W. T. Payano v. PPB
CourtCommonwealth Court of Pennsylvania
Date FiledOctober 28, 2026
Docket258 C.D. 2025
JudgeWallace
StatusUnpublished
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Full Opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Wilbert Taveras Payano, :
Petitioner :
:
v. : No. 258 C.D. 2025
: Submitted: June 16, 2026
Pennsylvania Parole Board, :
Respondent :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE STACY WALLACE, Judge
HONORABLE STELLA M. TSAI, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WALLACE FILED: October 28, 2026
Wilbert Taveras Payano (Payano) petitions for review (Petition) of a February
18, 2025 order (Order) of the Pennsylvania Parole Board (Board), dismissing as
untimely Payano’s appeal from a decision recommitting him as a convicted parole
violator (CPV) to serve the remainder of his original maximum sentence without
possibility of parole. Payano’s appointed counsel (Counsel) submitted a Turner
letter1 advising the Court the appeal lacks merit, along with an Application for
Withdrawal of Appearance (Application). After review, we grant the Application
and affirm the Order.
1
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).
I. Facts and Procedural History
On February 4, 2019, Payano pled guilty in the Montgomery County Court of
Common Pleas to a violation of the Controlled Substance, Drug, Device, and
Cosmetic Act.2 Certified Record (C.R.) at 1. That court sentenced Payano to a
minimum term of incarceration of 4 years and 6 months, and a maximum term of 15
years. Id.
On December 17, 2019, the Board paroled Payano to the custody of United
States Immigration and Customs Enforcement (ICE) for removal from the United
States, pursuant to 61 Pa.C.S. § 6143. Id. at 4. The notice of parole informed Payano
if he re-entered the United States illegally he would be recommitted to serve the
remainder of his maximum term without the possibility of parole. Id. at 27. Payano
acknowledged receipt of that notice. Id. at 26.3
On March 3, 2020, Payano was deported to the Dominican Republic. Id. at
24. On April 3, 2023, the Board charged Payano with a parole violation after agents
of the United States Department of Homeland Security arrested him in Philadelphia
in possession of seven kilograms of fentanyl. Id. Payano waived counsel and a
hearing, and admitted the parole violation, in writing. Id. at 20-22.
On April 19, 2023, the Board recommitted Payano as a technical parole
violator. Id. at 45. On August 23, 2023, the Board modified that decision and re-
paroled Payano pending resolution of the criminal charges against him. Id. at 48.
2
Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§ 780-101 - 780-144.
3
The statute under which the Board initially paroled Payano allowed the Board, in its
discretion, to parole him to the custody of ICE for removal. 61 Pa.C.S. § 6143(a), (b). The same
provision required the Board, if it later determined Payano re-entered the country illegally after
that initial parole and removal, to recommit him to serve the remainder of his maximum term of
incarceration, without possibility of parole. 61 Pa.C.S. § 6143(d).
2
On November 29, 2023, Payano pled guilty in federal court to one count of an
indictment charging illegal re-entry into the United States after deportation, in
violation of 8 U.S.C. § 1326(a) and (b)(1), which sentenced him to 21 months of
incarceration. Id. at 58. The Board then issued a notice of charges and parole
revocation hearing based on this conviction. Id. at 49. Payano again waived counsel
and hearing, and admitted the parole violation, in writing. Id. at 51.
On August 26, 2024, the Board recommitted Payano as a CPV to serve the
remainder of his maximum term pursuant to 61 Pa.C.S. § 6143. Id. at 82. On August
29, 2024, the Board mailed that decision to Payano. Id.
On November 12, 2024, Counsel filed an appeal to the Board on Payano’s
behalf. Id. at 84-85. The appeal form acknowledged Payano did not appeal within
the 30-day period allowed by regulation. Id.; see 37 Pa. Code. § 73.1. It asserted
the Board should permit Payano to appeal nunc pro tunc because he did not receive
the decision until October 23, 2024, and because he speaks little or no English and
did not understand the implications of the decision until another inmate explained it
to him. C.R. at 84-85. Payano requested an evidentiary hearing on the request to
appeal nunc pro tunc. Id. at 85.
On February 18, 2025, the Board dismissed Payano’s appeal on the ground it
was not timely submitted. Id. at 86-87.
Counsel filed the Petition on March 4, 2025, but then submitted a Turner letter
on July 15, 2025, indicating Counsel concluded the appeal lacked merit. Turner
Letter (Letter), 7/15/2025, at 1. Counsel concluded Payano did not timely submit
his appeal to the Board and could not establish grounds to appeal nunc pro tunc. Id.
at 4-6. Counsel further indicated that even if the Board allowed a nunc pro tunc
3
appeal no basis existed on the merits to seek relief from the Board’s decision. Id. at
6-7.
II. Turner Letter and Application to Withdraw
Before considering the merits of Payano’s appeal, we must first address
Counsel’s Letter and Application. Where court-appointed counsel believes the
petitioner’s case lacks merit, this Court may permit counsel to withdraw from the
representation if counsel submits a Turner letter that “detail[s] the nature and extent
of . . . [counsel’s] review and list[s] each issue the petitioner wished to have raised,
with counsel’s explanation of why those issues . . . [are] meritless.” Turner, 544
A.2d at 928. Further, we must confirm counsel satisfied the following procedural
requirements: (1) counsel notified the petitioner of the request to withdraw; (2)
counsel provided the petitioner with a copy of the Turner letter; and (3) counsel
advised the petitioner of his right to retain new counsel or file a brief on his own
behalf. Miskovitch v. Pa. Bd. of Prob. & Parole, 77 A.3d 66, 69 (Pa. Cmwlth. 2013).
Where counsel satisfies these procedural requirements, we conduct an independent
review of the issues and, if we concur in counsel’s assessment, we may grant counsel
leave to withdraw. Hont v. Pa. Bd. of Prob. & Parole, 680 A.2d 47, 48 (Pa. Cmwlth.
1996).
Counsel satisfied the technical Turner requirements in this case. The Letter
sets forth the relevant factual and procedural history. Letter at 2-3. It explains that
Counsel reviewed the certified record and supplemental record, and his notes of his
meetings with Payano, as well as written correspondence. Id. at 1. The Letter further
indicates after that Counsel concluded “the issues raised in the administrative appeal
and petition for review lack merit and . . . there exists no legal basis to challenge the
Board[’s] determinations . . . .” Id. Counsel analyzes the issues Payano raised in his
4
appeal and discusses the record facts and applicable law, explaining the basis for
Counsel’s conclusion that the appeal lacks merit. Id. at 4-7. The certificate of
service attached to the letter confirms Counsel provided a copy to Payano, and the
Application verifies Counsel informed Payano of his right to retain new counsel or
file a brief on his own behalf to “raise any points that he might deem worthy of
consideration . . . .” Application, ¶ 3.
As Counsel complied with Turner’s requirements, we now independently
review the merits of the Petition.
III. Discussion
In reviewing the Board’s decision, we are limited to determining whether
constitutional rights have been violated, whether an error of law has been committed,
or whether the necessary findings of fact are supported by substantial evidence.
Gibson v. Pa. Bd. of Prob. & Parole, 3 A.3d 754, 755 n.1 (Pa. Cmwlth. 2010) (citing
Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704).
Payano had 30 days to appeal the Order. 61 Pa.C.S. § 6113(d)(1). The appeal
needed to “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)(1); Cadogan v. Pa. Bd. of Prob.
& Parole, 541 A.2d 832, 833 (Pa. Cmwlth. 1988). Timeliness of the appeal is
jurisdictional, therefore, the Board lacks power to consider an untimely appeal.
Ayers v. Pa. Bd. of Prob. & Parole, 565 A.2d 1257, 1258 (Pa. Cmwlth. 1989).
The Board’s decision was mailed to Payano on August 29, 2024. C.R. at 82.
Payano’s appeal was not received by the Board – indeed, was not sent – within 30
days of that date. Id. at 84-85. Payano did not dispute the appeal was late under the
regulation but sought leave to appeal nunc pro tunc. Id. The Order dismissed
Payano’s appeal as untimely because it was not submitted within 30 days after the
5
mailing of the decision, implicitly rejecting Payano’s request for leave to appeal
nunc pro tunc and his plea for a factual hearing on that request. Id. at 86-87. We
review the Board’s decision to refuse nunc pro tunc relief for abuse of discretion.
See Muma v. Dep’t of Health, Div. of Nursing Care Facilities, 223 A.3d 742, 754
(Pa. Cmwlth. 2019); Washington v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No. 22
C.D. 2009, filed Oct. 21, 2009), slip op. at 8 n.3.4
Payano asserted two grounds for allowance of a nunc pro tunc appeal. First,
he alleged he did not receive the Order until October 23, 2024. C.R. at 84. Mere
allegation of non-receipt does not constitute a legally sufficient basis for nunc pro
tunc appeal. Cadogan, 541 A.2d at 834 (“Petitioner contends that there was no proof
he actually received notice of the Board’s decision. However, there is nothing in
this case indicating that notice was not properly sent. . . . The mere allegation of a
failure to receive notice is not sufficient cause for allowing a nunc pro tunc appeal.”).
Second, Payano asserted he speaks little or no English and did not understand
the implications of the Order until another inmate explained it to him. C.R. at 84-
85. This allegation also does not constitute a legally adequate justification for
untimely appeal. See Basnet v. Unemployment Comp. Bd. of Rev., 284 A.3d 263,
268-70 (Pa. Cmwlth. 2022) (Nepali-speaking claimant could not meet the “heavy
burden” of justifying nunc pro tunc relief because she did not show she resorted to
available sources of assistance); see also Williamson v. Dep’t of Transp., Bureau of
Driver Licensing, 129 A.3d 597, 601-02 (Pa. Cmwlth. 2015) (appellant’s failure to
understand clear and straightforward language in notice did not constitute grounds
for nunc pro tunc appeal; party is charged with knowledge of information
4
We may rely upon this memorandum opinion for its persuasive value. See City of Phila.
v. 1531 Napa, LLC, 333 A.3d 39, 47 n.6 (Pa. Cmwlth. 2025).
6
unequivocally communicated by notice); Finney v. v. Unemployment Comp. Bd. of
Rev., 472 A.2d 752, 753 (Pa. Cmwlth. 1984) (claimant’s asserted inability to
understand the proper procedure did not warrant nunc pro tunc appeal).
Furthermore, any delay in filing the appeal cannot be attributed to any
difficulties Payano might have had with the English language. Under his putative
timeline, it only took 19 days after Payano says he first saw the decision to enlist
counsel for assistance with the filing of his appeal. The alleged language barrier is
not the issue here, but rather the lack of evidentiary support for his allegation that he
did not receive the final decision until October 23, 2024.
Because the appeal did not assert grounds sufficient to justify a nunc pro tunc
appeal, the Board did not abuse its discretion by refusing one – or by refusing a
hearing on the request for one. Marconi v. Ins. Dep’t, 641 A.2d 1240, 1242 (Pa.
Cmwlth. 1994) (hearing required only if party asserts grounds that if proven would
justify nunc pro tunc appeal).
IV. Conclusion
For the reasons stated in this Memorandum Opinion, we grant the Application
and affirm the Order.
______________________________
STACY WALLACE, Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Wilbert Taveras Payano, :
Petitioner :
:
v. : No. 258 C.D. 2025
:
Pennsylvania Parole Board, :
Respondent :
ORDER
AND NOW, this 28th day of October 2026, the Application for Withdrawal
of Appearance as Counsel, filed by Petitioner’s appointed counsel, the Centre
County Public Defender’s Office, by and through David Crowley, Esquire, Chief
Public Defender of Centre County, Pennsylvania, is GRANTED, and the Order of
the Pennsylvania Parole Board, dated February 18, 2025, is AFFIRMED.
STACY WALLACE, Judge