Opinion
No. 853 C.D. 2012
02-26-2013
Chester Vaxter, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McCULLOUGH
Before this Court is the Application for Leave to Withdraw as Counsel (Application) filed by Centre County Chief Public Defender David Crowley (Counsel). Counsel was appointed to represent Chester Vaxter (Vaxter). Vaxter has filed a petition for review of the April 19, 2012 order of the Pennsylvania Board of Probation and Parole (Board) denying his request for administrative relief from a decision recommitting him as a technical parole violator and ordering him to serve six months backtime for violating a special condition of his parole. Counsel requests permission to withdraw from further representation of Vaxter on the grounds that the arguments raised in his appeal are without factual or legal support. We grant Counsel's Application and affirm the Board's order.
On March 4, 1996, Vaxter pled nolo contendre to charges of aggravated assault with serious bodily injury and criminal attempt of robbery of a motor vehicle, for which he was sentenced to 15 to 30 years of imprisonment, with a minimum release date of June 1, 2010 and a maximum release date of June 1, 2025. (Certified Record (C.R.) at 116.) In a March 9, 2011 decision, the Board granted Vaxter parole. (C.R. at 13.) The Board imposed seven conditions on Vaxter's parole, including requirements that he reside at Keenan House, an inpatient alcohol and drug treatment center, and comply with the special conditions imposed by the Board and his parole supervision staff (Condition 7). (C.R. at 17.) Vaxter was admitted to Keenan House on March 9, 2011.
Pursuant to the special conditions, Vaxter was to successfully complete the Keenan House program, and early termination from Keenan House for anything other than successful completion of the program would constitute a violation of his parole. (C.R. at 20.) Vaxter signed an acknowledgement of this condition on March 6, 2011. The Board imposed an additional special condition stating that Vaxter must abide by all conditions and rules of Keenan House and that failure to do so would constitute a violation of his parole. Vaxter signed an acknowledgement of this condition on March 11, 2011. (C.R. at 21.) Keenan House's Rule Number 4 (Rule 4) stated: "No relationships or inappropriate sexual behavior which includes kissing, prolonged hugging, touching, body contact, sexual intercourse, oral activity, genital fondling, or exposing of genital area, and no written or verbal communication that may be deemed inappropriate." (C.R. at 32 (emphasis added).)
On May 13, 2011, Keenan House placed Vaxter on a behavioral contract (the Behavioral Contract) in response to some concerns from the staff regarding his history and his behavior while in the facility. (C.R. at 23.) The Behavioral Contract, in part, restated Rule 4. (C.R. at 31.) A day later, Vaxter made sexually inappropriate comments to a female resident.
While he was incarcerated, Vaxter had a history of misconduct related to sexual harassment and indecent exposure. (C.R. at 28.)
Keenan House's program director testified at the July 28, 2011 hearing that residents complained that Vaxter made inappropriate comments to them, made them feel uncomfortable, and stared at them from across the room. (C.R. at 62.)
There are slightly varying accounts of the exact phrasing of Vaxter's comments. Versions include: "I'll make you holler for a dollar, make you scream for some cream, kneel for a meal" (C.R. at 25.); "will you holla for a dolla, will you kneel for a meal, will you scream for some cream" (C.R. at 28.); and, "can you holla for a dolla and will you kneel for a meal." (C.R. at 37.)
On May 16, 2011, the Keenan House staff and Alison Robertson, Vaxter's parole agent, interviewed Vaxter regarding the incident and, following the interview, conducted a meeting without Vaxter to discuss it. Vaxter was then discharged from Keenan House for non-compliance with its rules, specifically Rule 4, and for breaking the Behavioral Contract. Vaxter was arrested for violating Condition 7 of his parole, removed from Keenan House, and detained at State Correctional Institution-Rockview (SCI-Rockview) pending disposition of his technical parole violation.
Vaxter waived his right to a panel hearing, and a hearing was held before a hearing examiner on July 28, 2011. Lauren Henry (Henry), Keenan House's program director, testified that, during the May 16, 2011 meeting with Keenan House staff and Robertson, Vaxter admitted to making the inappropriate comments to women on May 14. (C.R. at 64.) Henry said that Vaxter defended his comments by saying that they were part of a song, but he acknowledged that what he said was inappropriate. (C.R. at 73-74.)
Vaxter testified that the inappropriate comments he made were part of a poem he had written. He said that, while he was in line for his medication, another resident asked him to recite the poem, and he complied with the request by singing his poem but did not direct it to a female. (C.R. at 82.) Vaxter also testified that he told Keenan House staff about incidents involving other residents buying and selling cigarettes, engaging in sexual activity, and storing condoms and stolen items in the ceiling, and he believed that the residents set him up to get him in trouble or removed from Keenan House because he was a "snitch." (C.R. at 81, 89.) Vaxter also testified that he used to be a professional boxer, that he has been using drugs since he was 14 years old, and that he is remorseful for his past and the negative effect it has had on his relationship with his son. (C.R. at 91-94.)
Vaxter was on prescription strength pain medication during his stay at Keenan House for pain associated with his hips. (C.R. at 80.)
Selling items to other residents is prohibited by Keenan House Rule Number 8. (C.R. at 97.)
On September 8, 2011, the Board issued a decision to recommit Vaxter to SCI-Rockview to serve six months backtime as a technical parole violator for violating Condition 7 by failing to complete the Keenan House program. (C.R. at 114.) On September 26, Vaxter filed a petition for administrative relief with the Board, arguing that the decision violates the Board's regulations and Vaxter's constitutional due process rights because there was not sufficient evidence to establish that he was at fault for the technical parole violation. Vaxter also argued that there are substantial reasons to justify or mitigate the violation and make revocation inappropriate in this case. (C.R. at 122-23.) Finding no grounds to grant administrative relief, the Board affirmed its decision on April 19, 2012. (C.R. at 127.)
On May 2, 2012, Vaxter filed a petition for review with this Court, arguing that the Board did not establish by a preponderance of the evidence that he was at least somewhat at fault for violating Condition 7. On September 4, 2012, Counsel filed the Application stating that Vaxter's petition for review was frivolous. In accordance with Anders v. California, 386 U.S. 738 (1967), Counsel submitted a brief to this Court in support of his Application. Pursuant to this Court's September 5, 2012 order, Counsel sent a copy of his Application and supporting Anders brief to Vaxter via first-class mail, informing him of his right to obtain new counsel or file a brief on his own behalf.
In a case where there is a constitutional right to counsel, counsel seeking to withdraw from representation of a petitioner in an appeal of a determination of the Board should file an Anders brief. This arises where the petitioner raises 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 v. Pennsylvania Board of Probation and Parole, 977 A.2d 19, 25-26 (Pa. Cmwlth. 2009).
The right to counsel generally does not attach to parole revocation appeals. Zerby v. Shanon, 964 A.2d 956, 961 (Pa. Cmwlth. 2009) (citing Pennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357, 365 n.5 (1988)). Where courtappointed counsel seek to withdraw from a case in which there is no constitutional right to counsel, counsel need not file an Anders brief, but rather may file a nomerit letter pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988). Although a nomerit letter would have been proper in this case, this Court does not deny an application to withdraw simply because an attorney has filed an Anders brief where a nomerit letter would suffice. Hughes, 977 A.2d at 26 n.4. However, where, as here, there is no constitutional right to counsel, we apply the standard of whether the petitioner's claims are without merit, rather than whether they are frivolous. Id.
The terms "wholly frivolous" and "without merit" are often used interchangeably in the Anders brief context. Whatever term is used to describe the conclusion an attorney must reach before requesting to withdrawand this Court must reach to grant such a requestwhat is required is a determination that the appeal lacks any basis in law or fact. Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009).
Before we assess the merits of Counsel's Application by conducting an independent review of the record, we first review whether Counsel has complied with relevant technical requirements. Hughes v. Pennsylvania Board of Probation and Parole, 977 A.2d 19, 22 (Pa. Cmwlth. 2009); Wesley v. Pennsylvania Board of Probation and Parole, 614 A.2d 355, 356 (Pa. Cmwlth. 1992). In order to withdraw from representation, court-appointed counsel must: (1) notify the court and the parolee of his belief that the appeal is frivolous or without merit and of his intent to withdraw; (2) provide the court and the parolee with an Anders brief or no-merit letter which includes any matter in the record that could arguably support the appeal; and (3) advise the parolee that he has the right to submit a brief on his own behalf or retain new counsel. Hughes at 22. The Anders brief must include the following: (1) a summary of the procedural history and facts, with citations to the record; (2) reference to anything in the record that counsel believes arguably supports the appeal; (3) counsel's conclusion that the appeal is frivolous; and (4) counsel's reasons for concluding that the appeal is frivolous. Commonwealth v. Santiago, 602 Pa. 159, 178, 978 A.2d 349, 361 (2009).
Similarly, under the Turner standard, counsel's no-merit letter must detail the nature and extent of his review and list each issue the petitioner wished to have raised, with counsel's explanation of why those issues are meritless. Turner, 518 Pa. at 494-95, 544 A.2d at 928; Zerby, 964 A.2d at 961.
Here, Counsel submitted his Application and supporting Anders brief to this Court. Counsel notified Vaxter of his request to withdraw and advised Vaxter of his right to submit his own brief or retain new counsel. Counsel also served Vaxter with a copy of his Anders brief. Counsel's Anders brief: includes the factual and procedural history of the case, with citations to the record; includes arguments that could arguably support Vaxter's appeal; states Counsel's conclusions that the appeal is frivolous; and supports those conclusions with a thorough discussion of the issues raised in the petition for administrative relief and the petition for review. Counsel's brief reflects that he engaged in a careful review of the record and relevant authority. Therefore, we conclude that Counsel has complied with the technical requirements of Anders.
Having so concluded, we next conduct an independent review to determine whether Vaxter's appeal is, in fact, without merit. Vaxter alleges that the Board did not establish by a preponderance of the evidence that he was at least somewhat at fault for the violation of Condition 7, and, therefore, the Board's decision to recommit him violates Board regulations and his right to due process of law.
37 Pa. Code §71.2(19) provides that the Board must establish that parole was violated by a preponderance of the evidence.
We note that in Vaxter's off-the-record correspondence with Counsel, he expressed the belief that his removal from Keenan House was pretextual because he needed hip surgery and could not work to support himself, and so he believed that Keenan House wanted to discharge him. (Counsel's brief at 19.) However, Henry testified that working was not an issue for Vaxter because Keenan House residents first complete a two-to-four week orientation phase during which they do not work, and then they enter a treatment phase for six weeks to two months, after which, if they are deemed able and ready to work and re-enter society, they begin vocational training and start looking for a job. Additionally, some residents never work if they are disabled or unable. (C.R. at 77-78.) Therefore, Vaxter was not expected to work when he was discharged a few days after admittance, and, indeed, he would not have been expected to work for several weeks thereafter, if ever. Furthermore, Counsel explicitly asked, "[s]o [Vaxter's] medical issues was not (sic) a reason for his discharge?" to which Henry replied, "[n]o, absolutely not." (C.R. at 78.) The Board accepted Henry's testimony as credible, and questions of witness credibility and evidentiary weight are within the exclusive province of the Board and may not be considered by a reviewing court. Chapman v. Pennsylvania Board of Probation and Parole, 484 A.2d 413, 416 (Pa. Cmwlth. 1984).
In his Anders brief, Counsel notes that Vaxter acknowledged Condition 7 of his parole, which required him to abide by all conditions of Keenan House, and further acknowledged that failure to do so would result in an immediate parole violation. Vaxter acknowledged Keenan House's Rule 4, and he admitted making a communication that was sexually explicit and inappropriate.
However, relying on Hudak v. Pennsylvania Board of Probation and Parole, 757 A.2d 439, 440-41 (Pa. Cmwlth. 2000), Vaxter argues that, in order to establish the violation of a special parole condition to complete residential programming, the Board was required to demonstrate that he was at least somewhat at fault for the technical parole violation. In Hudak, Edward Hudak was paroled to a community corrections center, and a special condition of his parole was that he remain at the community center for at least six months. After about two months at the community center, he suffered a tear in his colon and was taken to a hospital for emergency surgery. After the surgery, the community center discharged Hudak because it was not equipped to deal with his medical problems. Hudak was then incarcerated for violating a special condition of his parole. The Board revoked Hudak's parole and recommitted him as a technical parole violator. Hudak appealed, arguing that he did not willfully violate his parole. This Court held that, "in cases where the Board has fashioned a condition of parole over which the petitioner does not have control, the Board must show that the petitioner was somewhat at fault in order to prove a violation." Id. at 442 (emphasis added). In doing so, we distinguished cases in which a parolee's violation resulted from conduct within the parolee's control. See Heckman v. Pennsylvania Board of Probation and Parole, 744 A.2d 371 (Pa. Cmwlth. 2000) (petitioner's parole was revoked for having contact with persons under the age of eighteen and failing to complete an out-patient sex-offender program, both in violation of conditions of parole); Hawkins v. Pennsylvania Board of Probation and Parole, 490 A.2d 942 (Pa. Cmwlth. 1985) (petitioner's parole was revoked for possessing a weapon in violation of a condition of parole); and Zimmerman v. Pennsylvania Board of Probation and Parole, 476 A.2d 1016 (Pa. Cmwlth. 1984) (petitioner's parole was revoked because he left his approved district without permission, a violation of his parole).
We conclude that the facts here are distinguishable from those in Hudak and instead are analogous to Heckman, Hawkins, and Zimmerman describing conduct that was within the control of the parolee. Here, Vaxter admitted to making the remarks, admitted that they were inappropriate, and offered no credible evidence to demonstrate that such conduct was not within his control. Thus, Vaxter's argument that the Board violated its own regulations or his due process rights has no legal or factual merit.
As noted in Counsel's Anders brief, we held in Cadogan v. Pennsylvania Board of Probation and Parole, 571 A.2d 3 (Pa. Cmwlth. 1990), that following a parolee's admission of violations, a subsequent appeal based on a lack of substantial evidence is frivolous.
Finally, although Vaxter's petition for review does not argue that there are substantial reasons to justify or mitigate the violation and make revocation inappropriate in this case, this argument was raised in his petition for administrative relief and addressed by Counsel in his Anders brief, so we will address it briefly now.
In his petition for administrative relief, Vaxter argues that he has difficulty making himself understood at times, which is attributable to the years he spent in the boxing ring, and that he did not intend offense when making the inappropriate remarks. Vaxter testified that he had been using drugs since he was 14 years old and that he was formerly a professional boxer, which he believes may have had a negative impact on his cognitive ability. Vaxter also testified that he was remorseful for his past and the effect his wrongdoing has had on his relationship with his son.
In his Anders brief, Counsel suggests that, although nothing in the record supports an appeal based on the argument that the violation was justified, these factors might tend to mitigate the sanction for Vaxter's violation. However, the Board has been given broad discretion in parole matters and is not required to accept justifying or mitigating evidence to excuse the commission of parole violations, and, therefore, does not abuse its discretion where it determines that mitigating evidence presented by a parolee does not excuse technical parole violations. Pitch v. Pennsylvania Board of Probation and Parole, 514 A.2d 638, 642-43 (Pa. Cmwlth. 1986). Thus, an argument that the Board should have found that Vaxter's evidence of impaired cognition and remorse justified or mitigated the violation is meritless.
Moreover, the Board's presumptive range for a technical parole violator who commits a single violation of a special condition is three to eighteen months of recommitment, 37 Pa. Code §75.4, and absent some special circumstances which would justify a reconsideration, the Board's exercise of its discretion, within the presumptive range, must be upheld. Smith v. Pennsylvania Board of Probation and Parole, 524 Pa. 500, 506, 574 A.2d 558, 561 (1990). Here, Vaxter was recommitted for six months, which is within the presumptive range, and there are no special circumstances to mitigate the violation.
Indeed, the Board, apparently giving some weight to the mitigating factors, ordered that Vaxter serve six months backtime, which is on the lower end of the presumptive range of three to eighteen months. --------
Thus, our review confirms Counsel's conclusion that Vaxter's appeal is without merit.
Accordingly, we grant Counsel's Application and affirm the Board's dismissal of Vaxter's petition for administrative relief.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 26th day of February, 2013, the Application for Leave to Withdraw as Counsel filed by Centre County Chief Public Defender David Crowley is granted, and the April 19, 2012 order of the Pennsylvania Board of Probation and Parole is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge