Opinion
No. 1823 C.D. 2012
07-31-2013
Kevin L. Reed, 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 JUDGE LEADBETTER
Kevin L. Reed petitions for review of the order of the Pennsylvania Board of Probation and Parole (Board) that denied his administrative appeal from an order recommitting him as a technical and convicted parole violator. In addition, Reed's counsel, Tina M. Fryling, Esquire, petitions for leave to withdraw her representation, asserting that Reed's appeal is frivolous. After review, we grant counsel's petition and affirm the order of the Board.
On March 26, 2012, Reed pled guilty to the criminal offense of patronizing prostitutes, and the Court of Common Pleas of Allegheny County sentenced him to probation. On May 30, 2012, Reed signed a "Waiver of Revocation Hearing and Counsel/Admission Form" wherein he acknowledged that he had been convicted of a new criminal offense while on parole. Reed was recommitted as a technical and convicted parole violator to serve 18 months backtime, based upon his conviction for patronizing prostitutes, with a parole eligibility date of February 6, 2013, and with a maximum parole expiration date of July 14, 2019. Reed filed a pro se administrative appeal, asserting that the Board erred in calculating both his parole eligibility date and his maximum parole expiration date. The Board denied relief. After obtaining counsel, Reed filed a petition for review in this court asserting the same arguments. Reed also asserted that the Board erred in failing to consider that some of his parole time may have been spent in halfway houses which constituted incarceration for the purpose of time credit calculation. Counsel thereafter filed a petition to withdraw as counsel and a Turner letter in support thereof.
Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988).
In her Turner letter, Counsel sufficiently details the issues raised, as well as the nature and extent of her review and analysis in concluding that the appeal is frivolous. See Hont v. Pa. Bd. of Prob. & Parole, 680 A.2d 47 (Pa. Cmwlth. 1996) (establishing requisite elements of an adequate Turner letter). Specifically, Counsel reviewed the history of Reed's case, and concluded that there was no error in the calculation of Reed's maximum date or reparole date. Counsel also concluded that Reed waived his argument that his prior stays in halfway houses were sufficiently restrictive in nature to be credited toward his time served. In addition, Counsel provided Reed with a copy of her petition to withdraw and the Turner letter. Therefore, Counsel has complied with the requirements necessary to seek leave to withdraw as counsel. Id.; Craig v. Pa. Bd. of Prob. & Parole, 502 A.2d 758 (Pa. Cmwlth. 1985). Finally, pursuant to an order of this court dated December 20, 2012, Reed was advised of his right to obtain substitute counsel or to file a brief on his own behalf. Reed has not retained substitute counsel nor filed a brief.
In reviewing the petition to withdraw, we independently evaluate the proceedings before the Board to determine whether the appeal is without merit. Dear v. Pa. Bd. of Prob. & Parole, 686 A.2d 423 (Pa. Cmwlth. 1996). After a review of the record, we find no merit to Reed's assertion that the Board erred in calculating his maximum date. It is clear from the record that, at the time he was last paroled, Reed had 1784 days remaining on his sentence. Because he was convicted of a crime while on parole, he lost all credit for his "street time." See 61 Pa. C.S. § 6138(a). Armbruster v. Pa. Bd. of Prob. & Parole, 919 A.2d 348, 351 (Pa. Cmwlth. 2007). Reed was paroled 5 separate times between 2001 and 2010 and upon his most recent recommitment as convicted parole violator he forfeited credit for 1115 days spent at liberty during his parole periods. Therefore, Reed had 2899 days remaining on his sentence. Prior to his recommitment, Reed was held on the Board's warrant for a total of 233 days. Therefore, at the time of his recommitment, Reed had 2666 days of back-time remaining on his original sentence, resulting in a maximum date of July 14, 2019. There was no error in the computation of this date.
We also find no merit in Reed's assertion that the Board erred in calculating his parole eligibility date. The Board recommitted Reed to serve a total of 18 months for all of his probation violations. Reed began serving his 18-month sentence on March 26, 2012, and the Board credited him 233 days for the time he was held on the Board's detainer, resulting in a parole date of February 6, 2013. We find no error in this calculation.
Reed also attempts to argue that the Board erred in not crediting time he spent in halfway houses toward his maximum release date. Reed has waived his right to raise this issue as he failed to preserve this issue in his administrative appeal paperwork. See Chesson v. Pa. Bd. of Prob. & Parole, 47 A.3d 875, 878 (Pa. Cmwlth. 2012) (holding that issues not raised before the Board either at the revocation hearing or in the petitioner's administrative appeal are waived and cannot be considered for the first time on appeal).
Even assuming, arguendo, that the issue has not been waived, the record does not support Reed's argument. A convicted parole violator who seeks credit on his original sentence for time spent in a halfway house bears the burden of showing that the specific characteristics of the program constitute restriction of liberty sufficient to warrant credit on the original sentence. Harden v. Pa. Bd. of Prob. & Parole, 980 A.2d 691 (Pa. Cmwlth 2009). Two factors are considered in determining whether a halfway house or group home is sufficiently restrictive so as to be equivalent to incarceration: (1) whether the facility is locked or secured; and (2) whether a resident is able to leave the facility without being restrained or escorted. Meleski v. Pa. Bd. of Prob. & Parole, 931 A.2d 68, 71-72 (Pa. Cmwlth. 2007). A review of the record reveals only that Reed was released to a halfway house in Pittsburgh on several occasions and to a halfway house in Erie on two occasions and that the conditions of parole in each instance required Reed to attend out-patient drug and alcohol rehabilitation, and either seek employment or maintain employment. These facts are insufficient to establish Reed's entitlement to a credit for his time spent at those facilities. --------
Accordingly, we grant the petition to withdraw and affirm the order of the Board.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 31st day of July, 2013, the petition of Tina M. Fryling, Esquire to withdraw as counsel in the above-captioned matter is hereby GRANTED and the order of the Pennsylvania Board of Probation and Parole is AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge