Opinion
No. 1698 C.D. 2012
05-14-2013
Wayne Outlaw, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Before this Court are the petition of Wayne Outlaw (Inmate) for review of the August 13, 2012 determination of the Pennsylvania Board of Probation and Parole (Board), which affirmed its recalculation of his maximum sentence date, and the application of Richard C. Shiptoski, Esq., Assistant Public Defender of Luzerne County (Counsel) for leave to withdraw as attorney for Inmate on the ground that the petition for review is frivolous. Because we conclude that Counsel has not adequately addressed all issues that Inmate wished to raise, we deny the application for leave to withdraw without prejudice and do not reach the merits of the petition for review.
On May 18, 2010, Inmate was paroled from a state prison sentence of two to four years. (Certified Record (C.R.) at 19.) His maximum date at that time was January 27, 2012, leaving 619 days remaining on that sentence. (C.R. at 19, 53, 61.) Inmate was paroled to a Virginia detainer. (C.R. at 18-19.) The Board's parole order provided that upon release from that detainer, he was to be placed in a community corrections residential facility, Kintock Erie, CCF. (C.R. at 20, 23.) Inmate remained incarcerated at the State Correctional Institution (SCI)-Dallas until October 14, 2010, when he was released to Kintock Erie, CCF. (C.R. at 28.) Inmate was released from Kintock Erie, CCF on February 1, 2011. (C.R. at 28.)
On May 17, 2011, Inmate was arrested by the Philadelphia Police on new criminal charges. (C.R. at 39.) The Board issued a Warrant to Commit and Detain him for violation of his parole that same day. (C.R. at 24.) Bail on the new charges was set at $50,000 and Inmate did not post bail. (C.R. at 40, 45.) On June 14, 2011, the Philadelphia County Court of Common Pleas lowered Inmate's bail to release on his own recognizance. (C.R. at 40, 45.) Inmate remained in custody, however, because of the Board's detainer and a July 22, 2011 decision of the Board recommitting him to a state correctional institution as a technical parole violator. (C.R . at 24-25, 39, 44.)
On December 19, 2011, Inmate entered a negotiated guilty plea to the charge of Criminal Attempt-Burglary, and was sentenced to one and one-half to three years imprisonment, with credit for time served, to be followed by an additional three years probation. (C.R. at 27, 28, 36, 46-47.) On January 10, 2012, Inmate signed a Waiver of Revocation Hearing and Counsel/Admission Form admitting that he had been convicted of Criminal Attempt-Burglary in violation of his parole. (C.R. at 38.) In that form, Inmate asserted that the only backtime that he owed was for the period from February 1, 2011, when he was released from the community corrections facility, to May 17, 2011, when he was arrested on the new charges. (C.R. at 38.)
In February 2012, the Board issued a decision recommitting Inmate to a state correctional institution as a convicted parole violator and recalculating a new maximum date of February 22, 2013. (C.R. at 53-54, 56.) This new maximum date was based on the Board's determination that Inmate was entitled to backtime credit only for the 188 days between June 14, 2011 and December 19, 2011, when he was incarcerated awaiting trial on the new charges after his bail was reduced, and that Inmate therefore owed 431 days of backtime, which he began serving on December 19, 2011, when he was sentenced on his guilty plea to the new charges. (C.R. at 53, 61.)
Counsel filed a request for administrative relief with the Board on Inmate's behalf, asserting that Inmate's maximum date was not correctly calculated. (C.R. at 57-58.) By decision mailed August 13, 2012, the Board denied the request for administrative relief and affirmed Inmate's maximum date of February 22, 2013. (C.R. at 61-62.) On September 7, 2012, Counsel filed the instant petition for review on Inmate's behalf, appealing the calculation of Inmate's maximum date to this Court. On November 21, 2012, after the certified record was filed by the Board, Counsel filed an "Anders brief," a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and the decisions of our Supreme Court with respect to appointed counsel's obligations where he seeks leave to withdraw from representing a criminal defendant on the ground that the appeal is frivolous. On November 26, 2012, Counsel filed the instant application for leave to withdraw.
Although Inmate's maximum date of February 22, 2013 on his original sentence has expired, this matter is not moot because Inmate is still incarcerated under his sentence for the subsequent guilty plea to Criminal Attempt-Burglary, and a reduction in his maximum date here could impact the time credited to that new sentence. See Seilhamer v. Pennsylvania Board of Probation and Parole, 996 A.2d 40, 42 n.2 (Pa. Cmwlth. 2010). --------
Before this Court can consider the merits of Inmate's Petition for Review, we must first address Counsel's application to withdraw and determine whether Counsel has satisfied the requirements that appointed counsel must meet before leave to withdraw may be granted. Seilhamer v. Pennsylvania Board of Probation and Parole, 996 A.2d 40, 42-44 (Pa. Cmwlth. 2010); Reavis v. Pennsylvania Board of Probation and Parole, 909 A.2d 28, 33 (Pa. Cmwlth. 2006); Adams v. Pennsylvania Board of Probation and Parole, 885 A.2d 1121, 1123 (Pa. Cmwlth. 2005).
When appointed counsel for an inmate in an appeal from a decision of the Board seeks to withdraw as counsel on the ground that the appeal is frivolous or without merit, he must satisfy the following procedural requirements: 1) he must notify the inmate of his request to withdraw; 2) he must furnish the inmate with a copy of a sufficient Anders brief or no-merit letter; and 3) he must advise the inmate of his right to retain new counsel or raise any new points he might deem worthy of consideration by submitting a brief on his own behalf. Encarnacion v. Pennsylvania Board of Probation and Parole, 990 A.2d 123, 125 (Pa. Cmwlth. 2010); Hughes v. Pennsylvania Board of Probation and Parole, 977 A.2d 19, 22-25 (Pa. Cmwlth. 2009) (en banc); Zerby v. Shanon, 964 A.2d 956, 958-60 (Pa. Cmwlth. 2009); Reavis, 909 A.2d at 33. Where the inmate has a constitutional right to counsel, an Anders brief is required and withdrawal is allowed only if the appeal is wholly frivolous. Hughes, 977 A.2d at 22-26; Zerby, 964 A.2d at 958-60. If there is not a constitutional right to counsel, counsel may satisfy his obligations by filing a no-merit letter, rather than an Anders brief, and the standard is whether the claims on appeal are without merit. Seilhamer, 996 A.2d at 42 n.4; Hughes, 977 A.2d at 24-26; Zerby, 964 A.2d at 959-61.
Because the only issues in this appeal are challenges to the Board's calculation of Inmate's maximum sentence date, there is no constitutional right to counsel and only a no-merit letter is required. Seilhamer, 996 A.2d at 42-43 n.4; Hughes, 977 A.2d at 26; Zerby, 964 A.2d at 961. Although Counsel here filed an Anders brief, rather than a no-merit letter, that will satisfy Counsel's obligations, provided that his Anders brief contains all the information that must be included in a no-merit letter. Seilhamer, 996 A.2d at 42-43; Hughes, 977 A.2d at 26 n.4; Adams, 885 A.2d at 1123.
A no-merit letter must set forth: 1) the nature and extent of counsel's review of the case; 2) each issue that the inmate wishes to raise on appeal; and 3) counsel's explanation of why each of those issues is meritless. Seilhamer, 996 A.2d at 43; Hughes, 977 A.2d at 26; Zerby, 964 A.2d at 961.
"[T]he purpose of ... a no-merit letter is to ensure that court-appointed counsel has discharged his or her duty to carefully assess any claims available to an indigent appellant." Furthermore, the "failure to discharge such duty will hinder our independent examination of the merits of the appeal."Seilhamer, 996 A.2d at 44 (citation omitted) (quoting Presley v. Pennsylvania Board of Probation and Parole, 737 A.2d 858 (Pa. Cmwlth. 1999)). Where counsel's Anders brief or no-merit letter does not adequately address all of the issues that the inmate wishes to raise, counsel's request to withdraw must be denied and the Court may not proceed to the merits of the appeal. Seilhamer, 996 A.2d at 43-44; Hughes, 977 A.2d at 27; Zerby, 964 A.2d at 961-63; Banks v. Pennsylvania Board of Probation and Parole, 827 A.2d 1245, 1248-49 (Pa. Cmwlth. 2003). Even if an "issue may prove not to be meritorious, it is still incumbent upon Counsel to include it in the No-Merit Letter and explain why it is meritless." Zerby, 964 A.2d at 962.
Counsel satisfied the requirements that he notify Inmate of his request to withdraw and advise Inmate of his right to retain new counsel or submit supplementary briefing on his own behalf. Counsel's Anders brief, however, is insufficient because it does not adequately discuss all of the issues raised by Inmate. It appears from the record that Inmate contends that he owes backtime only for the period from February 1, 2011 to May 17, 2011, and therefore wishes to argue that he is entitled to credit for both the period from May 18, 2010 to February 1, 2011, and the period from May 17, 2011 to December 19, 2011. (C.R. at 38.) Counsel's Anders brief adequately addresses the latter period of May 17, 2011 to December 19, 2011, but fails to fully address Inmate's claim that he is entitled to backtime credit for the May 18, 2010 to February 1, 2011 period.
With respect to the period from May 17, 2011 to December 19, 2011, Counsel's Anders brief explains that the Board gave Inmate backtime credit of 188 days for June 14, 2011 to December 19, 2011, in calculating his maximum date of February 22, 2013. Counsel's Anders brief further explains that prior to June 14, 2011, bail had been set at $50,000 on the new charges and that Inmate did not post bail. Counsel cites applicable case law in support of his conclusion that Inmate is not entitled to backtime credit for the period from May 17, 2011 to June 14, 2011, Gaito v. Pennsylvania Board of Probation and Parole, 408 Pa. 397, 412 A.2d 568 (1980), which holds that where a parolee incarcerated pending trial on new criminal charges fails to satisfy bail requirements on those new charges, the time spent in custody is credited to his new sentence, not his original sentence. This satisfies Counsel's obligation to explain his conclusion that Inmate's claim for additional backtime credit for May 17, 2011 to December 19, 2011 is without merit.
With respect to Inmate's claim for backtime from May 18, 2010 to February 1, 2011, however, Counsel's Anders brief addresses only the period from May 18, 2010 to November 1, 2010, and explains that Inmate is not entitled to backtime credit even though he was incarcerated during this period because he "was serving a detainer sentence in Virginia until his release from that sentence on November 1, 2010." (Anders Brief at 10.) Counsel cites applicable case law in support of his conclusion that Inmate is not entitled to backtime credit for periods during which he was incarcerated for a different reason unrelated to the sentence from which he was paroled, Hines v. Pennsylvania Board of Probation and Parole, 491 Pa. 142, 420 A.2d 381 (1980).
This fails to adequately address Inmate's May 18, 2010 to February 1, 2011 claim in two respects. First, the Anders brief does not discuss at all Inmate's claim for backtime credit after the Virginia detainer for the period until February 1, 2011, when he was at a community corrections facility, and does not explain why that claim is meritless. Counsel has therefore failed to satisfy his obligation to address all of Inmate's issues. Second, even with respect to the May 18, 2010 to November 1, 2010 period, Counsel's discussion of the facts is inadequate because it appears to conflict with the record and no explanation of the inconsistency is provided. Counsel states that Inmate was incarcerated in Virginia until November 1, 2010, basing this only on Counsel's own statements to the Board. (Anders Brief at 4, 6, 8-10; C.R. at 57.) However, the record indicates that Inmate was released to the community corrections facility from SCI-Dallas, not from imprisonment in Virginia, and that the release was on October 14, 2010, not November 1, 2010. (C.R. at 28.) In addition, the record does not indicate whether Inmate was held on the Virginia detainer the entire time that he was incarcerated.
For the foregoing reasons, we conclude that Counsel's Anders Brief fails to satisfy the requirements of a no-merit letter. Accordingly, we deny Counsel's application to withdraw without prejudice, and grant Counsel thirty days to either file a renewed application for leave to withdraw, along with a no-merit letter adequately addressing all of Inmate's claims, or submit a brief on the merits of the petition for review.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 14th day of May, 2013, the Petition for Leave to Withdraw as Counsel filed by Richard C. Shiptoski, Esq., Assistant Public Defender of Luzerne County (Counsel) in the above-captioned matter is hereby DENIED without prejudice. Counsel is granted thirty (30) days from the date of this Order to file a renewed application for leave to withdraw as counsel with a no-merit letter addressing all of Petitioner's claims, or submit a brief on the merits of the Petition for Review.
/s/_________
JAMES GARDNER COLINS, Senior Judge