R. Hughes v. PA BPP ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ronald Hughes, ;
Petitioner :
:
v. : No. 2056 C.D. 2015
: SUBMITTED: September 16, 2016
Pennsylvania Board of Probation :
and Parole, :
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: December 21, 2016
Petitioner, Ronald Hughes, petitions for review of the order of the
Pennsylvania Board of Probation and Parole (Board) denying his petition for
administrative review from an order recommitting him as a convicted parole
violator and recomputing his parole violation maximum sentence date. In addition,
Petitioner’s counsel, Harry J. Cancelmi, Esquire, petitions for leave to withdraw
his representation, asserting that Petitioner’s appeal is frivolous. After review, we
deny counsel’s petition for leave to withdraw without prejudice.
In November 2006, the Court of Common Pleas of Allegheny County
found Hughes guilty of robbery and imposed a sentence of five to ten years.
Certified Record (C.R.), Item No. 1 at 1. At that time, his controlling maximum
date was December 20, 2015. In April 2012, he was paroled and released to a
specialized community corrections center. Id., Item No. 3 at 6. In March 2013, the
Board issued a detainer for him due to technical parole violations related to
controlled substance abuse. Id., Item No. 4 at 14-15. Having admitted to the
violations and waived counsel and a hearing, Hughes was housed at SCI Pittsburgh
until his diversion into a community corrections center in April 2013 and
subsequent discharge to a home plan in June 2013. Thereafter, the Board issued
another warrant in August 2013, when Hughes had other drug-related technical
violations. Id., Item No. 7 at 23. He was incarcerated and later detained in another
community corrections center, with treatment and a violation hearing postponed
pending programming. Id., Item No. 9 at 32. Subsequently, the Board declared
him delinquent effective June 17, 2014. Id., Item No. 11 at 51. In October 2014,
he was arrested and charged with crimes relating to his possession of heroin. Id.,
Item No. 12 at 53-57. In November 2014, he was convicted and sentenced to two
years of probation. Id, Item No. 14 at 81. Hughes admitted to the violations and
waived counsel and hearing. Id., Item No. 15 at 87. In December 2014, he was
recommitted as a technical parole violator to a state-contracted county correctional
facility for six months. Id., Item No. 16 at 98-100.
In February 2015, Hughes waived his revocation hearing and counsel
and admitted to his new conviction. Id., Item No. 18 at 109. In addition, he
provided the Board with the following additional information for its consideration:
“I’m sorry and I’m new father. I own my own business. I’m moving to better
place in my life and hope to do better.” Id. In a March 2015 decision, the Board
ordered that Hughes be recommitted as a convicted parole violator to serve twelve
months backtime and recalculated his parole violation maximum sentence date to
January 21, 2018. Id., Item No. 20 at 126-27. Hughes, acting pro se, sought
2
administrative relief, which the Board denied in September 2015. Id., Item No. 21
at 137-38. In October 2015, he filed a pro se petition for review with this Court
seeking review of the Board’s decision. Thereafter, we appointed the Public
Defender of Greene County to represent Hughes in his appeal. Subsequently, the
Public Defender filed a petition to withdraw as counsel and an Anders brief1 with
this Court. We now consider counsel’s petition and brief.
The following is well established:
A court-appointed counsel who seeks to withdraw
representation because issues raised by the petitioner are
frivolous must fulfill the following technical
requirements: (1) he must notify parolee of [the] request
to withdraw; (2) he must furnish parolee with a copy of
an Anders brief or no-merit letter; and (3) he must advise
parolee of his right to retain new counsel or raise any
new points that he might deem worthy of consideration.
Banks v. Pa. Bd. of Prob. & Parole, 827 A.2d 1245, 1248 (Pa. Cmwlth. 2003)
(footnote omitted). Further, “[c]ounsel’s brief or no-merit letter must set forth: (1)
the nature and extent of his review of the case; (2) the issues the parolee wishes to
raise on appeal; and (3) counsel’s analysis concluding that the appeal has no merit
and is frivolous.” Encarnacion v. Pa. Bd. of Prob. & Parole, 990 A.2d 123, 126
(Pa. Cmwlth. 2010) (citations omitted). An appeal may be considered frivolous if
it is determined to lack any basis in law or fact. Smith v. Pa. Bd. of Prob. &
Parole, 574 A.2d 558, 562 (Pa. 1990).
In his petition and Anders brief, counsel attempted to outline the
issues raised by Hughes and explained the reasons for concluding that a careful
1
Anders v. California, 386 U.S. 738 (1967). Where appointed counsel files an Anders brief
when a no-merit letter would have sufficed, we will accept an Anders brief in lieu of a no-merit
letter if that brief complies with the substantive requirements of a no-merit letter. Seilhamer v.
Pa. Bd. of Prob. & Parole, 996 A.2d 40, 43 (Pa. Cmwlth. 2010).
3
review of the record indicated that the appeal was frivolous. Counsel further
explained that he filed an Anders brief, communicated with Hughes, and attempted
to explain to him that there was no arguable issue to present to this Court. Counsel
also indicated that he sent Hughes, by first-class United States mail, a copy of the
petition to withdraw as counsel as well as a copy of the Anders brief. Counsel
further explained that he advised Hughes of his right to retain new counsel or to
raise with this Court any points that he deemed worthy of our consideration.2 Our
review of the Anders brief indicates that, although it appears to meet the minimum
procedural requirements, counsel has failed to satisfy the substantive requirements
for withdrawal in that the brief fails to adequately address all of the issues that the
offender seeks to raise.
Counsel broadly characterized the issue on appeal as follows: “Is the
appeal by parole offender a frivolous appeal such that counsel’s application to
withdraw should be granted where the offender pleads that the Board improperly
recalculated his maximum date without legal authority to do so?” Counsel’s Brief
at 11. As an initial matter, we observe that counsel accurately outlined Hughes’
argument that the Board did not have the authority to recalculate the parole
violation maximum sentence date by removing street time because, pursuant to
McCauley v. Pennsylvania Board of Probation & Parole, 510 A.2d 877, 879 n.8
(Pa. Cmwlth. 1986), the Board “does not have the power to alter a judicially-
imposed sentence.” Counsel, however, did not adequately address the argument in
that he speculated as to the applicability of the law affording the Board discretion
to credit time for liberty spent on parole. In that regard, counsel acknowledged
2
Although Hughes attempted to file a pro se brief, this Court was constrained to enter an
order striking the brief for failure to comply with our August 4, 2016 order.
4
that Section 6138(a)(2.1) of the Prisons and Parole (Code), added by the Act of
July 5, 2012, P.L. 1050 (Act 122), 61 Pa. C.S. § 6138(a)(2.1), now permits the
Board, in its discretion, to credit time spent at liberty on parole, subject to certain
restrictions. Counsel opined, however, that the pre-Act 122 version of Section
6138(a)(2) of the Code, 61 Pa. C.S. § 6138(a)(2), governed due to the timing of
Hughes’ parole revocation3 and that, accordingly, Hughes’ position was
automatically without merit.4
Further, notwithstanding counsel’s assertion that Section 6138(a)(2.1)
does not apply, the record reflects that the Board considered but rejected mitigating
factors in assessing whether to credit Hughes with time spent at liberty on parole.5
In any event, even though the statutory norm is that such credit shall not be
provided to a convicted parole violator, Pittman v. Pennsylvania Board of
Probation & Parole, 131 A.3d 604, 615 (Pa. Cmwlth.), appeal granted, 137 A.3d
572 (Pa. 2016), this Court is troubled by counsel’s failure to address the Supreme
3
In his brief, counsel states that Section 6138(a)(2) of the Code was “in effect at the time of
Miller’s parole revocation,” perhaps indicating that counsel mistook Hughes for Miller.
Counsel’s Brief at 14 (emphasis added).
4
Section 6138(a)(2) provided: “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 shall be given no credit for the time at
liberty on parole.” (Emphasis added.)
5
As in Pittman v. Pennsylvania Board of Probation & Parole, 131 A.3d 604, 609 (Pa.
Cmwlth.), appeal granted, 137 A.3d 572 (Pa. 2016), the completed hearing report in the present
case “establishes that the Board exercised discretion pursuant to section 6138(a)(2.1) by
checking ‘no’ and denying [the offender] credit for time spent at liberty on parole.”
Additionally, the hearing report lists the following reasons for the Board’s decision: pattern of
parole failure; declaration of delinquency; failure to comply with sanctions; not amenable to
parole supervision; prior parole/probation failure; conviction in court of record; and violations
established. C.R., Item No. 19 at 117. The Board also indicated in its decision that it “chose not
to award you credit for time at liberty on parole in recalculating your max date . . . .” Id., Item
No. 21 at 137.
5
Court’s allowance of appeal in Pittman or to provide any analysis of how it may
impact either his petition to withdraw as counsel or Hughes’ appeal. Accordingly,
counsel did not adequately address Hughes’ argument regarding credit for street
time.
In addition, the record belies counsel’s assertion that Hughes failed to
raise the question of credit for time spent in a specialized community correction
center from April to June 2012. Hughes’ request for administrative relief provides:
“4) The Parolee was paroled to restricted Liberty/Pittsburgh Renewal [Center] for
Board mandated violence prevention booster. He was confined until completion
on June 26, 2012, a total incarceration of 61 days.” C.R., Item No. 21 at 132
(emphasis added). Further, in his pro se petition for review to this Court, Hughes
characterized that time period as “restricted liberty” and alleged that he did not
receive credit for that time. Petition for Review, ¶ 11. Accordingly, counsel did
not adequately address Hughes’ argument regarding the nature of his time spent in
a specialized community correction center and whether the Board erred in failing
to credit it as time tantamount to incarceration.
Moreover, Hughes in his pro se petition for review raises an aggregate
time issue and asserts that the Board is improperly recommitting him to serve more
than the balance of his unexpired term. Id., ¶¶ 15-18. Counsel did not address this
issue or even cite Merritt v. Pennsylvania Board of Probation & Parole, 574 A.2d
597 (Pa. 1990), or Davenport v. Pennsylvania Board of Probation & Parole, 656
A.2d 581 (Pa. Cmwlth. 1995).
Accordingly, the appointed counsel’s petition to withdraw must be
denied and we will not proceed to the merits of the appeal. See Seilhamer v. Pa.
Bd. of Prob. & Parole, 996 A.2d 40, 44 (Pa. Cmwlth. 2010) (holding that a no-
6
merit letter must include substantial reasons for concluding that an offender’s
arguments are without merit and that, even if an issue may not ultimately prove
meritorious, appointed counsel must include the issue in a no-merit letter and
explain why it is without merit). For the above reasons, therefore, we deny
counsel’s petition to withdraw without prejudice. He has thirty days either to file a
renewed petition to withdraw, along with an amended Anders brief or no-merit
letter adequately addressing each of Hughes’ issues, or to submit a brief on the
merits.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ronald Hughes, ;
Petitioner :
:
v. : No. 2056 C.D. 2015
:
Pennsylvania Board of Probation :
and Parole, :
Respondent :
ORDER
AND NOW, this 21st day of December, 2016, Harry J. Cancelmi’s
petition to withdraw as counsel is hereby DENIED without prejudice. Counsel is
granted thirty (30) days from the date of this Order to file either a renewed petition
to withdraw as counsel, along with an amended Anders6 brief or no-merit letter, or
to submit a brief on the merits of Ronald Hughes’ Petition for Review.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge
6
Anders v. California, 386 U.S. 738 (1967).