Opinion
No. 1747 C.D. 2014
07-09-2015
Kimani J. Lockhart, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Kimani J. Lockhart (Lockhart) petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) recommitting him to serve 8 months and 8 days backtime as a convicted parole violator. In addition to the petition for review, we are presented with a petition to withdraw as counsel filed by Lockhart's court-appointed attorney, Kent D. Watkins, Esquire (Attorney Watkins) on the ground that Lockhart's appeal is without merit. For the reasons that follow, we grant Attorney Watkins' petition to withdraw as counsel, and we affirm the Board's order.
I. Background
Lockhart was originally sentenced to 18 months to 36 months followed by 2 years of special probation. Certified Record (C.R.) at 2-3. On July 17, 2011, the Board released Lockhart on parole with a parole violation maximum date of January 17, 2013. Id. at 1, 4. His actual release date was August 7, 2011. Id. at 13, 54. At that time, 1 year, 5 months and 10 days (529 days) remained on his original sentence. Id. at 26, 54.
On March 14, 2012, while on parole, Lockhart was arrested on new criminal charges, which included possession with intent to deliver a controlled substance, possession of drug paraphernalia, simple possession, and exceeding the speed limit. Id. at 13-18. He was incarcerated in Monroe County prison. Id. On March 20, 2012, he waived his right to a preliminary hearing. Id. at 13, 53.
After his arrest, the Board issued a warrant to commit and detain Lockhart. Id. at 13, 70. On January 17, 2013, the Board rescinded the initial detainer and lodged a new detainer against him. Id. at 65, 66, 70. Lockhart posted bail on the new criminal charges on January 20, 2013. Id. at 38, 42, 52.
The Monroe County Court of Common Pleas (trial court) found Lockhart guilty of all charges. Id. at 21. On October 22, 2013, the trial court sentenced Lockhart to incarceration in a state correctional institution for a period of not less than 5 years or more than 10 years for possession with intent to deliver a controlled substance. Id. at 21. In addition, the trial court sentenced him 6 to 12 months for possession of drug paraphernalia to run concurrently with the 5 to 10 year sentence. Id. at 22. The trial court did not impose an additional period of incarceration for simple possession or exceeding the speed limit. Id.
Upon receiving verification of the sentence, the Board scheduled a revocation hearing. Id. at 14, 26, 34. Lockhart waived his right to a hearing, and he admitted he was convicted of new criminal offenses, which occurred while on parole. Id. at 34. The Board recommitted Lockhart to a state correctional institution as a convicted parole violator. Id. at 56. The Board's recommitment order credited Lockhart with 9 months and 2 days or 275 days - the time period between the date he posted bail on January 20, 2013, and his conviction date of October 22, 2013 - to the 529 days remaining on his unexpired term. Id. at 54. Thus, the Board determined Lockhart owed 8 months and 8 days of backtime or 254 days (529 days less 275 days). Id. As Lockhart returned to the Board's custody on June 4, 2014, the Board recomputed a new maximum date of February 13, 2015. Id.
Lockhart, representing himself, filed a request for administrative relief, arguing the Board did not provide him with notice of its detainer or the criminal charges for which he was detained, or a detention hearing. In addition, Lockhart asserted the Board did not hold or provide notice of a revocation hearing. And, he asserted the Board erred in recalculating his maximum sentence date. Id. at 57-64.
Upon review, the Board denied Lockhart's request for administrative relief. First, with regard to the revocation hearing, the Board noted Lockhart knowingly and voluntarily waived his right to a hearing, and he admitted to violating his parole. As for the detention hearing, the Board was not required to hold a detention hearing because Lockhart waived his right to a preliminary hearing on the new criminal charges on March 20, 2012. Moreover, by admitting he was convicted of the new criminal offenses in the waiver of the revocation hearing, any alleged errors are now moot or frivolous. Finally, the Board explained it correctly recalculated Lockhart's maximum sentence by applying 254 days of backtime owed to June 4, 2014 - the custody date when he became available to serve his original sentence. Id. at 69-70.
From this decision, Lockhart filed a petition for review with this Court. Lockhart reasserts the same issues he raised before the Board. This Court appointed Attorney Watkins to represent Lockhart. Shortly after his appointment, Attorney Watkins filed his petition to withdraw as counsel based on his belief that Lockhart's appeal is without merit.
II. Petition to Withdraw
Counsel seeking to withdraw must conduct a zealous review of the case and submit a "no-merit" letter to this Court detailing the nature and extent of counsel's diligent review of the case, listing the issues the petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw. Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Hughes v. Pa. Bd. of Prob. & Parole, 977 A.2d 19 (Pa. Cmwlth. 2009) (en banc); Zerby v. Shanon, 964 A.2d 956 (Pa. Cmwlth. 2009). The no-merit letter must include "'substantial reasons for concluding that a petitioner's arguments are meritless.'" Zerby, 964 A.2d at 962 (quoting Jefferson v. Pa. Bd. of Prob. & Parole, 705 A.2d 513, 514 (Pa. Cmwlth. 1998)).
In addition, counsel must send the petitioner: (1) a copy of the "no-merit" letter; (2) a copy of the petition for leave to withdraw; and, (3) a statement that advises the petitioner of the right to retain substitute counsel or proceed pro se by representing himself. Turner; Hughes. If counsel satisfies these technical requirements, this Court must then conduct an independent review of the merits of the case. Turner; Hughes. If this Court determines the petitioner's claims are without merit, counsel will be permitted to withdraw and the petitioner will be denied relief. Turner; Hughes.
Here, Attorney Watkins' no-merit letter satisfies the technical requirements of Turner. The letter sets forth the procedural history of the case, reflecting his review of the record. Attorney Watkins states he conducted a thorough review of the record. He lists each of the issues Lockhart raised in the petition for review. Attorney Watkins provides a thorough analysis as to why the issues lack merit, and he cites applicable statutes, regulations and case law in support. He explains Lockhart's issues lack merit because Lockhart waived his right to a revocation hearing, and he was not entitled to a detention hearing. Moreover, the Board had jurisdiction to issue a warrant to commit and detain as well as to recommit him as a convicted parole violator because Lockhart violated the terms of his parole, which he fully admitted. Finally, the Board properly calculated Lockhart's new maximum sentence date.
Based on his review, Attorney Watkins concludes Lockhart's appeal is without merit, and he requests permission to withdraw. Attorney Watkins provided Lockhart with a copy of the no merit letter and his request to withdraw. He advised Lockhart of his right to retain new counsel or proceed by representing himself. As we are satisfied that counsel discharged his responsibility in complying with the technical requirements of a no-merit letter, we conduct an independent review to determine whether the issues raised in Lockhart's petition for review lack merit.
Lockhart did not retain new counsel or file a brief.
Our review is limited to determining whether constitutional rights were violated, whether the adjudication was in accordance with law, and whether necessary findings were supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Miskovitch v. Pa. Bd. of Prob. & Parole, 77 A.3d 66, 74 (Pa. Cmwlth. 2013), appeal denied, 87 A.3d 322 (Pa. 2014). --------
III. Independent Review
A. Detention Hearing
First, Lockhart asserts the Board was required to notify him in writing that it detained him pending disposition of new criminal charges. In addition, he contends the Board was required to provide him with a detention hearing and provide him written notification of the hearing. He argues his waiver of the preliminary hearing did not waive his constitutional due process rights to notice of charges for detainer and a detention hearing.
Pursuant to the Board's regulations, if the parolee violates the conditions of parole, while on parole, "the Board may cause his detention or return to a correctional institution." 37 Pa. Code §63.3. Section 71.3 of the Board's regulations governs the procedure where the parolee is charged with a new criminal offense, and he is not already detained after appropriate hearing for other criminal charges. A parolee may be detained on a Board warrant pending disposition of a criminal charge where the parolee waives a criminal preliminary hearing and he is held for court. 37 Pa. Code §71.3(1)(ii). If a parolee waives a preliminary hearing, the Board may detain a parolee on a Board warrant without further hearing pending disposition of the new criminal charges. 37 Pa. Code §71.3(2).
In support, Lockhart relies on 37 Pa. Code §71.2(1), which provides "[a]fter a parolee is detained under a Board warrant, the parolee shall be visited by a representative of the Board" and shall be notified of the charges against him and that a preliminary hearing will be held. However, Lockhart's reliance on Section 71.2 is misplaced as this section governs the applicable procedure where the parolee is charged with a technical parole violation, not a new criminal offense.
Here, Lockhart was charged with new criminal offenses. Lockhart waived his right to a preliminary hearing on the new criminal charges on March 20, 2012. C.R. at 13, 53. As a result, the Board was not required to notify him that he was detained pending disposition of new criminal charges or hold a detention hearing. See 37 Pa. Code §71.3. Upon review, Lockhart's assertions of error lack merit.
B. Revocation Hearing
Next, Lockhart argues the Board failed to hold or notify him of a revocation hearing stemming from the October 22, 2013 conviction, in violation of the law and his due process rights.
Before a parolee may be recommitted as a convicted parole violator, the Board must schedule a hearing within 120 days from the date the Board receives official verification of the plea of guilty or nolo contendere or the guilty verdict. 37 Pa. Code §71.4. Prior to the revocation hearing, the Board must notify the parolee of the following: his right to a hearing; the right to retain counsel; that there is no penalty for requesting counsel; the right to speak and to present voluntary witnesses and documentary evidence; the purpose of the hearing is to determine whether to revoke parole; and, if revocation is ordered, the parolee will receive no credit for time spent at liberty on parole. 37 Pa. Code §71.4(2)(i)-(v).
Here, the Board received verification of Lockhart's conviction on December 13, 2013. C.R. at 14, 26. The Board provided Lockhart with notice of the charges and scheduled a revocation hearing for March 24, 2014, well within the 120-day time period. Id. at 24, 25. Lockhart acknowledged his receipt of the notice by signing the form. Id. at 25. Lockhart requested a continuation of the hearing to further review the case with counsel. Id. at 24. In April 2014, Lockhart "knowingly, intelligently and voluntarily" waived his right to a revocation hearing. Id. at 34. Moreover, he admitted he was convicted of new criminal offenses for conduct that occurred while on parole. Id. Lockhart's arguments regarding the revocation hearing lack merit.
C. Warrant to Commit and Detain
Lockhart also asserts the Board lacked subject matter jurisdiction to reissue its warrant to commit and detain after he served the completion of his maximum sentence date on January 17, 2013.
The Prisons and Parole Code provides any parolee who, during the period of parole, commits a crime punishable by imprisonment and is convicted or found guilty of that crime may be recommitted as a convicted parole violator. 61 Pa. C.S. §6138(a)(1). If the parolee is recommitted, he must serve the remainder of the term, which he would have been compelled to serve had parole not been granted, with no credit for the time at liberty on parole, unless the Board chooses to award credit. 61 Pa. C.S. §6138(a)(2), (2.1). If a new sentence is imposed, he must serve the balance of the original sentence prior to commencement of the new term. 61 Pa. C.S. §6138(a)(5)(i).
The Board retains jurisdiction to recommit an individual as a parole violator after the expiration of the maximum term, so long as the crimes that lead to the conviction occurred while the individual was on parole. Miskovitch v. Pa. Bd. of Prob. & Parole, 77 A.3d 66, 74 (Pa. Cmwlth. 2013), appeal denied, 87 A.3d 322 (Pa. 2014). This jurisdiction extends to the Board's ability to issue detainers. 37 Pa. Code §63.3.
Here, Lockhart's original maximum sentence was January 17, 2013. However, the Board did not lose jurisdiction upon the expiration of this date because Lockhart committed new criminal offenses while still on parole in March 2012. Therefore, Lockhart remained under the Board's jurisdiction even after the expiration of his original maximum sentence. Consequently, the Board had jurisdiction to issue a warrant to commit and detain, which it did. The Board initially issued a detainer after Lockhart was arrested. C.R. at 13. Although the Board later rescinded that detainer, it issued a new detainer on January 17, 2013. Id. at 11. Contrary to Lockhart's assertions, neither the Board's detainers, nor its confinement of Lockhart based on its detainer were illegal. Lockhart's arguments to the contrary lack merit.
D. Calculation
Finally, Lockhart asserts the Board improperly calculated his new maximum sentence.
Lockhart was originally sentenced to 18 months to 36 months followed by 2 years of special probation. C.R. at 2-3. At the time of his parole, 529 days remained on his original sentence. Id. at 26, 54. While on parole, Lockhart was arrested on new criminal charges, convicted and sentenced to an aggregate sentence of 5 to 10 years. Id. at 21-23.
After his arrest, the Board lodged a detainer against him. Id. at 13. Lockhart did not post bail on his new criminal charges until January 20, 2013. Id. at 13, 38, 42, 52. From the date of his arrest, March 22, 2012, until he posted bail on January 20, 2013, he remained in custody on the new criminal charges. However, once he posted bail, he remained in custody solely on the Board's detainer until his date of conviction on October 22, 2013, which amounted to 275 days. Id. at 54. The Board credited 275 days to his unexpired term of 529 days and determined Lockhart owed 8 months and 8 days of backtime or 254 days. Id. Once Lockhart returned to the Board's custody on June 4, 2014, he began serving backtime on his original sentence. See 61 Pa. C.S. §6138(a). The Board recomputed his new maximum date of February 13, 2015 (June 4, 2014 plus 254 days). Id. Thus, the Board properly calculated Lockhart's time and his assertions of error lack merit.
IV. Conclusion
Upon review, we agree with Attorney Watkins that Lockhart's claims regarding the denial of his request for administrative relief are without merit. Accordingly, we grant Attorney Watkins' petition for leave to withdraw as counsel, and we affirm the order of the Board denying Lockhart's request for administrative relief.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 9th day of July, 2015, we GRANT Kent D. Watkins' petition to withdraw as counsel, and we AFFIRM the order of the Pennsylvania Board of Probation and Parole.
/s/_________
ROBERT SIMPSON, Judge