Opinion
No. 1876 C.D. 2014
07-24-2015
Daniel Camargo, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Presently before this Court is the application of Kent D. Watkins, Esquire (Counsel) for leave to withdraw as counsel for Daniel Camargo (Camargo). Camargo filed a complaint in mandamus with this Court, which, by order dated October 30, 2014, we directed to be treated as a petition for review, challenging the Pennsylvania Board of Probation and Parole's (Board) recalculation of his maximum parole violation date. Counsel seeks leave to withdraw on the grounds that Camargo's petition for review is without merit. For the reasons that follow, we grant Counsel's petition and affirm the Board's order.
On March 5, 2009, Camargo was arrested and charged with the manufacture/sale/delivery or possession with intent to manufacture or deliver a controlled substance, as well as fleeing or attempting to elude an officer. On December 21, 2009, Camargo pled guilty to these charges and he was sentenced to a term of incarceration of 2 years, 3 months, to 7 years on the drug charge, and a concurrent sentence of 1 month, 15 days, to 2 years on the fleeing charge. Camargo's minimum expiration date was June 5, 2011, and his maximum expiration date was March 5, 2016. On September 6, 2011, Camargo was released on parole. The conditions governing his parole, which Camargo acknowledged with his signature on that date, specifically advised him that if he was convicted of a crime while on parole, the Board had the authority to recommit him to serve the balance of his sentence, with no credit for time spent at liberty on parole.
On January 24, 2014, Camargo was arrested in New Jersey and charged with possession with intent to deliver cocaine, possession of a controlled substance, and possession of drug paraphernalia. On April 1, 2014, Camargo pled guilty to the charge of possession with intent to deliver and, pursuant to a plea agreement, was to be sentenced to a term of incarceration of 5 years, to be served concurrent with his anticipated parole violation sentencing in Pennsylvania. Camargo did not appear for his scheduled sentencing in New Jersey on May 23, 2014. Instead, on May 30, 2014, Camargo turned himself in to the Board's district office in Allentown, Pennsylvania. Camargo was taken into custody as a result of the outstanding criminal charges and transported to the State Correctional Institution at Mahanoy. The Board issued a warrant to commit and detain Camargo that same day.
On June 9, 2014, Camargo executed a waiver of his revocation hearing and right to counsel and admitted to pleading guilty to new criminal charges in New Jersey. By decision mailed August 8, 2014, the Board recommitted Camargo as a convicted parole violator to serve 18 months backtime and recalculated his parole violation maximum date as November 27, 2018. On August 22, 2014, Camargo filed a petition for administrative review alleging that the Board erred in calculating his parole violation maximum date by failing to credit his time spent at liberty on parole from September 6, 2011, to his New Jersey arrest on January 24, 2014, and by failing to provide him with credit for all time served pursuant to the Board's warrant.
By letter mailed October 6, 2014, the Board denied Camargo's petition. The Board explained that as a convicted parole violator, Camargo automatically forfeited credit for all time spent on parole pursuant to section 6138(a)(2) of the Prisons and Parole Code (Parole Code), 61 Pa.C.S. §6138(a)(2). The Board stated that Camargo was never incarcerated solely on the Board's warrant, noting that Camargo first became available to begin serving his backtime on May 30, 2014, the date of its warrant. The Board further noted that when Camargo was released on parole on September 6, 2011, he had 1,642 days remaining on his original sentence, and that it added those days to May 30, 2014, to reach a new parole violation maximum date of November 27, 2018.
On October 17, 2014, Camargo filed a pro se petition for review alleging that the Board's recalculation of his parole violation maximum date constituted an illegal sentence and that the Board lacked jurisdiction to modify his original sentence. By order dated October 30, 2014, we appointed counsel to represent Camargo. Upon review of Camargo's petition and the certified record of the Board, Counsel filed a petition for leave to withdraw with this Court and a "Turner" letter, detailing the reasons why he found the appeal lacked merit. Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988). Counsel forwarded copies of this letter to Camargo and the Board.
In order to withdraw, counsel must satisfy the procedural requirements set forth by this Court in Craig v. Pennsylvania Board of Probation and Parole, 502 A.2d 758 (Pa. Cmwlth. 1985). Under Craig, counsel must notify the parolee of his request to withdraw, furnish the parolee with either a copy of a brief complying with Anders v. State of California, 386 U.S. 738 (1967), or a no-merit letter satisfying the requirements of Turner, and inform the parolee of his right to retain new counsel or submit a brief on his own behalf.
If counsel proceeds under Turner, the letter must substantively contain: (1) the nature and extent of counsel's review; (2) the issues the parolee wishes to raise; and (3) counsel's analysis in concluding the parolee's appeal is without merit. Hughes v. Pennsylvania Board of Probation and Parole, 977 A.2d 19 (Pa. Cmwlth. 2009); Zerby v. Shannon, 964 A.2d 956 (Pa. Cmwlth. 2009). We require counsel to comply with these requirements to ensure that a parolee's claims are considered and that counsel has substantial reasons for concluding the claims are without merit. Id.
In the present case, by letter dated January 9, 2015, Counsel notified Camargo of his application for leave to withdraw and provided Camargo with a copy of the same, advised Camargo of his right to obtain substitute counsel or file a brief on his own behalf, and provided Camargo with a copy of his Turner letter setting forth the reasons why he found his petition for review to lack merit. Hence, Counsel has complied with the procedural requirements of Craig.
Likewise, Counsel's no-merit letter complies with the requirements of Turner. The letter contains a statement that Counsel has reviewed the record in this matter. The letter addresses the claims raised by Camargo in his petition for review and sets forth Counsel's analysis of the claims and his reasons for concluding that they lacked support in either law or fact. Thus, Counsel has complied with Turner.
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 Camargo's appeal is, in fact, without merit. An appeal is without merit when it lacks any basis in law or fact. Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
On appeal, Camargo argues that the Board's recalculation of his parole violation maximum date constituted an illegal sentence and that the Board lacked jurisdiction to modify his original sentence. We disagree.
Our scope of review of an action of the Board is limited to determining whether the Board's findings are supported by substantial evidence, whether an error of law was committed, or whether any of the parolee's constitutional rights were violated. Harden v. Pennsylvania Board of Probation and Parole, 980 A.2d 691, 695 n.3 (Pa. Cmwlth. 2009). We will not interfere with a determination unless the Board has acted arbitrarily or plainly abused its discretion. Id.
Section 6138(a) of the Parole Code addresses convicted parole violators, providing, in pertinent part, as follows:
(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.61 Pa.C.S. §6138(a)(1)-(2).
(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.
Section 6138(a)(2.1) of the Parole Code, added by the Act of July 5, 2012, P.L. 1050, states that:
The board may, in its discretion, award credit to a parolee recommitted under paragraph (2) for the time spent at liberty on parole, unless any of the following apply:
(i) The crime committed during the period of parole or while delinquent on parole is a crime of violence as defined in 42 Pa.C.S. § 9714(g) (relating to sentences for second and subsequent offenses) or a crime requiring registration under 42 Pa.C.S. Ch. 97 Subch. H (relating to registration of sexual offenders).
(ii) The parolee was recommitted under section 6143 (relating to early parole of inmates subject to Federal removal order).
Contrary to Camargo's allegations, the Board did not impose an illegal sentence, nor did it impermissibly modify his original sentence. In fact, Camargo's sentence did not change. Camargo was originally sentenced to a term of incarceration of 2 years, 3 months, to 7 years on the drug charge and this sentence remains intact. The Board merely modified Camargo's parole violation maximum date following his new conviction, which the Board is statutorily authorized to do under section 6138(a) of the Code. Moreover, Camargo was specifically warned of the consequences if he was convicted of a new crime while on parole in the parole conditions he signed on September 6, 2011. The parole condition stated that:
If you are convicted of a crime committed while on parole/reparole, the Board has the authority, after an appropriate hearing, to recommit you to serve the balance of the sentence or sentences which you were serving when paroled/reparoled, with no credit for time at liberty on parole.(Certified Record at 7.)
In his brief, Camargo argues for the first time that the Board's action in modifying his sentence constitutes a violation of the separation of powers doctrine as well as due process. However, Camargo failed to raise these issues in his administrative appeal to the Board or in his petition for review. Hence, these issues are waived. Chesson v. Pennsylvania Board of Probation and Parole, 47 A.3d 875, 878 (Pa. Cmwlth. 2012) (issues not raised before the Board either at the revocation hearing or in the petitioner's administrative appeal are waived and cannot be considered for the first time on appeal); Rackley v. Pennsylvania Board of Probation and Parole, 881 A.2d 69, 72 (Pa. Cmwlth. 2005) (issues not raised in a petition for review are waived and will not be addressed by this Court).
Even if not waived, we note that Camargo's arguments would not be successful. Both our Supreme Court and this Court have consistently held that the recommitment of a parolee as a convicted parole violator does not violate the doctrine of separation of powers or due process. See, e.g., Young v. Commonwealth, 409 A.2d 843, 847 (Pa. 1979) ("statutes denying credit on sentence for time spent on parole, where the offender has committed and has been convicted of an offense while serving in the parole status, represents a reasonable exercise of the penological responsibility and does not offend the constitutional guarantees to the citizens of the state and this nation"); Commonwealth ex rel. Thomas v. Myers, 215 A.2d 617, 619 (Pa. 1966) (predecessor statute to section 6138(a) of the Code does not constitute double jeopardy nor is it violative of the constitutional principles of due process or equal protection); Davidson v. Pennsylvania Board of Probation and Parole, 33 A.3d 682, 686 (Pa. Cmwlth. 2011) (a statute that mandates the denial of credit to a recommitted direct violator for time spent at liberty on parole does not violate the separation of powers doctrine); Knisley v. Pennsylvania Board of Probation and Parole, 362 A.2d 1146, 1148 (Pa. Cmwlth. 1976) (rejecting constitutional challenges to predecessor statute to section 6138(a) of the Code).
Further, when Camargo was released on parole on September 6, 2011, his maximum sentence date was March 5, 2016, leaving 1,642 days remaining on his original sentence. The Board issued its warrant to commit and detain on May 30, 2014, and took custody of Camargo that same day. After adding these 1,642 days to May 30, 2014, the Board correctly recalculated Camargo's parole violation maximum date to be November 27, 2018.
Accordingly, having made an independent evaluation of the issue presented and having found that Counsel has satisfied the criteria set forth in Turner, we grant Counsel's petition for leave to withdraw and affirm the Board's denial of administrative relief.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 24th day of July, 2015, the petition to withdraw as counsel filed by Kent D. Watkins, Esquire, is granted. The October 6, 2014 order of the Pennsylvania Board of Probation and Parole is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge
61 Pa.C.S. §6138(a)(2.1). We note that Camargo raises no issues concerning section 6138(a)(2.1).