A. Boyd v. PBPP ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Abdul Boyd, :
Petitioner :
:
v. : No. 1791 C.D. 2017
: Submitted: June 15, 2018
Pennsylvania Board of Probation :
and Parole, :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI FILED: July 17, 2018
James L. Best, Esquire (Counsel) has filed this Motion for Leave to
Withdraw as Counsel for Abdul Boyd (Boyd) in his petition for review of the
Pennsylvania Board of Probation and Parole’s (Board) decision involving Boyd’s
recommitment as a convicted parole violator (CPV) and the recalculation of his
parole violation maximum date. Counsel requests permission to withdraw from
further representation because he has determined that the appeal is frivolous. For
the following reasons, we deny Counsel’s motion for leave to withdraw.
I.
Boyd was paroled by the Board on March 13, 2014, from a sentence
with a maximum release date of April 13, 2018. On October 22, 2014, Boyd was
arrested on new federal drug-related charges, and the same day the Board issued a
detainer warrant. Boyd waived his right to counsel and waived a detention hearing
before the Board. On October 23, 2014, Boyd remained in federal custody for
failure to make bail.
On October 15, 2015, Boyd entered a guilty plea to the charge of
conspiracy to commit possession with intent to distribute in the United States
District Court for the Western District of Pennsylvania and was sentenced to serve
37 months in federal custody. On June 30, 2017, he was released by the federal
prison authorities to the Board’s detainer warrant and was given a timely
revocation proceeding.
On July 5, 2017, the Board recommitted Boyd to a state correctional
institution as a CPV to serve 24 months’ backtime and forfeited Boyd’s 1,134 days
of street time. In accordance, his maximum release date was recalculated to
August 7, 2020. Boyd, acting pro se, filed an administrative appeal from the
Board’s decision, arguing that pursuant to 61 Pa.C.S. § 6138(a)(5.1), 1 state parole
1
61 Pa.C.S. § 6138(a)(5.1) provides:
If the parolee is sentenced to serve a new term of total confinement
by a Federal court or by a court of another jurisdiction because of a
verdict or plea under paragraph (1), the parolee shall serve the
balance of the original term before serving the new term.
2
backtime following a recommitment as a CPV must be served prior to the new
federal sentence underlying that commitment, thereby entitling him to 34 months’
credit on his original state sentence for the period served pursuant to the Board’s
detainer and federal charges.
The Board denied Boyd’s administrative appeal, determining there
was no error in requiring Boyd to serve the new federal sentence before the
original state sentence, because the sentencing order is conditional upon federal
authorities returning a prisoner to state custody, which they did not do in this case.
The Board also found that there was no error in determining that Boyd had 1,492
days remaining on his sentence at the time of parole, as he was not entitled to
credit for his 1,134 days spent at liberty on parole since he forfeited that time as a
CPV. However, the Board did find that Boyd was entitled to credit for the 358
days he served on the Board’s detainer between October 22, 2014, to October 15,
2015, before he was sentenced on the new federal charges.
Boyd, acting pro se, then filed a petition for review in this Court
raising the same substantive issues that he raised in his administrative appeal to the
Board, and we assigned Counsel to represent Boyd in his appeal. Counsel now
seeks to withdraw representation, contending that after reviewing the matter, the
appeal is frivolous and there is no basis in law or fact for it. Along with his
motion, Counsel filed a no-merit letter.
3
II.
Before we can reach the merits of Boyd’s petition for review,2 we
must first inquire whether Counsel complied with the technical requirements
governing the withdrawal of counsel appointed to represent a petitioner seeking
review of Board determinations. These requirements differ depending on whether
a petitioner’s right to counsel is constitutional in nature. Appeals that allege that
the Board erred by improperly calculating a petitioner’s maximum release date do
not implicate a constitutional right to counsel. Hughes v. Pennsylvania Board of
Probation and Parole, 977 A.2d 19, 25-26 (Pa. Cmwlth. 2009). If that is the case,
counsel seeking to withdraw only needs to file a “no-merit” letter detailing the
nature and extent of counsel’s review and listing each issue the petitioner wished to
raise, with counsel’s explanation of why he or she believes these issues are
meritless. Zerby v. Shanon, 964 A.2d 956, 961 (Pa. Cmwlth. 2009). In addition,
counsel must provide to the petitioner (1) a copy of the no-merit letter, (2) a copy
of the petition to withdraw, and (3) a statement advising the petitioner of his or her
right to proceed pro se or via new counsel. Id. at 960. If all these requirements
have been met, we will then evaluate the proceedings before the Board to
determine whether the petitioner’s appeal is truly without merit before we will
allow counsel to withdraw. Banks v. Pennsylvania Board of Probation and Parole,
827 A.2d 1245, 1248 (Pa. Cmwlth. 2003). If counsel does not fulfill the
aforementioned technical requirements, we have no choice but to deny the motion
for leave to withdraw. Zerby, 964 A.2d at 960.
2
Our scope of review is limited to determining whether the Board’s adjudication is
supported by substantial evidence, whether an error of law has been committed, or whether
constitutional rights have been violated. Moroz v. Pennsylvania Board of Probation and Parole,
660 A.2d 131, 132 (Pa. Cmwlth. 1995).
4
Counsel states in his motion that he sent Boyd a copy of the no-merit
letter and, by certificate of service, certified that he served a copy of the motion for
leave to withdraw on Boyd. However, Counsel failed to comply with the final
requirement that he notify the petitioner of his right to proceed pro se or with new
counsel. Because Counsel failed to provide this statement, we deny Counsel’s
motion for leave to withdraw and instruct Counsel to refile his motion after having
complied with all appropriate requirements.
_________________________________
DAN PELLEGRINI, Senior Judge
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Abdul Boyd, :
Petitioner :
:
v. : No. 1791 C.D. 2017
:
Pennsylvania Board of Probation :
and Parole, :
Respondent :
ORDER
AND NOW, this 17th day of July, 2018, James L. Best, Esquire’s
(Counsel) motion for leave to withdraw is denied without prejudice. Counsel is
granted thirty (30) days from the date of this Order to file a renewed motion for
leave to withdraw consistent with this opinion.
_________________________________
DAN PELLEGRINI, Senior Judge