D.C. Harvey v. PA BPP ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Darcel Cowen Harvey, :
: No. 47 C.D. 2016
Petitioner : Submitted: May 20, 2016
:
v. :
:
Pennsylvania Board of :
Probation and Parole, :
:
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE FRIEDMAN FILED: August 12, 2016
Darcel Cowen Harvey petitions for review of the December 14, 2015,
determination of the Pennsylvania Board of Probation and Parole (Board) denying
Harvey’s request for administrative review of the Board’s recommitment order.
Appointed counsel, R. Bradley Peiffer, Esquire (Counsel), has filed a petition for
leave to withdraw as counsel, asserting that Harvey’s petition for review is meritless.
We grant Counsel’s petition and affirm the Board’s determination.
On February 26, 2007, the Court of Common Pleas of Dauphin County
sentenced Harvey to 2 to 10 years’ imprisonment for drug-related offenses. (C.R. at
1.) Harvey’s maximum release date was set at January 2, 2017. (Id.) The Board
paroled and reparoled Harvey on several occasions. (Id. at 6-59.) Ultimately, on
March 2, 2015, the Board paroled Harvey to the Harrisburg Community Corrections
Center (Harrisburg CCC). (Id. at 60-64.) Thereafter, Harvey failed to return to the
Harrisburg CCC and, on April 21, 2015, the Board declared Harvey delinquent. (Id.
at 65.) On June 15, 2015, Harvey turned himself in to the parole supervision staff at
the York Sub-Office of State Parole. (Id. at 71.) Harvey informed the parole
supervision staff that he had smoked marijuana on June 13, 2015. (Id.) Harvey
submitted to a drug test and tested positive. (Id.)
Also on June 15, 2015, the Board issued a warrant to commit and detain
Harvey at the York County Prison and notified Harvey of the technical parole
violation charges against him and of a preliminary hearing on the charges. (Id. at 66-
67.) Thereafter, Harvey signed a “waiver of violation hearing and counsel/admission
form,” waiving the preliminary hearing, a violation hearing, and counsel at those
hearings. (Id. at 74.) Harvey also voluntarily admitted that he violated the terms and
conditions of his parole because he changed his address, used drugs, and consumed
alcohol. (Id.) Based on Harvey’s admissions and the recommendation of the hearing
officer, the Board found probable cause that Harvey violated the conditions of his
parole, ordered Harvey detained at the York County Parole Violation Center (PVC),
and held the violation hearing/decision in abeyance pending the completion of the
hearing officer’s recommended programming at the PVC. (Id. at 76-78.)
On August 12, 2015, an officer at the PVC filed a disciplinary report
against Harvey for refusing to obey an order and accessing an unauthorized area. (Id.
at 79.) On August 13, 2015, due to the disciplinary infractions, Harvey was placed
on Behavioral Adjustment Unit (BAU) status and, thus, was unsuccessfully
2
discharged from the PVC and returned to a contracted county jail (CCJ) at the York
County Prison. (Id. at 80-90.) On August 19, 2015, Harvey filed an inmate
grievance disputing the disciplinary infractions at the PVC and requesting review of a
video of the incident. (Id. at 111.) The grievance was denied on August 20, 2015.1
(Id. at 112.)
In a decision mailed September 24, 2015, the Board recommitted Harvey
as a technical parole violator (TPV) to a CCJ to serve nine months for the technical
parole violations of changing his residence, drug use, and alcohol consumption. (Id.
at 97-99.) The Board relied upon Harvey’s June 15, 2015, waiver and signed
admission in making its decision. (Id.) The Board set Harvey’s maximum release
date at April 14, 2017. (Id.)
On October 26, 2015, Harvey appealed the Board’s September 24, 2015,
decision, challenging his recommitment and reparole eligibility date. (Id. at 106-08.)
On December 14, 2015, the Board denied Harvey’s request for review and affirmed
its September 24, 2015, decision, stating that Harvey had waived his right to a
hearing and admitted violating the conditions of his parole in writing on June 15,
2015. (Id. at 117.) The Board further stated that “[t]here is no requirement that the
Board wait for the outcome of [Harvey’s] grievances filed at the York County [PVC]
because he has already admitted to the violations in question.” (Id.) Harvey
1
Harvey filed a second inmate grievance on October 12, 2015, again disputing the
disciplinary infractions and his removal from the PVC. (C.R. at 113.) This grievance was denied
on October 23, 2015. (Id. at 114.) Counsel filed a third inmate grievance on Harvey’s behalf on
October 24, 2015, disputing the disciplinary infractions and his removal from the PVC, which is
still pending. (Id. at 115.)
3
petitioned this court for review.2 Thereafter, Counsel filed an application for leave to
withdraw and a no-merit letter, contending that Harvey’s appeal is meritless.
When court-appointed counsel concludes that a petitioner’s appeal is
meritless, counsel may be permitted to withdraw if counsel: (1) notifies the petitioner
of the request to withdraw; (2) furnishes the petitioner with a copy of an Anders3 brief
or a no-merit letter satisfying the requirements of Turner;4 and (3) advises the
petitioner of his right to retain new counsel or submit a brief on his own behalf.
Encarnacion v. Pennsylvania Board of Probation and Parole, 990 A.2d 123, 125 (Pa.
Cmwlth. 2010). A no-merit letter must set forth: (1) the nature and extent of the
counsel’s review of the case; (2) the issues the petitioner wishes to raise on appeal;
and (3) counsel’s analysis as to why the appeal has no merit. Id. at 126. Once these
requirements are met, this court will independently review petitioner’s appeal to
determine whether it is meritless. Id.Here, Counsel mailed Harvey a letter informing Harvey of Counsel’s
request to withdraw. Counsel included a no-merit letter, which detailed the nature
and extent of Counsel’s review of Harvey’s case, set forth the issues raised, and
explained why Counsel concluded that Harvey’s appeal is meritless. The no-merit
letter also advised Harvey of his right to retain substitute counsel or file a pro se
2
Our review is limited to determining whether constitutional rights were violated, whether
an error of law was committed, or whether the findings of fact are supported by substantial
evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
3
Anders v. State of California, 386 U.S. 738 (1967).
4
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).
4
brief. Because Counsel has satisfied the technical requirements of Turner, this court
will now independently review the merits of Harvey’s appeal.
Initially, Harvey argues that the Board should not recommit him as a
TPV until it considers the August 12, 2015, video of the incident at the PVC. As
Counsel sets forth in his petition for leave to withdraw, Harvey did not request that
the Board consider the video in his request for administrative review filed with the
Board.5 Thus, the issue is waived. See Chesson v. Pennsylvania Board of Probation
and Parole, 47 A.3d 875, 878 (Pa. Cmwlth. 2012) (determining that an issue is
waived if it is not raised in the administrative appeal).
Next, Harvey argues that the Board should not have recommitted him as
a TPV because his internal inmate grievances are still pending before the PVC. We
disagree.
The record reveals that Harvey admitted the technical parole violations
on June 15, 2015, and that the Board, upon recommendation of the hearing officer,
held the violation hearing/decision in abeyance pending the completion of
programming recommended for Harvey at the PVC. Thereafter, upon Harvey’s
unsuccessful discharge from the PVC and return to the CCJ at York County Prison,
the Board issued its decision recommitting Harvey as a TPV. As stated by the Board,
“[t]here is no requirement that the Board wait for the outcome of” an inmate
grievance before recommitting Harvey as a TPV because Harvey had previously
5
Harvey only requested that the Board not recommit him as a TPV until after the PVC has
addressed and disposed of all of his appeals and grievances regarding his discharge from the PVC.
5
admitted the technical parole violations and had waived his right to a hearing. (C.R.
at 117.) The Board did not err or abuse its discretion.
Accordingly, we grant Counsel’s petition for leave to withdraw as
counsel and affirm the Board’s order.
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Darcel Cowen Harvey, :
: No. 47 C.D. 2016
Petitioner :
:
v. :
:
Pennsylvania Board of :
Probation and Parole, :
:
Respondent :
ORDER
AND NOW, this 12th day of August, 2016, we hereby grant the petition
for leave to withdraw as counsel filed by R. Bradley Peiffer, Esquire, and affirm the
December 14, 2015, determination of the Pennsylvania Board of Probation and
Parole.
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge