Opinion
No. 2328 C.D. 2012
11-14-2013
Keith A. Moye, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Assistant Public Defender of Montgomery County Timothy Peter Wile (Counsel) has filed an Application for Leave to Withdraw as Counsel from his representation of Keith A. Moye (Moye) in his petition for review of an order of the Pennsylvania Board of Probation and Parole (Board) recommitting Moye as a parole violator. Counsel requests permission to withdraw from further representation of Moye on the grounds that his petition for review is frivolous and without merit.
Moye is an inmate currently incarcerated at the State Correctional Institution (SCI) at Graterford. He was originally sentenced to eight to 26 years' imprisonment for convictions for robbery, aggravated assault, a Uniform Firearms Act violation and conspiracy, with his original minimum release date being July 22, 2002, and his maximum release date being July 22, 2020. Moye was paroled on December 1, 2003, and was declared delinquent as of November 3, 2011, when parole staff was unable to locate him and he failed to report to the parole office as he was told to do. He was arrested on February 3, 2012, on new charges, and the Board lodged its detainer against Moye for parole violation that day.
The Board recommitted Moye as a technical parole violator for changing his residence without permission and failing to abide by written instructions of his parole. After his preliminary hearing was continued to February 23, 2012, Moye waived the hearing and the hearing examiner found probable cause to detain him. A violation hearing was scheduled for April 23, 2012, but was continued multiple times, first to May 7, 2012, because the hearing examiner was unavailable. Moye then continued the hearing to May 30, 2012, to secure counsel and because his witness was unavailable. It was again continued to June 4, 2012, when a subpoenaed witness failed to attend. The hearing was finally continued to and held on June 18, 2012, because Moye's counsel was unavailable.
Before the hearing examiner, Moye objected to the timeliness of his preliminary and violation hearings on the basis that his preliminary hearing was not held within 14 days and his violation hearing was not held within 120 days of being detained. However, he admitted that he did not remember objecting to the timeliness of the preliminary hearing when he waived it. He also testified that Harvey Leonard (Leonard), his parole agent, instructed him to check in with the parole office "as soon as possible," (Hearing Transcript dated June 18, 2012, at 103), and he never reported and did not hear from Leonard again. He further testified that he never changed his residence and presented his driver's license, which indicated the address the Board had on record as his residence. He said he likely was not home when Leonard came to visit because he worked until 5:30 p.m. and took graduate classes on Tuesday and Thursday evenings.
37 Pa. Code §71.2 provides as follows:
(1) After a parolee is detained under a Board warrant, the parolee shall be visited by a representative of the Board. The parolee shall be notified ... (ii) That a preliminary hearing will be held within 14 days and that the parolee will be notified of the exact date.
* * *
(10) If a violation hearing is scheduled, it shall be held not later than 120 days after the preliminary hearing.
Leonard testified that in October 2011, he learned that an arrest warrant had been issued for Moye, at which point he called Moye and asked him to report to the office. He said Moye did not report and was not at home when he visited in November or December 2011, despite being required to be home for scheduled visits. Leonard further testified that he had made home visits with Moye in the past without issue and that when he attempted to find Moye at the residence in December 2011, he found that Moye's belongings were gone.
Based on the testimony and evidence presented at the hearing, the Board issued a decision ordering that Moye be "recommit[ed] to a state correctional institution as a technical parole violator to serve 9 months backtime, when available pending resolution of new criminal charges." (Notice of Board Decision dated August 31, 2012, at 1.) It also noted that diverting Moye from confinement posed "an undue risk to public safety." Id.
Moye filed a petition for reconsideration and the Board affirmed its decision. In doing so, the Board denied Moye's timeliness objections to the holding of the preliminary hearing as moot because he failed to raise it at that hearing and because his original hearing was scheduled for February 13, 2012, but was rescheduled because Moye could not be located by prison staff. As to the final hearing, it found that the violation hearing was held 116 days after the preliminary hearing, and 37 of those days did not count against the Board because Moye requested a continuance from the scheduled May 7, 2012 hearing to May 30, 2012, which added 23 days, and Moye's attorney was not available for the scheduled hearing on June 4, 2012, which resulted in an additional 14-day period of continuance. The Board also concluded that it properly recommitted Moye as a technical parole violator because he moved without permission and failed to report to the parole office as required. Moye then filed a pro se petition for review with this Court. Counsel was subsequently appointed on November 29, 2011.
After the record was filed, Counsel requested permission to withdraw his appearance as Moye's counsel contending that, after his "conscientious review of the entire record, as well as all of the pleadings, [he could] find no meritorious issues that would be able to be pursued on appeal." (Appendix A to Petition for Leave of Court to Withdraw as Appellate Counsel at 1.) Counsel concluded that the appeal was frivolous and did not have any basis in law or fact. Counsel's petition was accompanied by a letter in support of his application to withdraw and he sent Moye a copy of both documents to notify him of his right to retain substitute counsel or raise any points that he might deem worthy of consideration in a pro se brief to this Court.
When court-appointed counsel seeks to withdraw because he believes in the exercise of his professional judgment that the issues raised by the parolee are frivolous, he must satisfy a number of requirements: he must notify the parolee of his request to withdraw; he must provide the parolee with an Anders brief or a no-merit letter that satisfies the requirements of Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988); and he must advise the parolee of his right to retain new counsel or raise any new points that the parolee deems worthy of consideration by submitting a brief pro se.
See Anders v. State of California, 386 U.S. 738, 87 S. Ct. 1396 (1967). The Pennsylvania Supreme Court has addressed the requirements of an Anders brief:
[An] Anders brief that accompanies [a] court-appointed counsel's petition to withdraw must: (1) provide a summary of the procedural history and facts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) set forth counsel's conclusion that the appeal is frivolous; and (4) state counsel's reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous. We recognize that this is a significant adjustment in our decisional law concerning Anders.
In Turner, the Pennsylvania Supreme Court adopted a less stringent standard for withdrawal of appointed counsel, permitting a no-merit letter rather than an Anders brief, detailing the nature and extent of the attorney's review of the issues the petitioner wishes to raise, with an explanation of why the issues are meritless. See Hughes v. Pennsylvania Board of Probation and Parole, 977 A.2d 19, 24-25 (Pa. Cmwlth. 2009).
Counsel in this case served Moye with a copy of his application and no-merit letter on April 15, 2013. In the letter, he made his intention to withdraw as counsel clear and advised Moye that he had the option of retaining other counsel or filing a pro se brief with this Court. In his Anders brief, Counsel states that the instant case is similar to Whittington v. Pennsylvania Board of Probation and Parole, 404 A.2d 782, 783 (Pa. Cmwlth. 2009), in which we held that "having failed to raise the issue [of a timely detention hearing] before his final revocation hearing, [petitioner] has suffered a wrong for which there is now no remedy." Counsel notes that the preliminary hearing was originally scheduled for February 13, 2012, well within the 14-day requirement, but was not held because prison staff could not locate Moye where he should have been, and Moye's failure to raise his timeliness claim sooner resulted in a waiver of his right to raise the claim. Counsel further points out that the violation hearing was held within 120 days, as the hearing was held 116 days after the preliminary hearing, and even if we were to apply the period as beginning February 17, 2012, as Moye contends, only 116 days of that period are attributable to the Board.
Our independent review indicates that Counsel is correct as to the calculation of the timeliness of Moye's hearings. First, Moye's signature is on the continuance request for the May 7, 2012 hearing, with the reason being Moye's desire to secure private counsel and his witness being unavailable. Second, contrary to Moye's suggestion that the five-day period from May 30, 2012, to June 4, 2012, was deemed attributable to him, the Board simply opined that the delay was not attributable to the Board because a witness failed to attend. Finally, while Moye refused to sign the request on June 4, 2012, the hearing examiner noted on the request that Moye's attorney "telephoned ... and requested the hearing be continued as he is unavailable today." (Original Record at 45.) This is similarly not attributable to the Board. Thus, the Board properly found that only 73 days between Moye's preliminary hearing waiver and the date of the violation hearing were attributable to the Board. Further, as Counsel points out, even considering February 17, 2012, as the point at which the 120-day requirement began to toll, the hearing was still timely held.
With regard to Moye's argument that the Board erred in recommitting him as a technical parole violator "when no representative of the board testified concerning the facts which constitutes [sic] Moye's alleged violations," (Petitioner's Brief at 45), Counsel points out that the Board credited Leonard's testimony, and its credibility determinations are definitive on appeal. In making this argument, Moye appears to contend that Leonard was not a representative of the Board because, although he was Moye's parole agent, he left his position with the Board in March 2012. First, a Board representative is not necessary for the Board's case to be established; this point aside, at all relevant times, Leonard was employed by the Board as a parole agent — specifically, as Moye's parole agent. Moreover, Leonard's testimony that Moye failed to report as he was required to do so and that Moye's belongings were no longer at his residence constitute substantial evidence of the technical charges of changing his residence without permission and failing to abide by written instructions of his parole. Counsel, therefore, properly determined that Moye's argument on this issue is without merit.
Counsel also addresses Moye's argument that the Board violated his due process rights because the same hearing examiner presided over the preliminary and violation hearings, noting that the hearing examiner did not actually conduct a preliminary hearing since Moye waived it, and further, 37 Pa. Code §71.2(11) is not a mandate but suggests that different hearing examiners preside over the hearings. Counsel also points out that Moye and his attorney at that time failed to raise the issue before the hearing examiner and it is, therefore, waived. Ignoring the fact that Moye failed to raise this issue below, we agree with the Board and Counsel that since Moye waived his preliminary hearing, there was only one hearing over which the hearing examiner actually presided. Therefore, Counsel has properly deemed this issue meritless as well.
37 Pa. Code §71.2(13)(i) provides that a violation hearing "shall be held before an examiner other than the examiner who conducted the preliminary hearing, if practicable."
Finally, Counsel addresses Moye's contentions that the Board improperly ordered him to serve nine months' backtime "when available because of your criminal charges," (Board's Decision and Order dated December 7, 2012, at 2), noting that Moye is incarcerated and awaiting trial on new charges, and a conviction would result in him becoming unavailable to the Board, and the trial court may decide to award credit toward the new sentence for his current period of incarceration. Counsel further points out that any failure to award credit to Moye's original sentence at this point is, at most, harmless error, as "[t]he law is clear that he will receive credit for all time that he spent confined either on his original sentence or towards any new sentence he receives." (Anders Brief at 51.) Counsel cites a number of cases, including Gaito v. Pennsylvania Board of Probation and Parole, 488 Pa. 397, 403, 412 A.2d 568, 571 (1980), which provides that "time spent in custody pursuant to a detainer warrant shall be credited to a convicted parole violator's original term ... only when the parolee was eligible for and had satisfied bail requirements for the new offense and thus remained incarcerated only by reason of the detainer warrant lodged against him." Thus, Counsel's contention is proper and this argument is also frivolous.
In his pro se brief, Moye also challenges his detention, suggesting that the Board failed to consider mitigating circumstances, such as his positive record after his release on parole. While he did have a positive record since his release in 2003, that positive record ended when he was arrested and charged with various theft-related offenses in February 2012. Based on the aforementioned technical parole violations, the Board properly exercised its discretion in determining to recommit him based on his recent failures to comply with the provisions of his parole and the criminal charges he was facing. See 37 Pa. Code §71.3(10) (setting forth criteria for determining whether a parolee should be detained, including risk to the community, seriousness of parole violation, history of the parolee while under supervision, delinquent status, seriousness of the offenses with which he has been charged, possibility that the parolee will abscond if he is not detained, and whether the new charges involve use of a weapon or assault). Moye raises a number of additional issues in his brief, but those issues have been waived by his failure to raise them before the Board in his reconsideration request. See Pa. R.A.P. 1551(a); McKenzie v. Pennsylvania Board of Probation and Parole, 963 A.2d 616, 621 (Pa. Cmwlth. 2009); Hughes v. Pennsylvania Board of Probation and Parole, 534 A.2d 589, 591 (Pa. Cmwlth. 1987), appeal denied, 518 Pa. 644, 542 A.2d 1372 (1988). --------
Accordingly, Counsel's Application to Withdraw as Counsel is granted and the order of the Board is affirmed.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 14th day of November, 2013, the Application for Leave to Withdraw as Counsel filed by Timothy Peter Wile, Assistant Public Defender of Montgomery County, appointed counsel for Keith A. Moye, is granted, and the order of the Pennsylvania Board of Probation and Parole is affirmed.
/s/_________
DAN PELLEGRINI, President Judge
Commonwealth v. Santiago, 602 Pa. 159, 178-79, 978 A.2d 349, 361 (2009).