Opinion
No. 706 C.D. 2011
11-17-2011
Rasheen Carn, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Petitioner Rasheen Carn (Carn) petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board), which denied his request for administrative relief. Carn's appointed counsel, Timothy L. Clawges, Esq. (Counsel), however, filed a petition for leave to withdraw as counsel. Counsel asserts, as expressed in his "no-merit" letter, that the issues Carn raises in his petition for review are without merit. We will grant Counsel's petition for leave to withdraw and affirm the Board's order denying Carn's request for administrative relief.
We summarize the pertinent facts below. Carn was found guilty of two criminal offenses—robbery and criminal conspiracy—and, on May 31, 2001, a trial court sentenced Carn to serve five-to-ten years in prison for those convictions. (Certified Record (C.R.) at 1.) The Board granted Carn parole by a decision recorded on July 27, 2005. In granting Carn parole, the Board also permitted Carn to reside in Georgia with his grandfather. (C.R. at 10.) Carn agreed to the conditions associated with his residence in Georgia, and the Board released Carn on parole on October 6, 2005. (C.R. at 9.)
The Troup County Sheriff's Office in Georgia arrested Carn on April 13, 2008, on new criminal charges. (C.R. at 14.) On May 5, 2008, Georgia correction authorities sent an "Offender Violation Report" to Pennsylvania advising that Carn was in the Georgia Troup County Jail following his April 2008 arrest and requesting Pennsylvania authorities to issue a warrant for Carn's detention. (C.R. at 17; Supervision History Summary of Adjustment (Supervision History).) In response to that notice, Pennsylvania authorities requested Georgia authorities to continue supervision of Carn pending the disposition of the new criminal charges. (Id.) The Supervision History includes a notation stating that "[d]ue to concern by the GA Interstate/Parole authority with PA not issuing a warrant, a PBPP Interstate warrant was issued and sent to GA with the understanding that the warrant was not to interfere with the disposition of the charges and if offender would happen to post bail and be made available to return to PA that PA would lift the warrant and request GA continue supervision pending disposition." (Id.) Thus, on July 9, 2008, the Board issued a warrant, directed to "any officer authorized to serve criminal process or any peace officer in the United States of America," to arrest and detain Carn. (C.R. at 13.) On September 10, 2008, Carn was convicted in a Georgia state court of aggravated assault, criminal damage, criminal trespass, and possession of a firearm by a convicted felon. (C.R. at 14.) On the same date, Carn received concurrent sentences for those crimes, with the longest sentence imposed being eight years. (Id.) The sentence provided for Carn to be released on probation in Georgia after serving two years confinement. (Id.) According to the Supervision History, Georgia authorities issued a progress report on September 12, 2008, noting that Carn "had been in the Troup County Jail since 4/13/08, had admitted guilt to the GA Parole Officer to committing the offenses and signed an out-of-state waiver of preliminary hearing." (C.R. at 17.)
On January 5, 2009, while Carn was serving his sentences on his new Georgia convictions, the Board mailed its July 9, 2008 interstate warrant to the Georgia Department of Corrections. (Id.) The Board conducted an "integrity check" on June 8, 2010, which indicated that Carn was in custody in the Georgia Baldwin State Prison with a projected release date of September 9, 2010. (Id.) On August 30, 2010, the Board, while proceeding with extradition measures regarding Carn, in apparent anticipation of Georgia's projected September 9, 2010 release from Georgia prison, discovered that the Georgia authorities had released Carn on June 9, 2010, and that Carn thereafter was in a felony probation status in Georgia. (Id.) The Board requested the assistance of the LaGrange, Georgia, Police Department in apprehending Carn, and the Board posted a "wanted" notice in "NCIC." (Id.) On September 3, 2010, the Board learned that Carn had been arrested on September 2, 2010, and was being detained in the Troup County Jail. (Id.) The Board faxed its July 9, 2008 Interstate warrant to the Troup County Detention Center. (Id.) The Troup County Sheriff's Office Jail Administrator advised the Board by an email dated September 7, 2010, that the Troup County Detention Center was holding Carn solely on the basis of the Board's warrant. (Id.) That notice also advised the Board that Georgia was honoring the Board's pre-signed waiver of extradition, and that the Board could exercise custody at any time. (Id.) The Board took administrative action on September 13, 2010, ordering Carn to be returned to custody in Pennsylvania as a convicted parole violator and ordering that a revocation hearing be scheduled. (C.R. at 15.) On September 29, 2010, Carn signed a waiver of a panel hearing. A hearing examiner held a revocation hearing on October 15, 2010, during which Carn testified and Counsel raised the question of whether the hearing was timely. (C.R. at 30-45.)
"NCIC" apparently refers to the "National Crime Information Center," which is part of the Federal Bureau of Investigation. One of the NCIC's apparent goals is to assist law enforcement officials in the apprehension of fugitives. See http://www.fbi.gov/about-us/cjis/ncic.
The Board rejected Carn's timeliness claim, noting that the Board conducted a hearing within 120 days of the date upon which Carn was returned to Pennsylvania. The Board ordered that Carn serve twenty-four months backtime as a convicted parole violator and determined that his new maximum sentence date is February 12, 2015. Carn requested administrative review of that determination based upon his claim that the Board had erred in concluding that it had conducted its revocation hearing in a timely manner. On March 18, 2011, the Board mailed Carn its decision responding to his administrative appeal. The Board denied Carn's administrative appeal, holding that it had held a timely revocation hearing, because the hearing was held only twenty-seven days after Carn's return to a Pennsylvania state facility.
We begin by addressing Counsel's request to withdraw from his representation of Carn. Where no constitutional right to counsel is involved, an attorney seeking to withdraw from representation in a probation and parole case need only file a no-merit letter, as opposed to an Anders brief. Hughes v. Pennsylvania Bd. of Prob. and Parole, 977 A.2d 19 (Pa. Cmwlth. 2009). A constitutional right to counsel arises when the petitioner presents a:
In Anders v. California, 386 U.S. 738 (1967), the United States Supreme Court held that, in order for a criminal defendant's counsel to withdraw from representing his client in an appeal, the counsel must assert that the case is completely frivolous, as compared to presenting an absence of merit. An appeal is completely or "wholly" frivolous when there are no factual or legal justifications that support the appeal. Craig v. Pennsylvania Bd. of Prob. and Parole, 502 A.2d 758 (Pa. Cmwlth. 1985). However, in Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), our Supreme Court held that in matters that are collateral to an underlying criminal proceeding, such as parole matters, a counsel seeking to withdraw from his representation of a client may file a "no-merit" letter that includes information describing the extent and nature of the counsel's review, listing the issues the client wants to raise, and informing the court of the reasons why counsel believes the issues have no merit.
colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present.Id. at 25-26 (quoting Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973)). Because Carn's petition for review only raises challenges to the timeliness of the Board's revocation hearing, he does not meet the test described in Hughes, and he does not have a constitutional right to counsel in this case. See Hughes, 977 A.2d at 25-26. Carn only has a statutory right to counsel under Section 6(a) of the Public Defender Act, Act of December 2, 1968, P.L. 1144, as amended, 16 P.S. § 9960.6(a)(10). As such, Counsel properly filed a no-merit letter in order to withdraw from representation of Carn.
In filing a no-merit letter, counsel must comply with certain procedural requirements. Counsel must: (1) notify the parolee that he has submitted to the Court a request to withdraw; (2) provide the parolee with a copy of counsel's no-merit letter; and (3) advise the parolee that he has the right to obtain new counsel and to submit to the Court a brief of his own raising any arguments that he may believe are meritorious. Reavis v. Pennsylvania Bd. of Prob. and Parole, 909 A.2d 28, 33 (Pa. Cmwlth. 2006). In seeking to withdraw, an attorney must include the following descriptive information in the no-merit letter: (1) the nature and extent of counsel's review of the case; (2) the issues the parolee wants to raise; and (3) the analysis counsel used in reaching his conclusion that the issues are meritless. Zerby v. Shanon, 964 A.2d 956, 961 (Pa. Cmwlth. 2009).
Counsel has complied with these requirements. --------
Consequently, before considering whether Carn's appeal has no merit and proceeding to make an independent review of the merits of the case, we must first evaluate Counsel's no-merit letter to determine whether it complies with the requirements for withdrawal applications. Counsel's no-merit letter includes a thorough summary of Carn's conviction and parole history, thus reflecting an adequate review of the record. Counsel has also correctly identified the sole issue Carn has raised in his petition for review and provided an adequate discussion of the applicable law relating to the issue of timeliness of the Board's revocation hearing. Therefore, we may proceed to consider the question of whether Counsel is correct in asserting that Carn's appeal has no merit.
The Board's regulation relating to the time requirements for revocation hearings for convicted parole violators provides:
§ 71.4. Conviction for a new criminal offense.
The following procedures shall be followed before a parolee is recommitted as a convicted violator:
(1) A revocation hearing shall be held within 120 days from the date the Board received official verification of the plea of guilty or nolo contender or of the guilty
verdict at the highest trial court level except as follows:
37 Pa. Code § 74.1 (emphasis added).(i) If a parolee is confined outside the jurisdiction of the Department of Corrections, such as confinement out-of-State . . . where the parolee has not waived the right to a revocation hearing by a panel . . . the revocation hearing shall be held within 120 days of the official verification of the return of the parolee to a State correctional facility.
Thus, under this regulation generally, when a parolee is confined out-of-state, the 120-day hearing requirement begins to run when a parolee is returned to a Pennsylvania state correctional facility. When a parolee challenges a revocation determination on the grounds that the Board failed to provide a hearing within 120 days of verification of a guilty verdict or plea relating to new criminal charges, the Board bears the burden to prove by a preponderance of evidence that it held a timely revocation hearing. Saunders v. Pennsylvania Bd. of Probation and Parole, 568 A.2d 1370, 1371 (Pa. Cmwlth.), appeal denied, 527 Pa. 620, 590 A.2d 760 (1990). This Court has found a distinct exception to this general rule to occur when the Board has an opportunity to effectuate the return of a parolee from another state (and return him to a Pennsylvania facility, thus triggering the beginning of the 120-day period), but fails to take measures to take custody of such a parolee.
In Williams v. Pennsylvania Board of Probation and Parole, 579 A.2d 1369 (Pa. Cmwlth. 1990) (Williams I), this Court considered the claim of a parolee who argued that the Board had failed to hold a timely revocation hearing. In that case, a Pennsylvania parolee was living in Georgia when he was arrested in June 1987 on new criminal charges and incarcerated in a Georgia state correctional facility. The Georgia State Board of Pardons notified the parolee in November 1988 of a tentative parole date of December 9, 1988. The parolee testified that, because he believed Pennsylvania authorities would shortly pick him up based on a detainer the Board had issued, he waived extradition. Georgia continued to hold Williams in prison, apparently while waiting for Pennsylvania to take custody of him, and did not parole Williams until August 23, 1989—approximately nine months later—when Pennsylvania authorities picked him up. The Board did not conduct a revocation hearing until October 25, 1989. The parolee argued that the Board's hearing was untimely, but the Board rejected this claim and the parolee appealed to this Court. On appeal this court held that
When the record contains no official verification, the 120-day period begins to run on the date that the Board could have obtained official verification. The present situation is analogous to a parolee being held in a county institution at the Board's request. Under such circumstances, the 120-day time limitation is not tolled but begins to run from the date of release by county authorities. Indeed, if the regulation were interpreted to permit the Board to toll the 120-day period by simply leaving [the parolee] in Georgia, there could be a denial of due process. Unreasonable and unjustifiable delays which are not attributable to the parolee or his counsel do not toll the running of the 120 days.(Id. at 1371-72, emphasis added.) The Court in Williams I remanded the matter to the Board to determine when Georgia made the parolee available to Pennsylvania authorities and whether the Board acted with reasonable alacrity in seeking to obtain the return of the parolee to Pennsylvania, noting that the Board could not "arbitrarily choose to leave a parolee in confinement in another state." Id. at 1372. Following our remand, the Board rendered factual findings regarding the cause of the delay. We rejected the Board's argument that the Board carried its burden to prove that it held a timely hearing, observing as follows:
The record in this case indicates that, on December 8, 1988, the Georgia Department of Corrections . . . advised the Board that it had received the detainer on petitioner. Pennsylvania authorities, therefore, were fully aware that the Georgia officials knew about the detainer. Although the affidavits from the Georgia authorities as contained in the record, emphasize that the Georgia Board was unable to proceed until the [Georgia] Corrections Department forwarded the Georgia Board a copy of the detainer, they fail to adequately explain why a copy was not sent until July 17, 1989, at which time the Georgia Board made an official determination to transfer petitioner to the detaining authority, effective August 23, 1989. Unarguably, such administrative laxity on the part of the Corrections Department is deserving of censure; however, the Board is equally responsible for its failure to promptly execute the detainer with the Corrections Department; had the Board done so, optimistically, the Corrections Department would not have taken virtually eight months to transfer the detainer to the Georgia Board, and petitioner would have been delivered to Pennsylvania authorities within a more reasonable time frame.Williams v. Pennsylvania. Bd. of Probation and Parole, 602 A.2d 434, 436-37 (Pa. Cmwlth.) (emphasis added) (Williams II), appeal denied, 533 Pa. 616, 618 A.2d 405 (1992).
Thus, there were two key consideration in Williams II that formed the basis of the Court's conclusion that the 120-day period began to run when the Board could or should have taken custody of an out-of-state parolee: (1) the other jurisdiction was holding the parolee on the basis of a Pennsylvania request; and (2) unreasonable and unjustifiable delays on the part of someone or some entity other than the parolee or his counsel.
In summary, following Williams I and II, when a parole residing in another state has been convicted of new criminal charges, 37 Pa. Code § 74.1(1)(i) generally requires the Board to conduct a revocation hearing within 120 days of when the Board receives official verification that the parolee has been returned to a state correctional facility. When, however, the Board learns that a parolee will be paroled on the new out-of-state conviction and thus is available to return to Pennsylvania for revocation purposes, the Board must act with reasonable promptness to have the parolee returned to Pennsylvania. Under Williams II, the period following notification to the Board of availability is generally counted against the Board for the purpose of the 120-day hearing requirement. Id. at 436-37. Further, in evaluating the lapse between availability dates and dates of revocation hearings, the 120-day period is not tolled for "unreasonable and unjustifiable delays" that are not "attributable to the parolee or his counsel." Williams I, 579 A.2d at 1371. Thus, if any delay in acquiring custody over Carn is not attributable to Carn or his attorney, the Board is not entitled to a tolling of the 120-day hearing requirement if the delay is unreasonable or unjustifiable.
With these concepts in mind, we reiterate the key factual events in this case: (1) the Board conducts an "integrity check" on June 8, 2010, which indicates that Carn is in custody in the Georgia Baldwin State Prison with a projected release date of September 9, 2010; (2) Georgia releases Carn not on the projected date of release but on June 9, 2010; (3) on August 30, 2010, the Board, while proceeding with extradition measures regarding Carn, discovers that the Georgia authorities released Carn on June 9, 2010, and that Carn thereafter was in a felony probation status in Georgia; (4) the Board requests the assistance of the LaGrange, Georgia, Police Department in apprehending Carn, and the Board posts a "wanted" notice in "NCIC;" (5) on September 3, 2010, the Board learns that Carn was arrested on September 2, 2010 and detained in the Troup County Jail, and faxes its July 9, 2008 Interstate warrant to the Troup County Detention Center; (6) the Troup County Sheriff's Office Jail Administrator advises the Board by a September 7, 2010 e-mail that the County Detention Center is holding Carn solely on the basis of the Board's warrant, that Georgia was honoring the Board's pre-signed waiver of extradition, and that the Board could exercise custody at any time; (7) Carn is returned to a Pennsylvania facility on September 18, 2010; and (8) the Board takes administrative action on September 13, 2010, ordering Carn to be returned to custody in Pennsylvania as a convicted parole violator and holds a hearing on October 15, 2010.
These facts indicate that the earliest date upon which Carn would have been available to Pennsylvania authorities was June 9, 2010, the date upon which the Georgia authorities released Carn in felony probation status (and one day after the Board conducted its June 8, 2010 integrity check which indicated that Carn was still imprisoned and had an anticipated release date of September 9, 2010). Thus, the question in this case is whether Counsel is correct in asserting that, despite that availability, the Board's reliance on the information it obtained in its "integrity check" that indicated a proposed release date of September 9, rather than June 9, 2010, was sufficient to make that September 9, 2010 date, or the date Carn was returned to a Pennsylvania facility, September 18, 2010 (either of which puts the hearing date within the 120-day time requirement), the earliest dates from which the 120-day hearing limitation period should commence.
As indicated above, in Williams II, the Court concluded that the Board could not rely upon the failure of the Georgia Corrections Department to send the Board's detainer to the Georgia Board, which could have informed the Board about the parolee's availability at an earlier date. Rather, this Court placed the fault with the Board for failing "to promptly execute the detainer with the Corrections Department." Williams II, 602 A.2d at 437. In this case, we cannot attribute to Carn or Counsel the Board's failure to hold a hearing within 120 days of Carn's June 9, 2010, but we must nevertheless consider whether the Board's conduct relieved it of the obligation to hold a hearing within 120 days of Carn's release by the Georgia authorities.
In contrast to Williams I and II, the Board in this case investigated Carn's situation on June 8, 2010, and based upon information it received that Georgia would not release Carn until September 9, 2010, the Board did not further investigate Carn's status until August 30, 2010, when it initiated extradition measures and discovered that the information it had received earlier was erroneous. We note that following Georgia's release of Carn, Carn was available in the sense that the Board could have taken custody of him, but that, because he was released into the general population, he was not practically available for immediate custody to the Board after his release. Once the Board learned that Georgia had released Carn at an earlier date, the Board took immediate measures to locate, detain, and take custody of Carn. In fact, once the Board learned on August 30, 2009, that Carn had been released, the Board was able to conduct a revocation hearing within approximately forty-five days.
In Williams I, the only reasons Georgia held the parolee for nine months after Georgia had no reasons to keep him imprisoned was because of Pennsylvania's interest in seeking to proceed with its own parole revocation of Williams and because the Board did nothing to effectuate its right to assume custody. In contrast, in this case, the Board took measures that would be considered timely, but ultimately were not, because of erroneous information. In this case, we agree with Counsel's assertion that Carn's claim of untimeliness lacks merit because we cannot conclude that, even though neither Carn nor Counsel were responsible for the delay that occurred in this case, any delay on the part of the Board was unreasonable or unjustified. Consequently, we agree with Counsel that there is no merit to Carn's appeal. Accordingly, we will grant Counsel's petition for leave to withdraw and affirm the Board's order.
/s/_________
P. KEVIN BROBSON, Judge
ORDER
AND NOW, this 17th day of November, 2011, the petition for leave to withdraw as counsel filed by Timothy L. Clawges, Esq., is GRANTED, and the order of the Board is AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge