C. Mickens v. PA BPP ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Clinton Mickens, :
: No. 1671 C.D. 2015
Petitioner : Submitted: April 8, 2016
:
v. :
:
Pennsylvania Board of :
Probation and Parole, :
:
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE FRIEDMAN FILED: August 23, 2016
Clinton Mickens petitions for review of the July 1, 2015, decision of the
Pennsylvania Board of Probation and Parole (Board) dismissing Mickens’ request for
administrative review and affirming the Board’s recommitment decision mailed April
27, 2015. Appointed counsel, Marc T. Valentine, Esquire (Counsel), has filed an
application for leave to withdraw as counsel, asserting that Mickens’ petition for
review is meritless. We grant Counsel’s application and affirm the Board’s decision.
On August 3, 2010, the Court of Common Pleas of Cambria County
sentenced Mickens to 1 year, 6 months, 3 days’ to 4 years, 6 months’ incarceration
for various crimes. (C.R. at 1-4.) On October 3, 2011, the Board paroled Mickens to
his parents’ home in Johnstown, Pennsylvania. (Id. at 6-9.)
On August 13, 2013, Altoona Police arrested Mickens in Blair County
for selling drugs to a confidential informant (CI)1 on June 25, 2012, March 18, 2013,
and August 13, 2013. (Id. at 14-15, 20-21, 25, 33, 39.) Ultimately, on October 2,
2014, Mickens pled guilty to the new criminal charges in Cambria County and was
sentenced on January 27, 2015. (Id. at 50.)
In a decision mailed on April 27, 2015, the Board recommitted Mickens
as a convicted parole violator (CPV) to a state correctional institution (SCI) to serve
24 months, when available, pending the sentencing on his Blair County charges and
his return to a SCI. (Id. at 109.) On May 7, 2015, Mickens filed an administrative
appeal of the Board’s recommitment decision. (Id. at 111.) Mickens asserted that his
parole agent was aware of his June 25, 2012, and March 18, 2013, criminal activities
when they took place and, therefore, the parole agent should have immediately taken
him into custody and detained him as a parole violator. (Id. at 113.) Instead,
Mickens remained free and engaged in further criminal activity on August 13, 2013.
(Id.) Thus, Mickens contended that the parole agent engaged in sentencing
entrapment, which is a violation of state law. (Id.)
On July 1, 2015, the Board dismissed Mickens’ appeal “for failure to
present adequate factual and legal points for consideration” and affirmed its
recommitment decision. (Id. at 116-17.) The Board stated that Mickens’ “appeal
does not indicate that the Board made any specific evidentiary, procedural, or
calculation errors in revoking your parole.” (Id. at 116.) Mickens petitioned this
1
The CI works for the Cambria County Drug Task Force and was working with the Altoona
Police in Blair County. Mickens was charged in both Cambria and Blair Counties.
2
court for review.2 Thereafter, Counsel filed an application for leave to withdraw and
a no-merit letter, contending that Mickens’ appeal is meritless.
When court-appointed counsel concludes that a petitioner’s appeal is
meritless, counsel may be permitted to withdraw if counsel: (1) notifies the petitioner
of the request to withdraw; (2) furnishes the petitioner with a copy of an Anders3 brief
or a no-merit letter satisfying the requirements of Turner;4 and (3) advises the
petitioner of his right to retain new counsel or submit a brief on his own behalf.
Encarnacion v. Pennsylvania Board of Probation and Parole, 990 A.2d 123, 125 (Pa.
Cmwlth. 2010). A no-merit letter must set forth: (1) the nature and extent of
counsel’s review of the case; (2) the issues the petitioner wishes to raise on appeal;
and (3) counsel’s analysis as to why the appeal has no merit. Id. at 126. Once these
requirements are met, this court will independently review the petitioner’s appeal to
determine whether it is meritless. Id.
Here, Counsel mailed Mickens a letter informing Mickens of Counsel’s
request to withdraw. Counsel included a no-merit letter, which detailed the nature
and extent of Counsel’s review of Mickens’ case, set forth the issues raised, and
explained why Counsel concluded that Mickens’ appeal is meritless. The no-merit
letter also advised Mickens of his right to retain substitute counsel or file a pro se
2
Our review is limited to determining whether constitutional rights were violated, whether
an error of law was committed, or whether the findings of fact are supported by substantial
evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
3
Anders v. California, 386 U.S. 738 (1967).
4
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).
3
brief. Because Counsel has satisfied the technical requirements of Turner, this court
will now independently review the merits of Mickens’ appeal.
Mickens argues that the Board’s decision should be reversed because his
parole officer knew of his criminal activity on June 25, 2012, and March 18, 2013,
but did not have him detained until after his arrest on August 13, 2013, thus
committing sentencing entrapment. We disagree.
Sentencing entrapment occurs when “a defendant,
although predisposed to commit a minor or lesser offense, is
entrapped in committing a greater offense subject to greater
punishment.” To succeed on a claim of sentencing
entrapment, the defendant must show either “outrageous
government conduct” or “extraordinary government
misconduct.” This consists of conduct “so grossly shocking
and so outrageous that it violates the universal sense of
justice.” This standard puts a heavy burden on the
defendant, as sentencing entrapment is not established
“simply by showing that the idea originated with the
government or that the conduct was encouraged by it . . . or
that the crime was prolonged beyond the first criminal act
. . . or exceeded in degree or kind what the defendant had
done before.”
Commonwealth v. Kittrell, 19 A.3d 532, 539 (Pa. Super. 2011) (citations omitted).
Sentencing entrapment is a defense to criminal charges, as “it provides a convicted
defendant the opportunity for a reduced sentence” and “can be used to exclude one of
several criminal transactions included in a sentencing scheme.” Commonwealth v.
Petzold, 701 A.2d 1363, 1365 (Pa. Super. 1997).
4
A Board recommitment order, however, is not a criminal charge or
sentence, but an administrative action. Martin v. Pennsylvania Board of Probation
and Parole, 840 A.2d 299, 303 (Pa. 2003).
The distinction between sentences imposed by the
judiciary upon convicted criminal defendants and backtime
compelled by the Board upon parole violators is significant.
A sentence can be defined as the judgment formally
pronounced by the court upon a defendant who has been
convicted in a new criminal prosecution and which imposes
the term of punishment to be served. By way of
comparison, backtime is “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,” and before the parolee begins to serve the new
sentence. Therefore, service of backtime relates to the
original sentence from which an offender is paroled and is
unrelated to any sentence required for a conviction on other
criminal charges.
Id. (emphasis added) (citations omitted).
Because the alleged sentencing entrapment relates to Mickens’ new
criminal charges, it is unrelated to the Board’s decision to recommit Mickens as a
CPV. The Board did not err or abuse its discretion.
Accordingly, we grant Counsel’s application for leave to withdraw as
counsel and affirm the Board’s decision.
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Clinton Mickens, :
: No. 1671 C.D. 2015
Petitioner :
:
v. :
:
Pennsylvania Board of :
Probation and Parole, :
:
Respondent :
ORDER
AND NOW, this 23rd day of August, 2016, we hereby grant the
application for leave to withdraw as counsel filed by Marc T. Valentine, Esquire, and
affirm the July 1, 2015, decision of the Pennsylvania Board of Probation and Parole.
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge