Opinion
No. 1920 C.D. 2010
06-17-2011
Kenny Doward, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES R. KELLEY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE KELLEY
Kenny Doward (Doward) petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) denying his request for administrative relief from the Board's decision recommitting him to serve his unexpired term of 1 year, 13 days as a technical parole violator. In addition to the petition for review, we are presented with a petition for leave to withdraw appearance as counsel filed by Doward's court-appointed attorney, Richard C. Shiptoski, Esquire, on the grounds that Doward's appeal is without merit. We grant Attorney Shiptoski's petition for leave to withdraw appearance as counsel and affirm the order of the Board.
On March 21, 2005, Doward was released on parole with a parole violation maximum date of March 3, 2007. Certified Record (C.R.) at 4. At that time, 712 days remained on his original sentence. Id. On December 12, 2006, Doward was arrested on new criminal charges and incarcerated at the Delaware County Prison. C.R. at 24. On March 3, 2007, the Board lifted its warrant to commit and detain Doward because his maximum term on his original sentence expired. C.R. at 1. On September 10, 2008, Doward was sentenced by the Court of Common Pleas of Delaware County to serve 23 months. C.R. at 1, 4.
On October 8, 2008 Doward was arrested by his state parole officer and was transferred to SCI-Graterford and placed in "parole violator pending" status. C.R. at 19. The Board relodged its warrant to commit and detain that same day. Id. Doward was paroled from the Delaware County sentence on April 13, 2009. C.R. at 1, 19.
By Board decision recorded April 16, 2009 (mailed April 23, 2009), the Board referred to a prior Board action of December 22, 2008 recommitting Doward to a state correctional institution as a convicted parole violator to serve six months backtime. C.R. at 6. The decision established March 26, 2011 as Doward's parole violation maximum date. Id. On May 22, 2009, Doward filed a petition for administrative review objecting to the calculation of his parole violation maximum sentence date. C.R. at 7. By decision mailed December 15, 2009, the Board denied Doward's petition and affirmed the Board's decision dated April 16, 2009. C.R. at 19, 20.
By Board decision dated May 10, 2010, the Board recommitted Doward as a technical parole violator to serve his unexpired term of one year and 13 days. C.R. at 23. The decision referenced Doward's parole violation maximum date of March 26, 2011. Id. From this decision, Doward filed a pro se request for administrative appeal with the Board. C.R. at 24. Doward again challenged the March 26, 2011 maximum date arguing that the Board denied him credit for time served. C.R. at 26. By decision mailed August 23, 2010, the Board denied Doward's appeal on the basis that it was untimely and a second/subsequent request for relief. C.R. at 47. The Board explained that the parole violation maximum date of March 26, 2011 was originally set forth in the Board's April 16, 2009 decision, which Doward had unsuccessfully challenged. Id.
From this decision, Doward filed a petition for review with this Court, which appointed Attorney Shiptoski to represent Doward. Attorney Shiptoski filed an amended petition for review on behalf of Doward on November 15, 2010. On November 24, 2010, the Board filed a motion to limit the issue. By order of this Court dated December 7, 2010, the motion was granted and the issue on appeal was limited to whether the Board correctly dismissed Doward's petition for administrative review of a recalculation order as unauthorized. On January 21, 2011, Attorney Shiptoski filed his petition to withdraw along with an Anders brief based upon his belief that Doward's appeal is without merit.
This Court has reexamined what steps counsel appointed to represent petitioners seeking review of determinations of the Board must take to withdraw from representation. In Hughes v. Pennsylvania Board of Probation and Parole, 977 A.2d 19 (Pa. Cmwlth. 2009), this Court held that in a case 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 a brief in accordance with Anders v. California, 386 U.S. 738 (1967). Relying upon the United States Supreme Court's decision in Gagnon v. Scarpelli, 411 U.S. 778 (1973), we held that a constitutional right to counsel arises where the petitioner raises a:
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.Hughes, 977 A.2d at 24 (quoting Gagnon, 411 U.S. at 790). We stated further that such claims would only arise in appeals from determinations revoking parole. Id. Accordingly, we held that "[i]n an appeal from a revocation decision, this Court will apply the test from Gagnon, quoted above, and, unless that test is met, we will only require a no-merit letter." Id. at 26 (emphasis in original, footnote omitted). We noted further that "[a]s in the past, we will not deny an application to withdraw simply because an attorney has filed an Anders brief where a no-merit letter would suffice. In cases where there is no constitutional right to counsel, however, we shall still apply the standard of whether the petitioner's claims are without merit, rather than whether they are frivolous." Id. at 26 n.4.
Counsel seeking to withdraw must conduct a zealous review of the case and submit a "no-merit" letter to this Court detailing 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. Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988); Zerby v. Shanon, 964 A.2d 956 (Pa. Cmwlth. 2009). The no-merit letter must include "'substantial reasons for concluding that a petitioner's arguments are meritless.'" Zerby, 964 A.2d at 962 (quoting Jefferson v. Pennsylvania Board of Probation and Parole, 705 A.2d 513, 514 (Pa. Cmwlth. 1998)). In addition, counsel must send the petitioner: (1) a copy of the "no-merit" letter; (2) a copy of the application for leave to withdraw; and (3) a statement that advises the petitioner of the right to retain substitute counsel or proceed pro se. Turner; Zerby. If counsel satisfies these technical requirements, this Court must then conduct an independent review of the merits of the case. Id. If this Court determines that the petitioner's claims are without merit, counsel will be permitted to withdraw and the petitioner will be denied relief. Id.
Here, Attorney Shiptoski's brief satisfies the technical requirements of Turner. Attorney Shiptoski's brief lists the issue Doward seeks to have reviewed, as limited by this Court, and provides a thorough analysis as to why the issue lacks merit. Attorney Shiptoski explains that Doward's issues lack merit because Doward's instant appeal is a second attempt to request relief from the Board's decision dated April 16, 2009, which is out of time. Attorney Shiptoski further explains that there are no changed circumstances that would distinguish Doward's first administrative appeal from this one. Attorney Shiptoski states he has conducted a conscientious and thorough review of the record and applicable statutes and case law. Based upon his review, he has concluded that Doward's appeal is without merit and requests permission to withdraw. Attorney Shiptoski provided Doward with a copy of the Anders brief and his request to withdraw and advised Doward of his right to retain new counsel or proceed pro se. Accordingly, we must now conduct an independent review to determine whether the Board correctly dismissed Doward's petition for administrative review of a recalculation order as unauthorized.
No brief has been filed on behalf of Doward.
This Court's scope of review of a decision by the Board is limited to determining whether necessary findings of fact are supported by substantial evidence, whether an error of law was committed, or whether the constitutional rights of the parolee was violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704, Gaito v. Pennsylvania Board of Probation and Parole, 563 A.2d 545 (Pa. Cmwlth. 1989), petition for allowance of appeal denied, 525 Pa. 589, 575 A.2d 118 (1990).
The Board's regulation authorizing administrative relief provides that appeals must be received within 30 days of the mailing date of the Board's determination. 37 Pa. Code §73.1. Second or subsequent appeals and appeals which are out of time under these rules will not be received. Id.
In Shaw v. Pennsylvania Board of Probation and Parole, 812 A.2d 769 (Pa. Cmwlth. 2001), an inmate sent a letter to the Board requesting reconsideration of Board's decision to decrease his backtime credit since the basis for the Board's decision, the district justice's sentence, had been changed. The Board issued a decision treating the letter as an unauthorized subsequent administrative appeal and took no further action. On appeal, we determined that the letter was an application for reconsideration based upon changed circumstances, rather than a subsequent administrative appeal. As such, the request was not barred by the Board's regulation stating that a second or subsequent appeal would not be received.
The instant matter, however, is distinguishable from Shaw because Doward's appeal is not based upon changed circumstances and cannot be construed as a request for reconsideration. Here Doward's administrative appeal of the Board's May 10, 2010 decision simply seeks to rechallenge the parole violation maximum date of March 26, 2011. The calculation of the March 26, 2011 date was part of the Board's decision of April 16, 2009. Doward's administrative appeal of the April 16, 2009 decision was denied by the Board. Doward did not file a petition for review with this Court.
There is no distinction between Doward's first administrative appeal challenging the March 26, 2011 parole violation maximum date and this appeal. As a result, Doward's instant appeal constitutes an untimely second or subsequent appeal of the Board's April 16, 2009 decision, which established March 26, 2011 as Doward's parole violation maximum date. We agree with Attorney Shiptoski that Doward's claim regarding the denial of his administrative appeal is without merit. Accordingly, we grant Attorney Shiptoski's petition for leave to withdraw as counsel and affirm the order of the Board denying Doward's request for administrative relief.
/s/_________
JAMES R. KELLEY, Senior Judge ORDER
AND NOW, this 17th day of June, 2011, Richard C. Shiptoski's Petition for Leave to Withdraw Appearance as Counsel is GRANTED and the order of the Pennsylvania Board of Probation and Parole denying Kenny Doward's administrative appeal is AFFIRMED.
/s/_________
JAMES R. KELLEY, Senior Judge