Opinion
No. 597 C.D. 2014
03-26-2015
Jerry Fuller, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Jerry Fuller (Fuller) petitions for review of an adjudication of the Pennsylvania Board of Probation and Parole (Board) denying his administrative appeal. Fuller's appointed counsel, Kent D. Watkins, Esquire (Counsel), has petitioned for leave to withdraw his representation. For the following reasons, we grant Counsel's petition and affirm the Board's order.
Fuller is currently incarcerated in the State Correctional Institution at Mahanoy on a five to ten year sentence on a conviction of drug manufacturing/delivery or possession with intent to deliver and a concurrent three year and six month to seven year sentence on a conviction of firearms not to be carried without a license. At the time of his conviction, Fuller's minimum release date was December 2, 2010, and his maximum release date was December 2, 2015. Fuller was paroled on December 8, 2010.
On September 7, 2012, Fuller was arrested for possession of firearms not to be carried without a license, possession of a loaded firearm in a vehicle, possession of a handgun and receiving stolen property. On May 17, 2013, Fuller pled guilty to the charges and was sentenced to two years and six months to five years in prison, followed by three years of probation.
Accordingly, the Board determined that Fuller was both a convicted and technical parole violator. On July 29, 2013, the Board entered an order recommitting Fuller as a technical parole violator to serve 12 months backtime and as a convicted parole violator to serve 36 months concurrent backtime. The Board subsequently informed Fuller that his recalculated parole eligibility date was December 16, 2015, and his maximum release date was December 10, 2017.
Fuller violated conditions 7a and 7b of his parole. These conditions state:
CONDITION #7[a] - YOU SHALL NOT OPERATE A MOTOR VEHICLE WITHOUT A VALID PENNSYLVANIA DRIVER'S LICENSE, PROOF [OF] INSURANCE, VEHICLE REGISTRATION AND SUPERVISING AGENT'S WRITTEN PERMISSION.
CONDITION #7[b] - YOU SHALL NOT POSSESS AMMUNITION UNDER ANY CONDITION OR FOR ANY REASON.
Fuller wrote letters to the Board, dated August 19 and 21, 2013, requesting administrative relief and an explanation of how the Board calculated his reparole eligibility date. The Board responded as follows:
The Board recommitted Mr. Fuller as a convicted parole violator to serve 36 months for the offenses of Possession of a Firearm Prohibited and Receiving Stolen Property. The recommitment ranges for these offenses are 18 to 24 and 6 to 12 months, respectively. 37 Pa. Code § 75.2. This means the maximum recommitment term that would fall within the presumptive ranges was 36 months. Thus, the 36-month
recommitment imposed by the Board does not exceed the presumptive recommitment range and is not subject to challenge.Certified Record at 77. The letter further stated that Fuller had earned 218 days of credit on his original sentence "for the time he was incarcerated solely on the Board detainer from October 11, 2012 to May 17, 2013." Id. The letter concluded that "adding the 36-month recommitment term to the July 22, 2013 [recommitment] date, minus the 218 days of credit [Fuller] received, yields a reparole eligibility date of December 16, 2015." Id. at 78. Accordingly, the Board affirmed its order and denied Fuller's petition for administrative review.
Fuller filed a petition for review with this Court on April 9, 2014. On appeal, Fuller argues that the Board erred in its calculation of his recommitment term. On August 5, 2014, Counsel filed a petition for leave to withdraw and a no-merit letter concluding that there is no factual or legal basis for Fuller's appeal. This Court denied Counsel's petition and granted him leave to amend. Counsel has filed an amended petition to withdraw, which we now consider.
Our scope of review is limited to determining whether the Board erred as a matter of law or violated the parolee's constitutional rights and whether the Board's decision is supported by substantial evidence. Harden v. Pennsylvania Board of Probation and Parole, 980 A.2d 691, 695 n. 3 (Pa. Cmwlth. 2009). --------
The technical requirements for appointed counsel seeking to withdraw his representation are set forth in Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988). As summarized by this Court,
counsel seeking to withdraw from representation of a petitioner seeking review of a determination of the Board must provide a "no-merit" letter which details "the nature and extent of [the attorney's] review and list[s] each issue the petitioner wished to
have raised, with counsel's explanation of why those issues are meritless."Zerby v. Shanon, 964 A.2d 956, 961 (Pa. Cmwlth. 2009). "Although [the parolee's] issue may prove not to be meritorious, it is still incumbent upon Counsel to include it in the No-Merit Letter and explain why it is meritless." Id. at 962. If this Court determines that counsel's no-merit letter complies with the requirements of Turner, we then consider the merits of the parolee's appeal. Id. at 960. However, if counsel fails to comply with the requirements of Turner, we may not consider the merits. Id.
In the matter sub judice, Counsel's no-merit letter satisfies the technical requirements of Turner. In his no-merit letter, Counsel thoroughly analyzed Fuller's arguments on appeal and explained why they are devoid of merit. Counsel served a copy of his no-merit letter on Fuller on December 24, 2014, and advised Fuller he could either obtain new counsel or proceed pro se. Accordingly, having determined that Counsel has complied with the requirements of Turner, we review the merits of Fuller's arguments to determine whether to grant or deny Counsel's petition and whether to grant or deny Fuller relief.
Fuller contends that the amount of backtime he received was in excess of the presumptive range for the crimes he committed. Specifically, he states:
The recommitment period of 36 months is excessive and outside of the presumptive range for recommitment as set forth in 37 Pa. Code §75.2. The presumptive range for possession of a firearm prohibited is 18 to 24 months. The dockets do not indicate the degree of the theft charge and therefore [the degree of the charge] cannot be higher than a misdemeanor of the third degree with a presumptive recommitment range of one to six months for a total maximum of 24 to 30 months.Petition for Review ¶ 6. Essentially, Fuller asserts that the presumptive range for his charge of theft by receiving stolen property charge should match the range for third degree misdemeanors because the "dockets do not indicate the degree" of the charge.
Fuller is incorrect. When a parolee confesses to "the underlying parole violation and challenges only the length of the backtime imposed by the Board," the parolee's appeal is meritless if the Board imposed backtime within the presumptive range for the offense. Lotz v. Pennsylvania Board of Probation and Parole, 548 A.2d 1295, 1296 (Pa. Cmwlth. 1988). Fuller signed a Waiver of Revocation Hearing and Counsel/Admission Form on June 26, 2013. This admission was signed in conjunction with the Notice of Charges. The receiving stolen property charge in the Notice of Charges is graded a felony of the third degree. The presumptive range for felonies of the third degree involving theft by receiving stolen property is "6 months to 12 months." 37 Pa. Code §75.2. Thus, the Board applied the correct presumptive range to Fuller's crime of receiving stolen property. Accordingly, Fuller's appeal is meritless.
For these reasons, we grant Counsel's petition to withdraw his representation and affirm the order of the Board.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 26th day of March, 2015, the order of the Pennsylvania Board of Probation and Parole dated March 11, 2014, in the above-captioned matter is AFFIRMED, and the application for leave to withdraw as counsel filed by Kent D. Watkins is GRANTED.
/s/_________
MARY HANNAH LEAVITT, Judge
Certified Record at 19.