Opinion
No. 4 C.D. 2012
03-20-2013
Marvin Wood, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Marvin Wood petitions for review of an adjudication of the Pennsylvania Board of Probation and Parole (Board) denying his administrative appeal. Wood's appointed counsel, Richard C. Shiptoski, Esquire (Counsel), has filed a petition for leave to withdraw as counsel. Wood argues that the Board improperly recalculated his maximum sentence date and, in any case, was without authority to do so. Finding no error in the Board's decision, we affirm and also grant Counsel's petition for leave to withdraw.
On January 5, 2005, Wood was sentenced to one to five years in state prison for retail theft and criminal conspiracy resulting in a maximum sentence date of October 26, 2009. On June 26, 2006, the Board paroled Wood to the Community Corrections Program at Wernersville State Hospital. On January 25, 2007, the Board declared Wood delinquent as a technical parole violator, effective January 18, 2007. Upon recommitment, the Board recalculated Wood's maximum sentence date to December 5, 2009.
On June 18, 2007, Wood was re-paroled, but on July 10, 2007, the Board declared Wood to be delinquent as of June 30, 2007. On June 13, 2010, Wood was arrested by the Plymouth Township Police Department on new criminal charges. That same day, the West Pottsgrove Police Department also filed criminal charges against Wood. Wood was released on his own recognizance on the Plymouth Township charges, but he did not post bail on the West Pottsgrove criminal charges.
Wood was charged with theft, theft by deception, false imprisonment, and giving false identification to a law enforcement agent. These charges were filed to Montgomery County Criminal Docket Number CP-46-CR-0004462-2010.
Wood was charged with theft by unlawful taking, criminal conspiracy, theft by deception-false impression and receiving stolen property. These charges were filed to Montgomery County Criminal Docket Number CP-46-CR-0007381-2010.
On August 23, 2010, the Board recommitted Wood to a state correctional institution as a technical parole violator to serve 18 months backtime and detained him pending disposition of the new criminal charges. His maximum sentence date was recalculated to November 18, 2012. Wood entered a guilty plea on some of the new criminal charges filed by Plymouth Township on June 13, 2010, and was sentenced to six to twelve months. The new sentence was to be served concurrently with all previous sentences.
On May 2, 2011, the Board modified its August 23, 2010, order, and recommitted Wood as a convicted parole violator to serve six months concurrently, for a total of 18 months backtime, when he became available to serve after completion of his sentence on the Plymouth Township charges. On May 31, 2011, Wood pleaded guilty to two of the charges filed by West Pottsgrove and was sentenced to time served to 23 months, concurrently with all previous sentences. He was paroled from that sentence on the same day.
On June 2, 2011, Wood was transferred to SCI-Retreat. On September 28, 2011, the Board modified its May 2, 2011, order and recommitted Wood as a convicted parole violator to serve six months concurrently for a total of 18 months backtime. The Board calculated Wood's new parolee eligibility date to be January 11, 2013, and his new maximum sentence date to be April 23, 2014.
On October 31, 2011, Wood, pro se, filed a petition for administrative appeal with the Board, arguing that the Board failed to credit him with time he was incarcerated solely on the Board's warrant because he had satisfied bail on his new criminal charges. He further argued that the Board could not extend his original unexpired maximum sentence.
The Board denied his petition. Wood, pro se, filed a petition for review with this Court. This Court appointed Counsel to represent Wood, and Counsel now petitions for leave to withdraw from representation of Wood.
Wood opposed Counsel's petition but then asked that it be granted.
Counsel seeking to withdraw from representation of a petitioner seeking review of an adjudication of the Board must provide a "no-merit" letter which details the nature and extent of counsel's review, lists each issue the petitioner seeks to have raised, and an explanation of why those issues are without merit. Zerby v. Shanon, 964 A.2d 956, 961 (Pa. Cmwlth. 2009). Where an Anders brief is filed when a no-merit letter would suffice, the Anders brief must contain at least the same information that is required to be included in the no-merit letter. Seilhamer v. Pennsylvania Board of Probation and Parole, 996 A.2d 40, 42-43 (Pa. Cmwlth. 2010). Additionally, counsel must provide the petitioner a copy of the no-merit letter/brief, a copy of counsel's petition to withdraw, and a statement advising petitioner of his right to proceed pro se or with new counsel. Zerby, 964 A.2d at 960.
Where no constitutional right to counsel is involved, an attorney seeking to withdraw from representation in a probation and parole case need only file a "no-merit" letter, as opposed to an Anders brief. Hughes v. Pennsylvania Board of Probation and Parole, 977 A.2d 19, 26 (Pa. Cmwlth. 2009). A constitutional right to counsel arises when the petitioner presents 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.
Here, Counsel's petition to withdraw states that he has undertaken a conscientious review of the record and concluded that Wood's alleged grounds for appeal are frivolous. Counsel attached an Anders brief, which details two potential issues for review regarding Wood's case and Counsel's rationale for finding the issues without merit. Counsel sent Wood a copy of the petition to withdraw, the Anders brief, and a letter advising Wood of his right to proceed in the appeal pro se or represented by new counsel. Therefore, Counsel has satisfied the technical requirements to withdraw. Once counsel satisfies the technical requirements for withdrawal, the Court then undertakes its own review to determine if the petition for review is wholly frivolous. Zerby, 964 A.2d at 960. If the appeal is frivolous, we will grant the petition to withdraw and affirm the adjudication of the Board. We now turn to the merits of Wood's petition for review.
Our scope of review is limited to a determination of whether necessary findings are supported by substantial evidence, an error of law was committed, or whether constitutional rights of the parolee were violated. Gaito v. Pennsylvania Board of Probation and Parole, 563 A.2d 545, 547 (Pa. Cmwlth. 1989) (citing Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704).
Wood raises two issues in his petition for review. First, he claims that the Board erred because it did not credit him with time served on his original sentence when he met the conditions of bail on his new criminal charges. Second, he claims that the Board exceeded its authority by extending Wood's original, unexpired maximum sentence.
We begin with a review of the applicable legal principles. In Gaito v. Pennsylvania Board of Probation and Parole, 488 Pa. 397, 403, 412 A.2d 568, 571 (1980), our Supreme Court held that when a parolee (1) is incarcerated on both new criminal charges and a detainer filed by the Board and (2) does not post bail for the new criminal charges, the time spent incarcerated shall be credited against the sentence for his new criminal charges. In Martin v. Pennsylvania Board of Probation and Parole, 576 Pa. 588, 605-06, 840 A.2d 299, 309 (2003), our Supreme Court held that when a parolee is incarcerated on both the Board's detainer and new criminal charges, and where the parolee is not convicted or no new period of incarceration is imposed on the new criminal conviction, then all time spent incarcerated must be applied to the parolee's original sentence.
Here, Wood was held on both the Board's detainer and on new criminal charges. Wood met the conditions of bail for one set of his new criminal charges but not the other set of new criminal charges. For both sets of new criminal charges, Wood was convicted and sentenced to a new period of incarceration, i.e., six to twelve months and time served to 23 months, respectively. Gaito, 488 Pa. at 403, 412 A.2d at 571, instructs that the pre-trial time Wood spent incarcerated shall be applied to his new sentences. The conditions presented in Martin are not present here because Wood did receive credit towards a sentence during his pre-trial incarceration. The Board did not err, and Wood's first argument lacks merit.
In his second issue, Wood argues that the Board lacked authority to recalculate and extend his original, unexpired maximum sentence. Wood contends that the recalculation of his maximum sentence violates Section 9760 of the Sentencing Code, which grants the courts, and not the Board, the power to establish the term of his sentence. 42 Pa. C.S. §9760.
Section 9760 of the Sentencing Code states:
After reviewing the information submitted under section 9737 (relating to report of outstanding charges and sentences) the court shall give credit as follows:
42 Pa. C.S. §9760.(1) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed or as a result of the conduct on which such a charge is based. Credit shall include credit for time spent in custody prior to trial, during trial, pending sentence, and pending the resolution of an appeal.
(2) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody under a prior sentence if he is later reprosecuted and resentenced for the same offense or for another offense based on the same act or acts. This shall include credit in accordance with paragraph (1) of this section for all time spent in custody as a result of both the original charge and any subsequent charge for the same offense or for another offense based on the same act or acts.
(3) If the defendant is serving multiple sentences, and if one of the sentences is set aside as the result of direct or collateral attack, credit against the maximum and any minimum term of the remaining sentences shall be given for all time served in relation to the sentence set aside since the commission of the offenses on which the sentences were based.
(4) If the defendant is arrested on one charge and later prosecuted on another charge growing out of an act or acts that occurred prior to his arrest, credit against the maximum term and any minimum term of any sentence resulting from such prosecution shall be given for all time spent in custody under the former charge that has not been credited against another sentence.
Section 6138(a)(1) of the Prisons and Parole Code provides that a parolee who, while on parole or delinquent on parole, commits a crime punishable by imprisonment, and is convicted or found guilty, may be recommitted as a parole violator. 61 Pa. C.S. §6138(a)(1). If a parolee is recommitted, "the parolee shall be reentered to serve the remainder of the term which the parolee would have been compelled to serve had the parole not been granted and . . . shall be given no credit for the time at liberty on parole." 61 Pa. C.S. §6138(a)(2) (emphasis added). Additionally, where a parolee is not held solely on the Board's warrant, the time spent in custody is credited to his new sentence. Gaito, 488 Pa. at 403, 412 A.2d at 571. The Supreme Court in Gaito affirmed that "when the Board refuses to credit a convicted parole violator with time spent free on parole there is neither a usurpation of the judicial function of sentencing nor a denial of the procedural safeguards to which persons are entitled." Id. at 401-02, 412 A.2d at 570.
Section 6138(a)(1) of the Prisons and Parole Code states:
A parolee under the jurisdiction of the board released from a correctional facility who, during the period of parole or while delinquent on parole, commits a crime punishable by imprisonment, for which the parolee is convicted or found guilty by a judge or jury or to which the parolee pleads guilty or nolo contendere at any time thereafter in a court of record, may at the discretion of the board be recommitted as a parole violator.61 Pa. C.S. §6138(a)(1). --------
Section 6138 of the Prisons and Parole Code grants the Board the authority to recommit and recalculate the maximum sentence date of convicted and technical parole violators. Our Supreme Court has confirmed the constitutionality of this section. A recalculation of a minimum and maximum sentence neither adds nor subtracts from the length of a criminal sentence imposed on a criminal defendant. It simply recalculates the maximum sentence date by adding up the number of days spent in actual incarceration after the parolee is returned to incarceration. Time spent at liberty on parole, also known as "street time," does not count towards service of a sentence after parole is revoked by reason of the parolee's conviction.
For the reasons set forth above, we grant Counsel's petition for leave to withdraw, and we affirm the Board's order.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 20th day of March, 2013, the petition for leave to withdraw as counsel for Petitioner filed by Richard C. Shiptoski, Esq. is GRANTED and the order of the Pennsylvania Board of Probation and Parole dated December 20, 2011, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge
Id. at 25-26 (quoting Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973)). Here, Wood is challenging the recalculation of his maximum date and the constitutionality of the same. As such, the test set forth above is not satisfied, and Wood does not have a constitutional right to counsel in this case. However, Wood does have a statutory right to counsel under Section 6(a) of the Act commonly known as the Public Defender Act, Act of December 2, 1968, P.L. 1144, as amended, 16 P.S. §9960.6(a)(10). Accordingly, Counsel was only required to file a no-merit letter to withdraw from representation of Wood.