Opinion
No. 30 C.D. 2014
12-04-2014
Gregorio Jewell, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Presently before this Court is the petition of David Crowley, Esquire, the Chief Public Defender of Centre County (Counsel), for leave to withdraw as counsel for Gregorio Jewell (Jewell). Jewell filed a petition for review with this Court challenging the Pennsylvania Board of Probation and Parole's (Board) determination of his eligible return date and the recalculation of his parole violation maximum date. Counsel seeks leave to withdraw on the grounds that Jewell's petition for review is without merit. For the reasons that follow, we grant Counsel's petition and affirm the Board's order.
Jewell has an extensive criminal history dating back to 1987 which includes multiple convictions for burglary and criminal trespass and multiple releases on parole. For relevant purposes here, Jewell was released on parole on February 14, 2007. At that time, Jewell's parole violation maximum date was February 18, 2017. On July 14, 2008, Jewell was arrested in Philadelphia and charged with burglary, criminal trespass - break into structure, and criminal mischief. Jewell pled guilty to those charges and was sentenced on July 10, 2009, to a term of incarceration of nine months to five years. By Board decision dated November 3, 2009, Jewell was recommitted as a convicted parole violator to serve fifteen months backtime and his parole violation maximum date was extended to December 5, 2020. On June 2, 2010, Jewell was reparoled to his most recent state sentence, i.e., his July 10, 2009 sentence.
Upon expiration of his nine-month minimum sentence, Jewell was again released on parole on March 9, 2011. Approximately five months later, on August 23, 2011, Jewell was arrested on charges of burglary, criminal conspiracy, criminal trespass, and loitering and prowling at night time by the Abington Township Police Department and confined in the Montgomery County prison. On this same date, the Board issued a warrant to commit and detain Jewell. Bail on these new charges was set at $99,000.00, but was not posted. On April 10, 2012, Jewell pled guilty to the burglary charge and was sentenced to a term of incarceration of two to four years, with credit for the 232 days that he remained incarcerated. On April 19, 2012, Jewell was placed into the State Correctional Institution (SCI) at Graterford.
On June 28, 2012, the Board provided Jewell with a notice of charges and parole revocation hearing date. However, on this date, Jewell signed a waiver of revocation hearing and counsel and admitted to his April 10, 2012 burglary conviction. By decision dated August 16, 2012, the Board again recommitted Jewell as a convicted parole violator to serve fifteen months backtime. The Board recalculated Jewell's parole violation maximum date to February 3, 2023, reflecting backtime owed of 3,839 days (ten years, six months, and three days) and a return to custody date of July 31, 2012. The backtime owed was calculated by subtracting his parole date of June 2, 2010, from his parole violation maximum date of December 5, 2020.
On September 10, 2012, Jewell filed an administrative appeal with the Board alleging that the Board had incorrectly calculated his parole violation maximum date. More specifically, Jewell alleged that the Board erred by denying him a credit for 107 days of confinement at a community corrections center, finding that his parole date was June 2, 2010, rather than December 18, 2010, and finding that his return to custody date was July 31, 2012, rather than April 19, 2012. By letter dated September 17, 2012, the Board advised Jewell that it would schedule an evidentiary hearing with respect to his claim for credit and that no action could be taken with respect to his parole violation maximum date while such a hearing is pending. However, by letter dated August 28, 2013, Counsel informed the Board that Jewell was withdrawing his request for credit and that the issue regarding the calculation of his parole violation maximum date was ripe for consideration.
By letter dated December 18, 2013, the Board denied Jewell's administrative appeal. The Board noted that when Jewell was last released on parole from his original sentence on June 2, 2010, his parole violation maximum date was December 5, 2020, which left 3,839 days remaining to serve on his original sentence. While Jewell was placed into the SCI at Graterford on April 19, 2012, the Board explained that this confinement resulted from his April 10, 2012 conviction and that he was first released to the Board's jurisdiction on July 31, 2012. By adding these 3,839 days (ten years, six months, three days) to July 31, 2012, the Board noted that Jewell's recalculated parole violation maximum date of February 3, 2023, was correct.
Jewell thereafter filed a petition for review with this Court alleging that the Board erred in failing to credit his original sentence "with all the time to which he [was] entitled." (Petition for Review at 2.) Upon review of the certified record of the Board, Counsel filed a petition to withdraw his appearance along with an Anders brief detailing the reasons why he found the appeal lacked merit. Counsel forwarded a copy of this brief to Jewell and advised Jewell of his right to retain new counsel or raise any issues on his own behalf.
Anders v. California, 386 U.S. 738 (1967).
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 or a no-merit letter satisfying the requirements of Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and inform the parolee of his right to retain new counsel or submit a brief on his own behalf.
We may not examine the merits of Jewell's appeal until we are satisfied that Counsel discharged his responsibility by complying with the technical requirements of an Anders brief. Wesley v. Pennsylvania Board of Probation and Parole, 614 A.2d 355 (Pa. Cmwlth. 1992). Counsel's brief must set forth the following: (1) the nature and extent of counsel's review of the case; (2) the issues the petitioner wishes to raise; and (3) counsel's analysis concluding that the appeal has no merit. Encarnacion v. Pennsylvania Board of Probation and Parole, 990 A.2d 123 (Pa. Cmwlth. 2010); Banks v. Pennsylvania Board of Probation and Parole, 827 A.2d 1245 (Pa. Cmwlth. 2003). Counsel's analysis must include a substantive explanation as to why the issues lack merit. Wesley.
In his Anders brief, Counsel detailed Jewell's extensive criminal history, including Jewell's numerous convictions and periods of confinement and multiple parole releases. Counsel noted that Jewell was last released on parole from his original sentence on June 2, 2010, at which time his parole violation maximum date was December 5, 2020, thereby leaving 3,839 days remaining on his original sentence. Counsel identified the sole issue raised by Jewell on appeal, i.e., the recalculation of his parole violation maximum date. Further, Counsel provided a substantive analysis as to why the appeal lacks merit. Thus, Counsel complied with the requirements for an Anders brief.
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 Jewell'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).
The sole issue in this case concerns the recalculation of Jewell's parole violation maximum date. In his administrative appeal to the Board, Jewell alleged that his parole date was December 18, 2010, not June 2, 2010. However, the record in this matter fails to reveal a parole date of December 18, 2010. Instead, the record clearly reflects that Jewell was released on parole to begin serving his July 2009 state sentence on June 2, 2010. (Certified Record at 57.) In his Anders brief, Counsel notes that in his correspondence with Jewell, Jewell contends that he was not actually released on parole until March 9, 2011 (following expiration of his nine-month minimum sentence relating to his July 10, 2009 conviction) and that he was entitled to credit against his original sentence for the time served from June 2, 2010, to March 9, 2011. We cannot agree.
Section 6138(a) of the Prisons and 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)(2) (emphasis added).
(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.
Upon his parole from his original sentence on June 2, 2010, Jewell was not released from prison; instead, Jewell was released to begin serving his new sentence related to his July 10, 2009 conviction. During this time, Jewell remained on constructive parole. A prisoner on constructive parole is not released from prison but is paroled from his or her original sentence to immediately begin serving a new sentence. Calloway v. Pennsylvania Board of Probation and Parole, 857 A.2d 218 (Pa. Cmwlth.), appeal dismissed, 864 A.2d 1199 (Pa. 2004) (citation omitted). Our Supreme Court has held that a parolee is not entitled to credit against his original sentence for time spent serving his sentence while on constructive parole because he was still "at liberty on parole," which is gauged by the time spent not serving the original sentence, not whether the offender is, in fact "at liberty." Merritt v. Pennsylvania Board of Probation and Parole, 574 A.2d 597 (Pa. 1990); Hines v. Pennsylvania Board of Probation and Parole, 420 A.2d 381 (Pa. 1980).
Jewell also alleged in his administrative appeal that the Board erred in determining that his return to custody date was April 19, 2012, rather than July 31, 2012. Jewell correctly notes that he was placed into SCI at Graterford on April 19, 2012. However, this confinement was the result of his April 10, 2012 burglary conviction and Jewell was not returned to the Board's custody at that time. Indeed, Jewell was not provided with a notice of charges and parole revocation hearing date until June 28, 2012. On this date, Jewell signed a waiver of revocation hearing and counsel and admitted to his April 10, 2012 burglary conviction. Even though Jewell waived his right to a panel revocation hearing and admitted to the new conviction, the Board's regulations provide that a hearing examiner must still file a hearing report containing the recommended Board decision and the signature of one Board member. See 37 Pa. Code §71.4(4), (7).
Section 71.4 of the Board's regulations sets forth the procedures that must be followed before a parolee is recommitted as a convicted parole violator. Specifically, section 71.4(4) states that "[t]he revocation hearing shall be held by a panel or, when the parolee has waived the right to a hearing by a panel, by an examiner." 37 Pa. Code §71.4(4). Section 71.4(7) provides that "[i]f the hearing is conducted by an examiner, the examiner shall file a report with the other panel member for decision." 37 Pa. Code §71.4(7). --------
In this case, the record reveals that the Board's hearing examiner completed his report on July 18, 2012, recommending that Jewell be recommitted as convicted parole violator to serve fifteen months backtime, but the report was not signed by a Board member until July 31, 2012. (Certified Record at 88.) Hence, Jewell was not available to begin serving his backtime until this date. When the 3,839 days remaining on Jewell's original sentence are added to July 31, 2012, the result is a new parole violation maximum date of February 3, 2023. Thus, the Board properly recalculated this date and we agree with Counsel that any claim to the contrary is without merit.
Accordingly, having made an independent evaluation of the issues presented and having found that Counsel has satisfied the criteria set forth in Anders, 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 4th day of December, 2014, the petition to withdraw as counsel filed by David Crowley, Esquire, the Chief Public Defender of Centre County, is granted. The December 18, 2013, order of the Pennsylvania Board of Probation and Parole is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge