R.S. Stephens v. PA BPP ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ronald S. Stephens, :
: No. 1135 C.D. 2015
Petitioner : Submitted: June 3, 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 11, 2016
Ronald S. Stephens petitions for review of the June 2, 2015,
determination of the Pennsylvania Board of Probation and Parole (Board) denying
Stephens’ petition for administrative review of the Board’s recommitment order and
recalculation of Stephens’ parole violation maximum date. Appointed counsel, Harry
J. Cancelmi, Esquire (Counsel), has filed an application for leave to withdraw from
representation on the ground that Stephens’ petition for review lacks merit. We grant
Counsel’s application for leave to withdraw and affirm.
On April 19, 2001, the Court of Common Pleas of Delaware County
sentenced Stephens to 8 to 16 years’ imprisonment. (C.R. at 1.) The Board paroled
Stephens on October 19, 2011, with a maximum parole violation date of October 13,
2019. (Id. at 25.) On December 27, 2013, police arrested Stephens on new criminal
charges, which were filed in the Court of Common Pleas of Montgomery County
(Montgomery County). (Id. at 28, 74.) Stephens did not post bail. (Id. at 74.) On
December 28, 2013, the Board lodged its detainer against Stephens. (Id. at 26.) By
order mailed April 1, 2014, the Board recommitted Stephens as a technical parole
violator to serve six months’ backtime. (Id. at 56-58.)
On September 17, 2014, Montgomery County convicted Stephens of the
new criminal charges. (Id. at 75.) On March 10, 2015, Montgomery County
sentenced him to 4 to 10 years’ imprisonment with 438 days’ credit. (Id. at 75, 82.)
By order mailed May 5, 2015, the Board recommitted Stephens as a convicted parole
violator to serve 36 months’ backtime concurrent with his prior six months’
backtime. (Id. at 95.) The Board recalculated Stephens’ parole violation maximum
date to March 4, 2023. (Id.)
On May 11, 2015, Stephens mailed a petition for administrative review
challenging the Board’s recalculation of his parole violation maximum date. (Id. at
97.) On June 2, 2015, the Board denied Stephens’ petition for administrative review,
and Stephens appealed to this court.1 (Id. at 100-01.) On May 26, 2015, Stephens
mailed an amended petition for administrative review, arguing that the Board lacked
authority to extend his judicially-imposed original sentence. (Id. at 102.) On July 10,
2015, the Board informed Stephens that in accordance with Board regulations, his
1
Our scope of 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.
2
amended petition would not be accepted because it was a second or subsequent
petition for administrative review. (Id. at 104.) On March 21, 2016, Counsel filed an
application for leave to withdraw and an Anders2 brief with this court.
When court-appointed counsel concludes that a petitioner’s appeal is
frivolous, 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 Anders brief
or a no-merit letter; and (3) advises the petitioner of his right to retain new counsel or
proceed pro se. Encarnacion v. Pennsylvania Board of Probation and Parole, 990
A.2d 123, 125 (Pa. Cmwlth. 2010).
In this case, because Stephens does not have a constitutional right to
counsel,3 Counsel was only required to provide Stephens with a no-merit letter rather
than an Anders brief. See Hughes v. Pennsylvania Board of Probation and Parole,
977 A.2d 19, 24-25 (Pa. Cmwlth. 2009) (en banc). Therefore, we will “apply the
standard of whether the petitioner’s claims are without merit, rather than whether
2
Anders v. State of California, 386 U.S. 738 (1967).
3
In a parole revocation matter, a constitutional right to counsel exists when the parolee
raises:
[a] colorable claim (i) that he has not committed the alleged violation of the
conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of
public record or is uncontested, there are substantial reasons which justified or
mitigated the violation and make revocation inappropriate, and that the reasons are
complex or otherwise difficult to develop or present.
Hughes v. Pennsylvania Board of Probation and Parole, 977 A.2d 19, 26 (Pa. Cmwlth. 2009) (en
banc) (citation omitted).
3
they are frivolous.” Id. at 26 n.4. 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 of why the petitioner’s appeal is meritless. Id. at
24-25. If counsel satisfies these requirements, this court will conduct an independent
review of the petitioner’s appeal to determine if the appeal is meritless. Id. at 25.
Here, the record shows that Counsel notified Stephens of his request to
withdraw and provided Stephens with a copy of his Anders brief. Counsel’s Anders
brief shows the nature and extent of his review of the case, sets forth the issues raised,
and provides analysis as to why Counsel concluded that Stephens’ appeal is meritless.
Finally, Counsel advised Stephens of his right to retain new counsel or proceed pro
se. Because Counsel has satisfied these technical requirements, we will now
independently review the merits of Stephens’ appeal.
First, Stephens argues that the Board erred in failing to credit his original
sentence for the 438 days he was incarcerated from December 28, 2013, to March 10,
2015. We disagree. “[W]hen a parolee: (1) is incarcerated on both new criminal
charges and a detainer filed by the Board and (2) does not post bail for the new
criminal charges, the time spent incarcerated shall be credited against the sentence for
his new criminal charges.” Williams v. Pennsylvania Board of Probation and Parole,
68 A.3d 386, 389-90 (Pa. Cmwlth. 2013). Here, Stephens was incarcerated on the
new criminal charges and the Board’s detainer from December 28, 2013, the day after
his arrest, to March 10, 2015, the day he was sentenced. Stephens did not post bail
for the new criminal charges. Therefore, the time Stephens spent incarcerated on
4
both the new criminal charges and the Board’s detainer was properly credited to
Stephens’ new sentence.
Next, Stephens argues that the Board’s recalculation of his parole
violation maximum date to March 4, 2023, is an unconstitutional extension of his
judicially-imposed original sentence. However, Stephens first raised this issue in his
amended petition for administrative review. Pursuant to the Board’s regulation at 37
Pa. Code §73.1(b)(3), the Board will not receive second or subsequent petitions for
administrative review. Therefore, we may not consider this issue on appeal. See
McKenzie v. Pennsylvania Board of Probation and Parole, 963 A.2d 616, 621 (Pa.
Cmwlth. 2009) (“[F]ailure to raise an issue before the Board results in waiver and
precludes this Court from review.”).
Accordingly, because we conclude that Stephens’ appeal is meritless, we
grant Counsel’s application for leave to withdraw and affirm the Board’s
determination.
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ronald S. Stephens, :
: No. 1135 C.D. 2015
Petitioner :
:
v. :
:
Pennsylvania Board of Probation :
and Parole, :
:
Respondent :
ORDER
AND NOW, this 11th day of August, 2016, we hereby grant the
application for leave to withdraw filed by Harry J. Cancelmi, Esquire, and affirm the
June 2, 2015, determination of the Pennsylvania Board of Probation and Parole.
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge