Opinion
No. 2178 C.D. 2011
05-23-2012
Charles Timmons, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Before us is Timothy Peter Wile's (Attorney Wile) petition to withdraw as counsel for Charles Lawrence Timmons (Timmons) regarding Timmons's petition for review of an order of the Pennsylvania Board of Probation and Parole (Board) which recommitted Timmons as a convicted parole violator to serve nine months backtime concurrent with an earlier recommitment to serve five months and two days as a technical parole violator and established Timmons's maximum date as May 3, 2012.
On May 5, 2005, Timmons was effectively sentenced to a term of two to four years after his drug conviction. On July 17, 2007, Timmons was released on parole. On November 16, 2008, the City of Philadelphia Police Department arrested Timmons for DUI and criminal mischief. On December 3, 2008, the Board issued a warrant to commit and detain Timmons. In a decision recorded January 27, 2009, and mailed February 4, 2009, the Board detained Timmons pending the disposition of criminal charges. The Board recommitted Timmons as a technical parole violator to serve his unexpired term of five months and two days as a technical parole violator for using drugs and alcohol. On May 5, 2009, the Board lifted its detainer due to the expiration of Timmons's maximum date. On November 10, 2009, he pled guilty to the DUI and criminal mischief charges and was sentenced to seventy-two hours confinement with six months probation by the Court of Common Pleas of Philadelphia County. That same date he was sentenced to twelve months probation for possession of a controlled substance. On December 15, 2010, the Board issued a warrant to commit and detain Timmons.
Timmons waived his revocation hearing. In a decision recorded and mailed on August 4, 2011, the Board recommitted Timmons to serve nine months backtime as a convicted parole violator concurrent with the earlier backtime of five months and two days as a technical parole violator. The Board established a maximum date of May 3, 2012.
Timmons requested administrative relief and asserted that the Board violated his right to due process when it recalculated his maximum date as May 3, 2012, which changed his original two to four year sentence to a two to seven year sentence. Timmons also asserted that his sentence had expired and that he should be released from custody.
On October 17, 2011, the Board denied Timmons's request for administrative relief and concluded:
You were recommitted as a convicted parole violator for the offenses of: Driving Under the Influence, Criminal
Mischief and Possession of a Controlled Substance. Because all three of these offenses occurred while you were on parole, were punishable by imprisonment and resulted in convictions in a court of record, the Board had discretion to recommit you as convicted parole violator for the offenses or continue on parole. . . . Since the Board chose to recommit you as a convicted parole violator in this instance, the Board was required by law to recalculate your sentence to reflect that you received no credit for the entire period you were at liberty on parole. . . . Therefore, your claim that the Board violated your due process rights by recalculating your maximum sentence date is denied.
The Board also correctly recalculated your maximum sentence date. When the Board paroled you from a state correctional institution on July 17, 2007, your max date was May 5, 2009. In light of your recommitment as a convicted parole violator, which required you to forfeit credit for the period that you were at liberty on parole, you had 658 days remaining on your sentence. . . . On November 16, 2008, authorities arrested you for new criminal charges that were docketed in the Philadelphia Municipal Court at MC# 56965-2008 and MC# 56966-2008. However, you posted bail from these charges on November 28, 2008 and you were released from custody. The Board then arrested and detained you on December 3, 2008, but then subsequently lifted that detainer on May 5, 2009 due to the expiration of your original max date.
You pled guilty to the new criminal charges on October 5, 2009 and the court of [common pleas] sentenced you to a new term of imprisonment to be served in the county prison on November 10, 2009. The term of imprisonment was complete effective the day of sentencing due to credit for time served. The Board re-lodged its detainer against you on December 15, 2010.
Based on these facts, the Board gave you 153 days of credit on your original sentence for the time you were incarcerated from December 3, 2008 to May 5, 2009 because you were incarcerated solely on the Board detainer and/or credit for that period could not be applied
to another sentence of imprisonment. . . . Subtracting this credit from the time you had remaining left 505 days remaining on your sentence. Additionally, because you had already completed service of your new sentence on the day of sentencing, you became available to commence service of your original sentence when the Board re-lodged its detainer against you on December 15, 2010. Adding 505 days to that date yielded a new maximum sentence date of May 3, 2012. (Citations omitted).Board Decision, October 17, 2011, at 1-2; Certified Record at 146-147.
Attorney Wile was assigned to represent Timmons. After review of Timmons's petition for review and the certified record, Attorney Wile desires to withdraw and asserts that Timmons'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 a motion 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, (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).
Timmons initially petitioned for review. After Attorney Wile commenced representation of Timmons, this Court permitted Attorney Wile to file an amended petition for review. Attorney Wile did so. In the amended petition for review, Timmons alleges that the Board violated his due process rights when it declared him delinquent from May 5, 2009, through December 15, 2010, without providing him with any notice, that the Board erred when it added sixteen months eighteen days remaining on his sentence from December 15, 2010, the date that he came under the Board's custody instead of from May 5, 2009, when his original maximum term expired, and, consequently, Timmons's maximum term expiration date should have been September 23, 2010, which had already expired. Timmons seeks an order changing his maximum term expiration date to September 23, 2010, and his release from custody.
This Court need not reach the claims of Timmons because his petition for review is moot. Timmons's maximum term expiration date of May 3, 2012, has already occurred.
It is well settled that "the expiration of a parolee's maximum term renders an appeal of a Board revocation order moot." Taylor v. Pennsylvania Board of Probation and Parole, 746 A.2d 671, 674 (Pa. Cmwlth. 2000). This Court will dismiss an appeal when the occurrence of an event renders it impossible for this Court to grant the requested relief. Taylor.
Here, Timmons's maximum term expired on May 3, 2012. As a result, Timmons is no longer under the custody and control of the Board. Because this Court cannot grant the relief requested, Timmons's appeal is moot.
Assuming arguendo that Timmons remains under the custody and control of the Board, this Court will address Attorney Wile's petition and the merits of Timmons's petition for review.
With respect to the due process assertion, Attorney Wile concluded:
Timmons complains that his due process rights were somehow denied when the Parole Board took steps to declare him delinquent for control purposes as of 5 May 2009 when it lifted its detainer upon the reaching of the original maximum term of Judge Dych's PWID sentence. This assertion, too, is entirely without merit so as to be frivolous.
When the Parole board declares an offender delinquent for control purposes' at the expiration of the offender's original maximum term, the Court has recognized that this particular Parole Board action is merely an administrative action to mark the offender's case to be reviewed once pending criminal charges have been disposed of. . . . In that Timmons was released from confinement on bail upon the expiration of the original maximum term of 5 May 2009 and the lifting of the
Parole Board's detainer, and he remained free on bail until his November 2009, sentencing, after which he remained free, it is clear that the Parole Board's administrative action in no way prejudiced him. . . .That administrative action likewise had no impact upon the computation of his extended maximum term expiration date following his recommitment as a CPV [convicted parole violator]. (Citations omitted).Petitioner's Brief, February 15, 2012, (Brief) at 24-25.
In Jezick v. Pennsylvania Board of Probation and Parole, 530 A.2d 1031 (Pa. Cmwlth. 1987), Michael Jezick (Jezick) was at liberty on parole. He was arrested on charges of robbery, criminal attempt - homicide, and other related offenses on February 5, 1985, one week before the expiration of his maximum term. On February 6, 1985, the Board placed a detainer on Jezick. After his maximum term expired, the Board lifted its detainer on Jezick and declared him delinquent for control purposes. On February 15, 1985, a magistrate found that a prima facie case had been established against Jezick. On March 10, 1986, Jezick was convicted on the new charges. On May 2, 1986, following a revocation hearing, Jezick was recommitted to serve the unexpired term of his original sentence, when available. The Board denied Jezick's petition for administrative relief. Jezick, 531 A.2d at 1032.
On appeal to this Court, one of the issues Jezick raised was that his constitutional rights were violated because he was declared delinquent and continued in a delinquent status for fourteen months without notice. Jezick, 531 A.2d at 1032. This Court dismissed this argument:
[T]he issuance of this detainer did not violate Petitioner's [Jezick] constitutional rights. When a parolee has been
arrested for a new offense, he may be 'detained on a Board warrant pending disposition of criminal charges . . . [if a] committing magistrate has conducted a preliminary hearing and concluded that there is a prima facie case against the parolee.'. . . In the case at bar, Petitioner [Jezick] 'may be detained, without further hearing, pending disposition of the criminal charges.'. . . Petitioner [Jezick] had a preliminary hearing on the new charges on February 15, 1985, at which time a prima facie case was established against him. Thus, the constitutional rights of Petitioner were not violated by the issuance of the detainer. Petitioner [Jezick] also contends that his rights were violated when the Board declared him delinquent for control purposes. Since Petitioner [Jezick] was already incarcerated, he was in no way prejudiced by this administrative procedure which simply marked his case to be reviewed after disposal of the new charges.Jezick, 531 A.2d at 1033.
This Court agrees with Attorney Wile that the Board did not violate Timmons's constitutional rights when it declared him delinquent for control purposes. Timmons suffered no prejudice as a result of the delinquency and the detainer, and Timmons was not entitled to a hearing regarding the declaration of delinquency.
With respect to whether the Board erred when it used December 15, 2010, as the starting point from which to compute Timmons's maximum date, Attorney Wile explained:
The Parole Board utilised [sic] the date on which it regained custody over Timmons - 15 December 2010 - as the starting date to which the balance of 505 days must be added in order to compute the extended maximum term expiration date. . . .Timmons, on the other hand, argues that the Parole Board should add that time to his
original maximum term expiration date of 5 May 2009, which would result in an extended maximum term expiration date of 3 November 2010. . . .
Section 6138(a)(4) of the Prisons and Parole Code, 61 Pa.C.S. §6138(a)(4), is controlling on this particular point of the law and resolves this dispute clearly in the Parole Board's favour [sic]. Section 6138(a)(4) addresses this particular situation and provides:
(4) The period of time for which the parole violator is required to serve shall be computed from and begin on the date that the parole violator is taken into custody to be returned to the institution as a parole violator. 61 Pa.C. §6138(a)(4). . . .
. . . .
Pursuant to 61 Pa.C.S. §6138(a)(4), the amount of time that Petitioner Timmons was required to serve as a CPV commenced on the date he was taken into custody to be retuned [to] a state correctional institution as a parole violator. It is clear from the facts that 5 May 2009 cannot be used as the starting date for computing the extended maximum term expiration date of Judge Dych's PWID sentence since that is the date Timmons was released from custody on bail with respect to the new criminal charges arising out of his 16 November 2008 arrest in Philadelphia. Insofar as Timmons had not yet been convicted of those charges, the Parole Board had no authority to keep him in custody upon the expiration of the original maximum term of Judge Dych's PWID Sentence. . . . Therefore, insofar as Timmons was free on bail following the dissolution of the Parole Board's warrant and detainer on 5 May 2010 up to the time of his sentencing on the new Philadelphia charges on 10 November 2010, it is clear that he was not in 'custody' during that period of time within the meaning of 61 Pa.C.S. §6138(a)(4). As a result, 5 May 2009 cannot be used as the starting date for the time that Timmons was required to remain in prison as a CPV.
When Timmons was sentenced by Municipal Court Judge Simmons on 10 November 2009, the Parole Board had already dissolved its prior warrant and detainer upon the expiration of Timmons' original maximum term expiration date on 5 May 2009. . . . Timmons was under no type of restraint on his liberty with respect to Judge Dych's PWID sentence until he appeared at the Parole Board's office on 15 December 2010 and was taken into custody. It was at that time that the Parole Board re-lodged it [sic] warrant and detainer against him as a convicted parole violator (CPV) and commenced the process to re-commit him to prison as a CPV. Therefore, the first date that Timmons was in custody to be returned to prison as a CPV was December 15, 2010, which was the date on which the Parole Board relied to re-compute the extended maximum term expiration date of Judge Dych's PWID sentence. (Citations and footnote omitted). (Emphasis added by Attorney Wile).Brief at 16, 19-21.
In the amended petition for review, Timmons alleged that his maximum expiration date was September 23, 2010.
This Court agrees with Attorney Wile and the Board that Timmons did not become available to serve the remainder of his sentence until he was returned to Board custody on December 15, 2010. Section 6138(a)(4) of the Prisons and Parole Code, 61 Pa.C.S. §6138(a)(4), clearly states that the period of time for which the convicted parole violator is required to serve shall be computed from and begin on the date that the parole violator is taken into custody to be returned to the state correctional institution as a parole violator. Here, Timmons was returned to Board custody on December 15, 2010. The Board correctly added the remainder of Timmons's sentence to get a new maximum expiration date of May 3, 2012.
Accordingly, this Court grants Attorney Wile's request and dismisses Timmons's petition for review as moot.
This Court also notes that Attorney Wile asserts in his brief that he has complied with the notification requirements to Timmons. See Craig. --------
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 23rd day of May, 2012, the request of Timothy P. Wile to withdraw as counsel in the above-captioned matter is granted. The petition for review of Charles Timmons from the order of the Pennsylvania Board of Probation and Parole is dismissed as moot.
/s/_________
BERNARD L. McGINLEY, Judge