L. Pearsall v. PBPP ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Larry Pearsall, :
:
Petitioner :
:
v. : No. 875 C.D. 2017
: Submitted: January 19, 2018
Pennsylvania Board of :
Probation and Parole, :
:
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE COLINS FILED: March 1, 2018
Before this Court is the petition of Larry Pearsall for review of the June
19, 2017 determination of the Pennsylvania Board of Probation and Parole (Board)
affirming its decision mailed October 7, 2016 that recommitted him as a convicted
parole violator and recalculated his maximum sentence date to August 16, 2018.
Also before this Court is the application of David Crowley, Esquire, Chief Public
Defender of Centre County (Counsel), for leave to withdraw as attorney for Pearsall.
For the following reasons, we grant Counsel’s application for leave to withdraw and
affirm the Board’s June 19, 2017 determination.
On February 21, 2012, Pearsall was released on parole from the State
Correctional Institution (SCI) at Rockview. (Certified Record (C.R.) at 6-12.) At
that time, he was serving sentences totaling 3 years and 3 months to 8 years for
criminal use of communications facility and escape and his maximum sentence date
was November 17, 2016. (C.R. at 1-2, 6-7.) Pearsall was detained on a Board
warrant on June 26, 2012 and was recommitted to an SCI as a technical parole
violator for failure to comply with the requirement of his parole that he successfully
complete his community corrections residency; no change was made to his
maximum sentence date. (C.R. at 13-16, 22, 24-32.)
Pearsall was reparoled on October 7, 2013, but was detained on a Board
warrant on December 3, 2013 and charged with technical parole violations
consisting of failure to successfully complete the community corrections residency
and possession of synthetic marijuana. (C.R. at 36-47.) From December 3, 2013 to
February 4, 2014, he was held in a parole violation center with adjudication of the
parole violation deferred for completion of recommended programming and with no
change to his maximum sentence date. (C.R. at 44-46, 51.) Pearsall was released
from the parole violation center on February 4, 2014, but absconded on April 16,
2014 and was declared delinquent. (C.R. at 53, 64.) Pearsall was detained on a
Board warrant on July 5, 2014, following an arrest in New York, and was
recommitted to an SCI as a technical parole violator, with his maximum sentence
date extended by 80 days, to February 5, 2017, for the time period that he was
delinquent prior to his detention. (C.R. at 54-66, 69-80.)
Pearsall was again paroled on February 17, 2015, but absconded on
March 9, 2015 and was declared delinquent. (C.R. at 85-88, 95, 113-14, 167.) A
criminal complaint was filed in Lackawanna County in May 2015, while he
remained at large, charging him with receiving stolen property and unauthorized use
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of a motor vehicle based on the allegation that he was driving a car that had been
reported stolen. (C.R. at 96-101.) On September 22, 2015, Pearsall was detained
on a Board warrant following an arrest on other charges in New York. (C.R. at 112,
167-68.) On April 1, 2016, he was extradited to Lackawanna County and was held
in the Lackawanna County Prison on the charges of receiving stolen property and
unauthorized use of a motor vehicle, because he was unable to post bail. (C.R. at
102-04, 114.) Pearsall pleaded guilty to the charge of unauthorized use of a motor
vehicle on April 15, 2016 and, on July 6, 2016, was sentenced to 9 to 24 months
imprisonment. (C.R. at 106, 109-10.) Prior to his sentencing, the Board
recommitted Pearsall as a technical parole violator with his maximum sentence date
extended by an additional 197 days, to August 21, 2017, for the time period from
March 9, 2015 to September 22, 2015 that he was delinquent and remained at large.
(C.R. at 148-51.) On May 11, 2016, Pearsall waived a parole revocation hearing on
the charges seeking to recommit him as a convicted parole violator and admitted his
guilty plea. (C.R. at 137, 139.) Based on that admission, the Board ordered Pearsall
recommitted to an SCI as a convicted parole violator with a maximum sentence date
of August 16, 2018. (C.R. at 140-47, 153-56.) The Board considered and denied
credit for time at liberty on parole, noting: “Revoke street time: Continual
absconding and criminal actions.” (C.R. at 142.)
The Board notified Pearsall of this revocation and new maximum
sentence date by decision mailed October 7, 2016, and Pearsall timely challenged
the Board’s decision by submission of an Administrative Remedies Form. (C.R. at
153-54, 159.) By determination mailed June 19, 2017, the Board concluded that
Pearsall’s maximum sentence date was properly calculated and affirmed its decision.
(C.R. at 176.) Counsel timely filed a Petition for Review with this Court on
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Pearsall’s behalf. On November 21, 2017, Counsel filed his application to withdraw
and a brief detailing his review of the case and the issues that Pearsall seeks to raise
in this appeal.
Before this Court can consider the merits of the appeal, we must first
address Counsel’s application to withdraw and determine whether Counsel has
satisfied the requirements that must be met before leave to withdraw may be granted.
Seilhamer v. Pennsylvania Board of Probation and Parole, 996 A.2d 40, 42-44 (Pa.
Cmwlth. 2010); Reavis v. Pennsylvania Board of Probation and Parole, 909 A.2d
28, 33 (Pa. Cmwlth. 2006).
When counsel for an inmate in an appeal from a decision of the Board
seeks to withdraw on the ground that the appeal is frivolous or without merit, he or
she must satisfy the following procedural requirements: (1) notify the inmate of his
or her request to withdraw; (2) furnish the inmate with a copy of a sufficient brief in
accordance with Anders v. California, 386 U.S. 738 (1967), or a no-merit letter; and
(3) advise the inmate of his or her right to retain new counsel or raise any new points
deemed worthy of consideration by submitting a brief on his or her behalf.
Encarnacion v. Pennsylvania Board of Probation and Parole, 990 A.2d 123, 125
(Pa. Cmwlth. 2010); Hughes v. Pennsylvania Board of Probation and Parole, 977
A.2d 19, 22-25 (Pa. Cmwlth. 2009) (en banc). Where the inmate has a constitutional
right to counsel, an Anders brief is required and withdrawal is allowed only if the
appeal is wholly frivolous. Hughes, 977 A.2d 22-26. If there is not a constitutional
right to counsel, counsel may satisfy his or her obligations by filing a no-merit letter,
rather than an Anders brief, and the standard is whether the claims on appeal are
without merit. Seilhamer, 996 A.2d at 42 n.4; Hughes, 977 A.2d at 24-26.
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Here, there is no constitutional right to counsel and only a no-merit
letter is required. Miskovitch v. Pennsylvania Board of Probation and Parole, 77
A.3d 66, 69 n.2 (Pa. Cmwlth. 2013); Seilhamer, 996 A.2d at 42-43 n.4; Hughes, 977
A.2d at 25-26. Although Counsel filed an Anders brief, rather than a no-merit letter,
his obligations are satisfied provided that his Anders brief contains all the
information that must be included in a no-merit letter. Miskovitch, 77 A.3d at 70;
Seilhamer, 996 A.2d at 42-43; Hughes, 977 A.2d at 26 n.4. A no-merit letter must
set forth: (1) the nature and extent of counsel’s review of the case; (2) each issue that
the inmate wishes to raise on appeal; and (3) counsel’s explanation of why each of
those issues is meritless. Miskovitch, 77 A.3d at 69; Seilhamer, 996 A.2d at 43;
Hughes, 977 A.2d at 26.
Upon review of Counsel’s application and accompanying brief, it is
clear that Counsel has satisfied both the procedural and the substantive requirements
necessary to withdraw as counsel. With regard to the procedural requirements,
Counsel: (1) notified Pearsall of his request to withdraw; (2) furnished Pearsall with
a copy of Counsel’s Anders brief; and (3) advised Pearsall of his right to retain new
counsel and to raise any additional issues that Pearsall determines are worthy of
review by this Court. Further, in his Anders brief, Counsel has set forth: (1) the
nature of his review of the case; (2) the issues that Pearsall sought to raise; and (3)
an explanation, citing relevant statutory and case law, as to why Counsel believes
that each issue is without merit. Accordingly, this Court may grant Counsel’s
application to withdraw and proceed to the merits.
The only arguments that Pearsall has sought to raise are that the
recalculation of his maximum sentence date is incorrect and that the maximum
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sentence date violates his constitutional due process and double jeopardy rights.
(C.R. at 159, 166-68.) We conclude that neither of these arguments has merit.1
Contrary to Pearsall’s assertions, the Board accurately calculated his
maximum sentence date. Under the Prisons and Parole Code, a recommitted
convicted parole violator must generally serve the remainder of his sentence that he
had not yet served at the time of his parole without credit for the time he has been at
liberty on parole. 61 Pa. C.S. § 6138(a)(1), (2). Time spent at liberty on parole does
not constitute service of a sentence of incarceration. Young v. Pennsylvania Board
of Probation and Parole, 409 A.2d 843, 846 (Pa. 1979) (“Mere lapse of time without
imprisonment . . . does not constitute service of sentence”) (quoting Anderson v.
Corall, 263 U.S. 193 (1923)).
In cases such as this, where the crime committed while on parole is a
non-violent offense and no parole to federal authorities for deportation is involved,
the Board in its discretion may award credit against the original sentence for time
spent at liberty on parole. 61 Pa. C.S. § 6138(a)(2.1); Pittman v. Pennsylvania Board
of Probation and Parole, 159 A.3d 466, 473 (Pa. 2017). The Board has broad
discretion to grant or deny such credit, but must consider whether to award credit
and provide a statement articulating its reason for granting or denying credit for time
spent at liberty on parole. Pittman, 159 A.3d at 474-75 & n.12. Here, the Board
fully complied with these requirements; it made a decision to deny credit and stated
its reason for the denial, Pearsall’s repeated absconding while on parole. (C.R. at
142.) There is therefore no error in the Board’s denial of credit for the time that
Pearsall was at liberty on parole. Indeed, Pearsall did not challenge the Board’s
1
This Court may reverse the Board’s determination only where necessary findings are not
supported by substantial evidence, an error of law was committed, or constitutional rights of the
parolee or administrative procedures were violated. Smith v. Pennsylvania Board of Probation
and Parole, 171 A.3d 759, 764 (Pa. 2017).
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reason for this denial of credit in his request to the Board for administrative relief.
(C.R. at 159, 166-68.)
At the time that Pearsall was first paroled on February 21, 2012, his
maximum sentence date was November 17, 2016. (C.R. at 1, 6-7, 9.) The record
shows that he was on parole and not incarcerated for the following four periods:
February 21, 2012 to June 26, 2012 (126 days), October 7, 2013 to December 3,
2013 (57 days), February 4, 2014 to July 5, 2014 (151 days), and February 17, 2015
to September 22, 2015 (217 days). (C.R. at 9, 13-14, 39, 43-45, 60, 64, 85, 112, 114,
167-68.) These 551 days were all therefore properly added to Pearsall’s maximum
sentence date of November 17, 2016, given the Board’s denial of credit for the time
that he was at liberty on parole. Richards v. Pennsylvania Board of Probation and
Parole, 20 A.3d 596, 598-600 (Pa. Cmwlth. 2011) (en banc) (credit against
convicted parole violator’s original sentence is properly denied for all periods of
liberty on parole, not merely the period of parole during which the new crime was
committed); Armbruster v. Pennsylvania Board of Probation and Parole, 919 A.2d
348, 351 (Pa. Cmwlth. 2007) (same).
In addition, although Pearsall was in custody on the Board’s warrant
from September 22, 2015 until he was sentenced on his new conviction on July 6,
2016, from at least April 11, 2016 to July 6, 2016 (86 days), he was also held on that
new criminal charge because he did not post bail. (C.R. at 102-04, 109-10, 112.) A
convicted parole violator is entitled to credit against his original sentence for periods
during his parole that he has been in custody solely on the Board’s warrant. Gaito
v. Pennsylvania Board of Probation and Parole, 412 A.2d 568, 571 (Pa. 1980);
Armbruster, 919 A.2d at 352. He is not, however, entitled to credit against his
original sentence for periods during which he was held both on the Board’s warrant
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and on new criminal charges for which he has not satisfied bail requirements;
instead, that period of detention is credited against the sentence on the new charges
and does not constitute service of the original sentence. Smith v. Pennsylvania Board
of Probation and Parole, 171 A.3d 759, 764-71 (Pa. 2017); Gaito, 412 A.2d at 571;
Armbruster, 919 A.2d at 352. A convicted parole violator receives credit against his
original sentence for periods that he was held on both a Board warrant and other
criminal charges only where he cannot receive credit against a sentence on the new
charges because he was not convicted or received a sentence of imprisonment shorter
than the time that he was in custody. Smith, 171 A.3d at 764-71; Martin v.
Pennsylvania Board of Probation and Parole, 840 A.2d 299, 308-09 (Pa. 2003);
Armbruster, 919 A.2d at 354-56. Because Pearsall was convicted on the new charge
and his sentence for that offense, 9 to 24 months imprisonment, exceeds the 86-day
period when he was held on both the Board’s warrant and the new charge, that period
is credited to his new sentence and does not constitute service of his original
sentence.
The 551 days that Pearsall was not incarcerated and the 86 days that he
was held on both the Board’s detainer and the new charge together total 637 days.
Adding these 637 days to Pearsall’s previous maximum sentence date of November
17, 2016 results in a maximum sentence date of August 16, 2018. Accordingly, there
is no error in the Board’s extension of Pearsall’s maximum sentence date to August
16, 2018.
Pearsall’s claim that the Board’s extension of his maximum sentence
date violated his constitutional rights likewise fails. Extension of a maximum
sentence date by periods that an inmate was on parole and not incarcerated solely on
the Board’s warrant does not violate the inmate’s federal or state constitutional due
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process rights or any constitutional protections against double jeopardy. Gaito, 412
A.2d at 570; Young, 409 A.2d at 847 & n.8; Monroe v. Pennsylvania Board of
Probation and Parole, 555 A.2d 295, 296 (Pa. Cmwlth. 1989). Indeed, the
constitutional protections against double jeopardy do not apply to parole revocation
proceedings because such proceedings are not part of a criminal prosecution.
Rivenbark v. Pennsylvania Board of Probation and Parole, 501 A.2d 1110, 1112-
13 (Pa. 1985); Epps v. Pennsylvania Board of Probation and Parole, 565 A.2d 214,
217 (Pa. Cmwlth. 1989).
Moreover, the Board did not count any of the periods that Pearsall was
at liberty on parole more than once in computing his maximum sentence date of
August 16, 2018. Prior to its recommitment of Pearsall as a convicted parole
violator, the Board had extended his maximum date to August 21, 2017, a total of
277 days, based on the 80-day period from April 16, 2014 to July 5, 2014 that he
had been delinquent while out on parole and the 197-day period from March 9, 2015
to September 22, 2015 that he was again delinquent while out on parole. (C.R. at
80, 151.) The extension of Pearsall’s maximum date to August 16, 2018 upon his
recommitment as a convicted parole violator, however, extended his sentence only
360 days beyond August 21, 2017, 277 days less than the 637 days that Pearsall had
been on parole and not detained solely on the Board’s warrant.
For the foregoing reasons, we grant Counsel’s Application to Withdraw
and affirm the Board’s June 19, 2017 determination.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Larry Pearsall, :
:
Petitioner :
:
v. : No. 875 C.D. 2017
:
Pennsylvania Board of :
Probation and Parole, :
:
Respondent :
ORDER
AND NOW, this 1st day of March, 2018, the application to withdraw as
counsel filed by David Crowley, Esquire, Chief Public Defender of Centre County,
in the above-captioned matter is hereby GRANTED. The June 19, 2017
determination of the Pennsylvania Board of Probation and Parole is hereby
AFFIRMED.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge