J.J. McHenry v. PA BPP ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jeremy James McHenry, :
Petitioner :
:
v. : No. 531 C.D. 2016
: Submitted: December 16, 2016
Pennsylvania Board of Probation :
and Parole, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: February 14, 2017
Jeremy James McHenry, an inmate at SCI-Mahanoy, petitions for
review of an adjudication of the Pennsylvania Board of Probation and Parole
(Board) denying his administrative appeal. McHenry’s appointed counsel, Kent D.
Watkins, 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.
In 2009, McHenry was sentenced to a minimum sentence of two years
to a maximum of seven years on multiple offenses including burglary, theft, and
criminal conspiracy. At the time the sentence was imposed, McHenry’s maximum
release date was March 14, 2016. By order dated March 16, 2011, the Board
granted McHenry parole. On June 28, 2011, he was released to an approved home
plan upon conditions, inter alia, that he would commit no misconducts or crimes.
Certified Record at 15-24 (C.R. __). McHenry signed a Conditions Governing
Parole/Reparole, which stated, under condition 5a, that McHenry shall “abstain
from the unlawful possession or sale of narcotics and dangerous drugs and abstain
from the use of controlled substances….” C.R. 22.
On September 18, 2014, McHenry was charged with driving under the
influence of alcohol or controlled substance (DUI) and related offenses. C.R. 38-
44. He posted bail. After being notified of McHenry’s new criminal charges, on
December 5, 2014, the Board issued a warrant to commit and detain McHenry.
C.R. 45-46, 48. McHenry admitted that he had violated parole condition 5a and
waived his right to hearings and assistance of counsel. C.R. 51. By order dated
January 23, 2015, the Board detained McHenry pending disposition of his criminal
charges and recommitted him as a technical parole violator to serve six months
backtime. The order also provided that McHenry would be reparoled pending
resolution of his outstanding criminal charges. McHenry’s maximum release date,
March 14, 2016, was not revised. C.R. 67, 70.
On July 22, 2015, McHenry pled guilty to the charge of DUI in
Schuylkill County and was sentenced to a term of imprisonment of three to six
months. C.R. 73. Thereafter, the Board scheduled a second parole revocation
hearing. McHenry admitted that he was convicted of DUI in violation of his parole
and further waived his right to hearings and assistance of counsel. By order mailed
December 8, 2015, the Board modified its January 23, 2015, order by rescinding
McHenry’s reparole and recommitting him as a convicted parole violator to serve
six months concurrently with the prior six-month recommitment for the technical
parole violation. This resulted in a total recommitment of six months backtime.
C.R. 89-90. The Board further recalculated McHenry’s maximum sentence date
for his 2009 conviction to August 22, 2019. The recalculation included the time
2
McHenry spent at liberty on parole from June 28, 2011, when he was first paroled,
through the date of his detention on December 5, 2014.
McHenry filed an administrative appeal with the Board, challenging
the recommitment term as erroneous and unconstitutional. The Board affirmed its
December 8, 2015, decision, explaining that as a convicted parole violator,
McHenry received no credit for street time, i.e., the time he spent at liberty on
parole. The Board further held that its recalculation of McHenry’s maximum
sentence date was constitutional because McHenry was on notice of the potential
penalty for violating his parole conditions, and his ability to challenge the Board’s
decisions satisfied his due process rights. In response, McHenry sent a letter to the
Board, reiterating his objection to the Board’s forfeiture of his street time. The
Board responded that it would not accept McHenry’s letter because it had already
responded to his previous appeal. McHenry filed a petition for review with this
Court, arguing that the Board erred in recalculating his maximum sentence date.1
Before we address the merits of McHenry’s petition for review, we
must first consider whether Counsel has fulfilled the technical requirements for a
petition to withdraw from representation. When counsel believes an appeal is
without merit, he may file a petition to withdraw pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988). This Court has summarized the requirements
under Turner as follows:
[C]ounsel seeking to withdraw from representation of a
petitioner seeking review of a determination of the Board must
1
Our scope of review is to determine whether the Board erred as a matter of law or violated the
parolee’s constitutional rights and whether the Board’s findings are supported by substantial
evidence. Harden v. Pennsylvania Board of Probation and Parole, 980 A.2d 691, 695 n. 3 (Pa.
Cmwlth. 2009).
3
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 are meritless.”
Zerby v. Shanon, 964 A.2d 956, 961 (Pa. Cmwlth. 2009) (quoting Turner, 544
A.2d at 928). Furthermore, a no-merit letter must include substantial reasons for
concluding that a petitioner’s arguments are meritless. Id. at 962.2 If we determine
that counsel is correct that his client’s claims lack merit, we will allow counsel to
withdraw and deny relief. Conversely, if the claims appear to be meritorious, we
will deny counsel’s request and grant relief or instruct counsel to file a brief on
behalf of his client. Id. at 960.
On July 18, 2016, Counsel submitted a no-merit letter to this Court
and served a copy on McHenry. In the letter, Counsel informed McHenry of his
right either to retain new counsel or to proceed pro se. Counsel addressed the issue
McHenry raises in his petition for review to this Court as well as additional issues
McHenry raised before the Board.3 Counsel then explained why each issue is
devoid of merit. Having determined that Counsel has complied with the
requirements of Turner, we next review the merits of McHenry’s arguments to
determine whether to grant or deny Counsel’s petition and whether to grant or deny
McHenry relief. For the following reasons, we concur in Counsel’s judgment that
McHenry’s appeal lacks merit.
2
Counsel must also notify the parolee of his request to withdraw, furnish the parolee with a copy
of the no-merit letter, and inform the parolee that he has a right to retain new counsel or proceed
pro se. Zerby, 964 A.2d at 960.
3
Counsel, in an effort to prepare a thorough no-merit letter, addressed the constitutional
challenges McHenry raised in his administrative appeal before the Board. Because McHenry
does not raise constitutional issues in his petition for review to this Court, we will not address
those issues in this opinion.
4
McHenry argues that the Board erred in recalculating his maximum
sentence date. He contends that because the Board had credited him for his street
time when it recommitted him as a technical parole violator, it could not forfeit that
street time when it subsequently recommitted him as a convicted parole violator.
Section 6138 of the Prisons and Parole Code (Parole Code) 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.
(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),[4] shall be given no credit for the
time at liberty on parole.
***
(c) Technical violators. –
(1) A parolee under the jurisdiction of the board
who violates the terms and conditions of his
parole, other than by the commission of a new
crime of which the parolee is convicted or found
guilty by a judge or jury or to which the parolee
4
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).
5
pleads guilty or nolo contendere in a court of
record, may be detained pending a hearing before
the board or waiver of the hearing or recommitted
after a hearing before the board or a waiver of the
hearing….
***
(2) If the parolee is recommitted under this
subsection, the parolee shall be given credit for the
time served on parole in good standing but with no
credit for delinquent time and may be reentered to
serve the remainder of the original sentence or
sentences.
61 Pa. C.S. §6138 (emphasis added). In short, Section 6138 states that while
technical parole violators are entitled to credit for their street time, convicted
parole violators are not entitled to such credit. Consequently, when a parolee is
recommitted due to criminal convictions, his maximum sentence date may be
extended to account for his street time, regardless of whether he is in good standing
or delinquent. Richards v. Pennsylvania Board of Probation and Parole, 20 A.3d
596, 599 (Pa. Cmwlth. 2011).
Further, this Court has held that time spent in good standing prior to
recommitment for technical parole violations is not shielded from forfeiture where
the parolee is subsequently recommitted as a convicted parole violator. Id. “Upon
recommitment as a convicted parole violator, in addition to losing all time spent at
liberty during the current parole, a parolee will also forfeit all credit received for
time spent in good standing while on parole prior to his previous recommitment as
a technical parole violator.” Id.
Here, McHenry was recommitted due to his criminal conviction of
DUI. As a convicted parole violator, he was not entitled to any credit for his street
time, including the time he spent on parole prior to his previous recommitment as a
6
technical parole violator. Accordingly the Board, in recalculating McHenry’s
maximum sentence date, forfeited his street time from June 28, 2011, when he was
first paroled, through December 5, 2014, when he was detained on the Board’s
warrant. The Board credited McHenry for the time he served on the Board’s
warrant, from December 5, 2014, when he was detained, to July 22, 2015, the date
of his conviction of DUI. Gaito v. Pennsylvania Board of Probation and Parole,
412 A.2d 568, 571 (Pa. 1980) (holding that if parolee is arrested on new criminal
charges, posts bail and is detained solely on Board’s warrant until disposition of
new criminal charges, he is entitled to backtime credit for time served under
Board’s warrant). Accordingly, we conclude that the Board did not err in
recalculating McHenry’s maximum sentence date.
In sum, Counsel has fulfilled the technical requirements for
withdrawing his representation, and our independent review of the record before
the Board reveals that McHenry’s issue on appeal is without merit. Accordingly,
we grant Counsel’s application for leave to withdraw and affirm the Board’s
decision.
_____________________________________
MARY HANNAH LEAVITT, President Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jeremy James McHenry, :
Petitioner :
:
v. : No. 531 C.D. 2016
:
Pennsylvania Board of Probation :
and Parole, :
Respondent :
ORDER
AND NOW, this 14th day of February, 2017, the order of the
Pennsylvania Board of Probation and Parole in the above-captioned matter, dated
March 14, 2016, is AFFIRMED, and the application for leave to withdraw as
counsel filed by Kent D. Watkins, Esquire, is GRANTED.
_____________________________________
MARY HANNAH LEAVITT, President Judge