Opinion
No. 8 C.D. 2013
07-10-2013
Antonio Winters, 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 JUDGE McGINLEY
Before this Court is Marc T. Valentine's (Attorney Valentine) application for leave to withdraw as counsel for Antonio Winters (Winters) on Winters's petition for review of an order of the Pennsylvania Board of Probation and Parole (Board) which recommitted Winters to serve twenty-four months as a convicted parole violator.
Winters was effectively sentenced on September 3, 1996, to a term of seven years six months to fifteen years for aggravated assault. He was concurrently sentenced to a term of seven years six months to fifteen years for criminal attempt to commit murder, to a term of five to ten years for criminal conspiracy to commit murder, to a term of seven years six months to fifteen years for another count of aggravated assault, to a term of seven years six months to fifteen years for another count of criminal attempt to commit murder, to a term of seven years six months to fifteen years for another count of aggravated assault, and to a term of seven years six months to fifteen years for another count of criminal attempt to commit murder. His total sentence, taking into account concurrent sentences, was for a term of seven years six months to fifteen years.
On April 5, 2004, Winters was paroled to a community corrections center with a maximum date of September 3, 2011. In May 2004, the Board gave Winters permission to move to his father's residence. On April 30, 2010, Winters was arrested by the City of Philadelphia Police Department and charged with possession of a controlled substance with intent to deliver. Winters possessed heroin, marijuana, and pcp. Also, on April 30, 2010, the Board issued a warrant to commit and detain Winters. On May 25, 2010, Winters waived his detention hearing.
On March 8, 2012, Winters was found guilty in the Court of Common Pleas of Philadelphia County of possession with intent to manufacture or deliver and was sentenced to a term of three to six years.
On May 15, 2012, Winters waived his revocation hearing and admitted to the March 8, 2012, conviction. In a decision recorded August 9, 2012, and mailed August 16, 2012, the Board recommitted Winters to serve twenty-four months backtime as a convicted parole violator and established his maximum date as December 27, 2019.
Winters requested administrative relief and alleged that the Board lacked the authority to impose backtime past his original parole maximum date of September 3, 2011.
On November 6, 2012, the Board denied his request for administrative relief and concluded:
The Board had discretion to continue you on parole or recommit you as convicted parole violator for the offense in question. . . . Since the Board chose to recommit you as a convicted parole violator in this instance, the Board had statutory authority to recalculate your sentence to reflect that you received no credit for the period you were at liberty on parole. . . . You were also advised of this potential penalty on the parole conditions that you signed on April 2, 2004. Therefore, the Board had statutory authority to recalculate your maximum sentence date.Board Decision, November 6, 2012, at 1; Certified Record (C.R.) at 66.
Attorney Valentine was assigned to represent Winters. After review of Winters's petition for review and the certified record, Attorney Valentine desires to withdraw and asserts that Winters's petition for review is without merit.
Appointed counsel may withdraw from assisting an indigent parolee in appealing a parole revocation order, "[w]hen, in the exercise of his professional opinion, counsel determines that the issues raised . . . are meritless, and when the . . . court concurs. . . ." Commonwealth v. Turner, 518 Pa. 491, 495, 544 A.2d 927, 928-929 (1988).
In reviewing a motion to withdraw, this Court must make an independent evaluation of proceedings before the Board to determine whether a parolee's appeal is meritless. Dear v. Pennsylvania Board of Probation and Parole, 686 A.2d 423 (Pa. Cmwlth. 1996). When this Court agrees with counsel's assertion that the appeal is without merit, this Court will permit counsel to withdraw when counsel has fulfilled the technical requirements set forth in Craig v. Pennsylvania Board of Probation and Parole, 502 A.2d 758 (Pa. Cmwlth. 1985). Under Craig, 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 right to retain new counsel to raise any new points that he might deem worthy of consideration. In the no merit letter or brief counsel must indicate the nature and extent of his review, the issues the parolee wishes to raise, and counsel's analysis in concluding that the appeal is without merit. Wesley v. Pennsylvania Board of Probation and Parole, 614 A.2d 355 (Pa. Cmwlth. 1992).
Winters petitioned for review and alleged:
23. The Respondent Board's denial of Petitioner's [Winters] appeals and requests for administrative relief is erroneous because:
a. Respondent Board, through its parole staff, determined and verbally told petitioner [Winters] that no violations nor further action will be taken and that his parole status will be terminated on 9/03/2011.
b. Respondent Board, through its parole staff, again on 5/15/2010 determined and verbally told petitioner [Winters] that no violations nor further action will be taken and that his parole status will be terminated on 9/03/2011.
c. Respondent Board erred by twice verbally disposing of this matter by informing Petitioner [Winters] that no further action will be taken and no violations are being lodged and, therefore, Respondents [Board] erred and violated petitioner's [Winters] due process rights by six (6) months after petitioner's [Winters] maximum expiry date taking action against him by imposing 24 months backtime and extending his maxed-out 9/03/2011 expiry date to 12/27/2019.Petition for Review, December 3, 2012, Paragraph No. 23 at 2-3.
With respect to whether the Board deprived Winters of his right to due process when it recommitted him as a convicted parole violator without adequate notice, Attorney Valentine asserts that Winters's contention is without merit:
The conditions of parole were given to the appellant [Winters] in a Notice of Board decision on April 2, 2004. . . . The Notice states that the Appellant [Winters] must not engage directly or indirectly with persons that sell or use drugs outside of a treatment setting. . . . Further, the Board granted the appellant [Winters] parole subject to the condition that the appellant [Winters] does not commit a misconduct or crime. . . . Again, the Board gives notice to the Appellant [Winters] that the Appellant [Winters] must not engage directly or indirectly with persons that sell or use drugs outside of a treatment setting. . . . Furthermore, the appellant [Winters] was given notice that parole was subject to . . . the appellant [Winters] not possessing drug paraphernalia. The Appellant [Winters] signed the Notice of [D]ecision containing the conditions and special conditions of the Appellant's [Winters] parole on April 4, 2004. . . .
The Appellant [Winters] asserts that the parole agent and hearing officer did not inform the Appellant [Winters] that the Appellant [Winters] could have the Appellant's [Winters] parole revoked if the Appellant [Winters] was convicted of drug charges. The Appellant [Winters] has a duty to acquaint himself with the conditions of his
parole. . . . Moreover, the Appellant [Winters] was given notice of a revocation hearing and signed a waiver to the revocation hearing and waived a right to counsel at that time. . . . For the aforementioned reasons, the Appellant was given proper notice of the fact that a violation of the conditions of parole would result if the Appellant [Winters] was convicted for a new crime committed during the parole period, as a result, this claim is without merit and lacks support on either law or fact. (Citations omitted).Letter from Attorney Marc Valentine, April 5, 2013, (Letter) at 3.
This Court agrees with Attorney Valentine. When Winters was released on parole, he was presented with a form stating the conditions governing his parole. The form stated, "If you are convicted of a crime committed while on parole/reparole, the Board has the authority, after an appropriate hearing, to recommit you to serve the balance of the sentence or sentences which you were serving when paroled/reparoled, with no credit for time at liberty on parole." Conditions Governing Parole/Reparole at 1; C.R. at 9. Winters signed the form so that he was aware or should have been aware of the danger of recommitment if convicted of a crime. In Pana v. Pennsylvania Board of Probation and Parole, 703 A.2d 737, 739 (Pa. Cmwlth. 1997), petition for allowance of appeal denied, 556 Pa. 715, 729 A.2d 1132 (1998), this Court addressed the same language and stated, "This notice very clearly informs a parolee that if he or she is convicted of a crime committed while on parole/reparole then all time at liberty is forfeited." Here, Winters was aware or should have been aware of the effect of a convicted parole violation.
The Court in Pana actually addressed whether a parolee had adequate notice of the effect of technical parole violations.
Although Winters argues he was told that there would be no imposition of backtime, it appears from his brief that he alleges he was told that prior to his conviction on the new charges.
With respect to whether the Board erred when it recommitted Winters to serve backtime when he was convicted of his new charges after his original maximum sentence date, Attorney Valentine argues that Winters's claim is without merit:
The Appellant [Winters] was sentenced to a minimum of seven years six months and a maximum of fifteen years. . . . On April 30, 2010, the Appellant [Winters] was charged with possessing a controlled substance. . . . The charges occurred during the maximum sentence time. On March 8, 2012, the Appellant [Winters] was convicted of the manufacture, delivery, and possession with intent to manufacture or deliver . . . controlled substances and sentenced to a minimum of three years and a maximum of six years. . . . The time the Appellant [Winters] spent at liberty on parole is not credited to his maximum sentence. . . . As a result, the Board did not err in rendering a decision to add 24 months to the Appellants [sic] [Winters] parole conditions because the Appellant [Winters] had seven years, four months and eighteen days remaining on the Appellants [sic] [Winters] original maximum sentence. . . . The maximum sentence is the period that has legal significance not the maximum date. . . . Consequently, the appellant's [Winters] assertion that the Board rendered an erroneous decision by imposing 24 months of back time for violation of his parole, when the appellant [Winters] was not convicted of the violation until after his original maximum sentence date had expired is without merit. (Citations omitted)Letter at 4.
Once again, this Court agrees with Attorney Valentine. In Savage v. Pennsylvania Board of Probation and Parole, 761 A.2d 643, 645 (Pa. Cmwlth. 2000), this Court stated:
It is well-settled that the Board is not permitted to impose backtime which exceeds the entire remaining balance of parolee's unexpired term. . . . The Board can only require that a parolee serve the remaining balance of his unexpired term since the Board does not have the power to alter a judicially-imposed sentence. (Citation omitted).
Here, as Attorney Valentine states, Winters had an unexpired term of seven years, four months and eighteen days left on his sentence. He lost credit for all time at liberty on parole because he was a convicted parole violator. The Board recommitted Winters to serve twenty-four months which was less than his unexpired term.
Further, the law is well settled that the Board has the authority to recommit a parolee as a convicted parole violator if he commits a crime while at liberty on parole even if he is not convicted until after the expiration of his maximum date. For instance, in Jezick v. Pennsylvania Board of Probation and Parole, 530 A.2d 1031 (Pa. Cmwlth. 1987), Michael Jezick (Jezick) was at liberty on parole when he was arrested on February 5, 1985, one week before the expiration of his maximum date. His maximum term expired. Thereafter, on March 10, 1986, Jezick was convicted. On May 2, 1986, following a revocation hearing, Jezick was recommitted to serve the unexpired term of his original sentence, when available. The Board denied Jezick's request for administrative relief. This Court affirmed.
Here, Winters was arrested on April 30, 2010, the date he committed the crime, which was before his maximum expiration date. He was convicted after his original maximum expiration date. As in Jezick, the Board had authority to recommit Winters because he was arrested prior to the expiration of his maximum term and convicted after the expiration of the maximum term.
With respect to whether the Board erred when it recalculated Winters's maximum sentence date in response to the parole violation when a judge had previously set the maximum date after the original conviction, Attorney Valentine asserts that this contention is without merit:
The Board cannot impose back time that exceeds the entire remaining balance of the unexpired term because the Board can not [sic] alter a judicially imposed sentence. . . . In Savage [v. Pennsylvania Board of Probation and Parole, 761 A.2d 643 (Pa. Cmwlth. 2000)], the Appellant had served 46 months of his 58 month term. . . . While on parole, Savage was charged and convicted of a crime. . . . The Board rendered Savage a Convicted Parole Violator and imposed a [sic] 125 months of back time. . . . In Savage, the Court determined that Savage could not serve anymore [sic] time then the unexpired term of his sentence, which is 12 months.
The Appellant [Winters] had seven years, four months and eighteen days remaining on the Appellants [sic] [Winters] original maximum sentence. . . . The Board imposed back time of 24 months. . . . The time the Appellant [Winters] spent at liberty on parole is not credited to his maximum sentence. . . . Unlike in Savage, here, the twenty four [sic] months of back time is with in [sic] the seven years, four months and eighteen days remaining on the Appellants [sic] [Winters] original maximum sentence. As a result, the Board did not err in
assessing the twenty four [sic] months back time to the Appellant [Winters]. (Citations omitted).Letter at 5.
This Court agrees with Attorney Valentine and finds his analysis of Savage accurate.
Accordingly, this Court grants Attorney Valentine's application for leave to withdraw and affirms the order of the Board in the above-captioned matter.
This Court accepts Attorney Valentine's assertion in his letter to this Court that he complied with the notification requirements under Craig. --------
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 10th day of July, 2013, the application for leave to withdraw as counsel is hereby granted. The order of the Pennsylvania Board of Probation and Parole in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge