J. Patton v. PBPP ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Julian Patton, :
Petitioner :
:
v. : No. 175 C.D. 2020
: Submitted: September 11, 2020
Pennsylvania Board of :
Probation and Parole, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CROMPTON FILED: November 20, 2020
Julian Patton, an inmate confined at the State Correctional Institution
(SCI) at Mercer, petitions for review of an adjudication of the Pennsylvania Board
of Probation and Parole (Board),1 recommitting him to serve 24 months’ backtime
as a convicted parole violator (CPV) and recalculating his maximum sentence date
to April 21, 2022. His counsel, Robert H. Hartley, Jr., Esquire (Counsel),2 has filed
an application to withdraw appearance (application to withdraw), along with a no-
1
Subsequent to the filing of the petition for review, the Pennsylvania Board of Probation
and Parole was 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).
2
Counsel is an assistant public defender in Mercer County.
merit letter,3 because the petition for review was untimely filed. For the following
reasons, we grant Counsel’s application to withdraw and dismiss the petition for
review.
In 2013, Patton pleaded guilty to the charge of burglary in the Court of
Common Pleas of Allegheny County. He was sentenced to serve two years, three
months to six years in an SCI. At that time, his maximum sentence date was
September 17, 2019.
Patton was paroled on April 24, 2016. He remained on parole until
February 2, 2017, when he was arrested by the Pittsburgh Police Department for
receipt of stolen property, possession of a firearm without a license, and possession
of a firearm by a convicted felon. The Board lodged a warrant to commit and detain
Patton on February 3, 2017. Certified Record (C.R.) at 11. At that time, Patton
waived his rights to counsel, a detention hearing, and a panel hearing. C.R. at 17-
18. On March 21, 2017, the Board ordered Patton to be detained pending disposition
of the new criminal charges. C.R. at 23.
On April 11, 2017, Patton was indicted on federal charges for
possession of a firearm and ammunition by a convicted felon. C.R. at 31. The state
charges were dismissed at the magisterial level, and, on May 25, 2017, Patton was
transferred from the Allegheny County Jail to a federal detention facility by the
United States Marshals Service. Id.
On August 27, 2018, Patton pleaded guilty to the federal firearm charge
in the United States District Court for the Western District of Pennsylvania and was
3
The “no merit” standard for withdrawing is applied in situations where, as here, the right
to counsel is statutorily based. Zerby v. Shanon, 964 A.2d 956, 960 (Pa. Cmwlth. 2009). The
“wholly frivolous” standard, a slightly higher standard, is applied where the right to counsel is
constitutional. Id.2
sentenced to 30 months’ confinement followed by 3 years of supervised release.4 He
remained in federal custody until November 27, 2018, at which point he was
transferred to SCI-Greene. C.R. at 51.
On September 13, 2018, prior to his return to state custody, the Board
received verification of the federal conviction. C.R. at 42. On September 24, 2018,
Patton signed a Waiver of Panel Hearing and a Waiver of Revocation Hearing and
Counsel/Admission Form, waiving his right to a panel hearing and a revocation
hearing and his right to counsel and admitting that he violated his parole by
possessing a firearm and ammunition as a convicted felon. C.R. at 35-37. The Board
accepted Patton’s waivers and indicated in the Hearing Report that Patton would not
receive credit for time he spent at liberty on parole by checking “No” next to “Credit
time spent at liberty on parole.” C.R. at 43.
By decision mailed November 6, 2018, the Board recommitted Patton
to an SCI as a CPV to serve 24 months’ backtime. C.R. at 48-49. Patton owed 1,241
days on his unexpired original sentence. C.R. at 52. The Board mailed a second
decision on December 5, 2018, referring to its prior decision of November 6, 2018,
explaining it did not grant Patton credit for time spent at liberty on parole because
his “conviction involved possession of a weapon,” and recalculating Patton’s
maximum date as April 21, 2022. C.R. at 54-55.
Patton, pro se, filed for administrative review of the Board’s December
5, 2018 decision. He claimed the presumptive range for a firearm violation was 12
to 18 months. He also claimed he “received an [sic] [n]on-monetary bond and [did
not] understand how [his] last 22 months in jail [was] not credited to [his] parole
4
Patton was convicted of possession of a firearm and ammunition by a person “who has
been convicted in any court of, a crime punishable by imprisonment for a term exceeding one
year[.]” 18 U.S.C. § 922(g)(1).
3
violation.” C.R. at 56. By decision mailed October 11, 2019, the Acting Board
Secretary denied relief. C.R. at 58. The Board explained that the presumptive range
for the offense of possession of a firearm and ammunition by a convicted felon is 18
to 24 months. 37 Pa. Code § 75.2.5 Therefore, because the backtime imposed was
within the presumptive range under the Board’s Regulation, it cannot be challenged
now on appeal. The Board did not address Patton’s claim that his federal time should
be credited toward his state sentence.
On February 14, 2020,6 Patton filed a pro se petition for review with
this Court. His petition did not question the presumptive range for his firearm charge
or that his 22 months in federal custody should be credited toward his state sentence.
Instead, Patton claimed to be “entitled to a total of 112 days and 88 days presentence
credit for two periods of incarceration solely on the [Board’s] warrants on
02/02/2017 until 05/26/2017 when [he] was arraigned by federal authorities and
08/31/2018 until 11/27/2018 when [he] was returned to [state custody].” Petition
for Review ¶ 3.
On March 10, 2020, this Court appointed the Public Defender of Mercer
County to represent Patton and Counsel thereafter entered his appearance. Counsel
5
Patton was convicted of violating 18 U.S.C. § 922(g)(1), for possessing a firearm and
ammunition as a convicted felon. C.R. at 24. Section 6105(c)(9) of the Pennsylvania Uniform
Firearms Act of 1995 (Firearms Act), 18 Pa. C.S. § 6105(c)(9), lists a conviction under 18 U.S.C.
§ 922(g)(1) as a violation of the Firearms Act. Thus, Section 75.2 of the Board’s Regulations
provides that the presumptive range for “[v]iolation of any Provision of the [Firearms Act]” is 18
to 24 months. See 37 Pa. Code § 75.2.
6
Patton’s petition for review was received by this Court on February 19, 2020, but deemed
filed on February 14, 2020. Pursuant to the “prisoner mailbox rule,” pro se legal filings by
prisoners are deemed filed on the date “given to prison officials or put in the prison mailbox.”
Kittrell v. Watson, 88 A.3d 1091, 1096 (Pa. Cmwlth. 2014); see also Pa.R.A.P. 121(a).
4
subsequently filed the application to withdraw from representation of Patton, along
with his no-merit letter, claiming that the petition for review is time barred.
When evaluating an application to withdraw from representation of a
parolee who challenges a revocation decision, we must determine whether counsel
has satisfied the following requirements of: (1) notifying the inmate of the
application to withdraw; (2) providing the inmate with a copy of a no-merit letter in
accordance with Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); and (3)
advising the inmate of his right to retain new counsel or file a brief on his own behalf.
Miskovitch v. Pa. Bd. of Prob. & Parole, 77 A.3d 66, 69 (Pa. Cmwlth. 2013). The
no-merit letter must detail the extent of counsel’s review and explain why the
inmate’s claim is meritless. Zerby v. Shanon, 964 A.2d 956, 961 (Pa. Cmwlth.
2009). If counsel has fully complied with the technical requirements for withdrawal,
the Court will independently review the merits of the inmate’s claims.
Here, the record reflects that Counsel has notified Patton of the
application to withdraw; has provided him with a copy of the no-merit letter that
details Counsel’s review of the issues and the reasons why Counsel concluded those
issues are meritless; and has advised Patton of his right to retain new counsel or raise
any new points he might deem worthy of consideration.7 Accordingly, we conclude
that Counsel has satisfied the technical requirements for withdrawal.
Turning to our review of the merits, Counsel asserts in his no-merit
letter that the issues raised by Patton are frivolous because the petition for review
was untimely filed. Counsel notes that the period for filing a petition for review to
this Court from an order of the Board is 30 days. Pa.R.A.P. 1512(a)(1) (“A petition
for review of a quasijudicial order . . . shall be filed with the prothonotary of the
7
Patton has not retained new counsel or filed a brief on his own behalf.
5
appellate court within 30 days after the entry of the order.”). The failure to file a
timely appeal deprives this Court of jurisdiction to consider the merits of the case.
Hillanbrand v. Pa. Bd. of Prob. & Parole, 508 A.2d 375, 378 (Pa. Cmwlth. 1986).
This Court has recognized that the untimeliness of a petition for review filed by a
pro se inmate that lacks any explanation for the delay is a valid basis for appointed
counsel to seek withdrawal of his appearance. Murph v. Pa. Bd. of Prob. & Parole,
641 A.2d 1275, 1276-77 (Pa. Cmwlth. 1994) (concluding this Court lacked
jurisdiction to consider untimely petition for review filed by pro se inmate).
Counsel states that pursuant to Robinson v. Pennsylvania Board of
Probation and Parole, 582 A.2d 857 (Pa. 1990), he must raise and address the
untimeliness of a pro se petition for review or risk sanctions. In Robinson, a pro se
inmate filed a petition for review to this Court, approximately nine months after the
appeal period expired. This Court appointed a public defender to represent the
inmate, who filed a brief addressing the merits of the petition for review, but did not
mention the untimely filing of the appeal. The Board petitioned for dismissal,
arguing that the petition for review was untimely. We agreed the petition was
untimely, and therefore, frivolous, and ordered the public defender to pay costs and
attorney’s fees for filing a frivolous appeal.
Before the Supreme Court, the public defender argued that this Court
appointed him after the filing of the untimely appeal. As such, he assumed he was
expected to address the merits of the case. The Supreme Court disagreed, stating
that “[t]o employ a strat[a]gem of focusing on the merits of a claim and ignoring a
clearly apparent jurisdictional defect is a frivolous strategy which rendered the
appeal frivolous.” Id. at 860. Thus, the Supreme Court affirmed this Court’s
imposition of sanctions.
6
Here, administrative relief was denied on October 11, 2019, and Patton
filed his petition for review on February 14, 2020. Patton gave no reason for the
nearly 4-month delay in filing his petition for review, which is well beyond the 30-
day appeal period. Pa.R.A.P. 1512(a)(1). As such, Counsel was obligated, pursuant
to Robinson, to address the issue. Moreover, upon receipt of Counsel’s no-merit
letter, explaining Patton’s claim was untimely, Patton had an opportunity to address
the delay in filing, but declined to respond. Accordingly, this Court lacks
jurisdiction to consider Patton’s untimely petition for review. Hillanbrand, 508
A.2d at 378.
For the above reasons, we grant Counsel leave to withdraw and dismiss
the petition for review as untimely.
______________________________
J. ANDREW CROMPTON, Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Julian Patton, :
Petitioner :
:
v. : No. 175 C.D. 2020
:
Pennsylvania Board of :
Probation and Parole, :
Respondent :
ORDER
AND NOW, this 20th day of November 2020, the Application to
Withdraw Appearance filed by Robert H. Hartley, Jr., Esquire is GRANTED, and
Julian Patton’s petition for review of the Pennsylvania Board of Probation and
Parole’s Order of October 11, 2019, is DISMISSED as untimely.
______________________________
J. ANDREW CROMPTON, Judge