Opinion
No. 1579 C.D. 2014
07-29-2015
Tyrone L. Germany, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Tyrone L. Germany petitions for review of an adjudication of the Pennsylvania Board of Probation and Parole (Board) denying his administrative appeal. Germany's appointed counsel, Greene County Public Defender Harry J. Cancelmi (Counsel), has filed an application for leave to withdraw as counsel. Finding no error in the Board's decision, we affirm and also grant Counsel leave to withdraw.
In 2006, Germany entered a guilty plea to robbery and was sentenced to serve five to 10 years in prison. At the time of sentencing, Germany had been incarcerated since 2004 on the charge, for which he received credit of 22 months. Accordingly, his maximum sentence date was calculated to be May 4, 2014.
On February 18, 2010, Germany was paroled. He remained on parole until May 26, 2013, when he was arrested on new criminal charges of resisting arrest, assault, and public drunkenness. A Board detainer was then lodged against him. As to the new charges, he was released on his own recognizance on July 1, 2013. However, he remained in prison, confined solely on the Board's detainer.
On November 14, 2013, Germany entered a guilty plea to resisting arrest and was sentenced to a term of probation. On March 6, 2014, the Board recommitted Germany as a convicted parole violator to serve 9 months backtime. The backtime was to be served concurrently to the 6 months backtime Germany received as a technical parole violator on June 10, 2013, for violating condition No. 7 of his parole, which prohibited alcohol consumption. The Board recalculated Germany's parole violation maximum date to be August 10, 2017.
The other charges were withdrawn.
Germany filed a request for administrative relief, claiming the Board did not have the authority to change the maximum date of his 10-year sentence. Ultimately, Germany's request for relief was denied and the order of the Board was affirmed. It was explained that at the time of Germany's 2010 parole, he had 1536 days remaining on his sentence. As a convicted parole violator, the Board was authorized to revoke all of the time Germany spent at liberty on parole. However, he was given credit for the 171 days he was incarcerated solely on the Board's detainer, i.e., from May 27, 2013, through November 14, 2013. Subtracting the credited days from the 1536 days remaining on his sentence, Germany had 1365 days to serve. Because he received probation on the new charges, he was available to begin serving his sentence as of November 14, 2013. Adding 1365 days to November 14, 2013, yielded a new parole violation maximum date of August 10, 2017.
Germany petitions for this Court's review. He claims the Board increased "backtime owed from (171) days to (1365) days; thereby altering [his] original sentence; which is unconstitutional and violates the double jeopardy clause because backtime increased [his] judicially imposed sentence." Petition for Review, ¶11.
Our review is limited to determining whether substantial evidence supports the Board's decision, whether the Board erred as a matter of law, and whether the parolee's constitutional rights were violated. Harden v. Board of Probation and Parole, 980 A.2d 691, 695 n.3 (Pa. Cmwlth. 2009). --------
Counsel seeks to withdraw from his representation of Germany because Germany's issue lacks merit. On January 21, 2015, this Court ordered Counsel to advise Germany of his request to withdraw and to inform Germany of his right to obtain counsel at his own expense or to file a pro se brief to this Court. Counsel complied with this Order on January 28, 2015. The record indicates that new counsel has not filed an appearance and Germany has not filed a brief to this Court in support of the issue raised in his petition for review.
We begin with the technical requirements for a petition to withdraw from representation. When counsel believes an appeal lacks merit he may file a petition to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988). This Court has summarized the requirements established by Turner as follows:
[C]ounsel 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) (quoting Turner, 544 A.2d at 928). "Counsel must also send to the petitioner: (1) a copy of the "no-merit" letter/brief; (2) a copy of counsel's petition to withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel." Zerby, 964 A.2d at 960. This Court then reviews the contents of the no-merit letter to determine whether it meets the requirements of Turner. Id. If it does, this Court conducts its own review of the merits of the parolee's appeal. If we agree with counsel that the issues lack merit, then we will permit counsel to withdraw and deny relief. Id.
Counsel's no-merit letter details his review of Germany's criminal record, addresses the issue raised by Germany and explains why it lacks merit. Additionally, the record establishes that Germany received a copy of the no-merit letter and Counsel's petition to withdraw and was advised of the right to proceed pro se or by new counsel.
Having determined that Counsel has fulfilled the requirements for withdrawal of representation, we now consider the merits of Germany's appeal. Because Germany has not filed a brief, we are left with the one sentence claim in petition for review his brief contending that an increase in his original parole violation maximum date constitutes an impermissible increase in his judicially imposed sentence.
Germany is incorrect that the Board has increased his judicially imposed sentence. His maximum sentence is 10 years and the maximum amount of time he may be incarcerated continues to remain 10 years. Germany was granted parole when he had served approximately 5 years, 9 months of his sentence. While on parole Germany was convicted on new criminal charges.
Convicted parole violators are subject to the following:
(1) A parolee ... who ... 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) (emphasis added). Additionally,
(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 ... shall be given no credit for the time at liberty on parole.
time spent in good standing prior to recommitment for technical violations is not shielded from forfeiture where the parolee subsequently commits a new crime and is recommitted as a convicted parole violator. Thus, upon recommitment as a convicted parole violator, in addition to losing all time spent at liberty during the current parole, a parolee will also forfeit all credit received for time spent in good standing while on parole prior to his previous recommitment as a technical parole violator.Armbruster v. Board of Probation and Parole, 919 A.2d 348, 351 (Pa. Cmwlth. 2007) (internal citations omitted) (emphasis added).
Consistent with the above-listed principles, the Board revoked all of the time Germany spent at liberty. Contrary to Germany's assertion, this did not increase the length of his prison sentence. He was given the opportunity to have his time spent outside of prison credited toward his sentence. However, he lost that privilege by committing a new criminal offense. As such, the Board properly forfeited his street time and recommitted him to serve the remaining portion of his original sentence, minus time served on the Board's detainer, i.e., 1365 days.
In sum, Counsel has fulfilled the technical requirements for withdrawing his representation, and our independent review of the record before the Board reveals that Germany's appeal is without merit. Accordingly, we grant Counsel's application for leave to withdraw and affirm the Board's decision.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 29th day of July, 2015, the order of the Pennsylvania Board of Probation and Parole, dated August 5, 2014, is AFFIRMED and the application for leave to withdraw as counsel filed by Harry J. Cancelmi is GRANTED.
/s/_________
MARY HANNAH LEAVITT, Judge