Opinion
No. 1454 C.D. 2013
06-16-2014
Cornelius Mapson, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Cornelius Mapson petitions for review of the order of the Pennsylvania Board of Probation and Parole (Board) recommitting him as a convicted parole violator and extending the maximum term expiration date of his original sentence until May 21, 2014. In addition, Mapson's court-appointed attorney, Timothy Peter Wile, Esquire petitions for leave to withdraw his representation of Mapson, asserting that no grounds exist for the appeal and that the appeal is frivolous. After review, we grant the petition to withdraw and affirm the Board's recommitment order.
Mapson was originally sentenced to an aggregate term of one year, five months to four years of total confinement by the Court of Common Pleas of Lackawanna County (common pleas) following his guilty pleas to possessing a controlled substance with intent to deliver, simple assault, and criminal trespass. The effective date of this sentence was August 29, 2008, and the original maximum term expiration date on that aggregate sentence was August 29, 2012.
Mapson was paroled to a drug treatment center in Hazleton on November 24, 2010. Mapson was arrested by Scranton Police on June 6, 2012, on several drug-related charges and was confined to the Lackawanna County Prison. On October 1, 2012, the Board declared Mapson delinquent for control purposes, effective August 29, 2012, the original maximum term expiration date. Mapson was convicted of possessing a controlled substance with intent to deliver and criminal use of a communication facility on November 1, 2012. On January 17, 2013, at the Lackawanna County Prison, Mapson waived his parole revocation hearing, right to counsel, and stipulated to the new convictions in Lackawanna County. On January 30, 2013, common pleas sentenced Mapson to a term of two to four years of total confinement in a state correctional institution with respect to the 2012 possession with intent to distribute conviction. That sentence was effective as of January 30, 2013, and common pleas awarded Mapson 183 days credit toward that sentence.
On March 5, 2013, the Board recommitted Mapson as a convicted parole violator to serve the entire unexpired term of his original sentence on the basis of 2012 conviction. The Board determined that Mapson was not amenable to parole supervision and recomputed the maximum term expiration date. The Board determined that Mapson was "at liberty on parole" for 453 days (one year, two months, and 27 days). This is time, prior to Mapson's original maximum term expiration date of August 29, 2012, that remained unserved and was reached after Mapson was credited by common pleas with 183 days. That one year, two months, and 27 days, when added to Mapson's custody return date of February 22, 2013, yielded a new maximum term expiration date of May 21, 2014.
On March 21, 2013, Mapson filed an administrative appeal from the Board's decision, asserting that the Board's decision to recommit him to serve the unexpired term violated the separation of powers doctrine. On July 30, 2013, the Parole Board denied Mapson's administrative appeal.
Thereafter, Mapson filed a pro se petition for review of the Board's denial of the administrative appeal. This Court granted in forma pauperis status and appointed Wile to represent Mapson. Wile filed an initial amended petition for review but later filed a motion to amend the amended petition to include an additional issue. The Court denied the motion.
By letter dated January 28, 2014, Wile informed Mapson that after review of the amended petition for review and the relevant case law he had concluded that no non-frivolous issues were present in Mapson's case that would warrant granting any relief and that consequently he would be requesting permission of the Court to withdraw as counsel pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).
"Appointed counsel may withdraw from assisting an indigent parolee in appealing a parole revocation order, when counsel determines that the issues raised are meritless." Turner, 544 A.2d at 928-29. This Court must make an independent evaluation of proceedings before the Board to determine whether an appeal is meritless. Dear v. Pa. Bd. of Prob. & Parole, 686 A.2d 423 (Pa. Cmwlth. 1996). When this Court agrees with counsel's assertion that the appeal is without merit, the Court will permit counsel to withdraw when he 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 the review, the issues the parolee wishes to raise, and counsel's analysis in concluding that the appeal is without merit. Wesley v. Pa. Bd. of Prob. & Parole, 614 A.2d 355 (Pa. Cmwlth. 1992). Because we conclude that Wile complied with all of these requirements, we will grant his motion to withdraw.
Turning to the merits of Mapson's claims, he asserts that neither the Constitution nor Pennsylvania law authorizes the Board to extend his maximum term expiration date to May 21, 2014, following his recommitment as a convicted parole violator. Mapson does not challenge the accuracy of the Board's computations, only the Board's right and authority to extend his maximum term expiration date.
Mapson asserts that the Board' s action in extending his maximum term expiration date, following his recommitment as a convicted parole violator, violates the constitutional doctrine of separation of powers. Mapson argues that the Board, an independent Commonwealth administrative agency, cannot alter a judgment of sentence that was imposed by the judiciary.
Section 6138 of the Prisons and Parole Code, as amended, 61 Pa. C.S. § 6138, provides that the Board shall recommit a parole violator to serve the remainder of the term of confinement the violator would have served if the violator had not been granted parole. In Young v. Pennsylvania Board of Probation and Parole, 409 A.2d 843, 848 (Pa. 1979), the Pennsylvania Supreme Court specifically held that Pennsylvania statutory law mandates the denial of credit to a committed parole violator for time spent at liberty on parole and that law does not violate the separation of powers doctrine. The Supreme Court explained that through passage of the relevant statute it is the General Assembly that has extended a committed parole violator's maximum expiration date, rather than the Board. Id. at 847. We conclude, therefore, that the Board did not violate the separation of powers doctrine by acting pursuant to 61 Pa. C.S. § 6138 and recommitting Mapson as a convicted parole violator without credit for time served at liberty on parole. Davidson v. Pa. Bd. of Prob. & Parole, 33 A.3d 682 (Pa. Cmwlth. 2011).
Section 6138(a)(1) and (2) provides in relevant part:
(a) Convicted violators.
(1) 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.
(2) If the parolee's recommitment is so ordered, the parolee shall be reentered to serve the remainder of the term which the parolee would have been compelled to serve had the parole not been granted and, except as provided under paragraph (2.1), shall be given no credit for the time at liberty on parole.
Mapson also asserts that his due process rights were violated when the Board, by ex parte administrative action, extended the maximum term expiration date of his original sentence without affording him a prior hearing on that matter.
An offender may waive his right to a revocation hearing. McKenzie v. Pa. Bd. of Prob. & Parole, 963 A.2d 616 (Pa. Cmwlth. 2009). In order to effectuate a knowing and voluntary waiver, the Board must show only that it followed its own regulations and provided the necessary information to the offender prior to the offender signing the written waiver form. Id. at 620. Prior to obtaining a waiver of a parole revocation hearing and stipulation of conviction, the Board must inform a parole violator of the exact date of the revocation hearing, the right to be heard by a panel, the right to retain counsel (free or otherwise), the lack of penalty for requesting counsel, the right to speak, present evidence and have witnesses appear, and that the purpose of the hearing is to determine whether to revoke parole and if parole is revoked that the violator will not receive credit for time spent at liberty. 37 Pa. Code § 71.4(2)(i)-(v).
Mapson specifically waived a parole revocation hearing on January 17, 2013, while confined at the Lackawanna County Prison and stipulated to the fact of his new convictions. Certified Record at Item 8. Mapson did not retract that waiver within ten days as permitted by the waiver form. Id. Thus, Mapson's waiver of the parole revocation hearing and the accompanying stipulation to the fact of his new convictions are valid and the Board did violate his due process rights. Fisher v. Pa. Bd. of Prob. & Parole, 62 A.3d 1073 (Pa. Cmwlth. 2013).
A parole revocation hearing serves as the procedural due process hearing prior to the revocation of parole and the extension of the maximum term expiration date following recommitment as a committed parole violator. See Gair v. Pa. Bd. of Prob. & Parole, 948 A.2d 884, 888-89 (Pa. Cmwlth. 2008) (stating that the Board is not entitled to hold a second hearing so it can place into evidence documents justifying its re-computation of parolee's maximum term expiration date that it should have produced in the first place); Pierce v. Pa. Bd. of Prob. & Parole, 500 A.2d 181, 183 (Pa. Cmwlth. 1985) (holding that the Board bears the burden of justifying its computation of recommitment time). By waiving a parole revocation hearing, Mapson also effectively waived that portion of the revocation hearing dealing with the amount of back time owed in the event he was recommitted as a committed parole violator. Because Mapson waived a parole revocation hearing and stipulated to his new convictions, the Board was not obligated to provide him with a hearing prior to re-computing the maximum term expiration date.
Finally, Mapson asserts that the term "at liberty on parole" used in 61 Pa. C.S. § 6138(a) is ambiguous and must be construed against the Board. Although the term "at liberty on parole" is not defined by the Prisons and Parole Code, the Pennsylvania Supreme Court has defined the phrase "at liberty on parole" to mean "not liberty from all confinement but at liberty from confinement on the particular sentence for which the convict is being reentered as a parole violator." Cox v. Pennsylvania Board of Probation and Parole, 493 A.2d 680, 683 (Pa. 1985) [quoting Commonwealth ex rel. Haun v. Cavell, 154 A.2d 257, 261 (Pa. Super. 1959)]. Therefore, a parolee is considered "at liberty on parole" at any time during which the parolee is not confined on account of the particular sentence on which the parolee is being re-entered as a parole violator. We conclude that Mapson's assertion that the term "at liberty on parole" as used in 61 Pa. C.S. § 6138(a) is entirely without merit.
Discerning no error on the Board's part and no meritorious issue on appeal, we grant the petition to withdraw and affirm the order of the Board.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 16th day of June, 2014, the petition of Timothy Peter Wile, Esquire to withdraw representation in the above-captioned matter is hereby GRANTED and the order of the Pennsylvania Board of Probation and Parole is AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge