals. Pursuant to Section 73.1(b)(3) of the Board's Regulations,
the Board was not required to rule on Petitioner’s April 19, 2021 and June 7, 2021 appeals because
he simply reiterated therein that the Board erred in its recalculation of his maximum sentence date.
37 Pa. Code § 73.1(b)(3).
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Nakia William Garrus, :
Petitioner :
:
v. : No. 1271 C.D. 2021
:
Pennsylvania Parole Board, :
Respondent :
ORDER
AND NOW, this 16th day of November, 2023, the Amended Petition
for Review filed by Nakia William Garrus is hereby DISMISSED as MOOT. The
Withdrawal Application filed by David Crowley, Esquire, is also DISMISSED as
MOOT.
________________________________
PATRICIA A. McCULLOUGH, Judge