Opinion
No. 491 C.D. 2013
11-12-2013
Samuel Jackson, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Before this Court is Tina M. Fryling's (Attorney Fryling) petition for leave to withdraw as counsel for Samuel Jackson (Jackson) on Jackson's petition for review of the order of the Pennsylvania Board of Probation and Parole (Board) which recommitted Jackson to serve the unexpired term of his sentence of six months eight days as a convicted parole violator concurrent with a six month commitment as a technical parole violator and established Jackson's maximum date as June 30, 2013.
Jackson was effectively sentenced on September 22, 2009, to a term of one year three months to three years for fleeing or attempting to elude an officer. On August 15, 2011, Jackson was paroled to the Erie Community Corrections Center (ECCC). Jackson successfully completed the program at the ECCC and went to reside at an approved residence on October 19, 2011.
On December 14, 2011, Parole Agent Lionel L. Peterson was contacted by the State Police and informed that the State Police were investigating a possible sexual assault involving Jackson and a minor. On December 14, 2011, the Board issued a warrant to commit and detain Jackson.
In a decision recorded on January 23, 2012, and mailed January 27, 2012, the Board recommitted Jackson to serve six months backtime as a technical parole violator after Jackson admitted that he consumed alcohol.
On February 21, 2012, Jackson was arrested by the Pennsylvania State Police and charged with "Unlawful Contact w/Minor/Sexual Offense (F3); Corruption of Minors, Defendant age 18 or above (F3); Indecent Assault Without Consent of Others (M2); Indecent Assault Person Less Than 16 years of Age (M2); and Harassment Subject Other to Physical Contact (S)." Criminal Arrest and Disposition Report, June 8, 2012, at 1; Certified Record (C.R.) at 17. On September 6, 2012, Jackson pled guilty to corruption of a minor. The other charges were nolle prossed. On September 20, 2012, the Board issued a warrant to commit and detain Jackson. On September 25, 2012, the Board declared Jackson delinquent for control purposes effective December 13, 2011. On November 2, 2012, the Court of Common Pleas of Crawford County sentenced Jackson on the corruption of a minor conviction to a term of one year six months to seven years and ordered him to pay a fine of $200 plus costs.
On September 25, 2012, Jackson waived his revocation hearing and admitted to his conviction for corruption of a minor. In a decision recorded December 10, 2012, and mailed December 31, 2012, the Board referred to its earlier action recommitting Jackson as a technical parole violator for six months backtime. The Board also recommitted Jackson as a convicted parole violator to serve his unexpired term of six months eight days concurrent with the recommitment as a technical parole violator. The Board established Jackson's maximum date as June 30, 2013. On December 21, 2012, the Board issued a warrant to commit and detain Jackson.
Jackson petitioned for administrative review and alleged he did not receive all of the credit to which he was entitled.
In a decision mailed February 28, 2013, the Board denied the petition and affirmed its earlier decision:
When you were released on parole from your original sentence on August 15, 2011, your maximum sentence date was September 22, 2012, which left 404 days remaining to serve on your original sentence. While on parole, you were arrested and placed into SCI-Albion on December 14, 2011 for possible parole violation. The Board lodged its warrant to commit and detain you on December 14, 2011, lifted it on September 22, 2012 (max date at time of last release), and re-lodged it on December 21, 2012 due to violations of your parole. You were arrested on February 21, 2012 by the Pennsylvania State Police, case number OTN T1501592, and convicted in Crawford County on November 2, 2012. You were released to Pennsylvania authorities on December 21, 2012 and placed in SCI-Albion in 'parole violator pending' status. The Board decision recorded December 10, 2012 recommitted you as a convicted parole violator.
With the above facts in mind, as a convicted parole violator you automatically forfeited credit for all of the time that you spent on parole. . . . You are not entitled to a back time served credit (i.e. time that you were held solely on the Board's warrant prior to your recommitment order) because you were never incarcerated solely on the Board's warrant. . . . You received back time credit from December 14, 2011 (date of Board's warrant) to February 21, 2012 (date of new charges) or 69 days. You also received credit from May 1, 2012 (date bail posted/made unsecured) to September 22, 2012 (date Board lifted its warrant) or 144 days. You received an aggregate of 213 days of back time credit. However, you are not entitled to credit at this parole number from September 23, 2012 until the date when the Board's warrant was re-lodged on December 21, 2012 because the Board's warrant was not the sole source of your incarceration. Thus, when applying 213 days to 404 days yields a total of 191 days owed (or 0 years, 6 months, 8 days). You became available to Pennsylvania authorities on December 21, 2012, when the Board re-lodged its warrant. Adding 191 days to December 21, 2012 yields a new parole violation maximum date of June 30, 2013. Therefore, your parole violation maximum sentence date is correct. (Citations omitted).Board Decision, February 28, 2013, at 1; C.R. at 63.
Attorney Fryling was assigned to represent Jackson. After review of Jackson's petition for review and the certified record, Attorney Fryling sought to withdraw and asserted that Jackson's petition was without merit.
Appointed counsel may withdraw from assisting an indigent parolee in appealing a parole revocation order, "[w]hen, in the exercise of his professional opinion, counsel determines that the issues raised . . . are meritless, and when the . . . court concurs. . . ." Commonwealth v. Turner, 518 Pa. 491, 495, 544 A.2d 927, 928-929 (1988).
In reviewing a motion to withdraw, this Court must make an independent evaluation of proceedings before the Board to determine whether a parolee's appeal is meritless. Dear v. Pennsylvania Board of Probation and Parole, 686 A.2d 423 (Pa. Cmwlth. 1996). When this Court agrees with counsel's assertion that the appeal is without merit, this Court will permit counsel to withdraw when counsel has fulfilled the technical requirements set forth in Craig v. Pennsylvania Board of Probation and Parole, 502 A.2d 758 (Pa. Cmwlth. 1985). Under Craig, counsel must (1) notify the parolee of the request to withdraw, (2) furnish the parolee with a copy of the brief, and (3) advise the parolee of his right to retain new counsel to raise any new points that he might deem worthy of consideration. In the no merit letter or brief counsel must indicate the nature and extent of the review, the issues the parolee wishes to raise, and counsel's analysis in concluding that the appeal is without merit. Wesley v. Pennsylvania Board of Probation and Parole, 614 A.2d 355 (Pa. Cmwlth. 1992).
Jackson petitioned for review and alleged:
5. On the 28th day of February, 2013, the Board incorrectly denied the Petitioner [Jackson] the relief requested, therefore Petitioner [Jackson] respectfully comes to this Honorable court with the following claims.
A. Petitioner [Jackson] was returned to custody of the Department of Corrections SOLELY on a violation of his parole on the 14th day of December 2011.
B. Petitioner [Jackson] does not contest being taken ATA (allowed temporary absence) from the Department on the 21st day of February, 2012, Petitioner [Jackson] was also returned to the Department[']s custody on that same date to continue to serve his original parole violation under state prison number JR-0185.Petition for Writ of Mandamus, March 11, 2013, Paragraph Nos. 5-6 at 1.
C. Petitioner [Jackson] again went ATA on the 1st day of May, 2012 to a Preliminary hearing in which an R.O.R. [Released on own recognizance] bond was granted.
D. While Petitioner [Jackson] was incarcerated in Crawford County Prison the Department continued to keep a detainer lodged on Petitioner [Jackson] to be held for custody on Prison number JR-0185 beyond the maximum experation [sic] of Petitioner[']s [Jackson] sentence. Being This detainer was THE SOLE MEANS for the Petitioner[']s [Jackson] incarceration, this time must be credited to Petitioner[']s [Jackson] original sentence.
6. Petitioner [Jackson] has a right to have his sentence calculated correctly. (Emphasis in original).
By order dated April 8, 2013, this Court directed that the Petition for Mandamus be treated as a petition for review in this Court's appellate jurisdiction.
With respect to whether Jackson is entitled to any additional credit, Attorney Fryling asserts that the Board did not err when it calculated the time remaining on Jackson's sentence:
He was paroled on August 15, 2011, at which time he had 404 days left to serve on his sentence. He was arrested on December 14, 2011 for a possible parole violation. The Board lodged its warrant to commit and detain Mr. Jackson on December 14, 2011. On May 1, 2012, Mr. Jackson posted/received an ROR [Released on
own recognizance] bond on those charges. On February 21, 2012, new criminal charges were lodged against Mr. Jackson. Mr. Jackson was sentenced on those charges on November 2, 2012 . . . .Attorney Fryling Letter, July 22, 2013, at 2-3.
On September 22, 2012 the warrant against Mr. Jackson was lifted. The Parole Board, on September 25, 2012, recommitted Mr. Jackson as a technical parole violator to serve 6 months. . . . The Board's warrant was re-lodged on December 21, 2012 due to parole violations. . . .
. . . .
Mr. Jackson argues that time was not properly credited to his first sentence when he posted bond for his second case on May 2, 2012. The case of Martin v. Pennsylvania Board of Probation and Parole, , 840 A.2d 299 (2003) requires that time be credited toward a person's original sentence once bail is posted. In this case, Mr. Jackson received back time credit from December 14, 2011 to February 21, 2012 on his original sentence, and credit from May 1, 2012 to September 22, 2012. Thus, Mr. Jackson received the credit on his original sentence as he requests. The case of Koehler v. PA Board of Probation and Parole, 935 A.2d 44 ([Pa. Cmwlth.] 2007) dictates that a parolee is not entitled to receive credit for jail time served on new criminal charges against his original sentence; when he is not jailed solely on the warrant, the time credit is against his new sentence, not his original sentence. Mr. Jackson's claim that the credit was not given properly is false, since time credit went towards his original sentence after his bond was posted in May, 2012. (Citations omitted). (Emphasis added).
This Court agrees with Attorney Fryling's analysis. Section 6138(a)(2) of the Prisons and Parole Code, 61 Pa.C.S. §6138(a)(2), clearly states that convicted parole violators shall receive no credit for time at liberty on parole. Further, it is well established that a parolee is entitled to credit for time spent in prison solely because of a detainer issued by the Board and has otherwise met the requirements of bail on a new criminal charge. Gaito v. Pennsylvania Board of Probation and Parole, 488 Pa. 397, 412 A.2d 568 (1980). Jackson is not entitled to credit for time spent in prison on both the Board's detainer and on corruption of minors charge.
Accordingly, this Court grants Attorney Fryling's request and affirms the order of the Board.
This Court also notes that Attorney Fryling attached a letter from her to Jackson to her petition to withdraw which indicates that she has complied with the notification requirements to Jackson. See Craig. --------
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 12th day of November, 2013, the petition to withdraw filed by Tina M. Fryling is granted. The order of the Pennsylvania Board of Probation and Parole in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge