Davenport v. Pennsylvania Board of Probation & Parole , 656 A.2d 581 ( 1995 )

FRIEDMAN, Judge.

Before this court is a motion filed by the Public Defender of Allegheny County (Counsel) seeking leave to withdraw as appointed counsel for the petitioner, Lucius Davenport, on Davenport’s appeal from an order of the Pennsylvania Board of Probation and Parole (Board). We deny Counsel’s motion to withdraw.

Davenport was serving an eight to twenty year sentence for third degree murder when paroled on January 18, 1985. Because Davenport had a maximum sentence or release date of March 3, 1995, the unexpired term of his sentence was 10 years, 1 month and 15 days. On September 19, 1991, Davenport was arrested and charged with multiple counts of robbery and conspiracy. On August 23, 1993, he pled guilty and was sentenced to a total term of imprisonment of eight to twenty years. As a result of Davenport’s conviction on multiple counts of robbery and criminal conspiracy the Board held a parole revocation hearing on October 29, 1993 and issued a decision recommitting Davenport as a convicted parole violator to serve “624 months of baektime, in effect unexpired term — 10 years, 1 month, and 15 days.”¹ (Record at 73.) Davenport petitioned for review of the Board’s order, contending that the Board’s revocation hearing was untimely and that the baektime ordered by the Board was excessive.

By an order filed June 29, 1994, this court appointed Counsel to represent Davenport. On August 2, 1994, Counsel filed a motion to withdraw, contending that the issues raised in Davenport’s petition for review are merit-less and further prosecution of the appeal would be frivolous. Counsel submitted a “no-merit” letter in support of his position.

In reviewing Counsel’s motion to withdraw, we must make an independent evaluation of the proceedings before the Board to determine whether Davenport’s appeal is, in fact, meritless. Frankhouser v. Board of Probation and Parole, 143 Pa.Commonwealth Ct. 80, 598 A.2d 607 (1991). Before reaching this review, however, we must be satisfied that counsel has fulfilled the technical requirements for withdrawal. Epps v. Board of Probation and Parole, 129 Pa.Commonwealth Ct. 240, 565 A.2d 214 (1989).

In Epps, this court, relying on Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), stated that appointed counsel seeking to withdraw may file a “no-merit” letter. A “no-merit” letter must contain (1) the nature and extent of counsel’s review, (2) the issues petitioner wishes to raise, and (3) counsel’s analysis in concluding that the petitioner’s appeal is meritless. Frankhouser; Epps.

Our review of the record indicates that Counsel complied with these requirements. Counsel’s “no-merit” letter, along with his letter to Davenport, indicates that Counsel has reviewed the record and the applicable law and exercised his professional judgment in reaching the conclusion that Davenport’s appeal is meritless. The “no-merit” letter also states the issues Davenport wished to raise and provides the analysis upon which Counsel based his opinion that these issues are meritless.

Now, we address the merits of Davenport’s appeal. The first issue appealed involves the timeliness of the Board’s hearing. Board regulations relating to recommittal as a convicted parole violator provide that “[a] revocation hearing shall be held within 120 days from the date the Board received official verification of the plea of guilty or nolo con-tendere or of the guilty verdict at the highest trial court level_” 37 Pa.Code § 71.4. Here, the Board held a hearing on October 29, 1993, well within 120 days of the guilty verdict of August 23, 1993. Thus, Counsel correctly concluded that the Board’s hearing was timely.

Next, Davenport contends that the 624 months of backtime ordered by the Board is excessive. Despite the fact that the 624 months of backtime exceeds the remaining length of Davenport’s original sentence by nearly 42 years, counsel states that Davenport’s objection to the amount of backtime is without merit because the backtime ordered is within the presumptive ranges permitted by 37 Pa.Code § 75.2.² We cannot agree.

The regulation relied on provides, in pertinent part:

If the Board orders the recommitment of a parolee as a convicted parole violator, the parolee shall be recommitted to serve an additional part of the term which the parolee would have been compelled to serve had he not been paroled, in accordance with the [presumptive ranges listed in the regulation].

37 Pa.Code § 75.2. This section clearly indicates that the Board may recommit a convicted parole violator “to serve an additional part of the term which the parolee would have been compelled to serve had he not been paroled....” However, the Board cannot recommit a convicted parole violator to serve more than the balance of his unexpired term. This point has been made recently by our Supreme Court which, in 1990, wrote specifically to emphasize the axiomatic principle that:

The sum total of aggregate backtime imposed by the Board plus the time served prior to parole cannot exceed the total aggregate maximum sentence first imposed by the trial court.

Merritt v. Pennsylvania Board of Probation and Parole, 524 Pa. 577, 578, 574 A.2d 597, 597-98 (1990).³

This principle cannot be ignored when the Board orders the recommitment of a parolee as a convicted parole violator. The baektime imposed by the Board cannot be more than the entire remaining balance of the unexpired term which Davenport would have been compelled to serve if he had not been paroled. Here, because the maximum time remaining on Davenport’s sentence was 10 years, 1 month and 15 days, which is 121 months and 15 days, the Board could not recommit Davenport to serve 624 months, or 52 years, of baektime. If the Board actually meant to recommit Davenport for only the balance of his unexpired term, it should clarify its order. Thus, Counsel erred in concluding that the second basis for Davenport’s appeal was meritless.

Our review of the record and of the law indicates that Davenport’s appeal is not mer-itless. Accordingly, Counsel’s motion for leave to withdraw is denied. Counsel is directed to file a brief on behalf of Davenport addressing the issue of baektime.

ORDER

AND NOW, this 20th day of March, 1995, the Motion for Leave to Withdraw as Counsel filed by the Public Defender of Allegheny County is denied. Counsel is ordered to file a brief within thirty days.

1 . Although the Board’s order notes that Davenport's unexpired term is 10 years, 1 month and 15 days, which amounts to 121 months and 15 days, it does not limit the baektime to be served by the length of this unexpired term.

2 . This regulation sets forth presumptive ranges of parole backtime to be served based upon the severity of the new criminal offense which resulted in the parolee's recommittal. 37 Pa.Code § 75.1. According to the Board’s records, the aggregated presumptive range for Davenport’s multiple convictions was 30 to 624 months. (Record at 71.)

3 . We have distinguished backtime imposed by the Board upon parole violators from sentences imposed by the judiciary upon convicted criminal defendants. In Krantz v. Board of Probation and Parole, 86 Pa.Commonwealth Ct. 38, 483 A.2d 1044 (1984), we stated:

“backtime” is merely that part of an existing judicially-imposed sentence which the Board directs a parolee to complete following a finding after a civil administrative hearing that the parolee violated the terms and conditions of parole, which time must be served before the parolee may again be eligible to be considered for a grant of parole....

Section 21.1 of the Parole Act gives the Board the power to return parole violators to prison to serve the entire remaining balance of their unexpired terms.

Id. at 43, 483 A.2d at 1047-48 (emphasis in original). Calculation of the amount of backtime is within the Board’s discretion, but that discretion is limited by the remaining balance of the unexpired term. See Krantz.