S.D. Williams v. PPB ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Samuel Dywayne Williams, :
Petitioner :
:
v. : No. 903 C.D. 2020
: Submitted: March 18, 2022
Pennsylvania Parole Board, :
Respondent :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE LEAVITT FILED: July 14, 2022
Samuel Dywayne Williams petitions for review of an adjudication of the
Pennsylvania Parole Board (Parole Board) denying his administrative appeal.
Williams’ appointed counsel has filed an application to withdraw as counsel, along
with a no-merit letter. For the following reasons, we grant Counsel’s application to
withdraw and affirm the Parole Board’s decision.
Williams was serving a sentence of incarceration of 8 years, 6 months
to 17 years for 6 counts of the manufacture, sale, delivery, or possession with intent
to deliver a controlled substance; criminal conspiracy to commit the manufacture,
sale, delivery, or possession with intent to deliver a controlled substance; and
possessing an instrument of crime. Certified Record at 1 (C.R. __). His maximum
sentence date was November 17, 2019.
On November 20, 2015, Williams was paroled to the Capitol Pavilion
Community Corrections Facility but was discharged for assaultive behavior. On
December 28, 2015, the Parole Board recommitted Williams as a technical parole
violator to serve six months for multiple technical parole violations. Thereafter, on
May 19, 2016, the Parole Board granted him conditional reparole, and his maximum
sentence date was recalculated as May 15, 2020.
On June 13, 2017, Williams was arrested by the Harrisburg Police
Department for the manufacture, delivery, or possession with intent to deliver a
controlled substance by a person not registered (two counts); the use of, or
possession with intent to use, drug paraphernalia (two counts); and possession of a
small amount of marijuana (one count). On June 20, 2017, Williams was formally
charged under Section 13(a)(30), (31)(i), and (32) of The Controlled Substance,
Drug, Device and Cosmetic Act (Drug Act).1 Bail was set at $25,000, which
Williams did not post and, thus, he remained incarcerated on the new criminal
charges.
On June 20, 2017, the Parole Board issued a notice of charges and
hearing to Williams, charging him with violating the technical conditions of his
parole and new criminal charges. The notice stated that a preliminary and detention
hearing would be held on June 27, 2017. Williams waived his rights to counsel and
a hearing, and he admitted to violating his parole by failing to report and leaving the
district without permission. By decision mailed July 27, 2017, the Parole Board
determined to detain Williams pending disposition of the new criminal charges and
recommitted him as a technical parole violator to serve nine months’ backtime. The
decision noted that Williams would be reparoled automatically without further
action of the Parole Board on or after December 13, 2017, but no later than March
13, 2018, pending resolution of his outstanding criminal charges. The decision
1
Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §780-113(a)(30), (31)(i), (32).
2
further stated that Williams’ maximum sentence date remained May 15, 2020, but
that the date was subject to change should he be convicted of the new criminal
charges.
On January 4, 2018, Williams’ bail was modified to unsecured, and he
was released from Dauphin County Prison to a State Correctional Institution (SCI),
where he remained detained on the Parole Board’s warrant pending resolution of the
criminal charges. On September 24, 2018, Williams pled guilty to two counts of the
manufacture, delivery, or possession with intent to manufacture or deliver a
controlled substance by a person not registered, under Section 13(a)(30) of the Drug
Act, 35 P.S. §780-113(a)(30), and the remaining charges were withdrawn. Williams
was sentenced to two to four years of confinement in an SCI and granted credit on
his new sentence for the 216 days that he was detained as a result of not posting bail,
i.e., June 3, 2017,2 to January 4, 2018.
The Parole Board notified Williams that a revocation hearing would be
held due to his new conviction, and Williams requested a panel hearing. A panel
hearing was held on November 1, 2018, at which the criminal docket and September
24, 2018, sentencing sheets were entered into evidence, and Williams admitted to
the new convictions.
On November 9, 2018, the Parole Board modified its July 27, 2017,
decision, deleting the automatic reparole provision and recommitting Williams as a
convicted parole violator to serve 24 months’ backtime concurrently with the 9
months’ backtime he was ordered to serve as a technical parole violator. The Parole
2
The June 3, 2017, date appears to be a typographical error, as Williams was not arrested until
June 13, 2017. C.R. 64, 83.
3
Board, in its discretion, awarded Williams credit for the time he spent at liberty on
parole and recalculated Williams’ maximum sentence date as December 5, 2020.3
On November 30, 2018, Williams, pro se, filed an administrative appeal,
alleging that he had already served the nine months’ backtime as a technical parole
violator in accordance with the Parole Board’s July 27, 2017, decision.4
Accordingly, the Parole Board improperly extended his maximum sentence date by
not crediting those 9 months towards the 24 months’ backtime he was ordered to
serve as a convicted parole violator. Williams asserted that the Parole Board placed
him in double jeopardy and violated his right to due process by extending his
maximum sentence date. He also claimed that he was entitled to credit for the period
of March 13, 2018, through November 7, 2018, because he had been in the Parole
Board’s sole custody since January 4, 2018.
On August 10, 2020, the Parole Board denied Williams’ appeal. It
explained that in recalculating his maximum sentence date, it had the discretion not
to award credit for any time spent at liberty on parole. See Section 6138(a)(2) of the
Prisons and Parole Code (Parole Code), 61 Pa. C.S. §6138(a)(2).5 The Parole Board
then explained its recalculation of his maximum sentence date. When Williams was
paroled on May 19, 2016, his maximum sentence date was May 15, 2020, which left
3
Although this maximum sentence date has passed, this matter is not rendered moot. If the Court
were to grant Williams’ appeal, time served on his original maximum sentence would be applied
to his new sentence.
4
Williams filed additional correspondence with the Parole Board on April 25, 2019, November
26, 2019, December 17, 2019, January 27, 2020, and June 9, 2020.
5
At the time of Williams’ recommitment, Section 6138(a)(2) stated:
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), shall
be given no credit for the time at liberty on parole.
Act of July 5, 2012, P.L. 1050, 61 Pa. C.S. §6138(a)(2).
4
1,457 days remaining on his original sentence. The Parole Board, in its discretion,
awarded Williams credit for 390 days for the time he spent at liberty on parole from
May 19, 2016 (parole date), to June 13, 2017 (Parole Board warrant date).
Subtracting 390 days from 1,457 days resulted in a total of 1,067 days left on
Williams’ original sentence when he was detained on the new criminal charges. The
Parole Board awarded Williams credit for 264 days, from June 13, 2017, to June 14,
2017 (arrest on new charges), and from January 4, 2018 (date bail posted on new
charges), to September 24, 2018 (date of guilty plea and sentencing on new charges),
because Williams was held solely on the Parole Board’s warrant during those
periods. The Parole Board did not award Williams any credit towards his original
sentence for the period of June 14, 2017, to January 4, 2018, when he was held both
on the new criminal charges and on the Parole Board’s detainer. That time was
credited towards his new sentence.
The Parole Board explained that a convicted parole violator released
from an SCI who receives a new sentence to be served in an SCI must serve the
original sentence first. See Section 6138(a)(5) of the Parole Code, 61 Pa. C.S.
§6138(a)(5).6 Because Williams was previously recommitted as a technical parole
6
At the time of Williams’ recommitment, Section 6138(a)(5) stated:
If a new sentence is imposed on the parolee, the service of the balance of the term
originally imposed by a Pennsylvania court shall precede the commencement of the
new term imposed in the following cases:
(i) If a person is paroled from a State correctional institution and the
new sentence imposed on the person is to be served in the State
correctional institution.
(ii) If a person is paroled from a county prison and the new sentence
imposed upon him is to be served in the same county prison.
(iii) In all other cases, the service of the new term for the latter crime
shall precede commencement of the balance of the term originally
imposed.
5
violator, he became available to serve his original sentence on September 24, 2018,
when the trial court sentenced him. Adding 803 days7 (1,067 days minus 264 days)
to that date yielded a maximum sentence date of December 5, 2020. The Parole
Board did not directly address Williams’ double jeopardy argument.
On September 9, 2020, Williams, pro se, filed a petition for review in
this Court. Again, he claims that the Parole Board placed him in double jeopardy by
extending his maximum sentence date and by not crediting the 9 months’ backtime
he served as a technical parole violator towards the 24 months’ backtime he was
ordered to serve as a convicted parole violator. Thus, the Parole Board erred in its
recalculation of his maximum sentence date on those bases. Because Williams filed
his petition pro se, the Court appointed the Public Defender of Schuylkill County to
represent him in this appeal. On November 30, 2021, Williams’ counsel filed an
application to withdraw as counsel and a no-merit letter asserting that Williams’
appeal lacks merit.8, 9
In Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), our Supreme
Court set forth the technical requirements appointed counsel must meet in order to
Act of October 27, 2010, P.L. 931, 61 Pa. C.S. §6138(a)(5) (emphasis added).
7
The Parole Board incorrectly stated that it added 1,067 days to the September 24, 2018,
availability date to get the December 5, 2020, recalculated maximum sentence date. C.R. 143. As
shown on the Parole Board’s Order to Recommit, adding 803 days to September 24, 2018, yields
the December 5, 2020, recalculated maximum sentence date. Id. at 118. This error does not affect
our disposition of this matter.
8
Counsel’s prior application to withdraw as counsel was denied for failure to address each issue
raised in Williams’ appeal of the Parole Board’s decision. See Williams v. Pennsylvania Parole
Board (Pa. Cmwlth., No. 903 C.D. 2020, filed October 28, 2021).
9
Williams did not retain new counsel but did submit a brief on his own behalf after his counsel’s
original application to withdraw as counsel was filed. The Parole Board also filed a responsive
brief.
6
withdraw from representation of a parolee. This Court summarized the requirements
as follows:
[C]ounsel seeking to withdraw from representation of a
petitioner seeking review of a determination of the
[Parole] Board must provide a “no-merit” letter[,] which
details “the nature and extent of [Counsel’s] review and
list[s] each issue the petitioner wished to have raised, with
[appointed] [C]ounsel’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). Counsel must also send the parolee a copy of the “no-merit” letter that
satisfies the Turner requirements, furnish him with a copy of counsel’s petition to
withdraw, and inform the parolee of his right to retain new counsel or submit a brief
on his own behalf. Reavis v. Pennsylvania Board of Probation and Parole, 909 A.2d
28, 33 (Pa. Cmwlth. 2006). If counsel has satisfied the foregoing requirements, we
will independently review the merits of the case. Zerby, 964 A.2d at 960.
We conclude that counsel’s no-merit letter satisfies the Turner
requirements because it addresses each issue raised in Williams’ appeal. The record
establishes that counsel sent Williams copies of his no-merit letter and application
to withdraw, and advised Williams of his right to retain new counsel or proceed with
his appeal pro se. Because the Turner requirements have been met, we address the
merits of Williams’ underlying claims.
First, Williams argues that the Parole Board erred by not giving him
credit for the time he was incarcerated from June 14, 2017, when bail was set on the
new criminal charges, to January 4, 2018, when bail was reduced to unsecured. In
Gaito v. Pennsylvania Board of Probation and Parole, 412 A.2d 568, 571 (Pa.
1980), the Supreme Court held that if the parolee has met bail on new charges, but
remains in custody solely on the Board’s detainer, then the time the parolee spends
7
in custody “shall be credited against [the] original sentence.” On the other hand, if
the parolee “remains incarcerated prior to trial because [the parolee] has failed to
satisfy bail requirements on the new criminal charges, then the time spent in custody
shall be credited to [the] new sentence.” Id. In this case, Williams was detained on
new criminal charges on June 14, 2017, and did not post bail. On January 4, 2018,
Williams’ bail was reduced to unsecured, and he posted bail and was released to the
Parole Board’s detainer. Thus, credit for the time Williams spent incarcerated
between June 14, 2017, and January 4, 2018, is time credited only to his new
sentence. The Parole Board did not err in its credit determination for this period,
and Williams’ first argument lacks merit.
Second, Williams argues that he already served his 9 months’ backtime
as a technical parole violator from June 13, 2017, to March 13, 2018, which should
have been credited towards the 24 months of backtime he was ordered to serve as a
convicted parole violator. We disagree. The Parole Board revoked Williams’ parole
on July 27, 2017, when it recommitted him as a technical parole violator; however,
Williams was not available to begin serving his nine months of backtime at that time
because he was detained in county prison on new criminal charges. He did not post
bail on the new charges until January 4, 2018, after which Williams remained
confined in an SCI on the Parole Board’s warrant pending disposition of his new
criminal charges. Accordingly, he did not become available to serve any of his
backtime until September 24, 2018, when he pled guilty and was sentenced on his
new charges. To the extent Williams argues he is entitled to 9 months’ credit
towards his 24 months of backtime, such that he should essentially only have to serve
15 months of backtime total, we note that the Parole Board ordered him to serve both
periods of backtime concurrently, i.e., at the same time. Because he did not serve
8
any of the 9 months of backtime, he is not entitled to credit for that time against the
24 months of backtime. Moreover, as the Parole Board explained, it credited
Williams’ original sentence for 264 days from June 13, 2017, to June 14, 2017 (arrest
on new charges), and from January 4, 2018 (date bail posted on new charges), to
September 24, 2018 (date of guilty plea and sentencing on new charges), because
Williams was held solely on the Parole Board’s warrant during those periods. See
Gaito, 412 A.2d at 571. Therefore, this issue lacks merit.
Third, Williams argues that the Parole Board placed him in double
jeopardy by requiring him to serve his technical parole violation backtime twice and
extending his maximum sentence date. This argument presumes Williams served
nine months’ backtime as a technical parole violator, but this is not accurate.
Although the Parole Board recommitted Williams as a technical parole violator to
serve nine months’ backtime, he did not become available to begin serving his
backtime until after he was convicted and sentenced on the new criminal charges.
Additionally, “double jeopardy is not implicated when a parole violator is returned
to prison to serve his original sentence.” Adams v. Pennsylvania Board of Probation
and Parole (Pa. Cmwlth., No. 796 C.D. 2015, filed April 22, 2016) (unreported),10
slip op. at 5. “[P]arole revocation proceedings before the [Parole B]oard are
administrative in nature rather than criminal. Thus, the constitutional protections
against double jeopardy do not apply.” Epps v. Pennsylvania Board of Probation
and Parole, 565 A.2d 214, 217 (Pa. Cmwlth. 1989). Consequently, we reject
Williams’ double jeopardy argument.
10
An unreported panel decision of this Court, “issued after January 15, 2008,” may be cited “for
its persuasive value[.]” Section 414(a) of the Commonwealth Court’s Internal Operating
Procedures, 210 Pa. Code §69.414(a).
9
Finally, to the extent Williams asserts he is entitled to credit for the
period of September 24, 2018, through November 7, 2018, we note that pursuant to
Campbell v. Pennsylvania Board of Probation and Parole, 409 A.2d 980, 981 (Pa.
Cmwlth. 1980), credit for time a convicted parole violator spends in custody between
imposition of a new sentence and revocation of parole must be applied to the new
sentence. Williams therefore was not entitled to any credit on his original sentence
for that period.
For these reasons, we conclude Williams’ counsel has fulfilled the no-
merit letter requirements set forth in Turner, and our independent review of the
record confirms Williams’ issues lack merit. Accordingly, we grant the application
to withdraw as counsel in this matter and affirm the Parole Board’s adjudication.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Samuel Dywayne Williams, :
Petitioner :
:
v. : No. 903 C.D. 2020
:
Pennsylvania Parole Board, :
Respondent :
ORDER
AND NOW, this 14th day of July, 2022, the Application to Withdraw as
Counsel filed by Kent D. Watkins, Esquire, is GRANTED, and the adjudication of
the Pennsylvania Parole Board, dated August 10, 2020, in the above-captioned
matter is AFFIRMED.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita