D. Saunders v. PPB ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dajaun Saunders, :
Petitioner :
:
v. : No. 248 C.D. 2021
: Submitted: February 18, 2022
Pennsylvania Parole Board, :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE DUMAS FILED: April 13, 2022
Dajaun Saunders (Saunders) petitions for review of the Pennsylvania
Parole Board’s (Board) March 24, 2021 decision denying his request for
administrative relief. Sarah B. Stigerwalt-Egan, Esq. (Counsel), Saunders’ court-
appointed counsel, has filed an application to withdraw on the basis that the appeal
lacks merit. We deny Counsel’s application without prejudice and order Counsel to
file a new application to withdraw and an amended no-merit letter, or an advocate’s
brief, within 30 days.
An extensive background discussion is unnecessary for disposition.
Briefly, Saunders pleaded guilty to possession with intent to deliver a controlled
substance and criminal use of a communication facility. On December 8, 2017, the
Court of Common Pleas of Lackawanna County (trial court) sentenced Saunders to
two to four years of imprisonment followed by one year of probation, resulting in a
maximum sentence date of July 19, 2021. On November 28, 2018, Saunders was
released to boot camp on parole and assigned to a halfway house. On December 13,
2018, Saunders fled from the halfway house and was also involved in a domestic
incident. On December 14, 2018, the Board declared Saunders delinquent.
The police eventually arrested Saunders on April 11, 2019 and charged
him with various offenses stemming from the domestic incident. On May 1, 2019,
the Board recommitted Saunders as a technical parole violator and calculated
Saunders’ new maximum sentence date as November 15, 2021.1
As a result of the domestic incident, Saunders pleaded guilty to simple
assault. On January 7, 2020, the trial court sentenced Saunders to one to two years
of imprisonment. On February 24, 2020, the Board recommitted Saunders as a
convicted parole violator to serve 15 months of backtime, with a new maximum
sentence date of August 28, 2022.
On March 14, 2020, Saunders timely filed for administrative relief with
the Board, and the Board denied relief in a decision that was mailed on March 24,
2021. Meanwhile, on March 5, 2021, Saunders pro se filed a petition for review
with this Court, in part challenging the Board’s calculation of his new maximum
sentence date. On April 1, 2021, Saunders filed an application to proceed in forma
pauperis. Upon review, we granted Saunders’ application, appointed Counsel, and
ordered that his petition for review “be treated as a petition for review” from the
Board’s March 24, 2021 decision. Order, 4/9/21. Cf. Johnston the Florist, Inc. v.
TEDCO Constr. Corp., 657 A.2d 511, 514-15 (Pa. Super. 1995) (en banc) (holding
that the Court may entertain an appeal in which an appellant prematurely filed a
notice of appeal before the trial court entered judgment).
1
Contrary to Counsel’s brief, see Counsel’s Br. at 10, Saunders waived the violation
hearing. See Violation/Detention Report, 4/24/19, at 1.
2
On October 14, 2021, Counsel filed an application to withdraw as
counsel under Anders v. California, 386 U.S. 738 (1967). Counsel averred that she
furnished a copy of the brief to Saunders and advised him of the right to retain new
counsel or raise any additional points he deems worthy.
Counsel’s brief raises three issues. First, Saunders argues that the
Board incorrectly revoked his credit for time spent at liberty on parole. Second,
Saunders asserts that because the Board ordered him to serve an additional 15
months in prison, he is serving 2 sentences for the same offense, which violates his
right against double jeopardy. Finally, Saunders claims the Board illegally extended
his maximum sentence from two years to three to four years of imprisonment.
Saunders did not file a pro se brief or a counseled brief with new counsel.
As a preliminary matter, we address Counsel’s petition to withdraw
under Anders and whether Counsel complied with its requirements.
In Hughes v. Pennsylvania Board of Probation and Parole, 977 A.2d
19 (Pa. Cmwlth. 2009), this Court held that “where there is a constitutional right to
counsel, counsel seeking to withdraw from representation of a petitioner in an appeal
of a determination of the Board should file an Anders brief.” Hughes, 977 A.2d at
25. An Anders brief is required only when a petitioner appeals from a decision
revoking parole. Id. at 26. In all other cases, counsel must file a no-merit letter. Id.In Hughes, the petitioner asserted that the Board held an untimely parole revocation
hearing and failed to recalculate his maximum sentence date correctly. Id. The
Hughes Court therefore reasoned that the petitioner’s counsel only had to file a
Turner/Finley2 or no-merit letter. Id.2
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988) (en banc).
3
Here, because Saunders raises issues related only to the recalculation
of his maximum sentence date, he has no constitutional right to counsel. See id.Therefore, Counsel was only required to file a no-merit letter. See id. Counsel,
however, filed an Anders brief, but we decline to deny Counsel’s application to
withdraw on that basis alone. See id. at 26 n.4 (stating, “we will not deny an
application to withdraw simply because an attorney has filed an Anders brief where
a no-merit letter would suffice”); Seilhamer v. Pa. Bd. of Probation & Parole, 996
A.2d 40, 42-43 (Pa. Cmwlth. 2010) (noting Court may accept an Anders brief when
a Turner/Finley letter would suffice).
We next address whether Counsel has complied with the requirements
for seeking leave to withdraw under Turner/Finley. A Turner/Finley letter must
detail “the nature and extent of counsel’s diligent review of the case, listing the issues
which the petitioner wants to have reviewed, explaining why and how those issues
lack merit, and requesting permission to withdraw.” Zerby v. Shanon, 964 A.2d 956,
960 (Pa. Cmwlth. 2009) (citation omitted and emphasis added). Further, counsel
must “also send to the petitioner: (1) a copy of the ‘no-merit’ letter/brief; (2) a copy
of counsel’s petition to withdraw; and (3) a statement advising petitioner of the right
to proceed pro se or by new counsel.” Id. (citation omitted). In Zerby, the counsel’s
no-merit letter failed to “include substantial reasons for concluding that” the
petitioner’s claims were meritless. Id. at 962 (cleaned up). Because the counsel’s
letter did not comply with Turner/Finley, the Zerby Court denied counsel’s petition
to withdraw without prejudice and directed counsel to file (1) a new application to
withdraw and no-merit letter, or (2) an advocate’s brief.
Instantly, Counsel’s brief claims that the Board incorrectly revoked
Saunders’ time spent at liberty on parole prior to being classified as a technical
4
parole violator. Counsel’s Br. at 13. Counsel’s brief also reasons that because
Saunders served time in prison as a technical parole violator, the Board erred by
revoking that time. Id. at 14-15. Counsel, however, did not explain why and how
these arguments lack merit. Identical to the Zerby Court, we similarly deny
Counsel’s petition to withdraw without prejudice, and direct Counsel to file, within
30 days, (1) a renewed application to withdraw and an amended no-merit letter, or
(2) an advocate’s brief.3 See Zerby, 964 A.2d at 960.
LORI A. DUMAS, Judge
3
Counsel’s arguments for the first issue also do not comply with the requirements of
Anders, because under Anders, Counsel was required to state her “reasons for concluding that the
appeal is frivolous.” Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). We acknowledge
that Counsel’s brief arguably complied with the requirements of Turner/Finley for the remaining
two issues.
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Dajaun Saunders, :
Petitioner :
:
v. : No. 248 C.D. 2021
:
Pennsylvania Parole Board, :
Respondent :
ORDER
AND NOW, this 13th day of April, 2022, the Application to Withdraw
as Counsel filed by Sarah B. Stigerwalt-Egan, Esq., is denied without prejudice.
Attorney Stigerwalt-Egan has thirty days from the date of this Order to either file (1)
a new application to withdraw and an amended no-merit letter, or (2) an advocate’s
brief on the merits of one or more issues raised in Petitioner’s Petition for Review.
LORI A. DUMAS, Judge