Opinion
1241 C.D. 2022
07-19-2024
George Parrott, Petitioner v. Pennsylvania Parole Board, Respondent
OPINION NOT REPORTED
Submitted: November 6, 2023
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE MARY HANNAH LEAVITT, Senior Judge
MEMORANDUM OPINION
MICHAEL H. WOJCIK, Judge
George Parrott (Parolee) petitions for review of the October 14, 2022 decision of the Pennsylvania Parole Board (Board), which affirmed an earlier Board Action recommitting Parolee as a convicted parole violator (CPV) and recalculating his maximum sentence date as October 1, 2028. Parolee's counsel, Kent D. Watkins, Esquire (Counsel), filed an Application to Withdraw as Counsel (Application), along with a no-merit letter (Turner Letter ), arguing that Parolee's appeal is frivolous and without merit. Upon careful review, we grant Counsel's Application and affirm the Board's decision.
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).
In 2008, Parolee was found guilty of robbery and sentenced to serve four years, six months to nine years in a State Correctional Institution (SCI). Certified Record (C.R.) at 1. Parolee was also found guilty of engaging in criminal conspiracy and robbery and sentenced to serve three years, six months to seven years in an SCI consecutive to the first sentence. Id. Finally, Parolee was found guilty of persons not to possess firearms and sentenced to serve one to two years consecutively to the first two sentences in an SCI. Id. In total, Parolee was sentenced to serve 9 to 18 years in an SCI, with a controlling minimum date of November 16, 2016, and a controlling maximum date of November 16, 2025. Id. at 1-2. Consistent with his controlling minimum date, Parolee was released on September 11, 2017. Id. at 4-8.
Subsequently, on May 21, 2018, the Philadelphia Police Department arrested Parolee, prompting the Board to lodge a detainer against him that same day. C.R. at 12-13. The Board also opted to detain Parolee, who was located in the Philadelphia County Prison, pending the disposition of his criminal charges in a Board Action recorded June 29, 2018. Id. at 13. However, the Board cancelled its detainer on August 15, 2019, after the May 21, 2018 charges were ultimately dropped. Id. at 13, 84.
Thereafter, on November 3, 2019, Parolee was arrested for breaking into an electronics store and stealing nearly $19,000 worth of merchandise. C.R. at 17. This arrest prompted the Board to lodge another detainer against Parolee on November 21, 2019. Id. at 16. Notably, Philadelphia County did not file criminal charges against Parolee until November 22, 2019. Id. at 17. Ultimately, Parolee was convicted on his new charges on February 2, 2022, and sentenced to 11 months and 15 days to 23 months of incarceration followed by one year of probation. Id. at 19. Parolee never posted bail on his new charges. Id. at 38.
Following his sentencing, the Board conducted a parole revocation hearing at SCI-Mahanoy. C.R. at 70. By Board Action mailed on June 3, 2022, the Board ordered Parolee to be recommitted as a CPV to serve 12 months of backtime. Id. The Board likewise declined to award Parolee credit for the time that he spent at liberty on parole because his new conviction was "the same or similar to the original offense" and he "continue[d] to demonstrate unresolved drug and/or alcohol issues." Id. at 70-71. Finally, the Board calculated Parolee's maximum sentence date as October 2, 2028. Id. at 70.
In a counseled Administrative Remedies Form dated June 16, 2022, Parolee challenged the Board's decision. C.R. at 77-78. Parolee argued the Board "failed to give [Parolee] the appropriate backtime credit for the time that he served strictly pursuant to the [B]oard's warrant. The [Board] abused its discretion by failing to award any credit to [] Parolee for the time served in good standing while on parole." Id.
In a modified Order to Recommit dated October 14, 2022, the Board credited 451 days on Parolee's sentence, from May 21, 2018, to August 15, 2019, in recognition of the time Parolee was incarcerated on the Board's detainer. C.R. at 74. Additionally, the Board awarded backtime credit to Parolee for: (1) a 103-day period from November 22, 2021, to February 2, 2022; and (2) a 1-day period from November 21, 2019, to November 22, 2019. Id. Thus, the Board recomputed his maximum sentence date as October 1, 2028. Id.
By letter mailed on October 14, 2022, the Board explained its decision: "[T]he decision on whether to grant or deny a [CPV] credit for time at liberty on parole is purely a matter of discretion. The Prisons and Parole Code [(Parole Code)] authorizes the Board to grant or deny credit for time at liberty on parole for certain criminal offenses." C.R. at 82 (citing Section 6138(a)(2.1) of the Parole Code, 61 Pa. C.S. §6138(a)(2.1)). The Board also noted that it must "articulate the basis for its decision to grant or deny a CPV credit for time served at liberty on parole." Id. (citing Pittman v. Pennsylvania Board of Probation and Parole, 159 A.3d 466, 474 (Pa. 2017)). To that end, the Board reiterated that his criminal trespass offense was the same or similar to that of his original robbery offense and that he continued to demonstrate unresolved drug issues as his supervision history notes he "tested positive for marijuana use and was found to be in possession of K2[] multiple times." Id. at 82-83.
As the Superior Court has explained: "K2 is a synthetic cannabinoid. Synthetic cannabinoids are Schedule I controlled substances. [See Section 104(1)(vii) of The Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, as amended,] 35 P.S. §780-104(1)(vii)." In the Interest of: K.B. (Pa. Super., Nos. 205 EDA 2019, 206 EDA 2019, filed July 30, 2019), slip op. at 2 n.3.
Regarding the calculation of his sentence, the Board explained that Parolee owed 2,988 days on his original sentence when he was paroled from an SCI on September 11, 2017. C.R. at 83. Because the Board decided to deny Parolee credit for the time that he spent at liberty on parole, the Board's recalculation reflected the time at liberty which remained due and owing. Id.
The record reveals that [Parolee] was temporarily confined for criminal charges that were ultimately dismissed for a period of 451 days from May 21, 2018[,] to August 15, 2019; the Board's detainer was also lodged during this period. Thus, [Parolee] was left with 2988 - 451 = 2537 days remaining on his original sentence after applying appropriate confinement credit.Id. Similarly, because the Board relodged its detainer on November 21, 2019, and Philadelphia Police arrested Parolee for his new criminal charges on November 22, 2019, the Board credited Parolee for one day of backtime as he was held solely on the Board's detainer for that day. Id. (citing Gaito v. Pennsylvania Board of Probation and Parole, 412 A.2d 568, 571 (Pa. 1980)). The Board also credited Parolee for the "excess time that he served over the 23-month maximum sentence in Philadelphia County[,]" thus entitling him to 103 days of credit "from October 22, 2021 (the [maximum] on the county sentence)[,] to February 2, 2022 (sentence date in Philadelphia County)." Id. (citing Martin v. Pennsylvania Board of Probation and Parole, 840 A.2d 299, 309 (Pa. 2003)).
Applying the appropriate pre-sentence credit left [Parolee] with 2537 - 1 - 103 = 2433 days remaining on his original sentence. . . . Because [Parolee] was sentenced to county incarceration, [Section 6138(a)(5) of the Parole Code] provides that he must serve the new sentence first. 61 Pa. C.S. §6138(a)(5). This means that [Parolee] became available to commence service of his original sentence on February 2, 2022 . . . Adding 2433 days to February 2, 2022[,] yields a new recalculated maximum date of October 1, 2028.Id.
On November 8, 2022, Parolee filed a counseled Petition for Review (Petition) challenging the Board's October 14, 2022 decision, arguing the Board "failed to give [Parolee] credit for all time served exclusively to its warrant." Petition ¶6. Further, the Board "abused its discretion by failing to give [Parolee] credit for all time in good standing on parole." Id. ¶7. On November 17, 2022, this Court granted Parolee's Application for Leave to Appeal in forma pauperis.
"Our review is limited to determining whether constitutional rights were violated, whether the adjudication was in accordance with law, and whether necessary findings were supported by substantial evidence." Miskovitch v. Pennsylvania Board of Probation and Parole, 77 A.3d 66, 70 n.4 (Pa. Cmwlth. 2013) (citing Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704).
However, on March 2, 2023, Counsel filed the instant Application. After reviewing the record, "[C]ounsel determined there are no grounds for appeal and the appeal is frivolous." Application ¶¶ 4-5. Pursuant to Turner, Counsel sent a letter to this Court and to Parolee advising the same. Id. ¶6. In his Turner Letter, Counsel states that "[t]he record does not reveal any other issues that may be raised on [Parolee's] behalf." Turner Letter at 8. Ultimately, Counsel stated: "In light of my exhaustive examination of the certified record, and research of applicable case law, I have concluded [Parolee's] appeal from the revocation of his parole has no basis in law or in fact and is, therefore, frivolous." Id. at 8-9.
In cases such as this, where counsel is seeking to withdraw from representation of a parolee who challenges a parole revocation order, counsel must submit a Turner Letter to this Court detailing the "nature and extent" of counsel's review, listing each issue raised by the parolee, and explaining why counsel concluded that parolee's claim is meritless. Zerby v. Shanon, 964 A.2d 956, 961 (Pa. Cmwlth. 2009) (citing Turner, 544 A.2d at 928). It is critical that counsel's Turner Letter substantively address each issue raised by the parolee, "rather than baldly stating that the claims are without merit." Hughes, 977 A.2d at 25 (citing Hill v. Pennsylvania Board of Probation and Parole, 707 A.2d 1214, 1215-16 (Pa. Cmwlth. 1998)). Procedurally, we must assess: (1) whether counsel notified the parolee of the request to withdraw; (2) whether counsel provided the parolee with a copy of the Turner Letter; and (3) whether counsel advised the parolee of his right to retain new counsel or file a brief on his own behalf. Miskovitch, 77 A.3d at 69. If counsel has complied with these procedural requirements, the Court will then independently review the merits of parolee's claims. Zerby, 964 A.2d at 960.
Per Hughes v. Pennsylvania Board of Probation and Parole, 977 A.2d 19, 25 (Pa. Cmwlth. 2009), we have, in the past, distinguished between whether counsel must demonstrate that a parolee's appeal is "frivolous" or "without merit" before granting counsel leave to withdraw. See Epps v. Pennsylvania Board of Probation and Parole, 564 A.2d 214, 216 (Pa. Cmwlth. 1989) (requiring that counsel demonstrate the appeal is frivolous); see also Frankhouser v. Pennsylvania Board of Probation and Parole, 598 A.2d 607, 608 (Pa. Cmwlth. 1991) (requiring that counsel demonstrate the appeal is without merit). However, "[t]his Court has recently drawn little distinction between whether the case must be 'frivolous' or 'meritless' before counsel may withdraw." Hughes, 977 A.2d at 25.
Presently, Counsel has satisfied the requirements outlined in Turner. First, Counsel notified Parolee of his Application. Likewise, Counsel provided Parolee with a copy of the Turner Letter that substantively details Counsel's review of the matter and discusses why each issue Parolee wishes to have reviewed by the Court is meritless: (1) whether the Board awarded Parolee proper backtime credit; and (2) whether the Board failed to award appropriate credit for time Parolee spent at liberty on parole. Finally, Counsel advised Parolee of his right to obtain new counsel or raise new issues he deems worthy of consideration. Thus, we turn to the merits of Parolee's Petition for Review.
As indicated, Parolee first asserts that the Board failed to award Parolee credit for all time served exclusively on its warrant. To that end, Section 6138(a)(2) of the Parole Code, 61 Pa. C.S. §6138(a)(2), states in relevant part: "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 . . . ." Nevertheless, in Gaito, 412 A.2d at 571, our Supreme Court clarified that when "a defendant is being held in custody solely because of a detainer lodged by the Board and has otherwise met the requirements for bail on the new criminal charges, the time which he spent in custody shall be credited against his original sentence."
Here, at the time of his September 11, 2017 release, Parolee still owed 2,988 days on his 2008 convictions. However, Parolee was held exclusively on the Board's warrant from May 21, 2017, to August 15, 2018, while he was incarcerated in the Philadelphia County Jail on charges which were ultimately dropped. This period of confinement entitled Parolee to 451 days of credit toward his original sentence.
Similarly, when Parolee was sentenced for his new conviction on February 2, 2022, he was immediately paroled, as the sentencing judge found his maximum sentence date to be October 22, 2021. Because Parolee served this 103-day period from October 22, 2021, to February 2, 2022, exclusively on the Board's detainer, he was entitled to credit this period toward his original sentence. See Martin, 840 A.2d at 309 ("Accordingly, we hold that, where an offender is incarcerated on both a Board detainer and new criminal charges, all time spent in confinement must be credited to either the new sentence or other original sentence."). Finally, the Board lodged its detainer against Parolee for his new conviction a day earlier than Parolee's arrest, meaning from November 21, 2022, to November 22, 2022, he was held exclusively on the Board's warrant and was entitled to a single additional day of credit toward his original sentence. All told, after subtracting the relevant periods of backtime credit due to Parolee, Parolee still owed 2,433 days on his original sentence at the time of his recommitment. As Counsel aptly noted: "Adding 2,433 days to the return date of February 2, 2022[,] results in a new maximum sentence date of October 1, 2028[,] which is correctly calculated on the order to recommit." Turner Letter at 5. Moreover, insofar as any error in calculation occurred, the Board already rectified its error by recalculating Parolee's maximum sentence date as October 1, 2028, rather than October 2, 2028.
Next, Parolee claims that the Board abused its discretion in declining to award Parolee credit for time spent at liberty on parole. Section 6138(a)(2.1) of the Parole Code, 61 Pa. C.S. §6138(a)(2.1), provides: "The [B]oard may, in its discretion, award credit to an offender recommitted . . . for the time spent at liberty on parole . . . ." Our Supreme Court has explained that this provision of the Parole Code "unambiguously grants the Board discretion to award credit to a CPV recommitted to serve the remainder of the sentence," though the Board must provide a "contemporaneous statement explaining its rationale." Pittman, 159 A.3d at 475.
Presently, the Board declined to award Parolee credit for the time that he spent at liberty on parole because his new conviction was the same or similar to that of his original conviction. The Board reasoned that his new offense "involved a rather elaborate plan of cutting a hole in the roof of an electronics store" and stealing nearly $19,000 in cash and items, similar to that of his original robbery offense. C.R. at 82. Additionally, the Board observed that Parolee continues to exhibit unresolved issues with drugs, as he had been found in possession of K2 on numerous occasions. Id. at 83. Between the Board's discretion and the sufficient reasoning it provided for denying credit for time spent at liberty on parole, we discern no error. To conclude, the Board correctly recalculated Parolee's maximum sentence date as October 1, 2028, and did not err by declining to award Parolee with credit for the time that he spent at liberty on parole.
Accordingly, we grant Counsel's Application and affirm the Board's October 14, 2022 decision.
ORDER
AND NOW, this 19 th day of July, 2024, Kent D. Watkins, Esquire's application to withdraw as counsel is GRANTED, and the order of the Pennsylvania Parole Board dated October 14, 2022, is AFFIRMED.