Opinion
No. 750 C.D. 2013
07-01-2014
David Pryce, III, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Before this Court are the petition of David Pryce, III (Pryce) for review of the determination of the Pennsylvania Board of Probation and Parole (Board), which affirmed its decision recommitting him to a state correctional institution to serve nine months backtime as a technical parole violator, and the second motion of James L. Best, Esq. (Counsel) for leave to withdraw as attorney for Pryce on the ground that the petition for review is frivolous. Because we conclude that Counsel has not satisfied the requirements for leave to withdraw and has not demonstrated that all issues raised by Pryce are without merit, we deny the application for leave to withdraw.
As we set forth in our opinion denying Counsel's first motion for leave to withdraw, on November 29, 2011, Pryce was paroled from state prison sentences totaling two-to-five years for driving under the influence of alcohol and other offenses. (Certified Record (C.R.) Item 3.) The conditions of Pryce's parole, signed by Pryce, imposed a mandatory requirement that "[y]ou shall not consume or possess alcohol under any condition for any reason." (Id. at 9, 13-14.) At the time of his parole, Pryce's maximum incarceration date was November 29, 2014. (Id. at 9.)
Pryce v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth. No. 750 C.D. 2013, filed March 7, 2014).
On October 15, 2012, Pryce failed to report to the parole office as instructed by his parole agent and was found by the parole agent in an intoxicated condition with empty and full beer cans in his house and truck. (C.R. Item 5 at 31; C.R. Item 6 at 33.) A detainer was issued on that same day for violation of his parole, and Pryce was charged with two technical parole violations: failure to report to his parole agent and violation of the condition of his parole that he not consume or possess alcohol. (C.R. Item 4; C.R. Item 6 at 33.) On October 18, 2012, Pryce signed a Waiver of Violation Hearing and Counsel/Admission Form admitting both of those parole violations, waiving his right to a hearing on the violations and waiving his right to be represented by counsel at such a hearing before the Board. (C.R. Item 7 at 44-47.) On that form, Pryce acknowledged that he understood that "this admission is binding and may only be withdrawn if I submit a written withdrawal ... within ten (10) calendar days." (Id. at 44.) Pryce further represented that his waiver of his rights to counsel and to a hearing was "of my own free will, without any promise, threat or coercion." (Id. at 44, 46-47.) Pryce did not seek to withdraw his admission of the parole violations within the permitted ten-day period.
On November 29, 2012, the Board issued a decision, mailed on December 5, 2012, recommitting Pryce to a state correctional institution as a technical parole violator to serve nine months backtime. (C.R. Item 8 at 50-51.) The Board based its decision on the fact that Pryce had committed the two parole violations, which had presumptive sentence ranges under the Board's guidelines of three-to-six months and three-to-eighteen months respectively, and on its conclusions that Pryce was not amenable to parole supervision and was a threat to the safety of the community. (C.R. Item 7 at 34-39; C.R. Item 8 at 50.) With respect to diversion from confinement in a state correctional institution, the Board also noted in its Hearing Report that "[t]he inmate has open criminal charges." (C.R. Item 7 at 39.) The recommitment did not change Pryce's maximum date, which remained November 29, 2014. (C.R. Item 8 at 48, 50.)
Between December 6, 2012 and January 4, 2013 Pryce, acting pro se, filed multiple requests with the Board challenging both the backtime that the Board imposed and the Board's decision that the backtime was to be served in a state correctional institution, rather than in a community corrections center, contending that the Board's decision violated 61 Pa. C.S. § 6138, including Section 6138(c)(6). (C.R. Item 9 at 52-83.) The Board denied these requests for administrative relief and affirmed its decision. (C.R. Item 9 at 120-21; Notice of Appeal Ex. D.) Pryce, acting pro se, filed the instant petition for review, captioned "Notice of Appeal." In this petition for review, Pryce asserts several claims of error: (i) that his waiver of his right to a hearing was invalid (Notice of Appeal at 2-3); (ii) that the Board improperly considered a criminal charge against him that he contends had been dismissed (id. at 3); (iii) that the imposition of nine months backtime was excessive (id. at 4-5); and (iv) that the Board violated provisions of 61 Pa. C.S. § 6138, including Section 6138(c)(6), in not ordering that the backtime be served in a community corrections center. (Id. at 3, 5.)
This Court on July 1, 2013, appointed the Public Defender of Northumberland County, with whom Counsel is affiliated, to represent Pryce. On November 14, 2013, after the certified record was filed by the Board, Counsel filed a motion for leave to withdraw as counsel and an "Anders brief," a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and 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 an appeal is frivolous.
In that Anders brief, Counsel adequately addressed two of the issues raised by Pryce and demonstrated that they are frivolous. Counsel explained that the record shows that Pryce waived his right to a hearing and cited applicable case law, McKenzie v. Pennsylvania Board of Probation and Parole, 963 A.2d 616 (Pa. Cmwlth. 2009), and Prebella v. Pennsylvania Board of Probation and Parole, 942 A.2d 257 (Pa. Cmwlth. 2008), rejecting attacks on the validity of such waivers. With respect to Pryce's challenge to length of the backtime imposed by the Board, Counsel's Anders brief explained that the presumptive ranges for recommitment prescribed by Board regulation for these parole violations are three-to-six months for the failure to report and three-to-eighteen months for the alcohol special condition violation, 37 Pa. Code §75.4, and that the nine months of backtime imposed by the Board is thus well within the presumptive range for his violations. Counsel also cited applicable case law, Chapman v. Pennsylvania Board of Probation and Parole, 484 A.2d 413 (Pa. Cmwlth. 1984), and Lotz v. Pennsylvania Board of Probation and Parole, 548 A.2d 1295 (Pa. Cmwlth. 1988), aff'd without op., 583 A.2d 427 (Pa. 1990), holding that challenges to backtime within the Board's published presumptive ranges are without merit.
Counsel, however, did not address Pryce's argument that his recommitment to a state correctional institution, rather than a less restrictive detention environment, violated Section 6138(c)(6) of the Prisons and Parole Code, 61 Pa. C.S. § 6138(c)(6), which was in effect at the time of his recommitment. Accordingly, this Court, on March 7, 2014, denied Counsel's motion to withdraw without prejudice and directed Counsel to either file a renewed application for leave to withdraw as counsel with a sufficient Anders brief or no-merit letter within 30 days or submit a brief on the merits of the petition for review.
Counsel did not request an extension of the deadline set in the Court's order and did not file a motion to withdraw, brief on the merits or any other papers with the Court within 30 days. On April 16, 2014, ten days after the Court's deadline for a renewed motion to withdraw expired, Counsel filed a letter addressed to the Court arguing that the Board did not abuse its discretion under Section 6138(c)(6) in recommitting Pryce to a state correctional institution. On April 24, 2014, 18 days beyond the deadline set by this Court, Counsel filed the instant motion for leave to withdraw, submitting his April 16, 2014 letter to the Court as the no-merit letter in support of his motion.
Before this Court can consider the merits of Pryce's petition for review, we must first address Counsel's second application to withdraw and determine whether Counsel has satisfied the requirements that appointed counsel must meet before leave to withdraw may be granted. Miskovitch v. Pennsylvania Board of Probation and Parole, 77 A.3d 66, 69 (Pa. Cmwlth. 2013); Seilhamer v. Pennsylvania Board of Probation and Parole, 996 A.2d 40, 42-44 (Pa. Cmwlth. 2010). When appointed counsel for an inmate seeks to withdraw 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 an Anders brief or no-merit letter addressing all of the issues that the inmate wishes to raise on appeal and providing an explanation of why each of those issues is meritless; 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, 125-26 (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); Banks v. Pennsylvania Board of Probation and Parole, 827 A.2d 1245, 1248 (Pa. Cmwlth. 2003). Where counsel has not shown that all issues raised by the inmate are without substance or possible merit, the motion to withdraw must be denied. Jones v. Pennsylvania Board of Probation and Parole, 872 A.2d 1283, 1285 (Pa. Cmwlth. 2005); Houser v. Pennsylvania Board of Probation and Parole, 675 A.2d 787, 790-91 (Pa. Cmwlth. 1996); Frankhouser v. Pennsylvania Board of Probation and Parole, 598 A.2d 607, 610 (Pa. Cmwlth. 1991).
Because there is no constitutional right to counsel in this proceeding, Pryce, slip op. at 6, only a no-merit letter is required here. Miskovitch, 77 A.3d at 69; Hughes, 977 A.2d at 26.
We conclude that Counsel's motion is insufficient and must be denied on several grounds. First, Counsel's motion is untimely. Counsel was granted 30 days to file a renewed application for leave to withdraw. If he wished to withdraw, he was required to comply with that deadline or seek an extension of time. Counsel, however, did neither, and filed both his no-merit letter and motion to withdraw well beyond the period that this Court had granted him. Disregard of the Court's deadline set in its order granting leave to file the motion is a sufficient ground by itself for denying a renewed motion to withdraw as counsel. See Malloy v. Pennsylvania Board of Probation and Parole, (Pa. Cmwlth. No. 1851 C.D. 2010, filed June 21, 2011) (denying second motion to withdraw where counsel filed the motion six days beyond the 30 days set by the Court).
Second, Counsel has not demonstrated that he has given the notice and advice to his client that is required before leave to withdraw may be granted. As noted above, counsel seeking to withdraw must notify the inmate of his request to withdraw and advise the inmate of his right to retain new counsel or submit a brief on his own behalf. Miskovitch, 77 A.3d at 69; Encarnacion, 990 A.2d at 125; Banks, 827 A.2d at 1248. Nothing in Counsel's motion shows that he advised Pryce of his right to retain new counsel or file a brief on his own. Counsel's motion does not state that he has so advised Pryce and the only communication that Counsel represents that he sent to Pryce is his no-merit letter. (Motion for Leave to Withdraw as Counsel ¶5.) The no-merit letter is addressed to the Court, not to Pryce, discusses only the arguments and issues in this petition for review, and does not mention Pryce's right to retain other counsel or file his own brief.
Indeed, it is not clear that Counsel has notified Pryce of his motion to withdraw. Counsel's certificate of service attached to his motion to withdraw states that he served the motion on Pryce at "SCI Graterford, PO Box 244, Graterford, PA 19426." (Id. Certificate of Service.) This does not appear to be Pryce's current address. While Pryce was incarcerated at the State Correctional Institution (SCI) at Graterford at the time that he filed the petition for review, he was transferred prior to June 26, 2014 to a different correctional institution, SCI-Coal Township. (Motion for Appointment of Substitute Appellate Counsel ¶¶2, 4.) The Court's records indicate that Pryce's address since at least December 2013 is 569 Huntsmans Path, Kennett Square, PA 19348, and there is nothing in the Court's records indicating that Pryce has been retransferred or recommitted to SCI-Graterford. (Address Change Letter docketed December 10, 2013.) Although Counsel makes a cursory assertion in his April 16, 2014 no-merit letter that "[a] check of the Pa Inmate Website this date indicates that Mr. Pryce remains in state custody" (Motion for Leave to Withdraw as Counsel Ex. A at 3), he does not represent that Pryce was incarcerated at SCI-Graterford at that time or set forth his basis for serving Pryce at SCI-Graterford.
Finally, Counsel has not demonstrated that Pryce's argument that the Board erred in recommitting him to a state correctional institution is without merit. While Counsel's no-merit letter addresses this issue, rather than evaluating and analyzing whether Pryce's argument is barred by statutory language, existing precedent or the record, Counsel has submitted a legal argument in support of the Board's decision. The fact that an argument can be made in support of the Board's decision, even if that argument may ultimately prove persuasive, does not make the inmate's legal position so devoid of substance and possible merit that counsel should be permitted to withdraw without arguing on behalf of his client.
Nothing cited by Counsel precludes an argument or conclusion that the recommitment here violated the Board's obligations under Section 6138(c)(6). At the time of the Board's decision, Section 6138(c)(6) provided: "The board shall divert technical parole violators from confinement in a State correctional institution unless the parolee's diversion poses an undue risk to public safety." Historical and Statutory Notes to 61 Pa. C.S. § 6138 (emphasis added); see also Harmer v. Pennsylvania Board of Probation and Parole, 83 A.3d 293, 295 n.1, 297 (Pa. Cmwlth. 2014) (en banc); Baldelli v. Pennsylvania Board of Probation and Parole, 76 A.3d 92, 96 (Pa. Cmwlth. 2013).
The Board did make a finding that Pryce was "a threat to the safety of the community" (C.R. Item 7 at 36; C.R. Item 8 at 50), and the determination whether diversion to a community corrections center would create an undue risk to public safety involves an exercise of discretion by the Board. Harmer, 83 A.3d at 297; Baldelli, 76 A.3d at 96. However, the case law interpreting Section 6138(c)(6) does not compel the conclusion the Board acted within that discretion. In both Harmer and Baldelli, this Court upheld the Board's decisions recommitting the parolees to state correctional institutions rather than community corrections centers because the parolees had a history of parole violations at such facilities. Harmer, 83 A.3d at 298-99; Baldelli, 76 A.3d at 96-98. Here, in contrast, Pryce contends that he has no prior history of parole violations that would make diversion to a community corrections center inadequate.
Moreover, it is not clear from the record that the Board fully considered the issue of whether Pryce would be a threat to public safety in a community corrections center. The Court has found nothing in the record indicating that the Board considered whether access to alcohol and vehicles, the circumstances that would raise public safety issues, could be prevented in the community corrections center setting. In addition, it appears that the Board based its decision not to divert Pryce to a community corrections center at least in part on consideration of criminal charges that Pryce contends had been dismissed. (C.R. Item 7 at 39.)
Because Counsel has not satisfied his obligations and we cannot conclude that Pryce's argument under Section 6138(c)(6) is without any possible merit, Counsel's motion to withdraw must be denied. Ordinarily, we would order Counsel to file a brief on the merits arguing this issue on behalf of his client. See, e.g, Houser, 675 A.2d at 790-91; Frankhouser, 598 A.2d at 610. This matter, however, has already been twice delayed by Counsel's insufficient motions to withdraw. Moreover, given Counsel's apparent unwillingness to argue on behalf of his client, it is unlikely that requiring Counsel to brief the merits would materially assist the Court in considering and ruling on the petition for review. Accordingly, in order that this matter proceed to resolution on the merits, the Court directs that the Board, if it wishes to file any brief in opposition to the petition for review, file its brief on the issue of whether it abused its discretion under 61 Pa. C.S. § 6138(c)(6) in recommitting Pryce to a state correctional institution, rather than diverting him to a community corrections center, within 30 days.
If Counsel's representation that Pryce is presently incarcerated is not accurate and Pryce has in fact been reparoled, the Board should also address whether this matter is moot. As noted in our opinion denying Counsel's first motion to withdraw, although Pryce's maximum incarceration date, November 29, 2014, has not yet passed, it is not clear what, if any, effect reversal of the Board's past recommitment to a state correctional institution, as opposed to a community corrections center, could have on the remainder of Pryce's sentence. In addition, because Section 6138(c) was amended effective January 2, 2013, Act of July 5, 2012, P.L. 1050, No. 122, §§ 15, 19(2)(ii); Historical and Statutory Notes to 61 Pa. C.S. § 6138; Harmer, 83 A.3d at 295 n.1, any future parole revocation would not be governed by Section 6138(c)(6). --------
/s/_________
JAMES GARDNER COLINS, Senior Judge Judge Brobson concurs in the result only. ORDER
AND NOW, this 1st day of July, 2014, the Motion for Leave to Withdraw as Counsel filed by James L. Best, Esq., in the above-captioned matter is hereby DENIED. Respondent shall file its brief in opposition to the Petition for Review within thirty (30) days from the date of this Order.
/s/_________
JAMES GARDNER COLINS, Senior Judge