Opinion
No. 1326 C.D. 2014
07-09-2015
Mandell Scott, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Mandell Scott petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board) denying his administrative appeal from an order recommitting him as both a technical and convicted parole violator. In addition, Scott's court-appointed attorney, Tina M. Fryling, Esquire petitions for leave to withdraw as counsel on the ground that the appeal is frivolous. After review, we grant counsel's petition and affirm the Board's recommitment order.
In April 2014, the Board ordered that Scott be recommitted as both a technical and convicted parole violator to serve twenty-four months back time. Scott sought administrative relief, which the Board denied. Counsel filed a petition for review with this Court seeking review of the Board's decision and raising the following issues: 1) whether the Board erred in calculating Scott's parole maximum sentence date; 2) whether the Board's preliminary revocation hearing was untimely; 3) whether Scott's due process rights were violated on the ground that the Department of Corrections (Department) previously disciplined him for the same event; and 4) whether the Board erred in determining that he engaged in technical parole violations.
In October 2014, counsel filed a petition for leave to withdraw as counsel and a Turner letter with this Court, both of which were served on Scott. In her petition and in the Turner letter, counsel outlined the issues raised in the petition for review and explained her reasons for concluding that a careful review of the record indicated that this appeal is frivolous. In an order filed October 31, this Court advised Scott of his right to retain substitute counsel at his own expense or to file a brief on his own behalf. This Court further directed counsel to serve a copy of the order on Scott and to file a certificate of service of the same within fourteen days of the date of the order. Through no fault of her own, counsel did not receive the order until December 1. On December 5, she filed a certificate of service with this Court. There is no indication that Scott was prejudiced by the delay in that, consistent with the delayed service date, this Court entered a January 2015 order affording him fourteen days in which to file a brief. Upon his failure to do so, this Court precluded Scott from filing a brief. In light of the foregoing, we are satisfied that counsel complied with the requisite procedural requirements. We turn now to the pertinent facts.
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).
If counsel seeks to withdraw by means of a Turner letter, an allegation that an appeal is frivolous is not required. Counsel need only demonstrate that the appeal is without merit. Frankhouser v. Pa. Bd. of Prob. & Parole, 598 A.2d 607, 608 (Pa. Cmwlth. 1991).
In the certificate of service, counsel included the envelope that contained the Court's October 31, 2014 order. It is apparent from that envelope that the Court mailed it on October 31 and that it was received in Denver, Colorado in November 2014.
Under Craig v. Pennsylvania Board of Probation and Parole, 502 A.2d 758, 761 (Pa. Cmwlth. 1985), counsel must (1) notify the parolee of the request to withdraw, (2) furnish the parolee with a copy of the brief, and (3) advise the parolee of his or her right to retain new counsel to raise any new points that he or she might deem worthy of consideration. In the no-merit letter or brief, counsel must indicate the nature and extent of the review, the issues the parolee wishes to raise, and counsel's analysis in concluding that the appeal is without merit. Wesley v. Pa. Bd. of Prob. & Parole, 614 A.2d 355, 356 (Pa. Cmwlth. 1992).
Following the entrance of guilty pleas in Lehigh County, Scott was incarcerated with an original parole maximum date of September 19, 2007. Certified Record (C.R.), Item No. 1 at 1. In August 2004, the Board released Scott on parole subject to numerous conditions, which included transfer of his parole supervision to New York. Id., Item No. 3 at 7-12. Subsequently, Scott was arrested three times in New York. The first two arrests were in May 2007 and the third was in June 2010. The May 5, 2007 arrest resulted in a drug-related conviction, which garnered him a sentence of seven days of imprisonment and a six-month license suspension. Id., Item No. 7 at 17. Notwithstanding the fact that the Board had forwarded two May 7, 2007 warrants to authorities in New York, Scott was released at the end of his seven-day sentence. Id., Item No. 5 at 14-15 and Item No. 9 at 30. After his May 24, 2007 arrest for robbery, however, Scott was detained on the Board's warrant pending disposition of the charges. He was convicted of felony robbery and received a sentence of three and one-half to seven years of imprisonment. Id., Item No. 7 at 17. The June 2010 arrest occurred while he was serving his sentence and he was convicted of contraband charges and sentenced to serve a concurrent sentence of one and one-half to three years of imprisonment. Id.
In September 2000, Scott pled guilty to receiving stolen property, simple assault, reckless endangerment and fleeing or attempting to elude a police officer. Certified Record (C.R.), Item No. 1 at 1.
On February 6, 2014, Scott was given a conditional release from New York state prison custody and turned over to Pennsylvania at SCI-Albion. On February 10, the Board returned him as a technical and convicted parole violator and directed that a violation/revocation hearing be scheduled. Id., Item No. 6 at 16. On February 12, Scott signed the notice of charges and hearing, thereby acknowledging a hearing date of March 3, the three New York convictions and the two parole conditions at issue: changed approved residence without permission and failure to report as instructed. Id., Item No. 7 at 17. On February 12, Scott also signed two waiver of violation hearing and counsel/admission forms. The first pertained to the technical parole violations and the second to the three convictions. Id., Item No. 8 at 18-19. In April 2014, the Board recommitted him to serve twenty-four months back time, with a new parole maximum date of February 25, 2017. Id., Item No. 11 at 42-43. Scott filed an administrative petition, which the Board denied affirming its prior decision. Id., Item No. 13 at 54. Scott's petition for review followed. Because counsel has satisfied the procedural requirements for withdrawal, we next independently evaluate the merits of Scott's appeal. Encarnacion v. Pa. Bd. of Prob. & Parole, 990 A.2d 123, 126 (Pa. Cmwlth. 2010).
Counsel points out that several of the New York documents refer to "Paul Brown." The record reflects that "Paul Brown" was Scott's alias. The docket/indictment numbers of the "Paul Brown" documents match the acknowledgment and admission forms signed by Scott. In addition, in the notice of charges and hearing document that Scott signed, the offender name was listed as follows: "Scott, Mandell aka Brown, Paul." Id., Item No. 7 at 17.
Scott argues that the Board erred in calculating his new parole maximum sentence date as February 25, 2017. By waiving his parole revocation hearing, however, Scott also effectively waived that portion of the hearing dealing with the amount of back time owed in the event that he was recommitted as a convicted parole violator. Fisher v. Pa. Bd. of Prob. & Parole, 62 A.3d 1073, 1075-76 (Pa. Cmwlth. 2013) (waiver necessarily encompasses the right to advance a claim of error that the offender could have raised at the hearing). In any event, the Board did not err in its calculation.
When the Board initially paroled Scott on August 18, 2004, his parole maximum sentence date was September 19, 2007, which left 1127 days remaining on his original sentence. Pursuant to Section 6138(a)(2) of the Prisons and Parole Code (Code), as amended, 61 Pa. C.S. § 6138(a)(2), the convicted parole violator "shall be given no credit for the time at liberty on parole." In addition, he could not receive back time credit for time served because he was not incarcerated solely on the Board's warrant. See Gaito v. Pa. Bd. of Prob. & Parole, 412 A.2d 568, 571 (Pa. 1980). In recalculating his new date, therefore, the Board could credit Scott with only the twelve-day period from May 12, 2007, when he was paroled from his first New York charge, to May 24, the date of his next New York arrest. (1127 - 12 = 1115) Adding 1115 days to February 6, 2014, when New York released him to Pennsylvania and, accordingly, he became available to begin serving back time, the new parole violation maximum sentence date became February 25, 2017.
Section 6138(a)(4) of the Code, as amended, 61 Pa. C.S. § 6138(a)(4).
Scott next argues that the Board's preliminary revocation hearing was untimely. As previously noted, however, Scott waived a hearing on the New York convictions and the two technical parole violations. C.R., Item No. 10 at 31. Again, this waiver included the right to advance a claim of error that the offender could have raised at the hearing, such as the right to subsequently allege that the Board failed to schedule a timely hearing. Fisher, 62 A.3d at 1075. Accordingly, Scott's argument is without merit.
Pursuant to 37 Pa. Code § 71.4(1)(i), where a parolee is confined out-of-state, "the revocation hearing shall be held within 120 days of the official verification of the return of the parolee to a State correctional facility." Here, New York returned Scott to Pennsylvania on February 6, 2014 and the record reflects that a hearing was scheduled for March 3, 2014, which was well within the time limit. --------
Thirdly, Scott maintains that his due process rights were violated on the ground that the Department previously disciplined him for the same event. It is well established that double jeopardy does not apply to parole revocation proceedings. McClure v. Pa. Bd. of Prob. & Parole, 461 A.2d 645, 647 (Pa. Cmwlth. 1983). The Board may not, however, commit a parolee as a technical parole violator for an infraction that constitutes a new crime for which he has been convicted. Massey v. Com. of Pa., 501 A.2d 1114, 1115 (Pa. 1985). Such is not the case here, where the grounds for Scott's recommitment as a convicted parole violator are totally different from the grounds for his recommitment as a technical parole violator.
Finally, Scott alleges that the Board erred in determining that he engaged in technical parole violations. On February 12, 2014, Scott signed a waiver of violation hearing and counsel/admission form, thereby admitting the specified technical parole violations. C.R., Item No. 8 at 18. Further, he signed his acknowledgement that his admission was binding and could only be withdrawn if he submitted a written withdrawal with his supervising agent within ten days of February 12. Id. In the absence of such a withdrawal, Scott's admission became binding and the Board did not err in relying upon it in its April 2014 decision. Id., Item No. 11 at 42.
Discerning no error on the Board's part and no meritorious issue on appeal, we grant the petition to withdraw and affirm the order of the Board.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 9th day of July, 2015, the petition of Tina M. Fryling, Esquire for leave to withdraw as counsel for Mandell Scott 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