T.N. Powell v. PPB ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Toy N. Powell, :
Petitioner :
:
v. :
:
Pennsylvania Parole Board, : No. 874 C.D. 2022
Respondent : Submitted: May 5, 2023
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: June 30, 2023
Toy N. Powell (Powell) petitions for review from the June 22, 2022
order of the Pennsylvania Parole Board (Board), which denied his challenge to the
Board’s recalculation of his parole violation maximum sentence date (Board Order).
Powell is represented by David Crowley, Esquire (Counsel), of the Centre County
Public Defender’s Office, who asserts that the appeal is without merit and seeks
permission to withdraw as counsel. For the following reasons, we grant Counsel’s
Application to Withdraw Appearance (Application to Withdraw) and affirm the
Board Order.
I. Background
On March 30, 2015, after a county probation revocation, Powell
received a sentence of 6 months and 22 days to 2 years of incarceration, with a
minimum incarceration date of September 3, 2015, and a maximum date of February
12, 2017. See Certified Record (C.R.) at 1. Powell was thereafter paroled on
November 30, 2015, but was declared delinquent effective December 16, 2016, after
committing the offense of Accidents Involving Death or Personal Injury (New
Charge) on December 11, 2016. See C.R. at 11; see also Docket No. CP-06-CR-
0002324-2021 (New Docket) at 2. Powell remained delinquent until his arrest in
California on May 7, 2021. See C.R. at 14.
Powell’s bail was set on the New Charge on June 4, 2021, but Powell
did not post bail and remained detained. See New Docket at 2. On June 30, 2021,
Powell was recommitted as a technical parole violator pending the disposition of the
New Charge. See C.R. at 14. The Notice of Board Decision Powell received at the
time of his recommitment informed him that his parole violation maximum date of
July 4, 2021, was subject to change if he was convicted on the pending New Charge.
See C.R. at 16.
On September 30, 2021, Powell pleaded guilty to the New Charge and
received a sentence of 3 to 6 years of incarceration with credit for 147 days of time
served. See New Docket at 2, 4. As a result, on February 25, 2022, the Board
recommitted Powell as a convicted parole violator, ordered Powell to serve six
months’ backtime, and extended his parole violation maximum sentence date to
November 29, 2022. See C.R. at 20. The Board recalculated Powell’s maximum
date to November 29, 2022, by subtracting the 28 days he was detained solely on the
Board’s warrant following his May 7, 2021 arrest from the 440 days that remained
unserved and outstanding on his original sentence at the time of his parole on
November 30, 2015. See C.R. at 18. On March 3, 2022, the Board mailed the Notice
of Board Decision (March 2022 Board Decision), which explained Powell’s
2
maximum sentence calculation and informed Powell of the 30-day time limitation
during which he would need to avail himself of the Board’s administrative remedies
process to challenge the Board’s decision. See C.R. at 21.1 Powell did not avail
himself of the administrative remedies process regarding the March 2022 Board
Decision.
On May 12, 2022, the Board denied Powell’s request to be reparoled,
directing instead that Powell serve his unexpired maximum sentence through
November 29, 2022. See C.R. at 25. By letter dated June 5, 2022 (June 2022
Letter),2 Powell asserted that he had completed his backtime sentence as of July 4,
2021, and that he had been denied credit (1) for time spent in an inpatient
rehabilitation program in 2016 and (2) for a program he completed while imprisoned
in Berks County in 2018. See C.R. at 27. The Board treated the June 2022 Letter as
1
Specifically, the Notice of Board Decision provided:
This decision involves an issue that is subject to the Board’s
administrative remedies process. See 37 Pa. Code § 73. Failure to
administratively appeal the decision may affect your legal rights. If
you wish to appeal this decision, you must file a request for
administrative relief with the Board within thirty (30) days of the
mailing date of this decision. This request shall set forth specifically
the factual and legal bases for the allegations. You have the right to
an attorney in this appeal and in any subsequent appeal to the
Commonwealth Court. You may be entitled to counsel from the
Public Defender’s Office at no cost. Administrative remedies
form[s] and the names and addresses of all Chief Public Defenders
in the Commonwealth are available upon request from the SCI
parole office. Any request for a public defender should be sent
directly to the Public Defender’s Office in the county where you
currently reside.
C.R. at 21.
2
The postage stamp on the June 2022 Letter indicates that it was mailed on June 9, 2022.
See C.R. at 29. The Board’s timestamp indicates that the Board received Powell’s letter on June
14, 2022. See C.R. at 27.
3
a petition for administrative review of the March 2022 Board Decision, which
petition the Board denied as untimely by letter dated and mailed June 22, 2022 (June
2022 Board Decision). See C.R. at 30.
Powell timely appealed the June 2022 Board Decision to this Court on
July 12, 2022,3 and we appointed the Public Defender of Centre County to represent
Powell herein. See Notice to the Commonwealth Court of Pennsylvania filed July
12, 2022; see also Commonwealth Court Order dated September 20, 2022. On
October 11, 2022, Counsel filed an Amended Petition for Review (Amended
Petition) on Powell’s behalf that alleged that the Board failed to properly adjust
Powell’s original maximum sentence date with all the time credits to which he was
entitled. See Amended Petition at 3. On December 2, 2022, Counsel filed a
Turner/Finley letter4 (Turner/Finley Letter) and the Application to Withdraw with
this Court. The Court then filed an order informing Powell that he could either
obtain substitute counsel at his own expense to file a brief on his behalf or he could
file a pro se brief on his own behalf within 30 days of the service of the order. See
3
Powell originally filed a handwritten document dated July 10, 2022, and entitled “Notice
to the Commonwealth Court of Pennsylvania” with this Court on July 12, 2022. See Notice to the
Commonwealth Court of Pennsylvania filed July 12, 2022. After receiving this Court’s notice
regarding proper pro se appeals, Powell filed an ancillary petition for review and an application
for leave to proceed in forma pauperis on August 12, 2022. See Petition for Review (Appellate
Jurisdiction) filed August 12, 2022. We ascribe the original timely filing date to Powell’s ancillary
petition for timeliness purposes.
4
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550
A.2d 213 (Pa. Super. 1988) (en banc). Counsel files such a letter when seeking to withdraw from
representation of a parole violator because the violator’s case lacks merit, although it may not be
“so anemic as to be deemed wholly frivolous.” Anderson v. Pa. Bd. of Prob. & Parole, 237 A.3d
1203, 1204 n.2 (Pa. Cmwlth. 2020) (quoting Commonwealth v. Wrecks, 931 A.2d 717, 722 (Pa.
Super. 2007)) (internal quotation marks omitted). Such letters go by many names in the
Commonwealth, including “no-merit letter,” “Finley letter,” “Turner letter,” and “Turner/Finley
letter.” See Anderson, 237 A.3d 1204 n.2.
4
Commonwealth Court Order dated December 8, 2022. Powell neither secured
private counsel nor submitted a brief on his own behalf. On May 4, 2023, the Court
entered an order directing that Counsel’s Application to Withdraw and the merits of
Powell’s appeal of the June 2022 Board Decision be submitted on briefs. See
Commonwealth Court Order dated May 4, 2023.
II. Issues
Counsel has identified two issues for this Court’s review:5 first,
whether Powell’s claims were waived for failure to exhaust administrative remedies
of the Notice of Board Decision mailed March 3, 2022, and second, whether the
Board correctly calculated Powell’s maximum sentence date. See Turner/Finley
Letter at 4-8.
III. Application to Withdraw
Before addressing the validity of Powell’s substantive arguments, we
must assess the adequacy of the Turner/Finley Letter. As this Court has explained:
A Turner[/Finley] letter must include an explanation of the
nature and extent of counsel’s review and list each issue
the petitioner wished to have raised, with counsel’s
explanation of why those issues are meritless. As long as
a Turner[/Finley] letter satisfies these basic requirements,
we may then review the soundness of a petitioner’s request
for relief. However, if the letter fails on technical grounds,
we must deny the request for leave to withdraw, without
delving into the substance of the underlying petition for
review, and may direct counsel to file either an amended
request for leave to withdraw or a brief on behalf of their
client.
5
Our review is limited to determining whether constitutional rights were violated, whether
the adjudication was in accordance with law, and whether necessary findings were supported by
substantial evidence. Miskovitch v. Pa. Bd. of Prob. & Parole, 77 A.3d 66 (Pa. Cmwlth. 2013).
5
Anderson v. Pa. Bd. of Prob. & Parole, 237 A.3d 1203, 1207 (Pa. Cmwlth. 2020)
(internal citations, quotation marks, and original brackets omitted).
Here, Counsel has satisfied the requirements for a Turner/Finley letter.
In the Turner/Finley Letter, Counsel indicated that he reviewed the certified record,
the notes from his meeting with Powell, and the New Docket. See Turner/Finley
Letter at 1. Counsel identified the issues raised and explained why each lacks merit.
See Turner/Finley Letter at 4-8. Counsel served Powell with a copy of the
Turner/Finley Letter and Application to Withdraw and advised him of his right to
retain new counsel or proceed pro se. See Turner/Finley Letter at Proof of Service;
see also Application to Withdraw at 2 & Proof of Service. Because Counsel
complied with the technical and substantive requirements to request withdrawal, and
because we agree that the appeal is frivolous as discussed infra, we grant the
Application to Withdraw.
IV. Discussion of Claims
Regarding the exhaustion of administrative remedies, this Court has
observed that
[u]nder the doctrine of exhaustion of administrative
remedies, which we have previously held to be applicable
to the Board’s recommitment orders, a parolee is required
to exhaust all available administrative remedies before a
right to judicial review of that order arises. Therefore, a
parolee’s failure to exhaust his available administrative
remedies acts as a bar to judicial intervention in the
administrative process.
6
St. Clair v. Pa. Bd. of Prob. & Parole, 493 A.2d 146, 151-52 (Pa. Cmwlth. 1985)
(internal citations omitted) (emphasis in original).6 Specifically, a parolee who
wants to challenge aspects of a revocation order must file an administrative appeal
with the Board within 30 days. See 37 Pa. Code § 73.1; see also Epps v. Pa. Bd. of
Prob. & Parole, 565 A.2d 214, 216 (Pa. Cmwlth. 1989). “The failure to take an
appeal within the time required by law will preclude [a] parolee’s assertion of the
right to challenge the [B]oard’s recommittal order absent proof of ineffective
assistance of counsel.” Epps, 565 A.2d at 216. As our Supreme Court has explained,
compliance with administrative appeal time limitations is a jurisdictional
requirement that must be fulfilled prior to reaching the merits of underlying claims.
See Robinson v. Pa. Bd. of Prob. & Parole, 582 A.2d 857, 860 (Pa. 1990). An appeal
that focuses on the substance of claims while ignoring the untimeliness of the
underlying administrative appeal is frivolous. See id.Here, Powell did not file an administrative appeal within 30 days of the
March 2022 Board Decision that recommitted him as a convicted parole violator,
but instead challenged the Board’s recalculation of his maximum sentence date over
three months later in the June 2022 Letter. The Board treated the June 2022 Letter
as a petition for administrative review of the March 2022 Board Decision and denied
6
As this Court has further explained:
The primary purpose of the exhaustion doctrine is to ensure that
claims will be heard, as a preliminary matter, by the body having
expertise in the area. This is particularly important where the
ultimate decision rests upon factual determinations lying within the
expertise of the agency or where agency interpretations of relevant
statutes or regulations are desireable. In addition, the exhaustion
doctrine provides the agency with the opportunity to correct its own
mistakes and to moot judicial controversies.
St. Clair v. Pa. Bd. of Prob. & Parole, 493 A.2d 146, 152 (Pa. Cmwlth. 1985).
7
that petition as untimely. As a result, Counsel concluded the claim to be frivolous
on appeal. We agree with the Board and Counsel’s assessments. Powell’s failure to
employ the available administrative appeal procedures to timely challenge the
recalculation of his maximum sentence date upon his recommitment as a convicted
parole violator precluded his later petition for review of the recalculation and appeal
of the denial thereof. See Epps; Robinson.
Further, Powell’s claim that his maximum sentence date was
improperly recalculated lacks merit. When released on parole, Powell had 440 days
remaining on his sentence. Powell received credit for the 28 days he was detained
solely on the Board’s warrant (from May 7, 2021, through June 4, 2021). See Gaito
v. Pa. Bd. of Prob. & Parole, 412 A.2d 568, 571 (Pa. 1980) (holding that time spent
incarcerated solely on a detainer warrant lodged by the Board is attributable to the
original sentence term). However, to the extent Petitioner claims that he should
receive a credit on his original sentence for the remaining time he spent incarcerated
while awaiting trial on the New Charge, he is incorrect. Our Supreme Court has
long held that where a parole violator remains incarcerated prior to trial on new
charges because he has failed to satisfy bail requirements on the new criminal
charges, such pre-trial custody time is credited to the parole violator’s new sentence,
not his original sentence.7 See Gaito, 412 A.2d at 571.
Further, to the extent Powell argues he was improperly denied credit
for a two-month inpatient rehabilitation program completed in 2016, he is not
entitled to relief. “Generally, it is within the trial court’s discretion whether to credit
7
This rule applies unless the parolee is not convicted or receives no new sentence on the
new charges, in which case the pre-trial custody time must be applied to the parolee’s original
sentence. See Gaito v. Pa. Bd. of Prob. & Parole, 412 A.2d 568, 571 n.6 (Pa. 1980). That is not
the case here.
8
time spent in an institutionalized rehabilitation and treatment program as time served
‘in custody.’” Commonwealth v. Fowler, 930 A.2d 586, 596 (Pa. Super. 2007).8
Whether an individual is entitled to credit for time spent in a rehabilitation facility
outside of the prison setting depends on the nature of the facility. See Medina v. Pa.
Bd. of Prob. & Parole, 120 A.3d 1116, 1119-20 (Pa. Cmwlth. 2015) (collecting
cases). To be entitled to such a credit for time spent in a rehabilitation facility, a
parolee maintains the burden “to develop a factual record and persuade the Board
that the program presented an environment so restrictive that he should get credit for
the time spent in it, i.e., that the specific characteristics of the program constituted
restrictions on his liberty that were equivalent to incarceration.” See Medina, 120
A.3d at 1119 (internal quotation marks and brackets omitted). In reviewing this
claim, Counsel stated that he could “find no legal or factual basis to argue that the
claim for [an inpatient rehabilitation time] credit was not waived in the instant
matter.” Turner/Finley Letter at 7. Given that Powell failed to avail himself of the
administrative appeal process available to him, as discussed supra, we agree with
Counsel’s conclusion that Powell waived such a claim.
V. Conclusion
As discussed above, following our independent review of the record
and applicable law, we agree with Counsel that Powell has waived the claims raised
in the June 2022 Letter by virtue of failing to raise them before the Board in a timely
administrative appeal and, further, that the underlying claims lack factual or legal
merit. Accordingly, we find the instant appeal to be wholly frivolous and affirm the
Board’s denial of the claims contained in the June 2022 Letter treated as a petition
8
Although not binding, Superior Court decisions are persuasive authority in this Court.
Lerch v. Unemployment Comp. Bd. of Rev., 180 A.3d 545, 550 (Pa. Cmwlth. 2018).
9
for administrative review of the March 2022 Board Decision, and grant the
Application to Withdraw.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Toy N. Powell, :
Petitioner :
:
v. :
:
Pennsylvania Parole Board, : No. 874 C.D. 2022
Respondent :
ORDER
AND NOW, this 30th day of June, 2023, the June 22, 2022 order of the
Pennsylvania Parole Board is AFFIRMED. The Application to Withdraw
Appearance is GRANTED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge