Adams, R. v. PBPP ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert Adams, :
:
Petitioner :
:
v. : No. 777 C.D. 2018
: Submitted: January 4, 2019
Pennsylvania Board of :
Probation and Parole, :
:
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: August 27, 2019
Robert Adams (Parolee) petitions for review of the order of the
Pennsylvania Board of Probation and Parole (Board) that denied his
Administrative Appeals and Petitions for Administrative Review challenging its
October 3, 2016 decision recommitting him as a convicted parole violator (CPV) to
serve 12 months’ backtime1 when available based on his conviction for terroristic
1
This Court has previously defined the term backtime as:
[T]hat 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
(Footnote continued on next page…)
threats, and its November 4, 2016 decision referring to the October 3, 2016
decision and recommitting him as a CPV to serve a concurrent 12 months’
backtime when available2 based on his conviction for possession of a small amount
of marijuana for personal use and possession of marijuana. Also before us is the
petition of Kent D. Watkins, Esquire (Counsel), for leave to withdraw as counsel
for Parolee on the grounds that Parolee’s appeal is without merit and lacks support
in either law or fact. For the reasons that follow, we grant Counsel’s petition for
leave to withdraw and affirm the Board’s order.
On June 29, 2001, Parolee was sentenced in Bucks County to an
aggregate 10- to 20-year term of imprisonment based on his conviction for two
counts of robbery, and a consecutive 7-year probationary term for his conviction of
carrying a firearm without a license. Certified Record (C.R.) at 1, 3. With an
effective date of December 26, 2000, the minimum sentence expiry date for these
convictions was December 26, 2010, and the maximum sentence expiry date was
December 26, 2020. Id. at 2. He was released on parole in February 2011, but was
recommitted by the Board as a technical parole violator in July 2012, and his
maximum sentence expiry date was extended to October 7, 2021. Id. at 1, 2, 124.
In February 2014, Parolee was released on reparole. Id. at 7.
(continued…)
conditions of parole, which time must be served before the parolee
may again be eligible to be considered for a grant of parole.
Krantz v. Pennsylvania Board of Probation and Parole, 483 A.2d 1044, 1047 (Pa. Cmwlth.
1984) (emphasis in original).
2
The Board noted that Parolee’s availability was “pending parole from/completion of
[his] Berks County sentence and [his] return to a State Correctional Institution.” Certified
Record (C.R.) at 154.
2
On September 1, 2015, Parolee was arrested by the Reading Police
and charged with possession of synthetic marijuana, possession of crack cocaine,
and public drunkenness. C.R. at 65, 140-141. On August 4, 2016, Parolee pleaded
guilty to possession of crack cocaine and was sentenced by the Berks County Court
of Common Pleas to 119 days to 23 months’ incarceration. Id. at 66-69, 115. He
received credit for the 119 days of time served with the provision that “upon
completion of his[] minimum sentence shall be released without a petition upon
approval of a suitable parole plan by the Berks County Parole Office.” Id.
On December 14, 2015, Parolee was arrested in Philadelphia for
aggravated assault, terroristic threats, simple assault, recklessly endangering
another person, harassment, and stalking. C.R. at 31-33, 34. On January 4, 2016,
the aggravated assault charge was dismissed and the charges of terroristic threats,
simple assault, recklessly endangering another person, harassment, and stalking
were remanded to municipal court. Id. at 96-97. On April 25, 2016 Parolee
pleaded guilty to terroristic threats and harassment, and was sentenced by the
Philadelphia County Court of Common Pleas to time served to 23½ months’
incarceration with immediate parole. Id. at 100.
On December 21, 2015, Parolee was arrested in Berks County for
possession of a small amount of marijuana for personal use. C.R. at 46-48. On
June 23, 2016, Parolee pleaded guilty to the charge and was sentenced to pay a
$300.00 fine and costs and to complete 16 hours of community service. Id. at 52-
58.3
3
Documents in the certified record demonstrate that Parolee has been convicted of
various additional crimes that are not relevant to the disposition of the instant appeal.
Accordingly, they will not be addressed in this opinion.
3
On August 25, 2016, Parolee waived his right to counsel and a parole
revocation hearing, and admitted his Philadelphia County terroristic threats and
harassment convictions. C.R. at 84-86. As a result, the Board issued its October 3,
2016 decision recommitting Parolee as a CPV to serve 12 months’ backtime when
available. Id. at 104-05. The Board noted that Parolee’s availability was “pending
resolution of [his] outstanding criminal charges.” Id. at 104.
On September 30, 2016, Parolee waived his right to counsel and a
parole revocation hearing, and admitted his Berks County drug and public
drunkenness convictions. C.R. at 116-119. As a result, the Board issued its
November 4, 2016 decision recommitting Parolee as a CPV to serve 12 months’
backtime concurrently with the previously imposed backtime when available. Id.
at 154-155. The Board specifically referred to its October 3, 2016 decision, and
noted that Parolee’s availability was “pending parole from/completion of [his]
Berks County sentence and [his] return to a State Correctional Institution.” Id. at
154.
On October 16, 2016, Parolee submitted an Administrative Remedies
Form challenging the Board’s October 3, 2016 decision. C.R. at 195. Parolee
asked that he “be given time credited from the date the state detainer was placed on
[him] as it kept [him] detained and that the time given by the Board be cut in half.”
Id. He also asked that he “be reparoled upon completion of [the] program
suggested by the Parole Board.” Id. He explained that “without the state
detainer,” he would have been able to post bail, receive house arrest, or be placed
on work release. Id.
On September 14, 2017, Parolee submitted another Administrative
Remedies Form challenging the Board’s November 4, 2016 decision. C.R. at 197-
4
199. Parolee alleged that the Board erred in imposing 12 months’ backtime
because only 6 months could be imposed for his misdemeanor drug convictions.
Id. at 197. Parolee also claimed: (1) his maximum sentence expiry date should be
December 26, 2021, because the sentencing judge did not order that the date be
extended and the Board did so without a court order; (2) he is entitled to credit for
391 days because the Board failed to transport him to a State Correctional
Institution after he was paroled in Berks County on August 4, 2016; (3) the
backtime imposed should be adjusted from 12 months to 6 months because the
offenses to which he pleaded guilty were misdemeanors; (4) he should receive
credit from December 14, 2015, to the date of filing because the Board had placed
a detainer that prevented him from obtaining bail; and (5) the program evaluations
imposed by the Board should be removed because he has exhibited no
inappropriate conduct warranting such evaluations. Id. at 198-99.
On April 12, 2018, the Board responded via letter and affirmed its
October 3, 2016 decision, and dismissed the September 14, 2017 appeal of its
November 4, 2016 decision as untimely. C.R. at 201-202. In affirming the
October 3, 2016 decision, the Board explained that Parolee was not available to re-
start service of his original sentence at the time of the decision due to the
unresolved criminal charges. Id. at 201. The Board also explained that it properly
recommitted Parolee when he was available, pending resolution of the outstanding
charges. Id. Moreover, the Board stated that it mailed Parolee a recalculation
decision on November 4, 2016, that reflects the appropriate credit allocation. Id.
Thus, the Board determined that the decision mailed on November 4, 2016,
triggered Parolee’s appeal rights on the issue of calculation reflecting his credit
allocation. Id.
5
In dismissing Parolee’s appeal of its November 4, 2016 decision as
untimely, the Board noted that petitions must be received at the Board’s Central
Office within 30 days of the mailing of the Board’s action under its regulations, 37
Pa. Code §73.1, which was mailed on November 4, 2016. C.R. at 201. Therefore,
Parolee had until December 4, 2016, to object to the Board’s action. Id. Because
the Board did not receive his petition before that date, and there is no indication
that it was submitted to prison officials for mailing by that date, Parolee’s petition
was untimely and could not be accepted. Id. Parolee then filed the instant pro se
petition seeking this Court’s review.
In his petition for review, Parolee claims that the Board: (1) violated
his due process rights and his rights against cruel and unusual punishment, and
abused its discretion when it extended the maximum sentence expiry date of his
original judicially imposed sentence on his robbery convictions; (2) erred and
abused its discretion by not granting time credit from December 14, 2015, to
August 30, 2017, because a Board warrant prevented the imposition of bail on his
pending charges; (3) committed perjury, erred, and abused its discretion by relying
on false evidence in denying him credit for time served from August 4, 2016, to
August 30, 2017; and (4) violated his substantive and procedural due process
rights, and his rights against cruel and unusual punishment and double jeopardy by
extending the unexpired term of his maximum sentence expiry date.
This Court appointed Counsel to represent Parolee in his appeal.
Thereafter, Counsel filed a petition for leave to withdraw as counsel and a no-merit
letter under Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), contending that
the appeal is meritless.
6
When court-appointed counsel concludes that a petitioner’s appeal is
meritless, counsel may withdraw if counsel: (1) notifies the petitioner of the
request to withdraw; (2) furnishes the petitioner with a copy of a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), or a no-merit letter satisfying the
requirements of Turner4; and (3) advises the petitioner of his right to retain new
counsel or submit a brief on his own behalf. Miskovitch v. Pennsylvania Board of
Probation and Parole, 77 A.3d 66, 69 (Pa. Cmwlth. 2013). Once appointed
counsel has complied with the technical requirements for withdrawal, we
independently review the merits of the petitioner’s claims. Id. at 70.
Upon review, Counsel’s letter satisfies the technical requirements of
Turner. The letter sets forth the procedural history of the case, reflecting his
review of the record. Counsel states that he conducted a conscientious and
thorough review of the record, applicable statutes and case law. He sets forth the
issues Parolee raised in his Administrative Remedies Forms to review the Board’s
recalculation of his maximum sentence expiry date, provides a thorough analysis
as to why the case lacks merit, and cites applicable regulations and case law in
4
In cases where there is a constitutional right to counsel, court-appointed counsel seeking
to withdraw must submit an Anders brief that
(1) provide[s] a summary of the procedural history and facts, with
citations to the record; (2) refer[s] to anything in the record that
counsel believes arguably supports the appeal; (3) set[s] forth
counsel’s conclusion that the appeal is frivolous; and (4) states
counsel’s reasons for concluding that the appeal is frivolous.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Where, as here, the right to counsel
is statutory and does not derive from the United States Constitution, counsel may provide a “no-
merit letter,” which details the nature and extent of the attorney’s review, identifies each issue
the petitioner wishes to raise, and explains why counsel concludes those issues are meritless.
Turner, 544 A.2d at 928.
7
support. Based on his review, Counsel concludes that Parolee’s appeal to this
Court is without merit, and he requests permission to withdraw.
Counsel provided Parolee with a copy of the Turner letter and his
request to withdraw. Counsel advised Parolee of his right to retain new counsel or
proceed by representing himself.5 As we are satisfied that Counsel has discharged
his responsibility in complying with the technical requirements to withdraw from
representation, we will conduct an independent review of whether Parolee’s
petition for review lacks merit.6
Upon review, we agree with Counsel that Adams’ claims are without
merit, lacking support in either law or fact. With respect to the Board’s October 3,
2016 decision, Parolee’s claim in the October 16, 2016 Administrative Remedies
Form regarding the credit that was granted on his sentence is without merit because
the Board did not allocate credit in its decision. See C.R. at 104-105.
Parolee’s other claim regarding the amount of backtime imposed is
likewise without merit. Pursuant to Section 75.1(a) of its regulations, the Board is
authorized to apply the aggregate presumptive ranges for each conviction when it
orders the recommitment of a CPV after holding a revocation hearing. 37 Pa.
Code §75.1(a). The presumptive backtime ranges for the terroristic threats and
harassment offenses to which Parolee pleaded guilty are 6 to 12 months and 1 to 6
5
By order dated November 1, 2018, this Court denied Parolee’s Motion for Appointment
of New Counsel and instructed Parolee that he may raise his appellate claims in a pro se brief
that must be filed by November 26, 2018. To date, Parolee has not retained new counsel, and he
has not filed a pro se brief in support of his petition for review.
6
Our review is limited to determining whether constitutional rights were violated,
whether the adjudication was in accordance with law, and whether necessary findings were
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S.
§704; Miskovitch, 77 A.3d at 70 n.4.
8
months, respectively. 37 Pa. Code §75.2. See also C.R. at 77. Thus, the 12
months’ backtime that the Board imposed is well within the aggregate presumptive
ranges for these offenses and is not subject to appellate review by this Court.
As we have explained, “This court will not review the Board’s
exercise of discretion in imposing backtime for parole violations where the
violations are supported by substantial evidence and the backtime imposed is
within the published presumptive ranges for those violations. Chapman v.
Pennsylvania Board of Probation and Parole, [484 A.2d 413, 417 (Pa. Cmwlth.
1984)].” Lotz v. Pennsylvania Board of Probation and Parole, 548 A.2d 1295,
1296 (Pa. Cmwlth. 1988). Further, “[o]ur Supreme Court has held that ‘[a]s long
as the period of recommitment is within the presumptive range for the violation,
the Commonwealth Court will not entertain challenges to the propriety of the term
of recommitment.’” Fisher v. Pennsylvania Board of Probation and Parole, 62
A.3d 1073, 1077 (Pa. Cmwlth. 2013) (quoting Smith v. Pennsylvania Board of
Probation and Parole, 574 A.2d 558, 560 (Pa. 1990)).
Finally, with respect to the Board’s November 4, 2016 decision,
Parolee untimely submitted the Administrative Remedies Form thereby precluding
further review by the Board. We note that Section 73.1(a)(1) of the Board’s
regulations states, in pertinent part:
(1) An interested party . . . may appeal a revocation
decision. Appeals shall be received at the Board’s
Central Office within 30 days of the mailing date of the
Board’s order. When a timely appeal of a revocation
decision has been filed, the revocation decision will not
be deemed final for purpose of appeal to a court until the
Board has mailed its decision on the appeal.
37 Pa. Code §73.1(a)(1).
9
Similarly, Section 73.1(b)(1) of the Board’s regulations states, in
relevant part:
(1) A parolee . . . may petition for administrative review
under this subsection of determinations relating to
revocation decisions which are not otherwise appealable
under subsection (a). Petitions for administrative review
shall be received at the Board’s Central Office within 30
days of the mailing date of the Board’s determination.
When a timely petition has been filed, the determination
will not be deemed final for purposes of appeal to a court
until the Board has mailed its response to the petition for
administrative review.
37 Pa. Code §73.1(b)(1). Based on the foregoing, if Parolee’s September 14, 2017
Administrative Remedies Form is deemed to be either an untimely Administrative
Appeal of the Board’s November 4, 2016 decision or a Petition for Administrative
Review of the same, the Board was without jurisdiction to consider the claims
raised therein or to grant the requested relief.7
7
See, e.g., Merriweather v. Pennsylvania Board of Probation and Parole, 693 A.2d
1000, 1001 (Pa. Cmwlth. 1996) (“[T]he recommitment of fifteen months was ordered in the
Board’s June 11, 1996 decision and [the parolee] had thirty days from that date to challenge that
decision. However, [he] did not petition the Board until July 18, 1996. Therefore, although he
ostensibly appealed the Board’s June 28, 1996 decision, any challenge to the Board’s June 11,
1996 action, including its imposition of fifteen months backtime, would be untimely, thereby
divesting the Board of jurisdiction to consider [his] petition . . . .”) (citations omitted); McCaskill
v. Pennsylvania Board of Probation and Parole, 631 A.2d 1092, 1095 n.4 (Pa. Cmwlth. 1993)
(“Because [the parolee’s] request for administrative relief was not filed with the Board until
1992, 6 years after the Board’s 1986 determination was issued, and 4 years after the Board’s
1988 determination was issued, any allegations concerning such determinations would have been
untimely and the Board would have been required to dismiss the appeal as it related to those
issues.”) (citation omitted); Ayers v. Pennsylvania Board of Probation and Parole, 565 A.2d
1257, 1258 (Pa. Cmwlth. 1989) (“Under the provisions of 37 Pa. Code § 73.1, a petition for
administrative review of a board determination relating to revocation decisions is to be received
within 30 days of the mailing date of the determination. . . . Because Petitioner did not file his
request for reconsideration of the Board’s October 26, 1987 order until April of 1989 it was
(Footnote continued on next page…)
10
Accordingly, we grant Counsel’s petition for leave to withdraw as
counsel and we affirm the Board’s decision.
MICHAEL H. WOJCIK, Judge
(continued…)
untimely, and since the timeliness of an appeal is jurisdictional, the Board was without authority
to consider it.”) (citation omitted).
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert Adams, :
:
Petitioner :
:
v. : No. 777 C.D. 2018
:
Pennsylvania Board of :
Probation and Parole, :
:
Respondent :
ORDER
AND NOW, this 27th day of August, 2019, Kent D. Watkins,
Esquire’s petition for leave to withdraw as counsel is GRANTED, and the decision
of the Pennsylvania Board of Probation and Parole, dated April 12, 2018, is
AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge