Opinion
No. 914 C.D. 2014
07-08-2015
Shawn M. Outler, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Shawn M. Outler petitions for review of the May 5, 2014, determination of the Pennsylvania Board of Probation and Parole (Board), which denied his petitions for administrative review of the Board's decision mailed December 9, 2013, recommitting Outler as a convicted parole violator (CPV) and recalculating his maximum sentence expiration date. Appointed counsel, Marc T. Valentine, Esquire (Counsel), has filed an application for leave to withdraw from representation on the ground that Outler's petition for review lacks merit. We grant Counsel's application for leave to withdraw and affirm.
Although Outler filed a petition for a writ of mandamus with this court, we treated Outler's petition as a petition for review addressed to our appellate jurisdiction pursuant to section 763(a)(1) of the Judicial Code, 42 Pa. C.S. §763(a)(1).
On May 23, 2000, the Court of Common Pleas of Lehigh County sentenced Outler to 7 to 20 years' imprisonment for manufacture/sale/delivery or possession with intent to manufacture or deliver a controlled substance. (C.R. at 1). Outler's sentence became effective on May 26, 2002, with a maximum sentence expiration date of May 26, 2022. (Id. at 2.) After his initial parole and subsequent recommitment on technical parole violations, Outler was released on parole on April 16, 2012. (Id. at 32.) On May 22, 2012, Outler left his approved residence at ADAPPT Treatment Services (ADAPPT) in Reading without permission and did not return. (Id. at 41.) Outler was arrested for technical parole violations on February 27, 2013, and re-arrested on criminal charges on March 5, 2013. (Id. at 39, 46.) On April 8, 2013, the Board recommitted Outler as a technical parole violator (TPV) based on his unauthorized leave from the ADAPPT facility. (Id. at 44-45.) On July 29, 2013, Outler pled guilty to and was convicted of the new criminal charges. (Id. at 88.)
On October 1, 2013, the Board issued a notice of charges and hearing (Hearing Notice) informing Outler that a parole revocation hearing was scheduled for October 21, 2013. (Id. at 48.) That same day, Outler signed the Hearing Notice and requested a panel hearing. (Id. at 48, 50.) On December 9, 2013, the Board notified Outler that it had recommitted him as a CPV and recalculated his maximum sentence expiration date to August 3, 2025. (Id. at 98-99.)
On December 19, 2013, Outler filed a petition for administrative review challenging the recalculation of his maximum sentence expiration date. (Id. at 102.) On January 8, 2014, Outler filed a second petition for administrative review, alleging that he should be credited time on his maximum sentence expiration date because he did not receive a preliminary hearing after his February 27, 2013, arrest, or adequate notice of the October 21, 2013, revocation hearing. (Id. at 105-06.) The Board denied Outler's petitions, and Outler appealed to this court. (Id. at 111-12.) Thereafter, Counsel filed an application for leave to withdraw and a no-merit letter with this court.
Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether the findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
A no-merit letter must set forth: (1) the nature and extent of counsel's review of the case; (2) the issues the petitioner wishes to raise on appeal; and (3) counsel's analysis concluding that the appeal is meritless. Commonwealth v. Turner, 544 A.2d 927, 928 (Pa. 1988). If counsel meets these requirements, this court will then independently review the merits of the case to determine whether the petitioner's appeal lacks merit. Hughes v. Pennsylvania Board of Probation and Parole, 977 A.2d 19, 25 (Pa. Cmwlth. 2009) (en banc).
Here, Counsel mailed Outler a letter informing him of Counsel's request to withdraw and notifying Outler that he could proceed pro se or with the aid of other counsel. Counsel included a no-merit letter, which detailed the nature and extent of Counsel's review of his case, set forth the issues raised, and explained why Counsel concluded that Outler's appeal is meritless. Because Counsel's no-merit letter satisfies the technical requirements of Turner, we will now conduct an independent review of Outler's appeal.
Outler argues two issues on appeal. First, he argues that the Board failed to provide him adequate notice of the October 21, 2013, revocation hearing because the Hearing Notice did not state the date and time of the revocation hearing. Second, Outler argues that the Board erred in detaining him as a TPV pending disposition of his new criminal charges without conducting a preliminary hearing. However, Outler first raised both issues in his second petition for administrative review, and the Board did not address either issue in its final determination. Pursuant to the Board's regulation at 37 Pa. Code §73.1(b)(3), the Board will not receive second or subsequent petitions for administrative review. Therefore, we may not consider these issues on appeal.
We note that a petitioner must be notified of the exact date of the revocation hearing. 37 Pa. Code §71.4(2)(i). Here, the Hearing Notice specified this information. (C.R. at 48.)
We note that a preliminary hearing for technical parole violations is required within 14 days of detention "only if the parolee is not already detained after appropriate hearing for other technical violations or criminal charges." Lanzetta v. Pennsylvania Board of Probation and Parole, 568 A.2d 283, 285 (Pa. Cmwlth. 1989). Here, Outler waived a preliminary hearing on his criminal charges on March 12, 2013, within 14 days of his February 27, 2013, arrest on technical parole violations. (C.R. at 85.) Therefore, a preliminary hearing for his technical parole violations was not required. --------
Accordingly, we grant Counsel's application to withdraw and affirm the Board's determination.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 8th day of July, 2015, we hereby grant the application for leave to withdraw from representation filed by Marc T. Valentine, Esquire, and affirm the May 5, 2014, determination of the Pennsylvania Board of Probation and Parole.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge