M. Naylor v. PA BPP ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael Naylor, :
Petitioner :
:
v. : No. 557 C.D. 2015
: SUBMITTED: September 25, 2015
Pennsylvania Board of Probation :
and Parole, :
Respondent :
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge1
HONORABLE ROBERT SIMPSON, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE LEADBETTER FILED: February 9, 2016
Petitioner, Michael Naylor, petitions for review of the order of the
Pennsylvania Board of Probation and Parole (Board) denying Petitioner’s petition
for administrative review of the most recent change to his parole violation
maximum sentence date. Additionally, Petitioner’s counsel, Tina M. Fryling,
Esquire, petitions for leave to withdraw her representation, asserting that
Petitioner’s appeal is meritless. For reasons set forth below, we deny Attorney
Fryling’s petition to withdraw her appearance as counsel.
1
This case was assigned to the opinion writer on or before January 31, 2016, when Judge
Leadbetter assumed the status of senior judge.
Suffice it to say that, by notice mailed on February 13, 2015, which
referenced a Board decision recorded on February 2, 2015, the Board informed
Petitioner of his “recommit[ment] to a state correctional institution as a technical
parole violator to serve 6 months, and as a convicted parole violator to serve 6
months, concurrently, for a total of 6 months [backtime].” Certified Record, Notice
of Board Decision, mailed February 13, 2015, at 1. Petitioner’s new parole
violation maximum date was listed as August 14, 2018. Petitioner, representing
himself, promptly filed a request for administrative review with the Board, arguing
the Board miscalculated his parole violation maximum date and requesting the
Board to re-issue an official action providing for a parole violation maximum date
of September 23, 2016. The Board denied Petitioner’s review request, determining
that the August 14, 2018, parole violation maximum date was correct.
Attorney Fryling filed a petition for review with this Court on
Petitioner’s behalf, asserting the Board’s imposition of an incorrect parole
violation maximum date. She also filed a petition for leave to withdraw as counsel
and a Turner letter2 in support thereof. Pursuant to Turner, counsel aiming to
withdraw from the representation of a petitioner who seeks review of a Board
determination must proffer a “no-merit” letter detailing the nature and extent of
counsel’s review and listing the discrete issues that the petitioner wishes to raise,
with counsel’s reasons why those issue lack merit. Zerby v. Shanon, 964 A.2d 956,
961 (Pa. Cmwlth. 2009) (relying on Turner, 544 A.2d at 928). If counsel fails to
satisfy the technical requisites of a no-merit letter, this Court will deny the
attorney’s request to withdraw representation, and we will direct counsel either to
file a new request with supporting documents complying with the technical
2
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).
2
requisites of a no-merit letter or a brief advocating on the petitioner’s behalf.
Seilhamer v. Pa. Bd. of Prob. & Parole, 996 A.2d 40, 43-44 (Pa. Cmwlth. 2010);
Zerby, 964 A.2d at 960.
Here, while Attorney Fryling correctly notes in her Turner letter that
Petitioner objects to the recalculation of his parole violation maximum date, she
incorrectly states his maximum date as being September 23, 2016, which is
apparently the previous maximum date that Petitioner wants reinstated. Again,
Petitioner in his request for administrative review to the Board dated February 22,
2015, objected to the calculation of his parole violation maximum date as August
14, 2018. Although Attorney Fryling argues that “[t]he Board’s parole violation
maximum sentence date was calculated correctly,” Turner letter at 3, counsel’s
lack of knowledge regarding Petitioner’s actual parole violation maximum date is
clearly fatal to her withdrawal petition. This Court will not conduct an independent
examination of the merits of Petitioner’s review petition until we are satisfied that
counsel has fully met her obligations pursuant to Turner.
`
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Judge
3
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael Naylor, :
Petitioner :
:
v. : No. 557 C.D. 2015
:
Pennsylvania Board of Probation :
and Parole, :
Respondent :
ORDER
AND NOW, this 9th day of February, 2016, Tina M. Fryling’s
petition to withdraw as counsel is denied, without prejudice. Counsel is directed to
refile her petition to withdraw or file a brief in support of Michael Naylor’s
petition for review within thirty (30) days of this order.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Judge