Opinion
No. 434 C.D. 2011
02-01-2012
Quasim B. Adams, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
This case was assigned to the opinion writer before January 7, 2012, when Judge Pellegrini became President Judge.
Presently before this Court is the petition of Richard C. Shiptoski, Esquire (Counsel) for leave to withdraw as appointed counsel for Quasim Adams (Adams) on Adams' appeal from the order of the Pennsylvania Board of Probation and Parole (Board) recommitting Adams as a convicted parole violator to serve 18 months backtime. For the reasons that follow, we grant Counsel's petition for leave to withdraw and affirm the Board's order.
Counsel is an assistant public defender in Luzerne County.
Adams was originally sentenced to a term of incarceration of one year, five months to five years, nine months following his convictions for simple assault and carrying a firearm without a license. (C.R. at 7.) Adams had a minimum sentence expiration date of January 6, 2008, and a maximum sentence expiration date of April 21, 2012. Id. By order dated January 8, 2008, the Board granted Adams parole, but he was not actually released on parole until March 24, 2008. (C.R. at 4-7.) On September 24, 2008, Adams was arrested by Philadelphia police and charged with multiple counts of attempted murder, aggravated assault, simple assault, terroristic threats, and carrying a firearm without a license. (C.R. at 11-14.) The Board thereafter issued a warrant to commit and detain Adams. (C.R. at 10.) The Board subsequently issued an order dated December 2, 2008, to detain Adams pending disposition of these new criminal charges. (C.R. at 34.) However, that same day, the charges were dismissed and Adams was released and permitted to continue on parole. (C.R. at 36-41.)
On June 26, 2009, Adams was again arrested by Philadelphia police and charged with multiple firearms violations and tampering with evidence. (C.R. at 43.) The Board issued a warrant to commit and detain Adams. (C.R. at 42.) The Board subsequently issued an order dated August 11, 2009, to detain Adams pending disposition of these new criminal charges. (C.R. at 53.) On December 4, 2009, Adams pled guilty to carrying a firearm without a license and carrying a firearm in public. (C.R. at 55, 67.) Adams was later sentenced to a term of incarceration of two and a half years to five years with respect to these latest convictions. (C.R. at 87.)
On December 21, 2009, Adams waived his right to a parole revocation hearing and admitted to the aforementioned convictions. (C.R. at 68.) By decision mailed on March 17, 2010, the Board recommitted Adams as a convicted parole violator to serve eighteen months backtime. (C.R. at 84.) At that time, Adams was incarcerated at the State Correctional Institution at Graterford (SCI-Graterford). Id. Adams thereafter filed a pro se petition for administrative review nunc pro tunc alleging that he was transferred from SCI-Graterford and did not receive the Board's March 17, 2010, decision until July 25, 2010. (C.R. at 85-90.) Adams further alleged that the Board erred in failing to require that his backtime be served concurrently with his new state sentence. Id. However, the envelope containing Adams' petition was postmarked September 7, 2010, and was not received by the Board until September 9, 2010. (C.R. at 91.)
By letter mailed March 3, 2011, the Board dismissed Adams' petition as untimely. (C.R. at 94.) The Board noted that its regulations provide that petitions for administrative review must be received at the Board's office within thirty days of the mailing date of its determination. Id. The Board noted that Adams had until April 16, 2010, to file a petition for administrative review of its decision mailed March 17, 2010. Id. However, the Board did not receive Adams' petition until September 9, 2010. Id. The Board further noted that Adams' petition would still be untimely even if it accepted Adams' allegation that he did not receive the determination until July 25, 2010. Id.
Adams then filed a pro se petition for review in the nature of a writ of mandamus with this Court alleging that the Board erred in dismissing his appeal as untimely. More specifically, Adams alleged that the Board's action in mailing its determination to SCI-Graterford, instead of SCI-Dallas where he had been transferred, constituted a breakdown in the Board's operations, thereby warranting nunc pro tunc relief. Adams sought an order directing the Board to accept his petition for administrative review nunc pro tunc and consider the merits thereof. By order dated May 2, 2011, this Court directed that Adams' petition be treated as a petition for review addressed to our appellate jurisdiction. Further, this order appointed the Public Defender of Luzerne County to represent Adams in this matter.
Counsel was thereafter assigned to this matter and he promptly filed an amended petition for review alleging that Adams' petition for administrative review nunc pro tunc was sent to the Board on August 1, 2010, only one week after Adams received the Board's determination at SCI-Dallas and, therefore, it was timely. However, upon further review of the certified record, Counsel determined that Adam's petition for review had no merit and lacked any basis in law or fact, and Counsel filed a petition for leave to withdraw as counsel. Accompanying this petition was an Anders brief wherein Counsel stated the reasons why he found that the petition for review lacked merit.
Anders v. California, 386 U.S. 738 (1967).
In Craig v. Pennsylvania Board of Probation and Parole, 502 A.2d 758 (Pa. Cmwlth. 1985), this Court set forth the procedural requirements that counsel must satisfy in order to withdraw. Under the Craig requirements, counsel is required to notify the parolee of counsel's request to withdraw; provide the parolee with either (1) a copy of a brief adhering to the requirements of Anders v. State of California, 386 U.S. 738 (1967), or (2) a no-merit letter complying with requirements of Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988); and advise the parolee that he has the right to submit a brief on his own behalf or retain new counsel.
We may not examine the merits of Adams' appeal until we are satisfied that Counsel discharged his responsibility by complying with the technical requirements of an Anders brief. Wesley v. Pennsylvania Board of Probation and Parole, 614 A.2d 355 (Pa. Cmwlth. 1992). Counsel's brief must set forth the following: (1) the nature and extent of counsel's review of the case; (2) the issues the petitioner wishes to raise; and (3) counsel's analysis concluding that the appeal has no merit. Encarnacion v. Pennsylvania Board of Probation and Parole, 990 A.2d 123 (Pa. Cmwlth. 2010); Banks v. Pennsylvania Board of Probation and Parole, 827 A.2d 1245 (Pa. Cmwlth. 2003). Counsel's analysis must include a substantive explanation as to why the issues lack merit. Wesley.
The record establishes that Counsel served Adams with his petition for leave to withdraw as counsel and the Anders brief. Counsel also informed Adams of his right to obtain substitute counsel and file a brief in support of his amended petition for review or file a brief on his own behalf.
In his Anders brief, Counsel detailed Adams' criminal history, including his most recent charges. Counsel confirmed that, on March 22, 2010, Adams had been transferred from SCI-Graterford to SCI-Camp Hill and later to SCI-Dallas. (Supplemental C.R. at 1.) However, upon review of the certified record, Counsel discovered that Adams' petition for administrative review nunc pro tunc was postmarked September 7, 2010, and was not received by the Board until September 9, 2010. Hence, even if Adams had received the Board's determination on July 25, 2010, as he alleged, Counsel concluded that Adams' petition for administrative review was untimely and any further appeal lacked merit. Thus, Counsel complied with the requirements for an Anders brief.
Having determined that Counsel has satisfied the necessary procedural and technical requirements to withdraw, we will now conduct our own independent review to determine whether Adams' appeal is, in fact, without merit. An appeal is without merit when it lacks any basis in law or fact. Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009).
The Board's regulations specifically provide that petitions for administrative review shall be received at the Board's Central Office within thirty days of the mailing date of the Board's determination. 37 Pa. Code §73.1(b)(1). Relying on this regulation, this Court has repeatedly emphasized that the Board is without jurisdiction to consider untimely petitions for administrative review. Merriwether v. Pennsylvania Board of Probation and Parole, 693 A.2d 1000 (Pa. Cmwlth. 1997); McCaskill v. Pennsylvania Board of Probation and Parole, 631 A.2d 1092 (Pa. Cmwlth. 1993), appeal denied, 537 Pa. 655, 644 A.2d 739 (1994); Ayers v. Pennsylvania Board of Probation and Parole, 565 A.2d 1257 (Pa. Cmwlth. 1989), appeal denied, 527 Pa. 588, 588 A.2d 511 (1990).
In the present case, the Board's determination recommitting Adams as a convicted parole violator to serve eighteen months backtime was mailed on March 17, 2010. Pursuant to the Board's regulations, any petition for administrative review from Adams had to be received by the Board within thirty days of this date. Adams' petition was not received by the Board until September 9, 2010, well beyond the thirty days. Further, even accepting as true Adams' allegation that he did not receive the Board's determination until July 25, 2010, his petition was still filed beyond thirty days of said receipt. Thus, under either scenario, Adams' petition was untimely.
This Court addressed a similar situation in Lewis v. Pennsylvania Board of Probation and Parole, 508 A.2d 644 (Pa. Cmwlth. 1986). In Lewis, the petitioner was arrested on new criminal charges while on parole. Following his conviction on these charges, the petitioner was incarcerated at SCI-Graterford. The Board conducted a revocation hearing and, on April 23, 1985, mailed a decision to the petitioner's counsel of record, who did not notify the petitioner of the same. The Board's regulations at that time provided that the Board will transmit a revocation order to both the parolee and any counsel of record. On April 25, 1985, the petitioner was transferred to SCI-Dallas and he did not receive notice of the Board's revocation decision until June 14, 1985. The petitioner filed a request for administrative relief on July 3, 1985, which the Board dismissed as untimely. On appeal, this Court reversed and remanded to the Board for consideration of the merits. In reaching this decision, we noted that the record failed to indicate that the petitioner received notice of the determination at SCI-Dallas, that the determination itself only referred to SCI-Graterford, and that there was no record basis for dismissing petitioner's petition as untimely. However, unlike the present case, the petitioner in Lewis filed his request for administrative relief well within thirty days of his receipt of the Board's revocation decision. --------
Accordingly, having made an independent evaluation of the issues presented and having found Counsel has satisfied the requirements of Anders, we grant Counsel's petition for leave to withdraw and affirm the Board's order dismissing Adams' petition for administrative review nunc pro tunc as untimely.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 1st day of February, 2012, the petition filed by Richard C. Shiptoski, Esquire for leave to withdraw as appointed counsel for Quasim B. Adams is hereby granted. The order of the Board, mailed March 3, 2011, dismissing Adams' petition for administrative review nunc pro tunc as untimely, is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge