Z. Shields v. PBPP ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Zachary Shields, :
Petitioner :
:
v. : No. 792 C.D. 2019
: Submitted: February 7, 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: March 12, 2020
Zachary Shields (Shields) petitions for review of a May 21, 2019 Order of the
Pennsylvania Board of Probation and Parole1 (Board) that affirmed the Board’s
action mailed March 14, 2018, recommitting Shields as a convicted parole violator
(CPV), ordering him to serve his unexpired term of 1 year, 11 months, 29 days, and
denying him credit for time spent at liberty on parole, also known as street time.
Shields is represented by Jessica A. Fiscus, Esquire (Counsel), of the Erie County
Public Defender’s Office. Counsel has filed a Petition for Leave to Withdraw as
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 (Application to Withdraw) and a no merit letter, which are based on her
conclusion that the Petition for Review is without merit. For the following reasons,
we grant Counsel’s Application to Withdraw and affirm the Board’s Order.
Shields was serving a sentence of one to three years of incarceration for
violating his probation on felony drug charges, with a maximum sentence date of
October 20, 2018, when he was paroled by the Board on June 13, 2016. (Sentence
Status Summary, Certified Record (C.R.) at 1; Order to Release on Parole/Reparole,
C.R. at 7.) Shields was released from custody on October 20, 2016. (C.R. at 7.) On
January 22, 2017, the Philadelphia Police Department arrested Shields for
aggravated assault and related charges following a fight. (Arrest Report, C.R. at 13.)
These charges were withdrawn after the alleged victim refused to cooperate.
(Supervision History, C.R. at 30.) On January 24, 2017, a parole agent picked
Shields up at an unapproved residence, returned him to his approved residence, and
directed him to report to the Northwest Office on January 26, 2017. (Id.) Shields
reported as directed and tested positive for benzodiazepines. (Id.) He was issued a
Parole Violation Warning. (Id. at 15.) Shields also executed new Special Conditions
of Parole, directing him to avoid certain areas and to observe a curfew at his
approved residence. (Id. at 16, 30.) After missing a scheduled visit, Shields was
placed on electronic monitoring. (Id. at 17-19, 30.) Shields again missed a
scheduled visit, and a review of his electronic monitoring revealed he was in areas
from which he was prohibited. (Id. at 30.)
On April 29, 2017, a parole agent visited Shields at his approved residence
and asked to inspect his room, at which time the parole agent observed a loaded
handgun in an open drawer of a dresser. (Id.) The parole agent contacted the
Philadelphia Police Department, which arrested Shields. (Arrest Report, C.R. at 20.)
2
That same day, the Board issued a Warrant to Commit and Detain. (Id. at 25.) The
following day, the Philadelphia Police Department charged Shields with various
violations of the Uniform Firearms Act, 18 Pa.C.S. § 6101-6128,2 and bail was set,
which Shields did not post. (Id. at 22, 72.) On November 2, 2017, Shields was
convicted of possession of a firearm prohibited and possession of a firearm with
manufacturer number altered, and his sentencing was deferred pending a presentence
investigation. (Id. at 42.)
On December 5, 2017, Shields received a Notice of Charges and Hearing, was
advised of his rights, and waived a panel hearing. (Id. at 42-44.) A revocation
hearing was held before an examiner on December 12, 2017, at which Shields was
represented by a public defender. (Hearing Report, C.R. at 50.) A parole agent
presented certified copies of a conviction, without objection, and Shields
acknowledged the new conviction. (Hearing Transcript, C.R. at 66-67.) At the
hearing, then counsel for Shields argued that Shields had no other convictions, was
not using the handgun that was found in a violent manner, was working full time
before the arrest, and was going to school. (Id. at 67-68.) The hearing examiner
recommended recommitting Shields as a CPV to serve his unexpired term and
denying Shields credit for time spent at liberty on parole. (Hearing Report, C.R. at
52-53.) The hearing examiner based his recommendation to deny Shields time credit
on his “poor adjustment under supervision despite parole staff’s efforts” and the
latest arrest was his second arrest in a six-month period. (Id. at 57.) On January 8,
2018, Shields was sentenced to four to eight years of incarceration on each firearm
2
Specifically, Shields was charged with violating: Section 6105 related to persons not to
possess, use, manufacture, control, sell or transfer firearms, 18 Pa.C.S. § 6105; Section 6106
related to firearms not to be carried without a license, 18 Pa.C.S. § 6106; and Section 6108 related
to carrying firearms on public streets or public property in Philadelphia, 18 Pa.C.S. § 6108.
3
charge to be served concurrently. (Id. at 73-74.) That same day, a second panel
member signed the Hearing Report. (Id. at 57.)
By action mailed on March 14, 2018, the Board recommitted Shields as a CPV
to serve his unexpired term of 1 year, 11 months, 29 days based on his firearm
convictions. (Notice of Board Decision, C.R. at 81-82.) The Board indicated it did
not award Shields credit for time spent at liberty on parole because of his “poor
adjustment under supervision” and “2 arrests in 6 months under street supervision.”
(Id. at 82.) Using January 8, 2018, as the custody for return date, and after crediting
Shields for the one day he was detained solely on the Board’s detainer, the Board
recalculated the new maximum date as January 7, 2020, based upon the 729 days of
backtime owed.3 (Order to Recommit, C.R. at 88.)
On April 10, 2018, and April 11, 2018,4 the Board received administrative
remedies forms that Shields filed pro se, wherein he alleged the new maximum date
violated the separation of powers doctrine by “interfer[ing] with the finality of court
orders” and that the Board was without authority to extend his judicially imposed
maximum date. (C.R. at 93-94, 97-98.) In his petitions for administrative review,
which accompanied his administrative remedies forms, Shields also alleged that his
3
Pursuant to Taylor v. Pennsylvania Board of Probation and Parole, 746 A.2d 671, 674
(Pa. Cmwlth. 2000), “the expiration of a parolee’s maximum term renders an appeal of a Board
revocation order moot.” However, as in McClinton v. Pennsylvania Board of Probation and
Parole (Pa. Cmwlth., No. 1287 C.D. 2018, filed May 29, 2019), slip op. at 3 n.6, Shields is still
serving a sentence on the new firearm charges and the issues raised in the present matter affect his
new maximum date on those charges, so this matter is not rendered moot. McClinton is an
unreported memorandum opinion of the Court, which may be cited for its persuasive value
pursuant to Rule 126(b)(1) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 126(b)(1),
and Section 414(a) of the Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a).
4
Shields also filed pro se administrative remedies forms on November 27, 2017, and
February 8, 2018, (C.R. at 39, 83), and submitted correspondence to the Board on March 14, 2018,
(id. at 90), which the Board deemed premature since it had yet to issue a decision on whether to
revoke his parole, (Order, C.R. at 118).
4
street time should not have been taken because he did not commit a crime of violence
and one of the arrests was “thrown out.” (Id. at 93, 97.) The Board also received
correspondence from Shields on: June 20, 2018; July 27, 2018; December 28, 2018;
January 23, 2019; January 28, 2019; February 21, 2019; and April 10, 2019, wherein
Shields inquired as to the status of his administrative review forms and questioned
whether he received credit for all time to which he was entitled and the recalculation
of his maximum date. (Id. at 100-12.)
The Board responded to the administrative appeal on May 21, 2019. As for
the claim that the Board lacked authority to recalculate his maximum date, the Board
stated it was statutorily authorized to recommit Shields as a CPV and recalculate his
maximum sentence when it denied him credit for time spent at liberty on parole,
something he was aware it could do. (Board Order.) The Board next explained how
it recalculated the maximum date. The Board concluded that it acted within its
discretion when it denied Shields credit from time spent at liberty on parole. (Id.)
On June 20, 2019, Shields, with the assistance of Counsel, filed his Petition
for Review with this Court. Therein, Shields raised three bases for finding the Board
erred: (1) by “refus[ing] to award credit for time at liberty on parole when the reason
offered was either legally insufficient and/or unsupported by the evidence of
record”; (2) by establishing an incorrect custody for return date, which affected
recalculation of his maximum date; and (3) in recalculating his maximum date to
exceed the judicially imposed maximum date. (Petition for Review ¶¶ 6-8.) In
addition, Shields incorporated into his Petition for Review any issues he raised in
his requests for administrative relief. (Id. ¶ 9.)
After a briefing order was issued, Counsel filed the Application to Withdraw
on the ground that the Petition for Review lacks merit. In support of Counsel’s
5
Application to Withdraw, she also filed a letter dated September 16, 2019 (Turner5
letter), which Counsel sent to Shields and the Board, along with the Application to
Withdraw, detailing her review of the certified record, correspondence from Shields,
and relevant case law. After summarizing the relevant facts, Counsel addressed the
three issues raised by Shields in the Petition for Review.6 First, Counsel
acknowledged that the Board had to provide reasons for its denial of time credit since
the firearm offenses were not considered violent crimes. Counsel then explained
that the Board offered two reasons, poor supervision history and two arrests within
six months, both of which Counsel found were supported by the record. Counsel
detailed the failed drug tests, missed scheduled visits, warning to maintain his
approved residence, violation of area restrictions, and imposition of additional parole
conditions and electronic monitoring, as well as his two arrests, although only one
resulted in conviction. (Turner Letter at 5.) “Given this supervision history as a
whole,” Counsel concluded, “it is difficult to suggest that [the Board] acted
arbitrarily or did not have sufficient reason to deny credit for [the] entire six[-]month
period that [Shields] remained at liberty on parole.” (Id.) On the second issue,
Counsel explained the Board properly determined January 8, 2018, as the custody
for return date because that is the date the second panel member signed the hearing
examiner’s recommendation to recommit Shields as a CPV. (Id. at 6.) Counsel then
explained how the Board arrived at the new maximum date of January 7, 2020. (Id.)
Third and finally, Counsel noted that the Supreme Court has rejected any claim that
5
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).
6
Although the Petition for Review incorporated any other issues raised in the
administrative remedies forms, a review of those forms reveals no issues that were unaddressed.
To the extent Shields argued separation of powers or other constitutional claims, those are
encompassed by the broader issue: whether the Board had authority to extend the judicially
imposed sentence.
6
the Board’s denial of credit for street time constitutes an unconstitutional extension
of a judicially imposed maximum sentence or a violation of separation of powers
principles. (Id. at 6-7 (citing Young v. Pa. Bd. of Prob. & Parole, 409 A.2d 853 (Pa.
1979)).)
Having concluded that the Petition for Review lacked merit, Counsel
informed Shields that he had the right to hire another attorney or file a brief on his
own behalf and provided him with a copy of the Certified Record. (Application to
Withdraw ¶¶ 3-4.) Counsel also served Shields with a September 18, 2019 order of
this Court informing Shields that he could obtain substitute counsel at his own
expense or file a brief on his own behalf. Shields has elected to file a brief on his
own behalf. The Board also filed a brief on the merits of the issues raised in the
Petition for Review.
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 by 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).
7
Here, Counsel has complied with the procedural requirements of Turner. As
we have set forth, Counsel has explained the nature and extent of her review of the
record, addressed the issues Shields raised in his Petition for Review, and provided
a thorough analysis of those issues and Counsel’s reasons for concluding that they
lack merit. Counsel served copies of both the Application to Withdraw and Turner
letter on Shields and the Board and provided Shields with a copy of the Certified
Record. In Counsel’s Turner letter and again pursuant to our September 18, 2019
order, Counsel informed Shields that he could retain substitute counsel or file a brief
on his own behalf. Thus, Counsel has satisfied the procedural requirements of
Turner.
We must now conduct our own review to determine whether, as Counsel has
concluded, the Petition for Review is, in fact, without merit.7 Hughes, 977 A.2d at
25.
1. Whether the Board erred in denying Shields credit for time spent
at liberty on parole when the proffered reasons were either legally
insufficient or unsupported by substantial evidence.
In his Petition for Review Shields first asserts that the Board erred by not
giving him credit for the approximately six months he spent at liberty on parole.
Shields did not address this issue in the brief he filed with the Court, except to say
that he should have received credit for such time because he was not convicted of
any of the enumerated offenses mandating that street time be taken and that he was
working and going to school before his arrest. (Shields’s Brief (Br.) at 13-14.) The
Board responds that it was within its discretion to deny credit for the time Shields
7
We review the action of the Board for “whether the decision was supported by substantial
evidence, whether an error of law occurred or whether constitutional rights were violated.” Brown
v. Pa. Bd. of Prob. & Parole, 184 A.3d 1021, 1023 n.5 (Pa. Cmwlth. 2017) (quoting Ramos v. Pa.
Bd. of Prob. & Parole, 954 A.2d 107, 109 n.1 (Pa. Cmwlth. 2008)).
8
spent at liberty on parole, it provided reasons for doing so, and those reasons are
supported by the record.
Section 6138(a)(2.1)(i) of the Prisons and Parole Code (Parole Code)
provides:
The board may, in its discretion, award credit to a parolee recommitted
under paragraph (2) for the time spent at liberty on parole, unless any
of the following apply:
(i) The crime committed during the period of parole or while
delinquent on parole is a crime of violence as defined in 42
Pa.[]C.S. § 9714(g) (relating to sentences for second and
subsequent offenses) or a crime requiring registration under 42
Pa.[]C.S. Ch. 97 Subch. H (relating to registration of sexual
offenders).
61 Pa.C.S. § 6138(a)(2.1)(i). We agree with Shields that the offenses for which he
was ultimately convicted were not crimes of violence.
However, it is well settled that by the plain statutory language, which states
“[t]he board may, in its discretion, award credit . . . for the time spent at liberty on
parole . . . ,” the General Assembly granted the Board broad discretion in parole
matters. Id. (emphasis added); see also Commonwealth v. Vladyka, 229 A.2d 920,
922 (Pa. 1967). To properly exercise that discretion, “the Board must articulate the
basis for its decision” and “simply checking ‘No’ on a standard hearing form” is not
enough. Pittman v. Pa. Bd. of Prob. & Parole, 159 A.3d 466, 474 (Pa. 2017).
However, the Board’s articulation of its basis “need not be extensive” and a single
sentence usually will suffice. Plummer v. Pa. Bd. of Prob. & Parole, 216 A.3d 1207,
1211 (Pa. Cmwlth. 2019).
Here, the Board complied with its statutory duty of providing a brief statement
of the reasons for its action. It expressly stated that it was exercising its discretion
9
and was not awarding Shields with credit for the time he spent at liberty on parole
“because of [his] poor adjustment under supervision and [because he] had two arrests
within [six] months of supervision.” (Order at 2.) Just three months after he was
released, Shields was arrested for his alleged role in an aggravated assault. Although
Shields ultimately was not convicted in connection to this incident, the arrest set
forth a chain of events over the next three months that support the Board’s
conclusion that Shields did not adjust well. Just days after the arrest, he was issued
a parole violation warning and instructed to stay out of certain areas and to observe
a curfew at his approved residence. He was picked up at an unapproved residence
and tested positive for drugs. Shields missed not one but two scheduled visits with
his parole agent. Despite repeated instruction to avoid certain areas, Shields did not
comply and ultimately was placed on electronic monitoring, which still revealed he
was not remaining at his approved residence and was venturing to the restricted
areas. (See Supervision History, C.R. at 30-31, 47-48.) In short, we cannot conclude
that the Board erred when it denied him credit for time spent at liberty on parole
given his arrests and the numerous other instances of noncompliance with the terms
and conditions of his parole in such a short period of time, as set forth in the record.
Accordingly, the first issue raised by Shields lacks merit.
2. Whether the Board erred in establishing the custody for return
date, thereby affecting the recalculation of his maximum sentence.
Having concluded that the Board did not err in denying Shields street time
credit, we must now examine whether the Board erred in calculating the maximum
date by using January 8, 2018, as his custody for return date. Although he lists this
as an issue in his Petition for Review and in the Statement of Questions Involved in
his brief, Shields does not otherwise address why the custody for return date is
10
incorrect. The Board does not respond to this argument. Following an independent
review of the record, we conclude the Board did not err.
In Wilson v. Pennsylvania Board of Probation and Parole, 124 A.3d 767, 770
n.6 (Pa. Cmwlth. 2015), we explained that until a second Board member signs a
hearing examiner’s recommendation, the Board cannot officially revoke someone’s
parole. Therefore, the date the second Board member’s signature is acquired is the
date from which the new maximum date is calculated. Id.
Here, the second Board member signed the Hearing Examiner’s
Recommendation on January 8, 2018, thereby establishing a custody for return date.
(C.R. at 57.) At the time of his release on parole on October 20, 2016, the maximum
date for Shields was October 20, 2018. This left 730 days remaining on his sentence.
The Board credited Shields one day for the period of time he was incarcerated solely
on the Board’s detainer,8 which is consistent with the Supreme Court’s decision in
Gaito v. Pennsylvania Board of Probation and Parole, 412 A.2d 568, 571 (Pa.
1980).9 This left Shields with 729 days remaining on his sentence. As discussed
above, the Board advised Shields that it was exercising its discretion not to award
8
On April 29, 2017, the Board issued its detainer for Shields. (C.R. at 25.) The following
day, he was charged with the firearm offenses and bail was set, which he did not post. (Id. at 72.)
9
In Gaito, the Supreme Court held that if the parolee has met bail on the new charges, but
remains in custody solely on the Board’s detainer, then the time the parolee spends in custody
“shall be credited against [the] original sentence.” 412 A.2d at 571. 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. Similarly, when a parolee “[i]s detained under both the Board’s warrant and
the new criminal charges, this time is properly allocated to his new criminal sentence.” Hammonds
v. Pa. Bd. of Prob. & Parole, 143 A.3d 994, 999 (Pa. Cmwlth. 2016). Only if “it is not possible
to award all of the credit on the new sentence because the period of pre-sentence incarceration
exceeds the maximum term of the new sentence” may the excess time be applied to the parolee’s
original sentence. Armbruster v. Pa. Bd. of Prob. & Parole, 919 A.2d 348, 355 (Pa. Cmwlth.
2007) (emphasis omitted).
11
him with credit for the time he spent at liberty on parole. When 729 days is added
to the custody for return date of January 8, 2018, the new maximum sentence date is
January 7, 2020, as calculated by the Board. Having found the Board used a proper
return date and properly calculated his maximum date, the second issue raised by
Shields is also without merit.
3. Whether the Board improperly extended the judicially imposed
maximum date in violation of the separation of powers doctrine.
This brings us to the final issue raised by Shields: whether the Board
improperly extended his judicially imposed maximum date. Shields argues the
Board could not infringe on the judiciary’s sentencing power in violation of the
separation of powers doctrine. He also appears to argue that the act commonly
referred to as the Parole Act,10 which was repealed by the Parole Code, is
unconstitutional to the extent it attempts to give the Board power to do so. Shields
argues that because the Board took his street time, which was just 6 months, he is
now being required to serve 1 year, 11 months, 29 days. Shields also argues that
because the Board extended his maximum date without the benefit of a hearing, his
due process rights were violated.
The Board responds that it did not extend his original sentence or alter his
original judicially imposed sentence. It explains that the maximum sentence
originally imposed by the trial court simply means Shields could not be confined for
more than that amount of time. Here, the Board asserts, the maximum amount of
10
Shields references Section 21 of the Parole Act, but it appears he means Section 21.1 of
the Parole Act, Act of August 6, 1941, P.L. 861, as amended, added by Section 5 of the Act of
August 24, 1951, P.L. 1401, formerly 61 P.S. § 331.21a, repealed by Section 11(b) of the Act of
August 11, 2009, P.L. 149, No. 33, effective October 13, 2009. Section 21.1 is similar to Section
6138 of the Parole Code, which replaced the Parole Act.
12
time Shields will be confined on the original charges did not change; rather, the date
upon which his original sentence will expire changed.
We agree with the Board. As the Court recently explained in Hughes v.
Pennsylvania Board of Probation and Parole, 179 A.3d 117, 121 (Pa. Cmwlth.
2018), “the Board did not impose an additional sentence on [Shields], but, rather,
directed [Shields] to complete the original judicially-mandated sentence.” In
Hughes, we explained:
Section 6138(a)(1) [of the Parole] Code provides that any parolee who,
during the period of parole, commits a crime punishable by
imprisonment and is convicted or found guilty of that crime may be
recommitted as a convicted parole violator. 61 Pa.[]C.S. § 6138(a)(1).
If the parolee is recommitted as a CPV, he must serve the remainder of
the term that he would have been compelled to serve had parole not
been granted (i.e., “backtime”), with no time for liberty on parole,
unless the Board, in the exercise of its sole discretion, chooses to award
credit. Section 6138(a)(2), (2.1) of the [Parole] Code, 61 Pa. C.S.
§ 6138(a)(2), (2.1).
Id. at 120. Because the Board only recommitted Shields to complete his judicially
mandated sentence, it did not improperly extend that sentence, as he contends.
Therefore, this argument likewise lacks merit.
Based upon the foregoing, we grant Counsel’s Application to Withdraw and
affirm the Board’s Order.
_____________________________________
RENÉE COHN JUBELIRER, Judge
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Zachary Shields, :
Petitioner :
:
v. : No. 792 C.D. 2019
:
Pennsylvania Board of Probation :
and Parole, :
Respondent :
ORDER
NOW, March 12, 2020, the Petition for Leave to Withdraw as Counsel filed
by Jessica A. Fiscus, Esquire, is GRANTED, and the Order of the Pennsylvania
Board of Probation and Parole, entered in the above-captioned matter, is
AFFIRMED.
_____________________________________
RENÉE COHN JUBELIRER, Judge