Opinion
No. 1013 C.D. 2012
03-15-2013
Anthony F. Jones, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Anthony F. Jones petitions for review of an adjudication of the Pennsylvania Board of Probation and Parole (Board) denying his administrative appeal. Jones' appointed counsel, Kent D. Watkins, Esquire (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's application for leave to withdraw.
Jones is serving a sentence of six years, six months to thirty years for his April 2000 conviction for robbery and criminal conspiracy to commit robbery in Berks County in December 1996. When his sentence was imposed, Jones' maximum release date was April 11, 2030. On January 16, 2009, Jones was paroled from the State Correctional Institution at Retreat (SCI-Retreat).
On August 15, 2011, the Board issued a warrant to commit and detain Jones for technical violations of parole Conditions No. 5A (refrain from drug use), and No. 5C (refrain from assaultive behavior); he was arrested on the same day. Certified Record at 35-38 (C.R. ___). On August 25, 2011, a preliminary hearing was held at the Bucks County Prison. On September 15, Jones was returned to SCI-Frackville.
The conditions of Jones' parole state, in relevant part:
5. You shall:
Certified Record at 31 (C.R. ___).a. abstain from unlawful possession or sale of narcotics and dangerous drugs and abstain from the use of controlled substances within the meaning of the Controlled Substance, Drug, Device, and Cosmetic Act (35 P.S. § 780-101 et seq.) without a valid prescription.
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c. refrain from any assaultive behavior.
On December 5, 2011, a panel violation hearing was held at SCI-Frackville. Jones appeared and was represented by Counsel. Before any testimony was presented, Jones admitted to violating Condition No. 5A of his parole by smoking crack cocaine. The Board then presented the testimony of Cynthia Tucker, Jones' girlfriend, who stated that Jones assaulted her in the course of an altercation that occurred on August 14, 2011. The Board also presented five pictures of Tucker, taken on August 15, 2011, depicting bruises to her nose, face and arms, as well as scratches on her arms.
Tucker testified that when she returned home from a friend's house on August 14, 2011, Jones initially refused to allow her in but eventually relented. Once she was inside, he would not allow her to eat and spilled out her water when she poured a glass. While Tucker was looking for her cell phone, Jones pushed her up against a stucco wall, causing bruises on both of her arms. After the two entered the bedroom Tucker heard her cell phone ringing in Jones' pocket. When Tucker reached for it, Jones pushed her onto the bed and lay on top of her, covering her nose and mouth with his chest, making it difficult for her to breath.
Jones offered a different version of what happened on August 14th. He testified that Tucker showed up late after staying with a friend whom Jones did not trust. Jones acknowledged that he refused to allow Tucker to eat the food in the house but denied that he ever hit, shoved, grabbed, held Tucker down or harmed her in any way. He admitted that when she reached for her cell phone, which he had in his pocket, he lost his balance and unintentionally fell on top of her.
On December 7, 2011, the Board, finding Tucker credible over Jones, recommitted Jones as a technical parole violator to serve nine months backtime for drug use and assaultive behavior. Jones filed a petition for administrative relief, asserting that there was not sufficient evidence to establish a violation of Condition No. 5C. On May 16, 2012, the Board affirmed its order and denied Jones' petition for administrative review. Jones then petitioned for this Court's review.
Our review is limited to determining whether substantial evidence supports the Board's decision, and whether the Board erred as a matter of law or violated the parolee's constitutional rights. Harden v. Pennsylvania Board of Probation and Parole, 980 A.2d 691, 695 n.3 (Pa. Cmwlth. 2009).
Before this Court, Jones again argues that there was not sufficient evidence to establish a violation of Condition No. 5C. Counsel has filed an application for leave to withdraw, along with a no-merit letter, averring that after a full and conscientious examination of the record, he concluded that there is no factual or legal basis for Jones' requested relief.
When counsel believes that a parolee's appeal of his parole revocation lacks merit, he may file a petition to withdraw pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (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." Turner, 518 Pa. at 494-95, 544 A.2d at 928.Zerby v. Shanon, 964 A.2d 956, 961 (Pa. Cmwlth. 2009). This Court reviews the contents of the no-merit letter to determine whether it meets the requirements of Turner. Zerby, 964 A.2d at 960 (quoting Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007)). If it does, then this Court conducts its own review of the merits of the parolee's appeal. If we agree with Counsel that the issues are without merit, then we will permit counsel to withdraw and deny relief. Id.
Here, Counsel's no-merit letter satisfies the technical requirements of Turner. Counsel explained the nature and extent of his review of Jones' case, named the issues raised by Jones on appeal, and briefly described the reasons why he concluded that Jones' arguments were without merit.
Having determined that Counsel has fulfilled the requirements for withdrawal of representation, we now consider the merits of Jones' appeal. For the following reasons, we concur in Counsel's judgment that Jones' appeal is baseless.
Jones argues that the Board's evidence was insufficient to establish that he engaged in assaultive behavior, in violation of Condition No. 5C in his parole. In determining what constitutes assaultive behavior, this Court follows a common sense definition that encompasses a broader category of actions than would the crime of assault. Jackson v. Pennsylvania Board of Probation and Parole, 885 A.2d 598, 601 (Pa. Cmwlth. 2005). Assaultive behavior includes any behavior that causes physical harm or that is a willful offer of force or violence that creates a reasonable apprehension of bodily harm in another person. Id.
Here, the Board presented photographs of the injuries that Tucker sustained as a result of Jones' behavior on August 14, 2011. Tucker testified that Jones shoved her against the stucco wall and held her down on the bed; she feared that he would suffocate her. Tucker's testimony was found credible and Jones' testimony was rejected. Tucker's credited testimony and the photographs documenting her injuries support the Board's finding that he engaged in assaultive behavior, in violation of Condition No. 5C of his parole.
Jones asserts that Tucker's hearing testimony was inconsistent with her August 15, 2011, statement to Jones' parole agent. The inconsistencies identified are immaterial because they relate to matters not directly related to Jones' assault. Moreover, the mere presence of conflicting or inconsistent testimony in the record does not mean the Board's findings are not supported by substantial evidence. Harper v. Pennsylvania Board of Probation and Parole, 520 A.2d 518, 523 (Pa. Cmwlth. 1987). It is the duty of the Board, as the fact finder, to assess the credibility of witnesses and the weight to be given their testimony. Id. at 522. The Board's determination that Tucker's testimony was credible is beyond this Court's review.
For example, Jones points out that in Tucker's initial interview with Jones' parole agent, she stated that Jones poured out all of the water in the house, but at the hearing she only testified to him pouring out the one glass. Jones also points out that in her initial statement Tucker described that she was in the hallway with Jones when the phone began ringing in his pocket. --------
Further, even if we agreed with Jones that there was insufficient evidence to support a violation of Condition No. 5C, the fact remains that Jones admitted to violating Condition No. 5A of his parole (refrain from drug use). The presumptive range for a single violation of any of the conditions listed in No. 5A is five to twelve months; the presumptive range for multiple violations of those conditions is six to eighteen months. 37 Pa. Code § 75.4. The Board recommitted Jones to serve nine months backtime, which is within the presumptive range for a single violation of Condition No. 5A. Therefore, it is irrelevant whether there was sufficient evidence to support a violation of Condition No. 5C because the Board had the authority to recommit Jones for nine months for violating Condition No. 5A.
In sum, Counsel has fulfilled the technical requirements for withdrawing his representation, and our independent review of the record before the Board reveals that Jones' 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 15th day of March, 2013, the application for leave to withdraw as counsel, filed by Petitioner's counsel, Kent D. Watkins, Esquire, is GRANTED and the order of the Pennsylvania Board of Probation and Parole dated May 16, 2012, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge