A. Fisher v. PBPP ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Anthony Fisher, :
Petitioner :
:
v. : No. 585 C.D. 2019
: Submitted: February 14, 2020
Pennsylvania Board of Probation :
and Parole, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: April 8, 2020
Anthony Fisher petitions for review of the April 9, 2019 Order of the
Pennsylvania Board of Probation and Parole1 (Board) that denied Fisher’s Petition
for Administrative Review to the extent it challenged the recalculation of Fisher’s
parole violation maximum date from April 3, 2027, to August 9, 2030, due to
Fisher’s recommitment as a convicted parole violator (CPV), but granted Fisher an
additional day of confinement credit thereby reducing Fisher’s parole violation
maximum date to August 8, 2030. Fisher is represented by Jessica A. Fiscus, Esquire
1
Subsequent to the filing of the Petition for Review, the Pennsylvania Board of Probation
and Parole has been renamed the Pennsylvania Parole Board. See Sections 15, 16, and 16.1 of the
Act of December 18, 2019, P.L. 776, No. 115 (effective February 18, 2020); see also Sections
6101 and 6111(a) of the Prisons and Parole Code, as amended, 61 Pa.C.S. §§ 6101, 6111(a).
(Counsel), of the Erie County Public Defender’s Office. Counsel has filed an
Application to Withdraw Appearance (Application to Withdraw) and a No-Merit
Letter, which are based on her conclusion that Fisher’s Petition for Review, filed on
May 13, 2019, is without merit because the issues raised therein cannot be reviewed
due to its untimely filing with this Court. Fisher filed a response to the Application
to Withdraw, in which he asserts his Petition for Review is not from the Board’s
April 9, 2019 Order, but the Notice of Board Decision issued on April 12, 2019,
which makes the Petition for Review timely. For the following reasons, we grant
Counsel’s Application to Withdraw and dismiss Fisher’s Petition for Review as
untimely.
On February 15, 2013, the Board paroled Fisher from his original sentence,2
which had a maximum date of April 3, 2027, and he was released on April 15, 2013.
The Philadelphia Police Department arrested Fisher on January 10, 2014, on new
drug charges. The Board issued a Warrant to Commit and Detain Fisher on January
11, 2014. (Certified Record (C.R.) at 13.) Fisher did not post bail on the new
charges, but, on February 4, 2014, his bail was reduced, and he was released on his
own recognizance. The charges were nolle prossed on October 30, 2014. On March
30, 2015, Fisher was again arrested on new drug charges, and the Board issued a
Warrant to Commit and Detain Fisher on March 31, 2015. Fisher did not post bail
on these new criminal charges. However, these charges, too, were nolle prossed on
April 8, 2016. In each instance, the Board ordered Fisher to be detained pending the
disposition of the new criminal charges.
2
Fisher was found guilty on multiple drug charges and was sentenced to 6 years to 20 years
of incarceration, with 2 additional sentences of 6 years to 20 years of incarceration to run
concurrently with the first. (Sentence Status Summary, Certified Record (C.R.) at 1-2.)
2
Fisher was arrested by the Philadelphia Police Department on April 5, 2017,
on new criminal charges relating to the sale of drugs and possession of a firearm,
and the Board issued a Warrant to Commit and Detain Fisher on the same day.
(Warrant to Commit and Detain, C.R. at 48; Arrest Report, C.R. at 49-50; Criminal
Arrest and Disposition Report, C.R. at 52.) Fisher did not post bail on these new
charges. (C.R. at 87.) Fisher waived a detention hearing on April 25, 2017, and the
Board ordered him detained pending disposition of these new criminal charges.
(Waivers, C.R. at 58; Notice of Board Decision, C.R. at 65.) On January 22, 2018,
Fisher pled guilty to one drug charge, for which he was sentenced to two years, six
months to five years of incarceration followed by four years of probation, and to one
charge of possession of a firearm by someone prohibited from carrying a firearm,
for which he was sentenced to a maximum of four years of county probation. (Order
(Negotiated Guilty Plea), C.R. at 84.) The Board issued a Notice of Charges and
Hearing on his new conviction, and Fisher waived his rights to counsel and a
revocation hearing and admitted that he had been convicted of those charges. (C.R.
at 71, 73.)
The Board issued an Order to Recommit Fisher which reflected that Fisher
received credit for 674 days for his confinement from January 11, 2014, to
November 4, 2014, and from March 31, 2015, to April 11, 2016, related to the
criminal charges that were nolle prossed. (Id. at 97.) It further indicated Fisher
received credit for one day of presentence confinement on the new charges of which
he was convicted while he was confined solely on the Board’s Warrant. (Id.) The
Board did not credit Fisher for the time he spent at liberty on parole, also known as
street time. After these credit determinations, the Board concluded Fisher had 4426
days remaining on his original sentence and, adding that number to June 27, 2018,
3
his return to custody date, resulted in a new parole violation maximum date of
August 9, 2030. (Id.) By Notice of Board Decision mailed on August 8, 2018, the
Board recommitted Fisher as a CPV to serve 24 months of backtime, indicated that
he was not eligible for reparole until June 26, 2020, and explained it did not give
him credit for his street time because his conviction involved the possession of a
weapon. (Id. at 99-100.)
On August 17, 2018, Fisher filed a Petition for Administrative Review
challenging, respectively, his recommitment date and reparole eligibility date. (Id.
at 101, 103.) Fisher contended his custody for return date should be January 24,
2018, the date he was returned to a state correctional institution, (Moves Report,
C.R. at 96), not June 27, 2018, and, based on that new date, his reparole eligibility
should be January 24, 2020, (Administrative Remedies Form, C.R. at 101).3 The
Board responded by Order mailed April 9, 2019, in which it granted Fisher’s Petition
for Administrative Review in part and denied it in part. (C.R. at 121-22.) The Board
granted Fisher an additional day of confinement credit against his original sentence
and stated that “a new decision w[ould] be mailed to [him] reflecting this change.”
(Id. at 121.) Beyond this additional day, the Board held that its recalculation of
Fisher’s parole violation maximum date and reparole eligibility date were accurate
and explained those calculations. In particular, the Board stated that Fisher’s
recommitment as a CPV did not occur until June 27, 2018, when the Board received
the necessary number of votes to recommit him as such, and it is from that date that
3
Prior to receiving a response from the Board, Fisher applied for early review for parole
on March 21, 2019, based on his serving one-half of his backtime if one used the January 2018
recommitment date and the fact that the crime that resulted in his being recommitted as a CPV was
not one of violence. (C.R. at 104-05.) The Board responded by letter dated April 5, 2019,
dismissing Fisher’s request and informing him he could apply for parole after July 27, 2019. (Id.
at 106.)
4
his new parole violation maximum and reparole eligibility dates were calculated.
(Id. at 121-22.)
In accordance with its April 9, 2019 Order, the Board issued a modified Order
to Recommit, reflecting the additional day of confinement credit and changing
Fisher’s parole violation maximum date from August 9, 2030, to August 8, 2030.
(Id. at 119.) It also issued a new Notice of Board Decision, dated April 9, 2019, and
mailed on April 12, 2019, modifying its prior decision, mailed on August 8, 2018,
to reflect the additional day of credit toward Fisher’s original sentence and the
recalculation of his parole violation maximum date to August 8, 2030. (Id. at 123.)
On May 13, 2019, Fisher filed a Petition for Review challenging the April 9,
2019 Order4 on the bases that there is a period of time, between January 17, 2018,
and July 27, 2018, for which he did not receive credit against any of his sentences
and that the Board cannot extend his judicially imposed maximum sentence beyond
its original date of April 3, 2027. (Petition for Review at 2-4.) This Court appointed
Counsel to represent Fisher. After meeting with Fisher, Counsel filed, on or about
July 3, 2019, an Amended Petition for Review, asserting the Board erred in
recalculating Fisher’s parole violation maximum and reparole eligibility dates and
violated the separation of powers doctrine by imposing a maximum date that
exceeded the one imposed by the sentencing court. (Amended Petition for Review
at 2.) By per curiam order filed July 18, 2019, this Court directed the parties “to
address the timeliness of the [P]etition for [R]eview in their briefs or to file an
appropriate application for relief” due to the fact that it appeared Fisher’s Petition
4
Fisher’s Petition for Review suggests that the Board’s April 9, 2019 Order was in
response to his March 2019 Application for Early Review for Parole; however, the April 9, 2019
Order clearly states it is in response Fisher’s Petition for Administrative Review. (Petition for
Review ¶ 5; April 9, 2019 Order, C.R. at 121-22.)
5
for Review may be untimely. Fisher v. Pa. Bd. of Prob. & Parole (Pa. Cmwlth., No.
585 C.D. 2019, filed July 18, 2019).
On August 12, 2019, Counsel filed her Application to Withdraw averring that,
after reviewing the Certified Record, the case law, and the documents in her file, she
has concluded that Fisher’s appeal is without merit. (Application to Withdraw ¶ 2.)
In the Application, Counsel indicates she notified Fisher of her request to withdraw
and advised him of his right to retain new counsel or represent himself, and
transmitted a copy of the Court’s July 18, 2019 order and the Certified Record to
Fisher. (Id. ¶¶ 3-4; Ex. A to the Application to Withdraw.) Attached as an exhibit
to the Application is Counsel’s letter to Fisher setting forth her review, her
conclusion that his appeal lacks merit, and his right to obtain new counsel or
represent himself, and that she was providing him with a copy of her No-Merit Letter
explaining her conclusion. (Ex. A at 1.) In the No-Merit Letter, Counsel explains
that, after reviewing the relevant facts, Fisher’s filings with this Court, the Court’s
July 18, 2019 order, case law, rules of court, and statutory provisions, “the Petition
for Review was filed in an untimely manner,” “Fisher’s issues cannot be reviewed
due to the untimeliness of the Petition for Review,” and, therefore, “the Petition for
Review lacks merit as the Commonwealth Court lacks jurisdiction to review it.”
(No-Merit Letter at 1, 5.) Counsel notes that Fisher’s explanation was that he did
not receive the Board’s April 9, 2019 Order until April 12, 2019, which is
insufficient because it is the mailing date that is relevant, and that Fisher had not
provided her with information that would entitle him to nunc pro tunc relief. (Id. at
4.)
In an order filed on August 15, 2019, this Court directed Fisher to obtain
substitute counsel or to file a brief on his own behalf, and for Counsel to serve Fisher
6
with that order. Counsel filed a certificate of service reflecting service of the August
15, 2019 Order on Fisher. Fisher has filed an “Opposition to No Merit Letter”
(Opposition), in which he explains why he disagrees with Counsel’s conclusion that
his appeal is untimely, and, therefore, lacks merit. Fisher contends Counsel’s
analysis is erroneous because his Petition for Review is from the Notice of Board
Decision mailed on April 12, 2019, which would make his May 13, 2019 Petition
for Review timely.
Before appointed counsel may withdraw from representation in a case in
which the right to counsel does not derive from the United States Constitution, such
as here, the Turner or no-merit letter must contain: (1) the nature and extent of
counsel’s review; (2) the issues the petitioner wishes to raise; and (3) counsel’s
analysis in concluding that the petitioner’s appeal is without merit. Commonwealth
v. Turner, 544 A.2d 927, 928 (Pa. 1988); Hughes v. Pa. Bd. of Prob. & Parole, 977
A.2d 19, 25 (Pa. Cmwlth. 2009). In addition, counsel must send the petitioner a
copy of the Turner letter, “a copy of counsel’s petition to withdraw,” and a statement
advising the petitioner of his right to proceed with new counsel or pro se. Zerby v.
Shanon, 964 A.2d 956, 960 (Pa. Cmwlth. 2009). Once counsel satisfies the
procedural requirements of Turner, this Court will “conduct its own review of the
merits of the case.” Id. (citation omitted).
Here, we conclude Counsel has complied with the procedural requirements of
Turner. As we have described, Counsel has explained the nature and extent of her
review of the record and has provided a thorough analysis of why she believes
Fisher’s Petition for Review lacks merit due to it being untimely filed. Although
Counsel has not set forth the issues raised in Fisher’s Petition for Review and
explained why those issues lack merit, this Court has recognized the untimeliness of
7
a petition for review as a valid basis for appointed counsel to seek withdrawal of his
or her appearance. See Murph v. Pa. Bd. of Prob. & Parole, 641 A.2d 1275, 1276-
77 (Pa. Cmwlth. 1994) (concluding untimely petition for review rendered appeal
“wholly frivolous”); Hillanbrand v. Pa. Bd. of Prob. & Parole, 508 A.2d 375, 377-
79 (Pa. Cmwlth. 1986) (same).5 Counsel served copies of both the Application to
Withdraw and No-Merit Letter on Fisher and the Board and provided Fisher with a
copy of the Certified Record. In Counsel’s No-Merit Letter and in serving Fisher
with the Court’s August 15, 2019 order, Counsel has informed Fisher that he could
retain substitute counsel or file a brief on his own behalf. Thus, Counsel has satisfied
the procedural requirements of Turner. Accordingly, we must now independently
review Fisher’s Petition for Review to determine if, indeed, Counsel is correct that
it lacks merit on the basis that it was untimely, thereby depriving this Court of
jurisdiction to review the issues raised therein.
Pennsylvania Rule of Appellate Procedure 1512(a)(1), Pa.R.A.P. 1512(a)(1),
provides that “[a] petition for review of a quasijudicial order . . . , shall be filed with
the prothonotary of the appellate court within 30 days after the entry of the order.”
(Emphasis added.) This rule applies to appeals from decisions of the Board. Murph,
641 A.2d at 1277. “The timeliness of an appeal . . . go[es] to the jurisdiction of the
court to hear and decide the appeal.” Hillanbrand, 508 A.2d at 377 (internal
quotation and citation omitted). “[T]he time for taking an appeal cannot be extended
as a matter of grace or indulgence.” J.A. v. Dep’t of Pub. Welfare, 873 A.2d 782,
785 (Pa. Cmwlth. 2005) (internal quotation and citation omitted).
5
The “wholly frivolous” standard, which is applied where the right to counsel is
constitutional, is a slightly higher standard than the “without merit” standard applied in situations
where, as here, the right to counsel is statutorily based. Zerby, 964 A.2d at 960.
8
Fisher’s Petition for Review expressly states that it is challenging the Board’s
April 9, 2019 Order. (Petition for Review ¶ 5.) To be timely, that Petition for
Review had to have been filed by Thursday, May 9, 2019. It was not filed by that
date, but was filed on Monday, May 13, 2019, making it untimely under Rule
1512(a)(1). Murph, 641 A.2d at 1277. Although Fisher contends in his Opposition
that his Petition for Review is challenging the Board’s Notice of Decision mailed on
April 12, 2019, the language of the Petition for Review does not support this
contention. Moreover, as Counsel’s No-Merit Letter points out, the Board’s April
9, 2019 Order “was the decision that denied [Fisher] relief on the claim raised in his
request for administrative relief.” (No-Merit Letter at 4-5.) The April 9, 2019 Order
“was the final order because it was the Board’s definitive response to [Fisher’s]
application for review.” Manuel v. Pa. Bd. of Prob. & Parole, 463 A.2d 1236, 1237-
38 (Pa. Cmwlth. 1983). Appellate jurisdiction over a Board decision does not attach
until the Board issues a final appealable order, which, as here, denies a parolee’s
request for administrative relief, and an appeal is taken therefrom. Bowman v. Pa.
Bd. of Prob. & Parole, 709 A.2d 945, 949 (Pa. Cmwlth. 1998). The April 12, 2019
Notice of Decision simply advised Fisher that the Board was modifying its prior
decision mailed on August 8, 2018, to reflect the correct parole violation maximum
date after the Board concluded, in its April 9, 2019 Order, that Fisher was entitled to
an additional day of confinement credit. Therefore, it was not a final, appealable
order of the Board.
Fisher’s failure to timely file a petition for review challenging the Board’s
April 9, 2019 Order deprives this Court of jurisdiction to address the merits of the
issues raised in the Petition for Review. Counsel “was, therefore, properly
discharging [her] duty to both [her] client and the Court by concluding that the
9
appeal was [without merit] due to untimeliness and seeking the Court’s leave to
withdraw.” Hillanbrand, 508 A.2d at 378-79. Accordingly, Counsel’s Application
to Withdraw is granted, and Fisher’s Petition for Review is dismissed as untimely.
_____________________________________
RENÉE COHN JUBELIRER, Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Anthony Fisher, :
Petitioner :
:
v. : No. 585 C.D. 2019
:
Pennsylvania Board of Probation :
and Parole, :
Respondent :
ORDER
NOW, April 8, 2020, the Application to Withdraw Appearance filed by
Jessica A. Fiscus, Esquire, is GRANTED, and Anthony Fisher’s Petition for Review
of the Pennsylvania Board of Probation and Parole’s April 9, 2019 Order that was
filed on May 13, 2019, is DISMISSED as untimely.
_____________________________________
RENÉE COHN JUBELIRER, Judge