Opinion
No. 750 C.D. 2013
03-07-2014
David Pryce III, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, 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 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 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 adequately addressed all issues that Pryce raised before the Board and in his petition for review in this Court, we deny the application for leave to withdraw without prejudice and do not reach the merits of the petition for review.
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.)
On October 15, 2012, Pryce failed to report to the parole office as instructed by his parole agent and was found by his parole agent at his house in an intoxicated condition with empty and full beer cans in his house and truck. (C.R. Item 5 at 31.) 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 On that form, Pryce acknowledged that he understood that "this admission is binding and may only be withdrawn if I submit a written withdrawal ...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 as a consideration 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 48-49, 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 or community corrections facility, contending that the Board's decision violated 61 Pa. C.S. § 6138, including Section 6138(c)(6). (C.R. Item 9 at 52-83.) By decision mailed March 25, 2013 and remailed to Pryce's correct inmate address on April 26, 2013, the Board denied these requests for administrative relief and affirmed its decision. (C.R. Item 9 at 120-21; Notice of Appeal Ex. D.) On May 2, 2013, 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, 5); (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 or community corrections facility. (Id. at 1, 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 the instant motion for leave to withdraw and 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. Pryce filed a "Declaration" in response to Counsel's filings, in which he again argued that his recommitment to a state correctional institution violated 61 Pa. C.S. § 6138(c)(6), and asserted that this provision was in effect at the time of his arrest and recommitment. This Court on December 2, 2013 forwarded that document to Counsel "so that you may consider whether the matters contained therein should be raised before this court in Petitioner's appeal." (December 2, 2013 Letter from Court to James L. Best, Esq.) Counsel has filed nothing further to supplement his Anders brief.
Before this Court can consider the merits of Pryce'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. 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 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). Where the inmate has a constitutional right to counsel, an Anders brief is required and withdrawal is allowed where 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.
A constitutional right to counsel exists in a parole revocation matter only where the parolee asserts a
colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present.Hughes, 977 A.2d at 25-26 (quoting Gagnon v. Scarpelli, 411 U.S. 778 (1973)); see also Miskovitch, 77 A.3d at 69 n.2. Although Pryce asserts arguments concerning his waiver of a hearing, he does not dispute that he committed the parole violations found by the Board (Notice of Appeal at 3), and the issues here are not complex or difficult to develop and present. There is therefore no constitutional right to counsel in this proceeding and only a no-merit letter is required. Miskovitch, 77 A.3d at 69 n.2; Hughes, 977 A.2d at 26. 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. Miskovitch, 77 A.3d at 70; Seilhamer, 996 A.2d at 42-43; Hughes, 977 A.2d at 26 n.4.
It is well established that in a parole appeal such as this, an Anders brief or no-merit letter must address the issues that the inmate wishes to raise on appeal and provide an explanation of why each of those issues is meritless. Seilhamer, 996 A.2d at 43; Encarnacion, 990 A.2d at 126; Hughes, 977 A.2d at 26; Zerby, 964 A.2d at 961; Banks v. Pennsylvania Board of Probation and Parole, 827 A.2d 1245, 1248 (Pa. Cmwlth. 2003).
To the extent that Counsel suggests that Anders briefs need not provide an explanation of why counsel believes that issues are frivolous (Anders Brief at 7), it is an inaccurate statement of the law. See Commonwealth v. Santiago, 602 Pa. 159, 178-79, 978 A.2d 349, 360-61 (2009) (holding that Anders briefs must "state counsel's reasons for concluding that the appeal is frivolous" and that "[c]ounsel 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").
The purpose of an Anders brief or 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. While a frivolous appeal is neither encouraged nor condoned, counsel's failure to discharge such duty will hinder our independent examination of the merits of the appeal.Presley v. Pennsylvania Board of Probation and Parole, 737 A.2d 858, 861-62 (Pa. Cmwlth. 1999) (citation omitted). 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, 827 A.2d at 1248-49; Presley, 737 A.2d at 862. Even if an "issue may prove not to be meritorious, it is still incumbent upon Counsel to ... explain why it is meritless." Zerby, 964 A.2d at 962.
Counsel's Anders brief adequately addresses two of the issues raised by Pryce. Counsel explains that that the record shows that Pryce waived his right to a hearing and cites 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), in support of his conclusion that Pryce's attack on the validity of his waiver is frivolous. (Anders Brief at 7-8.) With respect to Pryce's challenge to length of the backtime imposed by the Board, Counsel's Anders brief explains 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. (Anders Brief at 9.) Counsel also cites 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., 525 Pa. 567, 583 A.2d 427 (1990), on which he bases his conclusion that arguments attacking the length of backtime within the presumptive ranges are frivolous. (Anders Brief at 9.) Counsel has therefore fully discharged his obligation to explain why he believes that Pryce's claims concerning his hearing waiver and his challenges the Board's decision to impose nine months backtime are without merit.
We cannot, however, say the same for Counsel's treatment of Pryce's assertion that the Board erred in recommitting him to a state correctional institution, rather than a less restrictive detention environment. Counsel's Anders brief devotes a total of three brief sentences to this issue, concluding that this claim is frivolous on the ground that is based solely on a statutory provision, 61 Pa. C.S. § 6138(c)(1) , that was not in effect until after the Board's decision. (Anders Brief at 9.) On the issue of where Pryce was to serve his backtime, Counsel's Anders brief states only:
The General Assembly approved Act 122 of 2012 on July 5, 2012 which amended various sentencing and parole laws. Of interest to Mr. Pryce was section 6138(c)(1) which creates a presumption that certain technical parole violators should be returned to community correctional centers instead of state prison. Unfortunately for Mr. Pryce, this section of the Act became effective 180 days from enactment or January 5, 2013 and is inapplicable to him.(Id.) This cursory discussion does not address at all Pryce's argument that commitment to a state correctional institution, rather than a community facility, violated the predecessor statutory provision, 61 Pa. C.S. § 6138(c)(6). 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, ___ A.3d ___, ___, 2014 WL 37845 at *3 (Pa. Cmwlth. No. 2358 C.D. 2012, filed January 7, 2014) (en banc); Baldelli v. Pennsylvania Board of Probation and Parole, 76 A.3d 92, 96 (Pa. Cmwlth. 2013). Section 6138(c)(6), which was repealed in the enactment of the new Section 6138(c)(1) discussed by Counsel, was in effect until the January 2013 effective date of new Section 6138(c)(1) and was therefore in effect at the time of Pryce's arrest and the Board's recommitment decision. 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, ___ A.3d at ___ n.1, 2014 WL 37845 at *1 n.1.
While 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), Counsel has made no evaluation as to whether the conclusion that Pryce would be a threat to public safety in a community corrections center or community corrections facility is an abuse of its discretion under Section 6138(c)(6) in light of Pryce's parole history, which he contends shows no prior violations. Compare Harmer, ___ A.3d at ___, 2014 WL 37845 at *3-*5 (no abuse of Board's discretion under Section 6138(c)(6) in recommitting to state correctional institution rather than community corrections center where parolee had history of parole violations while paroled to such facilities); Baldelli, 76 A.3d at 96-98 (same). Counsel also has not considered Pryce's contention that the Board's decision not to divert him to a community corrections center or community corrections facility was based on consideration of criminal charges that Pryce contends had been dismissed. We do not reach any conclusion as to whether Pryce's recommitment to a state correctional institution violated Section 6138(c)(6). It is incumbent upon Counsel, however, to consider and address these issues before asserting to this Court that he should be allowed to withdraw on the grounds that all of his client's claims are frivolous.
For the foregoing reasons, we conclude that Counsel's Anders Brief fails to satisfy his obligation to address all of the issues that Pryce seeks to raise in his appeal from the Board's decision. 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 an Anders brief or no-merit letter adequately addressing all of Pryce's claims, or submit a brief on the merits of the petition for review.
It appears that Pryce would have already fully served his backtime and may have been reparoled as early as July 2013, before the record in this appeal was filed by the Board and before Counsel appeared in this matter. 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 institutional, as opposed to a community facility, could have on the remainder of Pryce's sentence. There may therefore be a serious question whether this issue is moot. Counsel should also examine whether the Board's decision concerning where Pryce was to serve his backtime has any continuing or future effects on his underlying sentence or present or future parole and whether there are other grounds on which the appeal should proceed despite mootness, see Baldelli, 76 A.3d at 95, and should address the question of possible mootness in his no-merit letter, Anders brief or brief on the merits. --------
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 7th day of March, 2014, the Motion for Leave to Withdraw as Counsel filed by James L. Best, Esq., (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 brief pursuant to Anders v. California, 386 U.S. 738 (1967), or 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