Opinion
No. 1924 C.D. 2014 No. 2042 C.D. 2014
07-16-2015
Kevan M. Alston, Jr., Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
In these consolidated appeals, Kevan M. Alston, Jr. petitions for review of two separate Orders of the Pennsylvania Board of Probation and Parole (Board) denying his requests for administrative relief. In addition, we are presented with an Application for Leave to Withdraw as Counsel (Application to Withdraw) filed by Alston's court-appointed attorney, Kent D. Watkins, on the grounds that Alston's appeals are frivolous. Because Attorney Watkins has not addressed all the issues raised by Alston in the two Petitions for Review filed with this Court, we deny Attorney Watkins' Application to Withdraw.
I. Background and Board Decisions/Orders
On September 30, 1998, Alston pled guilty to several charges of robbery with serious bodily injury and was sentenced to 10 to 20 years. (Sentence Status Summary, C.R. at 1-3.) After being paroled in January 2010 and recommitted in September 2011 as a technical parole violator, Alston was reparoled on April 26, 2012 with a parole violation maximum date of January 7, 2018. (Notice of Board Decision, January 11, 2010, C.R. at 10-11; Notice of Board Decision, September 26, 2011, C.R. at 19; Notice of Board Decision, March 9, 2012, C.R. at 20-21.) While on parole, Alston was charged with new criminal charges in Lehigh County on January 28, 2013 for which he pled nolo contendere on September 20, 2013. (Criminal Docket, C.R. at 44-53.) As a result, Alston was sentenced to time served with immediate parole and twelve months' probation. (Criminal Docket, C.R. at 51.)
By Board decision mailed December 24, 2013, Alston was recommitted as a technical parole violator to serve six months backtime and "as a convicted parole violator to serve 18 months concurrently for a total of 18 months backtime, when available pending receipt of additional information." (Notice of Board Decision, December 24, 2013, C.R. at 35.) The Board's December 24, 2013 decision also denied Alston reparole. (Notice of Board Decision, December 24, 2013, C.R. at 35.) On January 22, 2014, the Board received Alston's pro se Request for Administrative Relief challenging the Board imposition of 18 months backtime and the denial of reparole. (Board Decision/Order, September 24, 2014, C.R. at 41.) By Decision/Order mailed September 24, 2014, the Board advised Alston as follows:
Alston's pro se Request for Administrative Relief is not in the certified record filed with the Court at docket numbers 1924 C.D. 2014 and 2042 C.D. 2014. Attorney Watkins has attached Alston's request as Exhibit B to the Petition for Review filed with this Court at docket number 1924 C.D. 2014.
You waived your hearing rights and admitted to being convicted of the offenses of Simple Assault (M2) and Resisting Arrest (M2) in violation of your parole in writing on September 25, 2013. The waiver/admission form you signed specifically indicates that you chose to take said action of your own free will, without promise, threat or coercion. You also failed to withdraw the waiver/admission within the prescribed ten-day grace period. This admission gave the Board sufficient evidence to revoke your parole. Furthermore, you specifically waived your right to counsel at your hearings.(Board Decision/Order, September 24, 2014, C.R. at 41 (emphasis in original).) Accordingly, the Board denied Alston's pro se Request for Administrative Relief. (Board Decision/Order, September 24, 2014, C.R. at 41.)
The Board recommitted you as a convicted parole violator to serve 18 months for the offenses of Simple Assault and Resisting Arrest. The presumptive recommitment range for the offense of Simple Assault is 9 to 15 months and for Resisting Arrest is 6 to 12 months, respectively. 37 Pa. Code § 75.2. This means that the maximum term the Board could impose that would fall within the presumptive range is 27 months. Thus, the 18-month recommitment term falls within the presumptive range and is not subject to challenge. Smith v. Pennsylvania Board of Probation and Parole, 574 A.2d 558 (Pa. 1990).
By decision mailed February 14, 2014, the Board referred to its prior actions recommitting Alston as both a technical parole violator and convicted parole violator to serve 18 months concurrently for a total of 18 months backtime and advised Alston that his new parole violation maximum date was May 18, 2020. (Notice of Board Decision, February 14, 2014, C.R. at 37.) On March 4, 2014, the Board received a pro se "Notice of Appeal" from Alston challenging the recalculation of his parole violation date and alleging that the "calculation was done without due process of law as here, [he] was not afforded a parole violation hearing as guaranteed by the fifth amendment to the constitution." (Notice of Appeal, C.R. at 40.) By Decision/Order mailed October 28, 2014, the Board explained to Alston how his parole violation maximum date was calculated as May 18, 2020 and affirmed its decision mailed February 14, 2014. (Board Decision/Order, October 28, 2014, C.R. at 54-55.)
II. Proceedings in this Court
On September 5, 2014, Alston, through Attorney Watkins, filed with this Court a "Petition for Review (In the Nature of a Complaint in Mandamus)" (Mandamus Petition) alleging that it had been more than 120 days since Alston filed his January 22, 2014 Request for Administrative Relief and his March 4, 2014 Notice of Appeal and seeking an order from this Court directing the Board to act on Alston's requests for administrative relief. After the Board issued its September 24, 2014 Order denying Alston's pro se January 22, 2014 Request for Administrative Relief, the Board filed an application to dismiss Alston's Mandamus Petition for mootness. Upon consideration of the Board's application and Alston's answer thereto, this Court denied the Board's application by Order entered October 23, 2014. Alston v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No. 463 M.D. 2014, filed October 23, 2014). After the Board issued its October 28, 2014 Order denying Alston's pro se March 4, 2014 Notice of Appeal, the Board filed an amended application to dismiss Alston's Mandamus Petition as moot. Upon consideration, this Court granted the Board's amended application and dismissed Alston's Mandamus Petition by Order entered November 14, 2014, because the Board had responded to Alston's administrative appeals thereby providing Alston with the relief he requested. Alston v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No. 463 M.D. 2014, filed November 14, 2014).
On October 24, 2014, Alston, through Attorney Watkins, filed a Petition for Review with this Court which was docketed at 1924 C.D. 2014. Therein, Alston seeks an order vacating the Board's December 24, 2013 action revoking his parole and its February 14, 2014 decision recalculating Alston's parole violation maximum date based on the Board's "actions in failing to timely respond to [Alston's] administrative appeal" of the Board's decision mailed February 14, 2014. (Petition for Review, 1924 C.D. 2014, ¶ 12.) Alston alleges that he "has the right to timely be heard" and that the Board's failure "to timely reply to [his] administrative appeals . . . has . . . [required him] to institute multiple court actions in order to receive a reply to his timely filed administrative appeal." (Petition for Review, 1924 C.D. 2014, ¶¶ 13, 15.) Alston alleges that the Board's actions in failing to timely respond to this administrative appeal constitute an error of law and a violation of his constitutional rights. (Petition for Review, 1924 C.D. 2014, ¶ 12.)
On November 12, 2014 Alston, through Attorney Watkins, filed an additional Petition for Review with this Court which was docketed at 2042 C.D. 2014. Therein, Alston seeks review of the Board's October 28, 2014 Order denying his "Notice of Appeal" from the Board's decision mailed February 14, 2014. (Petition for Review, 2042 C.D. 2014, ¶ 4.) Alston alleges that the Board "failed to give [him] credit for all time served exclusively pursuant to the [B]oard's warrant." (Petition for Review, 2042 C.D. 2014, ¶ 5.)
On December 30, 2014, Attorney Watkins filed a motion to consolidate the Petitions for Review filed at docket numbers 1924 C.D. 2014 and 2042 C.D. 2014. By Order entered December 31, 2014, this Court granted the motion to consolidate.
As support for the motion, Attorney Watkins alleged as follows:
1. Case numbers 1924 C.D. 2014 and 2042 C.D. 2014 involve issues contained in the same certified record.(Motion to Consolidate Cases, ¶¶ 1-5.)
2. Both cases deal with the two requests for administrative relief questioning the actions of the Pennsylvania Board of Probation and Parole in re-computing the petitioner's maximum sentence date.
3. Both the denial of request for administrative relief dated September 24, 2014, and the reply to request for administrative relief sent October 28, 2014, both address the calculation of the petitioner's maximum sentence date.
4. An appeal was filed on each of the orders and given different numbers.
5. The certified record for both cases is the same.
III. Application to Withdraw
On February 4, 2015, Attorney Watkins filed the Application to Withdraw, along with a no-merit letter, that is currently before us for disposition in these consolidated cases. In order to withdraw, counsel must first "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." Zerby v. Shanon, 964 A.2d 956, 960 (Pa. Cmwlth. 2009). A "no-merit" letter must detail "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." Commonwealth v. Turner, 544 A.2d 927, 928 (Pa. 1988).
If counsel has not satisfied the technical requirements of a no-merit letter, then this Court will deny counsel's request to withdraw and direct counsel to either file a renewed request with supporting documentation that complies with the technical requirements of a no-merit letter or an advocate's brief. However, if counsel has satisfied the technical requirements of a no-merit letter, then this Court will conduct its own independent review to determine whether the petition for review is, in fact, without merit.Seilhamer v. Pennsylvania Board of Probation and Parole, 996 A.2d 40, 43-44 (Pa. Cmwlth. 2010 (citation omitted) (citing Zerby, 964 A.2d at 960). As further stated in Seilhamer, "[i]t is important to highlight that '[t]he purpose of . . . a no-merit letter is to ensure that court-appointed counsel has discharged his or her duty to carefully assess any claims available to an indigent appellant.'" Id. at 44 (quoting Presley v. Pennsylvania Board of Probation and Parole, 737 A.2d 858, 861-62 (Pa. Cmwlth. 1999)). The failure to discharge such duty hinders this Court's independent review of the merits of the petitioner's appeal. Id.
Here, Attorney Watkins served Alston with a copy of the Application to Withdraw and the no-merit letter, as directed by this Court, and advised Alston of his right to retain substitute counsel or file a pro se brief. However, Attorney Watkins has not satisfied the technical requirements of a no-merit letter. Although Attorney Watkins addresses the issues of whether Alston's parole violation maximum date was correctly recalculated by the Board and whether the 18 month recommitment period imposed by the Board is within the presumptive range, he does not address any of the issues raised in the Petition for Review filed at docket number 1924 C.D. 2014. By not providing an explanation as to why he believes the issues raised in this Petition for Review are without merit, Attorney Watkins has not fully discharged his duty to carefully assess the claims set forth therein; specifically, how the Board's delay in responding to Alston's administrative appeals resulted in an error of law or violated Alston's constitutional rights. Thus, Attorney Watkins has not satisfied the technical requirements of a no-merit letter.
Alston has not obtained substitute counsel or filed a pro se brief in support of the issues raised in his Petitions for Review.
Accordingly, we must deny the Application to Withdraw and, until such time as counsel complies with the technical requirements, we will not undertake an independent examination of the merits of either of Alston's Petitions for Review filed in these consolidated cases.
We note that the factual background relating to the time that Alston was released on parole on April 26, 2012 until the time he was sentenced on new criminal charges on September 20, 2013, particularly where and when he was incarcerated after being charged on January 28, 2013 with new criminal charges, is unclear from the certified record filed with this Court. Thus, it is questionable whether the Board correctly calculated Alston's parole violation maximum date. For example, the Board gave Alston 86 days credit for the period he was incarcerated from February 13, 2013 to May 10, 2013 because he was incarcerated solely on the Board's detainer; however, the Board also stated that Alston was erroneously released from incarceration from the Lehigh County Prison on April 15, 2013 after posting bail despite the Board's existing detainer against him. (Board Decision/Order, October 28, 2014, C.R. at 54-55.) Whether Alston was actually incarcerated between April 15, 2013 and the date of his conviction on September 20, 2013 is unclear because not only was Alston declared delinquent on April 15, 2013, the certified record indicates that Alston turned himself in to the Lehigh County authorities on September 3, 2013. (Supervision History, C.R. at 29-30.) These apparent discrepancies are not explained by Attorney Watkins in his no-merit letter.
In addition, it appears that there are several documents missing from the certified record and that the documents that are contained therein are not complete. For example, the Notice of Charges and Hearing issued by the Board to Alston charging him with the new criminal charges and technical parole violations is undated and unsigned and is missing the time and date of the preliminary and detention hearings. (Notice of Charges, C.R. at 31.) There is no document in the certified record that actually schedules any type of hearing on these charges. Also missing from the certified record is the waiver/admission form that Alston allegedly signed waiving his right to counsel at the hearings. (Board Decision/Order, September 24, 2014, C.R. at 41.) As such, the Board's determination set forth in its September 24, 2014 Decision/Order that Alston waived his hearing rights, is not supported by the certified record. Further, the Board's December 24, 2013 and February 7, 2014 decisions do not contain any indication as to the actual date these decisions were mailed. We ascertained the mailing dates from the Board's September 24, 2014 and October 28, 2014 denials of Alston's Requests for Administrative Relief and Notice of Appeal, respectively. Given that this Court's ability to perform effective appellate review is dependent on having complete and accurate records to review, it would be helpful if the records certified to the Court by the Board were more accurate.
Thus, Attorney Watkins may file a new application to withdraw or a brief on the merits within thirty days.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, July 16, 2015, the Application to Withdraw as Counsel filed by Kent D. Watkins, Esquire is DENIED, without prejudice, and counsel is directed to refile the application in accordance with the requirements of Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Zerby v. Shanon, 964 A.2d 956, 959 (Pa. Cmwlth. 2009), OR file a brief in support of the Petitions for Review filed on behalf of Kevan M. Alston, Jr., within thirty (30) days of this Order.
/s/ _________
RENÉE COHN JUBELIRER, Judge