Opinion
No. 820 C.D. 2014
04-01-2015
Kenneth Jefferson, 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 COHN JUBELIRER
Kenneth Jefferson petitions for review (Petition for Review) of an April 25, 2014 Decision of the Pennsylvania Board of Probation and Parole (Board) that dismissed as untimely Jefferson's Petition for Administrative Relief of the Board's June 10, 2008 order recommitting him as a convicted parole violator. Jefferson is represented in this matter by Richard C. Shiptoski, Esq., Assistant Public Defender of Luzerne County (Counsel). Presently before this Court for disposition is Counsel's Petition for Leave to Withdraw as Counsel (Petition to Withdraw), which is based on his conclusion that Jefferson's Petition for Review is frivolous and without merit.
On June 3, 1996, Jefferson was sentenced to serve eight to sixteen years in a state correctional institution after being found guilty of various criminal counts with a maximum date set at August 13, 2011. (Sentence Status Summary, March 19, 2008, C.R. at 1.) Jefferson was released on parole on November 3, 2003. (Order to Release on Parole, November 3, 2003, C.R. at 8.) Jefferson was arrested in Philadelphia two months later, though the charges were ultimately dismissed. (Notice of Board Decision, March 2, 2004, C.R. at 11.) On March 2, 2004, the Board recommitted Jefferson as a technical parole violator to serve nine months backtime for a curfew violation. (Notice of Board Decision, March 2, 2004, C.R. at 11.)
On February 17, 2005, Jefferson was re-paroled from the State Correctional Institution (SCI)-Cresson to a community corrections center (CCC) in Philadelphia with a drug and alcohol component. (Notice of Board Decision, February 17, 2005, C.R. at 14-16.) Jefferson was released from the CCC on May 10, 2006 and transferred to his home in Philadelphia to serve out his parole while at liberty. (Supervision History, May 10, 2007, C.R. at 25.)
Jefferson was arrested on May 6, 2007 and charged with new criminal charges, including robbery, carjacking, theft by unlawful taking, receiving stolen property, criminal mischief, and unauthorized use of an automobile. (Criminal Arrest and Disposition Report, March 4, 2008, C.R. at 26.) On May 7, 2007, the Board issued a warrant to commit and detain Jefferson and subsequently issued a decision on June 15, 2007 ordering Jefferson to be detained pending disposition of his criminal charges. (Warrant to Commit and Detain, May 7, 2007, C.R. at 21; Notice of Board Decision, June 15, 2007, C.R. at 22.) Jefferson pled guilty to robbery of a motor vehicle on March 3, 2008 and was sentenced to serve seven to twenty years imprisonment. (Criminal Docket at 7, C.R. at 41.)
The Board issued an order on June 10, 2008 recommitting Jefferson "to a State Correctional Institution as a convicted parole violator to serve 36 months backtime." (Notice of Board Decision, mailed June 10, 2008, C.R. at 66.) Jefferson's parole violation maximum date was recalculated as March 2, 2014. (Notice of Board Decision, mailed June 10, 2008, C.R. at 66.) The Board re-paroled Jefferson to a state detainer sentence on October 3, 2011 and Jefferson remains incarcerated at SCI-Retreat. (Notice of Board Decision, October 3, 2011, C.R. at 69.)
Jefferson filed a pro se Petition for Administrative Relief, postmarked January 17, 2014, seeking credit for approximately twelve months he spent at the CCC in 2005 and 2006. (Petition for Administrative Relief at 1, C.R. at 71.) Jefferson averred that the Board miscalculated his sentence and that his sentence should be reduced by one year. (Petition for Administrative Relief at 4, C.R. at 74.) However, because Jefferson's Petition for Administrative Relief was filed more than five years after the Board issued its June 10, 2008 recommitment order, the Board found that the Petition for Administrative Relief was filed beyond the 30 day period for filing appeals and dismissed Jefferson's Petition for Administrative Relief as untimely. (Board Decision, April 25, 2014, C.R. at 78.)
On May 8, 2014, Jefferson filed a pro se Petition for Review in this Court seeking review of the Board's April 25, 2014 Decision. Counsel was appointed by this Court to represent Jefferson in this appeal on May 19, 2014. Counsel filed the instant Petition to Withdraw, along with an Anders brief.
Our Court's review in parole revocation cases "is limited to a determination of whether necessary findings are supported by substantial evidence, an error of law was committed, or whether constitutional rights of the parolee were violated." Johnson v. Pennsylvania Board of Probation and Parole, 706 A.2d 903, 904 (Pa. Cmwlth. 1998).
Anders v. State of California, 386 U.S. 738 (1967).
In order to withdraw, counsel must first "send to the petitioner: (1) a copy of the 'no-merit' letter/[Anders] 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 v. Shanon, 964 A.2d 956, 960 (Pa. Cmwlth. 2009). In Seilhamer v. Pennsylvania Board of Probation and Parole, 996 A.2d 40, 42-44 (Pa. Cmwlth. 2010), we detailed the requirements of an Anders brief in situations where a no-merit letter would have sufficed. Therein, we stated that the brief must include, at a minimum, "an explanation of 'the nature and extent of [counsel's] review and list[] each issue the petitioner wished to have raised, with counsel's explanation of why those issues [are] meritless." Seilhamer, 996 A.2d at 43 (quoting Commonwealth v. Turner, 544 A.2d 927, 928 (Pa. 1988)). If the Anders brief complies with the aforementioned technical requirements, "then this Court will conduct its own independent review to determine whether the petition for review is, in fact, without merit." Id. at 44 (citing Zerby, 964 A.2d at 960).
An attorney wishing to withdraw from a case where no constitutional right to counsel is involved may file a no-merit letter instead of an Anders brief. Seilhamer, 996 A.2d at 42 n.4. Here, Jefferson is not entitled to counsel. A petitioner has a constitutional right to counsel when the petitioner presents a:
colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present.
Counsel served Jefferson with the Anders brief, Petition to Withdraw, and this Court's September 10, 2014 order notifying Jefferson that he may either obtain substitute counsel or file a brief on his own behalf. Counsel's Anders brief reflects that he thoroughly reviewed the record and the applicable law. (Counsel's Br. at 17.) Counsel notes that Jefferson raises two issues in his Petition for Review: that the Board miscalculated his sentence and failed to give him three years credit for the time (1) he served at the CCC and (2) while he was at liberty on parole. (Counsel's Br. at 18-21.) Although Jefferson does not address the timeliness issue in his Petition for Review filed with this Court, Counsel also raises the issue of whether the Board erred by dismissing Jefferson's Petition for Administrative Relief as untimely. (Counsel's Br. at 13-17.) Counsel provides a very thorough discussion of Jefferson's arguments and sets forth his reasoning regarding why Jefferson's arguments are without merit. (Counsel's Br. at 13-21.) Therefore, we conclude that Counsel complied with the technical requirements set forth in Turner and its progeny and we will now independently review the merits of Jefferson's arguments to determine whether to grant or deny Counsel's Petition to Withdraw. Counsel's Petition to Withdraw will be granted if we determine that Jefferson's Petition for Review lacks any basis in law or fact. Commonwealth v. Santiago, 978 A.2d 349, 356 (Pa. 2009) (citing McCoy v. Court of Appeals of Wisconsin, District 1, 486 U.S. 429, 438 n.10 (1988)).
Jefferson did not obtain substitute counsel or file a brief on his own behalf.
Jefferson argues that the Board erred by not providing him with a one year credit for the time he served in the CCC and two years while at liberty on parole. Jefferson admitted in his Petition for Administrative Relief that his Petition was submitted beyond the 30 day appeal period, but asked the Board to provide him with an exception because he only recently discovered the error in the calculation of his parole violation maximum date. The Board dismissed Jefferson's Petition for Administrative Relief as untimely without reaching the merits of the arguments therein. Thus, we must first address the issue of whether the Board erred by dismissing, as untimely, Jefferson's Petition for Administrative Relief.
In his Petition for Administrative Relief, Jefferson only asked for one year credit for the time served in the CCC. Here, Jefferson argues that he should also be provided credit for the two years he was at liberty on parole at home. Notwithstanding the fact that Jefferson was arrested less than one year, and not two years, after being released from the CCC, we cannot address his argument because it was not asserted before the Board. "Where a parolee fails to raise an issue before the Board, it is considered waived and cannot be raised for the first time on judicial review." Wallace v. Pennsylvania Board of Probation and Parole, 548 A.2d 1291, 1293 (Pa. 1988). Moreover, we observe that in general, no credit is given for time at liberty on parole.
According to the Board's regulations, "[a]ppeals shall be received at the Board's Central Office within 30 days of the mailing date of the Board's order." 37 Pa. Code § 73.1. "Under the 'prisoner mailbox rule,' a pro se prisoner's appeal is deemed to be filed when it is deposited with prison officials or placed in the prison mailbox." Coldren v. Pennsylvania Board of Probation and Parole, 795 A.2d 457, 458 (Pa. Cmwlth. 2002).
Jefferson's Petition for Administrative Relief was postmarked January 17, 2014, more than five years after he received the Board's June 10, 2008 order recommitting him as a convicted parole violator. As such, it is clear that Jefferson's Petition for Administrative Relief was untimely. Although Jefferson's Petition for Review filed with this Court asserts his original arguments regarding the Board's miscalculation of his parole violation maximum date, his Petition for Review does not provide any justification for the five year delay or allege that he should be entitled to an exception to the 30 day appeal period. "Issues not raised or 'fairly comprised' within the petition for review are deemed waived." Pennsylvania State Troopers Association v. Pennsylvania Labor Relations Board, 39 A.3d 616, 622 (Pa. Cmwlth. 2012) (citing Pa. R.A.P. 1513(d)). Accordingly, Jefferson waived any argument that he should have been given an exception to the 30 day appeal period.
Even if this issue was not waived, we would conclude that Jefferson was not entitled to an exception. In his Petition for Administrative Relief, Jefferson argued that he was entitled to an exception to the 30 day appeal period pursuant to our decision in Threats v. Pennsylvania Board of Probation and Parole, 518 A.2d 327 (Pa. Cmwlth. 1986). There, we held that "[a]lthough the board could not address a request for administrative relief after thirty days from the date of its original order, it may address a request for reconsideration beyond thirty days." Id. at 328. In this matter, Jefferson was not seeking reconsideration of a Board's order denying administrative relief. He was seeking administrative relief from the Board's original recommitment order issued on June 10, 2008. Therefore, our decision in Threats has no application in this matter.
Our decision in Threats was reversed on appeal on other grounds. See Threats v. Pennsylvania Board of Probation and Parole, 553 A.2d 906 (Pa. 1989). --------
Because the Board did not err when it dismissed Jefferson's Petition for Administrative Relief as untimely, we may not address the issues on the merits set forth in Jefferson's Petition for Review. Accordingly, we grant Counsel's Petition to Withdraw and affirm the Board's April 25, 2014 Decision.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, April 1, 2015, the Petition for Leave to Withdraw as Counsel filed by Richard C. Shiptoski, Esq., is hereby GRANTED, and the Order of the Pennsylvania Board of Probation and Parole, entered in the above-captioned matter, is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge
Id. at 43 n.4 (quoting Hughes v. Pennsylvania Board of Probation and Parole, 977 A.2d 19, 25-26 (Pa. Cmwlth. 2009)).