C. London v. PBPP ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Casey London, :
Petitioner :
:
v. : No. 1109 C.D. 2017
: Submitted: July 13, 2018
Pennsylvania Board of :
Probation and Parole, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: August 29, 2018
Petitioner Casey London (London) petitions for review of an order of
the Pennsylvania Board of Probation and Parole (Board). The Board dismissed as
untimely London’s administrative appeal of a Board order mailed on July 8, 2014,
which formally recommitted London as a convicted parole violator and recalculated
her maximum release date. London’s appointed counsel, Allison J. Rice, Esquire
(Counsel), however, filed a motion to withdraw as counsel. Counsel asserted in an
initial “no-merit” letter that the issues London raises in her petition are without merit
due to untimeliness. Following our review of Counsel’s initial no-merit letter, we
concluded that the no-merit letter was not adequate and denied Counsel’s petition to
withdraw. We permitted Counsel to submit a revised no-merit letter in response to
our order, and Counsel has done so. We now grant Counsel’s motion to withdraw
and affirm the order of the Board.
London had been incarcerated at a State Correctional Institution when
the Board granted her parole by notice dated June 20, 2011. (Certified Record
(C.R.) at 4.) London was subsequently released from confinement on
October 17, 2011. (Id. at 6.) At the time of her parole, the Board calculated
London’s maximum sentence date as May 23, 2016. (Id. at 5.)
On May 20, 2013, the Pittsburgh Police Department arrested London
on charges of drug and paraphernalia possession. (Id. at 14-15.) On July 3, 2013,
London was moved from jail to a rehabilitation facility. (Id. at 18.) On
July 31, 2013, London attempted to pass fake urine as her own in an attempt to pass
a drug test. (Id. at 19.) London subsequently confessed to drug use. (Id.) On
August 6, 2013, the Board declared London delinquent due to her failure to comply
with the terms of her parole, with an effective date of delinquency of August 5, 2013.
(Id. at 20, 22.) The Board issued a detainer on August 17, 2013, and the Oil City
Police Department arrested London the same day. (Id. at 21-22.) London waived
her right to a hearing on these violations, and, by notice dated December 4, 2013,
the Board recommitted London as a technical parole violator to serve a period of six
months. (Id. at 27-29, 38-40.) In so doing, the Board recalculated London’s
maximum sentence date as June 4, 2016. (Id. at 38-40.) Shortly thereafter, by notice
dated January 10, 2014, the Board modified its previous action, adding that the
Board would also detain London pending disposition of criminal charges she
received from her May 20, 2013 arrest. (Id. at 54.)
On April 4, 2014, London pleaded guilty to possession of a controlled
substance and possession of drug paraphernalia. (Id. at 56.) London subsequently
2
waived her right to a parole revocation hearing on the matter. (Id. at 59.) By notice
dated July 8, 2014, the Board recommitted London as a convicted parole violator to
serve six months backtime. (Id. at 73-74.) The Board also recalculated London’s
maximum sentence date as March 24, 2018.1 (Id.)
On February 7, 2016, London filed an administrative appeal with the
Board, challenging the Board action with a notice date of July 8, 2014. (Id. at 168.)
London argued that the Board had no authority to extend her maximum sentence
date, in addition to alleging constitutional violations. (Id. at 168-71.) The Board
denied London’s petition as untimely. (Id. at 173-74.) In so doing, the Board
explained:
The Board regulation governing administrative
appeals states that administrative appeals must be received
at the Board’s Central Office within 30 days of the mailing
date of the Board’s order. This means you had until
August 7, 2014 to object to the decision. Because the
Board did not receive your current appeal by that date and
there is no indication that you submitted the appeal to
prison officials for mailing by that date, your appeal is
untimely and the Board cannot accept it.
Purely for your information, the Board recalculated
your maximum sentence based on your recommitment as
a convicted parole violator. The decision to recommit you
as a convicted parole violator gave the Board statutory
authority to recalculate your sentence to reflect that you
received no credit for the period you were at liberty on
parole. The Board denied you credit for time at liberty on
parole in this instance. The Board advised you of this
potential penalty on the parole conditions you signed on
October 17, 2011. You also had constructive notice of this
potential penalty via the statute. Additionally, the ability
to challenge the recalculation decision after it is imposed
1
Since this Board action, London has been paroled, arrested, and subsequently
recommitted. As London is challenging the Board notice dated July 8, 2014, however, we need
not present the details of her subsequent activities.
3
satisfies your due process rights. Therefore, the Board’s
recalculation of your maximum sentence date did not
violate any constitutional provisions, including double
jeopardy.
(Id. (internal citations omitted).) London subsequently filed the instant petition for
review with this Court, again arguing (1) that the Board lacked authority to extend
her maximum sentence date, and (2) constitutional violations of due process, double
jeopardy, and cruel and unusual punishment.
We begin by addressing Counsel’s request to withdraw from her
representation of London. When no constitutional right to counsel is involved in a
probation and parole case, an attorney seeking to withdraw from representing a
prisoner may file a no-merit letter, as compared to an Anders brief.2 In Hughes v.
Pennsylvania Board of Probation and Parole, 977 A.2d 19 (Pa. Cmwlth. 2009), this
Court held that a constitutional right to counsel in a probation and parole matter
arises only when the prisoner’s case includes:
[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.
2
In Anders v. California, 386 U.S. 738 (1967), the United States Supreme Court held that,
in order for a criminal defendant’s counsel to withdraw from representing his client in an appeal,
the counsel must assert that the case is completely frivolous, as compared to presenting an absence
of merit. An appeal is completely or “wholly” frivolous when there are no factual or legal
justifications that support the appeal. Craig v. Pa. Bd. of Prob. & Parole, 502 A.2d 758, 761 (Pa.
Cmwlth. 1985). In Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), however, our Supreme
Court held that in matters that are collateral to an underlying criminal proceeding, such as parole
matters, a counsel seeking to withdraw from his representation of a client may file a “no-merit”
letter that includes information describing the extent and nature of the counsel’s review, listing the
issues the client wants to raise, and informing the Court of the reasons why counsel believes the
issues have no merit.
4
Hughes, 977 A.2d at 25-26 (quoting Gagnon v. Scarpelli, 411 U.S. 778 (1973)). The
record in this matter contains no suggestion by London that she did not commit the
crime for which she received a new criminal conviction, nor does London suggest
any reasons constituting justification or mitigation for her new criminal conviction.
Thus, London only has a statutory right to counsel under Section 6(a)(10) of
the Public Defender Act, Act of December 2, 1968, P.L. 1144, as
amended, 16 P.S. § 9960.6(a)(10).
In order to satisfy the procedural requirements associated with no-merit
letters, counsel must: (1) notify the parolee that he has submitted to the Court a
request to withdraw; (2) provide the parolee with a copy of counsel’s no-merit letter;
and (3) advise the parolee that he has the right to obtain new counsel and to submit
to the Court a brief of his own, raising any arguments that he may believe are
meritorious.3 Reavis v. Pa. Bd. of Prob. & Parole, 909 A.2d 28, 33
(Pa. Cmwlth. 2006). In seeking to withdraw, this Court has consistently required an
attorney to include the following descriptive information in a no-merit letter: (1) the
nature and extent of counsel’s review of the case; (2) the issues the parolee wants to
raise; and (3) the analysis counsel used in reaching his conclusion that the issues are
meritless. Zerby v. Shanon, 964 A.2d 956, 961 (Pa. Cmwlth. 2009).
Consequently, before making an independent review of the merits of
the appeal to determine whether London’s appeal has no merit, we must first
evaluate Counsel’s no-merit letter to determine whether it complies with the
requirements for withdrawal applications. As mentioned, London argues (1) that the
Board lacked authority to extend her maximum sentence date, and (2) constitutional
3
Counsel served London with her motion to withdraw and her brief. In a letter addressed
to London, Counsel advised London of her right to retain counsel and to file a brief on her own
behalf. Thus, Counsel has complied with these requirements.
5
violations of due process, double jeopardy, and cruel and unusual punishment. By
order dated September 14, 2017, however, this Court granted the Board’s motion to
limit the issue on appeal to whether the Board properly dismissed London’s
administrative appeal as untimely filed.
In reviewing Counsel’s previous no-merit letter, we concluded that
Counsel failed to summarize London’s parole and arrest history, in addition to
failing to reference the merits of London’s appeal outside of the issue of timeliness.
In her amended no-merit letter, Counsel provides a sufficient summary of London’s
parole and conviction history underlying her challenge. Further, Counsel references
this Court’s order limiting the scope of the issue on appeal and the effect the order
has on London’s appeal. Specifically, Counsel’s no-merit letter provides:
Upon my review of the underlying certified record
in this case and other documents mailed to my office in
relation to this matter, I made note that the [Board’s]
decision was mailed to you on July 8, 2014. You only had
until August 7, 2014, to file an appeal in regard[] to this
decision and you did not do so. Pursuant to 37 Pa.
Code § 73.1, any appeals must be received at the Board’s
Central Office within thirty (30) days of the mailing date
of the Board’s order. Since you only had thirty (30) days
from July 8, 2014, to file an appeal, and no appeal was
filed within the required time frame, the Commonwealth
Court will dismiss your appeal as not being timely filed.
As such, the Court will not even consider reaching a
decision regarding the merits of your claims.
(Counsel’s motion to withdraw at 3 (emphasis removed).) Thus, Counsel has
sufficiently addressed the issue before the Court and provided sufficient legal
analysis as to why London’s appeal was untimely. We, therefore, will proceed to
consider the question of whether Counsel is correct in declaring London’s appeal
untimely.
6
In her no-merit letter, Counsel refers the Court to 37 Pa. Code § 73.1,
which governs appeals and petitions for administrative review. With respect to
appeals such as London’s, 37 Pa. Code § 73.1(a) requires “[p]risoners desiring to
appeal a determination of the Board [to] file an administrative appeal within 30 days
of the mailing date of the determination.” McCaskill v. Pa. Bd. of Prob. &
Parole, 631 A.2d 1092, 1095 (Pa. Cmwlth. 1993), appeal denied, 644 A.2d 739
(Pa. 1994). Here, the Board issued its decision on July 8, 2014. (C.R. at 73-74.)
Accordingly, London had until August 7, 2014 to file her petition. London,
however, did not file her petition for administrative review until February 7, 2016,
well beyond the 30-day filing deadline. (Id. at 168.) Consequently, we agree with
Counsel that London’s administrative appeal was untimely.4
Accordingly, we will grant Counsel’s motion to withdraw. Moreover,
because we have concluded that the Board correctly dismissed London’s petition as
untimely, we conclude that her petition for review lacks merit. We, therefore, affirm
the order of the Board.
P. KEVIN BROBSON, Judge
4
Beyond the issue of timeliness, Counsel’s no-merit letter also addresses the merits of
London’s appeal. Without opining on the merits of London’s appeal, we note generally that both
the Board and Counsel correctly point out that the Board has statutory authority pursuant to 61 Pa.
C.S. § 6138(a)(2) to compel a convicted parole violator to serve the remainder of the term the
parolee would have served had parole not been granted. With respect to London’s constitutional
claims, Counsel attached the opinion of Boyd v. Pennsylvania Board of Probation and Parole (Pa.
Cmwlth., No. 912 C.D. 2015, filed March 9, 2016), an unreported opinion of this Court, wherein
we stated that this Court and our Supreme Court have consistently rejected such arguments.
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Casey London, :
Petitioner :
:
v. : No. 1109 C.D. 2017
:
Pennsylvania Board of :
Probation and Parole, :
Respondent :
ORDER
AND NOW, this 29th day of August, 2018, the motion to withdraw as
counsel filed by Allison J. Rice, Esquire, is GRANTED, and the order of the
Pennsylvania Board of Probation and Parole is AFFIRMED.
P. KEVIN BROBSON, Judge