Opinion
No. 1271 C.D. 2011
04-05-2012
David Brannigan, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
David Brannigan petitions for review of the June 16, 2011, decision of the Pennsylvania Board of Probation and Parole (Board) denying Brannigan's petition for administrative relief after the Board revoked his parole and recommitted him as a technical parole violator. Brannigan's counsel has also filed a petition for leave to withdraw and an Anders brief, stating that Brannigan's appeal is wholly frivolous and that there are no meritorious issues for appeal. For the reasons that follow, we dismiss both petitions as moot.
Anders v. California, 386 U.S. 738 (1967).
Counsel seeking to withdraw from representation must: (1) notify the parolee of the request to withdraw; (2) furnish the parolee with a copy of the Anders brief or no-merit letter; and (3) advise the parolee of his right to retain new counsel or raise any new points that he might deem worthy of consideration. Banks v. Pennsylvania Board of Probation and Parole, 827 A.2d 1245, 1248 (Pa. Cmwlth. 2003). Counsel's brief or letter must set forth: (1) the nature and extent of counsel's review; (2) the issues the parolee wishes to raise; and (3) counsel's analysis concluding that the appeal is frivolous. Id. We will not examine the merits of an appeal until we are satisfied that counsel has complied with the technical requirements of Anders. Wesley v. Pennsylvania Board of Probation and Parole, 614 A.2d 355, 356 (Pa. Cmwlth. 1992). Here, counsel has satisfied the technical requirements of Anders; thus, we may proceed to review the merits of Brannigan's appeal.
On December 28, 2010, the Board revoked Brannigan's parole and determined that his new maximum sentence date was November 19, 2011. Brannigan filed a timely application for administrative relief, which was denied by letter dated June 16, 2011. On July 12, 2011, Brannigan timely filed the instant petition.
Brannigan's original parole violation maximum date was January 25, 2010.
On appeal, Brannigan asserts that the Board incorrectly re-calculated his maximum sentence date by failing to give him credit for time spent in an inpatient treatment program. We need not reach this claim, however, because we conclude that Brannigan's petition for review is moot.
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) (en banc). We will dismiss an appeal when the occurrence of an event renders it impossible for us to grant the requested relief. Id.; see Sands v. Pennsylvania Board of Probation and Parole, 396 A.2d 914, 916 (Pa. Cmwlth. 1979).
Here, the record reflects that Brannigan's maximum term expired on November 19, 2011, and that he is no longer under the custody and control of the Commonwealth. Therefore, because it is impossible for this court to grant the relief requested, Brannigan's appeal is moot.
Accordingly, we dismiss as moot both Brannigan's petition for review and counsel's petition to withdraw.
In light of our conclusion that Brannigan's petition is moot due to the expiration of his sentence, we need not reach the question raised by counsel of whether the underlying appeal was frivolous. --------
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 5th day of April, 2012, we hereby dismiss as moot: (1) David Brannigan's petition for review of the June 16, 2011, decision of the Pennsylvania Board of Probation and Parole; and (2) counsel's petition to withdraw from representation.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge