J. Jackson v. PBPP ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jamall Jackson, :
Petitioner :
:
v. : No. 1647 C.D. 2017
: Submitted: April 13, 2018
Pennsylvania Board of Probation and :
Parole, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: July 20, 2018
Jamall Jackson, an inmate at State Correctional Institution (SCI)-
Rockview, petitions for review of an adjudication of the Pennsylvania Board of
Probation and Parole (Board) denying his administrative appeal. Jackson asserts that
the Board lacked the authority to extend his judicially-imposed maximum sentence
date after recommitting him as a convicted parole violator. Jackson’s appointed
counsel, David Crowley, Esquire (Counsel), has petitioned for leave to withdraw his
representation. For the following reasons, we grant Counsel’s petition and affirm
the Board’s order.
On May 23, 2003, Johnson was convicted of three counts of general
aggravated assault and sentenced to a minimum of seven years, six months to a
maximum of 17 years. At the time the sentence was imposed, Jackson’s maximum
sentence date was September 10, 2018. On April 6, 2009, Jackson was released on
parole. On May 13, 2015, Jackson was arrested for kidnapping, carrying a firearm
without a license, making terroristic threats, simple assault, recklessly endangering
another person, and driving while his operating privilege was suspended or revoked.
The Board issued a warrant to commit and detain Jackson for violating his parole
that same day. Certified Record (C.R.) at 16. On June 9, 2015, Jackson was detained
on the Board’s warrant, and on March 29, 2016, Jackson was found guilty of one
count of prohibited possession of a firearm.
On May 31, 2016, the Board recommitted Jackson as a convicted parole
violator to serve 18 months backtime and recalculated his parole violation maximum
date to be October 2, 2024. Following his sentencing on the firearm offense, the
Board issued a decision on August 18, 2016, recalculating Jackson’s maximum
sentence date to be November 12, 2024. In recalculating Jackson’s maximum
sentence date, the Board charged Jackson with 3,060 days of backtime remaining on
his original aggravated assault offense. The Board credited Jackson for the 384 days
he was detained solely on the Board’s warrant from June 9, 2015, to June 27, 2016.
On August 25, 2016, Jackson sought administrative relief, arguing,
inter alia, that the Board can require a parolee to serve only the balance remaining
of his unexpired term. The Board does not have “the power to alter a ‘judicially-
imposed sentence.’” C.R. at 68.
On October 11, 2017, the Board issued a final determination denying
Jackson’s request for administrative relief. The determination explained that since
Jackson was recommitted as a convicted parole violator, he was not entitled to credit
for any time at liberty on parole pursuant to 61 Pa. C.S. §6138(a)(2). Accordingly,
the Board affirmed its decision recalculating his maximum sentence date to
November 12, 2024. Jackson petitioned for this Court’s review.
2
On appeal,1 Jackson argues that the Board erred by failing to credit his
original sentence with all the time to which he is entitled. Counsel has filed an
application for leave to withdraw representation and a no-merit letter, also referred
to as a “Turner/Finley letter,”2 on the ground that Jackson’s issue on appeal lacks
merit. Counsel has also certified service of the no-merit letter on Jackson.
We first review the technical prerequisites imposed upon appointed
counsel who wishes to withdraw his representation:
Turner/Finley counsel must review the case zealously.
Turner/Finley counsel must then submit a “no-merit” letter to the
trial court, or brief on appeal to this Court, detailing the nature
and extent of counsel’s diligent review of the case, listing the
issues which the petitioner wants to have reviewed, explaining
why and how those issues lack merit, and requesting permission
to withdraw.
Counsel must also send the petitioner: (1) a copy of the “no-
merit” letter/brief; (2) a copy of counsel’s petition to withdraw;
and (3) a statement advising petitioner of the right to proceed pro
se or by new counsel.
If counsel fails to satisfy the foregoing technical prerequisites of
Turner/Finley, the court will not reach the merits of the
underlying claims but, rather, will merely deny counsel’s request
to withdraw.
1
Our scope of review is to determine whether the Board erred as a matter of law or violated the
parolee’s constitutional rights or whether the Board’s decision is supported by substantial
evidence. Harden v. Pennsylvania Board of Probation and Parole, 980 A.2d 691, 695 n.3 (Pa.
Cmwlth. 2009).
2
In Commonwealth v. Turner, 544 A.2d 927, 928 (Pa. 1988), the Pennsylvania Supreme Court,
applying Pennsylvania v. Finley, 481 U.S. 551 (1987), held that counsel seeking to withdraw from
a case in which the right to counsel does not derive from the United States Constitution may
provide a “no-merit letter” which details “the nature and extent of [the attorney’s] review and
list[s] each issue the petitioner wished to have raised, with counsel’s explanation of why those
issues were meritless.”
3
Zerby v. Shanon, 964 A.2d 956, 960 (Pa. Cmwlth. 2009) (quoting Commonwealth v.
Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)). If counsel’s no-merit letter
complies with the technical requirements, this Court will independently review the
merits of the petitioner’s claims. Hughes v. Pennsylvania Board of Probation and
Parole, 977 A.2d 19, 25 (Pa. Cmwlth. 2009).
In the matter sub judice, Counsel’s no-merit letter satisfies the technical
requirements of Turner/Finley. In his letter, Counsel thoroughly analyzed Jackson’s
issues for review and explained why each is devoid of merit. Counsel certified that
he advised Jackson of his right to retain new counsel or raise any points that he might
deem worthy of consideration, and that he mailed a copy of his petition to withdraw
and no-merit letter to Jackson. Having determined that Counsel has complied with
the technical requirements of Turner/Finley, we next consider the merits of
Jackson’s underlying claim.
Jackson argues that the Board violated his right to due process by
failing to credit his original sentence with all the time to which he is entitled and that
it did not have the authority to reset his maximum sentence date. We concur in
Counsel’s judgment that Jackson’s argument lacks merit.
Section 6138 of the Prisons and Parole Code (Parole Code) governs the
recommitment of a convicted parole violator. It states, in relevant part:
(a) Convicted violators.—
(1) A parolee . . . who, during the period of parole
or while delinquent on parole, commits a crime
punishable by imprisonment, for which the parolee
is convicted or found guilty by a judge or jury or to
which the parolee pleads guilty or nolo contendere
at any time thereafter in a court of record, may at
the discretion of the board be recommitted as a
parole violator.
4
(2) If the parolee’s recommitment is so ordered,
the parolee shall be reentered to serve the
remainder of the term which the parolee would have
been compelled to serve had the parole not been
granted and, except as provided under paragraph
(2.1),[3] shall be given no credit for the time at
liberty on parole.
61 Pa. C.S. §6138 (emphasis added). In short, convicted parole violators are not
entitled to credit for their street time, i.e., time spent at liberty on parole, when they
are recommitted.4
In explaining the differences between a judicially-imposed sentence
and backtime, our Supreme Court has stated that “service of backtime relates to the
original sentence from which an offender is paroled and is unrelated to any sentence
required for a conviction on other criminal charges.” Martin v. Pennsylvania Board
of Probation and Parole, 840 A.2d 299, 303 (Pa. 2003). The Board does not usurp
a court’s sentencing function nor does it violate a parolee’s due process rights, when
it requires the recommitted parolee to serve the balance of his original sentence.
Gaito v. Pennsylvania Board of Probation and Parole, 412 A.2d 568, 570 (Pa.
1980). Additionally, our Supreme Court has declared that the Board “is under no
constitutional obligation to diminish the length of the sentence of a recommitted
3
Paragraph (2.1) under Section 6138(a) of the Parole Code provides that the Board may, in its
discretion, award credit to a parolee recommitted under paragraph (2) for the time spent at liberty
on parole unless one of the enumerated exceptions applies. 61 Pa. C.S. §6138(a)(2.1).
4
We agree with Counsel that Jackson’s reference to McCauley v. Pennsylvania Board of Probation
and Parole, 510 A.2d 877 (Pa. Cmwlth. 1986), in his administrative appeal was misplaced. The
parolee in McCauley was a technical parole violator, whereas Jackson is a convicted parole
violator. Under 61 Pa. C.S. §6138(c)(2), the Board is not permitted to take a technical parole
violator’s non-delinquent street time. Further, Jackson’s reliance on 61 Pa. C.S. §6138(a)(5) as
limiting the Board to requiring “a [p]arolee [to] serve the remaining balance of his ‘unexpired
term’” was also incorrect. C.R. at 68. Section (a)(5) establishes when the balance of backtime
commences once there is a new sentence of incarceration for the conviction underlying the
revocation; it does not limit the Board in the way Jackson asserted.
5
parole[e] by a period equal to the time when the prisoner was on parole.” Id.
(quoting Commonwealth ex rel. Thomas v. Myers, 215 A.2d 617, 619 (Pa. 1966)).
Thus, Jackson’s challenge to the Board’s authority to recalculate his maximum
sentence date lacks merit.
Further, the Board did not err in recalculating the maximum sentence
date on Jackson’s original aggravated assault offense. When the Board paroled
Jackson on April 6, 2009, his maximum sentence date was September 10, 2018,
which left 3,444 days remaining on his original sentence. On May 31, 2016, Jackson
was recommitted as a result of his criminal conviction. As a convicted parole
violator, he was not entitled to any credit for his street time. Gaito, 412 A.2d 568.
To recalculate Jackson’s maximum sentence date, the Board credited Jackson for the
384 days he was detained solely on the Board’s warrant, from June 9, 2015 to June
27, 2016. Subtracting the 384 days from the 3,444 days remaining on Jackson’s
aggravated assault sentence leaves him with 3,060 unserved days on that sentence.
Consequently, the Board did not err in its calculation.
In sum, Counsel has fulfilled the technical requirements for
withdrawing his representation and our independent review of the record before the
Board shows that Jackson’s issues on appeal lack merit. Accordingly, we grant
Counsel’s application for leave to withdraw and affirm the Board’s decision.
______________________________________
MARY HANNAH LEAVITT, President Judge
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jamall Jackson, :
Petitioner :
:
v. : No. 1647 C.D. 2017
:
Pennsylvania Board of Probation and :
Parole, :
Respondent :
ORDER
AND NOW, this 20th day of July, 2018, the petition for leave to
withdraw filed by appointed counsel David Crowley, Esq. is GRANTED and the
order of the Pennsylvania Board of Probation and Parole dated October 11, 2017, in
the above-captioned matter is AFFIRMED.
______________________________________
MARY HANNAH LEAVITT, President Judge