Opinion
No. 2318 C.D. 2012
07-26-2013
Lance E. Gesford, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Before this Court is Richard C. Shiptoski's (Attorney Shiptoski) application for leave to withdraw as counsel for Lance E. Gesford (Gesford) on Gesford's petition for review of an order of the Pennsylvania Board of Probation and Parole (Board) which recommitted Gesford to serve twelve months backtime as a convicted parole violator concurrent with a twelve month recommitment as a technical parole violator.
Gesford was effectively sentenced on October 23, 2009, to a term of nine months to two years for simple assault and was consecutively sentenced to a term of three months to one year for possession of a controlled substance for a total term of one to three years.
On March 3, 2011, Gesford was paroled with a maximum date of October 23, 2012. On November 21, 2011, Gesford was arrested by the City of Ithaca, New York Police Department and charged with obstructing governmental administration and possession of a controlled substance. Also, on November 21, 2011, the Board issued a warrant to arrest and detain Gesford. Gesford remained in the Tompkins County Jail until he pled guilty to attempting to obstruct governmental administration and criminal possession of a controlled substance and was sentenced to time served on December 14, 2011, before the City Court of Ithaca, New York (city court).
It is not clear from the record that Gesford pled guilty to the possession charge. However, the Board states that he did, so this Court will follow the Board's determination.
On June 19, 2012, the Board held a revocation hearing. Gesford testified that the city court was equivalent to a magistrate. Notes of Testimony, June 19, 2012, (N.T.) at 13; Certified Record (C.R.) at 69. Gesford argued that he was not convicted in a court of record so that he could not be recommitted as a convicted parole violator. N.T. at 15; C.R. at 71.
In a decision recorded on July 23, 2012, and mailed August 3, 2012, the Board recommitted Gesford to serve twelve months as a technical parole violator for violating the following parole conditions: Condition #1 - Leaving the district without permission, Condition #2 - Changing his Residence without permission, Condition #5B- Possession of a weapon, and Condition #5C - Failure to refrain from assaultive behavior. The Board recommitted Gesford to serve twelve months concurrent backtime as a convicted parole violator for his conviction in city court and established his maximum date as January 1, 2014.
Gesford does not contest the technical violations before this Court.
Gesford requested administrative relief and alleged that the Board erred when it recommitted him as a convicted parole violator because he was not convicted in a court of record.
Section 6138(a)(1) of the Prisons and Parole Code, 61 Pa.C.S. §6138(a)(1), provides:
A parolee under the jurisdiction of the board released from a correctional facility who, during the period of parole or while delinquent on parole, commits a crime punishable by imprisonment, for which the parolee is convicted or found guilty by a judge or jury or to which the parolee pleads guilty or nolo contendere at any time thereafter in a court of record, may at the discretion of the board be recommitted as a parole violator. (Emphasis added).
On November 30, 2012, the Board denied his request for administrative relief and concluded:
The Board recommitted Mr. Gesford for the offenses of Attempted Obstruction of Governmental Administration and Criminal Possession of a Controlled Substance. These convictions occurred in the City Court of Ithaca, New York. Under New York law, all city courts outside the City of New York are courts of record. . . . Thus, as a matter of law, your client's conviction occurred in a court of record and there was no need to present proof of this at the hearing. Because the convictions occurred in a court of record, the Board had discretion to commit Mr. Gesford as a convicted parole violator. In light of that decision, the Board had authority to recalculate his sentence to reflect that he received no credit for the period he was at liberty on parole. . . . As such, the Board acted within its authority by recommitting Mr. Gesford as a convicted parole violation [sic] and recalculating his maximum sentence date to reflect that he received no credit for the time he was at liberty on parole. (Citations omitted).Board Decision, November 30, 2012, at 1; C.R. at 115.
Attorney Shiptoski was assigned to represent Gesford. After review of Gesford's petition for review and the certified record, Attorney Shiptoski desires to withdraw and asserts that Gesford's petition for review is without merit.
Appointed counsel may withdraw from assisting an indigent parolee in appealing a parole revocation order, "[w]hen, in the exercise of his professional opinion, counsel determines that the issues raised . . . are meritless, and when the . . . court concurs. . . ." Commonwealth v. Turner, 518 Pa. 491, 495, 544 A.2d 927, 928-929 (1988).
In reviewing an application to withdraw, this Court must make an independent evaluation of proceedings before the Board to determine whether a parolee's appeal is meritless. Dear v. Pennsylvania Board of Probation and Parole, 686 A.2d 423 (Pa. Cmwlth. 1996). When this Court agrees with counsel's assertion that the appeal is without merit, this Court will permit counsel to withdraw when counsel has fulfilled the technical requirements set forth in Craig v. Pennsylvania Board of Probation and Parole, 502 A.2d 758 (Pa. Cmwlth. 1985). Under Craig, counsel must (1) notify the parolee of the request to withdraw, (2) furnish the parolee with a copy of the brief, and (3) advise the parolee of his right to retain new counsel to raise any new points that he might deem worthy of consideration. In the no merit letter or brief counsel must indicate the nature and extent of his review, the issues the parolee wishes to raise, and counsel's analysis in concluding that the appeal is without merit. Wesley v. Pennsylvania Board of Probation and Parole, 614 A.2d 355 (Pa. Cmwlth. 1992).
In his petition for review, Gesford alleged that the Board erred when it recommitted him as a convicted parole violator because he was not convicted in a court of record.
Attorney Shiptoski asserts that Gesford's contention is without merit:
The question then is whether the City Court of Ithaca is a court of record?
The New York Code lists those courts within the state considered courts of record. Among those listed as courts of record are 'each city court outside the city of New York.' NY CLS Jud §2 (10).
In Taylor v. Pennsylvania Board of Probation and Parole, 10 A.3d 419 (Pa. Cmwlth. 2010) Taylor, during his revocation hearing admitted pleading guilty to a Georgia criminal charge but argued that the State Court of Dekalb [sic] County, Georgia was not a court of record and therefore, his infraction should be treated as a violation of a parole conviction and not as a new conviction.
Taylor argued that there was no evidence to support its finding that he was convicted in a court of record. The Georgia code [sic] however established that all its states [sic] courts are 'courts of record.'
In ruling in favor of the Board, the Court took judicial notice of certain facts and further ruled that since the Georgia statute established that the State Court of Dekalb [sic] County, Georgia was a court of record, no evidence was required and the law is evidence of itself.
Here, New York law establishes the City Court of Ithaca as a court of record. . . . (Citations omitted).Ander's Brief in Support of Petition for Leave to Withdraw as Counsel, April 24, 2013, at 12.
This Court agrees with Attorney Shiptoski. New York State Judiciary Law, N.Y. Judiciary Law §2 (10) (Consolidated Laws Service 2013), provides that each city court outside the City of New York is a court of record. The city court here comes under that classification. Attorney Shiptoski correctly states that in Taylor v. Pennsylvania Board of Probation and Parole, 10 A.3d 422 (Pa. Cmwlth. 2010), this Court held that because a Georgia statute established that the State Court of DeKalb County was a court of record, no evidence was required to prove that. The present case is similar to Taylor in that a New York statute establishes that the city court is a court of record.
Accordingly, this Court grants Attorney Shiptoski's petition for leave to withdraw and affirms the order of the Board in the above-captioned matter.
In a letter dated April 24, 2013, and addressed to Gesford, Attorney Shiptoski complied with the requirements of Craig. --------
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 26th day of July, 2013, the application for leave to withdraw as counsel is hereby granted. The order of the Pennsylvania Board of Probation and Parole in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge