J.L. Durham v. PBPP ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Juban L. Durham, :
Petitioner :
:
v. : No. 1338 C.D. 2016
: Submitted: June 23, 2017
Pennsylvania Board of Probation :
and Parole, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE COLINS FILED: October 11, 2017
Before this Court is the petition of Juban L. Durham for review of a
determination of the Pennsylvania Board of Probation and Parole (Board), which
dismissed Durham’s petition for administrative review of a February 5, 2016
decision by the Board rejecting Durham’s request for backtime1 credit for periods
he resided in a community corrections center and a community corrections facility
while on parole. Also before this Court is the petition of Joshua M. Yohe, Esq., of
the Cumberland County Public Defender’s Office (Counsel), for leave to withdraw
as counsel for Durham on the grounds that the petition for review is without merit.
1
“‘Backtime’ is the portion of a judicially imposed sentence that a parole violator must serve as a
consequence of violating parole before he is eligible for re-parole.” Palmer v. Pennsylvania Board
of Probation and Parole, 134 A.3d 160, 162 n.1 (Pa. Cmwlth. 2016).
Because we conclude that Counsel has not satisfied the technical requirements for
withdrawal as appointed counsel for a parolee contesting a recommitment decision,
we deny the petition for leave to withdraw without prejudice and do not reach the
merits of the petition for review.
On November 5, 2007, Durham was released on parole from the State
Correctional Institution (SCI) at Forest; at the time of his release, Durham had a
parole violation maximum date of November 4, 2010 based on a 3-to-6 year sentence
imposed by the Court of Common Pleas of Dauphin County in 2004. (Certified
Record (C.R.) 1, 4-10.) Durham was initially paroled to the Gaudenzia-Sienna
House facility, a community corrections facility, but following an assault of another
resident at the facility, he was transferred to the Wernersville Penn Cap program on
December 4, 2007. (C.R. 4, 7, 9-10, 12.) Durham completed the Penn Cap program,
and he was transferred to the Capitol Pavilion program on March 3, 2008. (C.R. 12.)
Durham was discharged from Capitol Pavilion program to a transitional living
program on June 5, 2008. (Id.)
On October 21, 2008, the Board declared Durham delinquent effective
October 10, 2008 based on his failure to make regular reports. (C.R. 11-12.) On
January 11, 2009, the Harrisburg City Police Department notified the Board that it
had arrested Durham. (C.R. 12, 14.) On January 14, 2009, the Board issued a
Warrant to Commit and Detain Durham based on technical parole violations. (C.R.
14-15.) By a decision mailed on February 20, 2009, the Board recommitted Durham
as a technical parole violator to serve 12 months backtime and set his parole violation
maximum date as February 5, 2011. (C.R. 25.)
On May 10, 2010, Durham was reparoled from SCI-Forest to the
Harrisburg Community Corrections Center (Harrisburg CCC) where he remained
2
until August 12, 2010. (C.R. 26-32, 168, 207.) Durham was declared delinquent by
the Board on July 29, 2010 based on his departure from the facility without staff
permission. (C.R. 33, 35.)
On April 19, 2012, Durham was arrested by the Harrisburg City Police
Department and charged with offenses related to the possession and distribution of
controlled substances. (C.R. 46-47, 66-74.) On that same day, the Board issued a
Warrant to Commit and Detain Durham related to the new charges. (C.R. at 34.)
Following a hearing, the Board issued a notice of decision on June 15, 2012 notifying
Durham that he was being detained pending the disposition of his criminal charges,
recommitting him as a technical parole violator to serve his unexpired term of 6
months and 7 days and setting his parole violation maximum date as October 27,
2012. (C.R. at 93-94.)
On July 9, 2013, Durham pleaded guilty in the Court of Common Pleas
of Dauphin County to one count of Manufacture, Delivery or Possession with Intent
to Manufacture or Deliver a Controlled Substance,2 and he was sentenced to a term
of confinement of 4 to 10 years. (C.R. 77, 79.) By a decision mailed on January 27,
2014, the Board recommitted Durham as a convicted parole violator to serve his
unexpired term of 1 year, 1 month and 25 days and recalculated his parole violation
maximum date as January 3, 2015. (C.R. 108-11.)
On July 17, 2015, an evidentiary hearing was held before a hearing
examiner to determine whether Durham was entitled to credit for the period from
December 4, 2007 to March 3, 2008 when he resided in the Wernersville Penn Cap
program and the period from March 3, 2008 to June 5, 2008 when he resided in the
2
Section 13(a)(30) of The Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14,
1972, P.L. 233, as amended, 35 P.S. § 780-113(a)(30).
3
Capitol Pavilion program. (C.R. 112-13, 120-57.) The hearing examiner determined
that Durham was entitled to credit for the Wernersville Penn Cap period but not
entitled to credit for the Capitol Pavilion period. (C.R. 115-19.) By a decision
mailed on October 15, 2015, the Board adopted the hearing examiner’s
determination regarding credit and recalculated Durham’s parole violation
maximum date as October 5, 2014. (C.R. 158-62.)
A second evidentiary hearing was held on October 22, 2015 to
determine whether Durham was entitled to credit for the period from November 5,
2007 to December 4, 2007 when he resided in the Gaudenzia-Sienna House facility
and for the period from May 10, 2010 to August 12, 2010 when he resided in the
Harrisburg CCC. (C.R. 163, 171-205.) The hearing examiner determined that
Durham was not entitled to credit for either period. (C.R. 165-70.) This
determination was adopted by the Board in a decision mailed on February 5, 2016.
(C.R. 206-08.)
On February 10, 2016, Durham submitted an Administrative Remedies
Form, in which he argued that the Board erred in concluding that he did not meet his
burden at the October 22, 2015 evidentiary hearing of showing that he was entitled
to credit towards his backtime. (C.R. 227.) On April 21, 2016, the Board mailed a
response to Durham in which it stated that the appeal panel agreed with the Board’s
conclusion that he was not entitled to credit for the period when he resided at the
Gaudenzia-Sienna House and Harrisburg CCC. (C.R. 231.)
Durham filed with this Court a pro se petition for review of the Board’s
dismissal of his administrative appeal. Durham also filed an application to proceed
in forma pauperis; by a September 7, 2016 per curiam order, this Court granted
Durham permission to proceed in forma pauperis and appointed the Cumberland
4
County Public Defender to represent him in this matter. On March 16, 2017,
Counsel filed the petition for leave to withdraw as counsel for Durham and a no-
merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).
When evaluating a petition for leave to withdraw as appointed counsel
for a parolee challenging a revocation decision, this Court must first determine
whether counsel has satisfied the technical requirements of: (i) notifying the inmate
of the request to withdraw; (ii) furnishing the inmate with a copy of a no-merit letter
or a brief satisfying the requirements of Anders v. California, 386 U.S. 738 (1967);3
and (iii) advising the inmate of his right to retain new counsel or raise any new points
he might deem worthy of consideration by submitting a brief on his own behalf.
Craig v. Pennsylvania Board of Probation and Parole, 502 A.2d 758, 760 (Pa.
Cmwlth. 1985); see also Hughes v. Pennsylvania Board of Probation and Parole,
977 A.2d 19, 22-25 (Pa. Cmwlth. 2009) (en banc); Wesley v. Pennsylvania Board of
Probation and Parole, 614 A.2d 355, 356 (Pa. Cmwlth. 1992). Only once appointed
counsel has fully complied with the technical requirements for withdrawal will the
court independently evaluate the proceedings before the Board to determine whether
3
Where there is a constitutional right to counsel, court-appointed counsel seeking to withdraw
must submit an Anders brief that (i) provides a summary of the procedural history and facts, with
citations to the record; (ii) refers to anything in the record that counsel believes arguably supports
the appeal; (iii) sets forth counsel’s conclusion that the appeal is frivolous; and (iv) states counsel’s
reasons for concluding that the appeal is frivolous. Commonwealth v. Santiago, 978 A.2d 349,
361 (Pa. 2009). Alternatively, where the parolee has only a statutory, rather than a constitutional,
right to counsel, appointed counsel may submit a Turner no-merit letter instead of an Anders brief;
a no-merit letter must set forth: (i) the nature and extent of counsel’s review of the case; (ii) each
issue that the inmate wishes to raise on appeal; and (iii) counsel’s explanation of why each of those
issues is meritless. Turner, 544 A.2d at 928; Seilhamer v. Pennsylvania Board of Probation and
Parole, 996 A.2d 40, 43 & n.4 (Pa. Cmwlth. 2010); Hughes v. Pennsylvania Board of Probation
and Parole, 977 A.2d 19, 24-26 (Pa. Cmwlth. 2009) (en banc). Durham has only a statutory right
to counsel, and therefore only a no-merit letter is required. Seilhamer, 996 A.2d at 42 n.4; Hughes,
977 A.2d at 25-26.
5
the appeal is frivolous or without merit. Jefferson v. Pennsylvania Board of
Probation and Parole, 705 A.2d 513, 514 (Pa. Cmwlth. 1998); Hont v. Pennsylvania
Board of Probation and Parole, 680 A.2d 47, 48 (Pa. Cmwlth. 1996) (en banc);
Wesley, 614 A.2d at 356.
We conclude that Counsel has failed to satisfy the requirement that he
furnish Durham with a copy of the no-merit letter filed with the Court. Counsel filed
a petition for leave to withdraw as counsel on March 16, 2017, which contains a
certificate of service. On the same day, Counsel separately filed a no-merit letter,
detailing the relevant facts of the case and explaining Counsel’s reasons for
withdrawal. The no-merit letter is addressed to this Court rather than Durham, and
there is no indication on the face of the letter that Counsel ever served it on Durham.
Furthermore, Counsel did not file a certificate of service for the no-merit letter.
Thus, there is no evidence before the Court that Counsel ever informed Durham of
his reason for seeking leave to withdraw.
We also conclude that Counsel did not meet the technical requirements
for withdrawal from representation because his no-merit letter did not adequately
explain his reasons for withdrawal. In a no-merit letter or an Anders brief submitted
in support of a petition for leave to withdraw, counsel must not only state his
conclusion that the appeal is frivolous or without merit but must also conduct an
analysis explaining why each issue the petitioner seeks to raise on appeal is frivolous
or without merit. Turner, 544 A.2d at 928; Seilhamer v. Pennsylvania Board of
Probation and Parole, 996 A.2d 40, 43-44 & n.5 (Pa. Cmwlth. 2010); Jefferson, 705
A.2d at 514. In this matter, Counsel adequately explained that Durham waived all
of the arguments in his petition for review that were not addressed by the February
5, 2016 Board decision under review and that were not raised in his February 10,
6
2016 administrative appeal. However, Counsel did not sufficiently explain why the
issues that Durham did preserve for review – his argument that he is entitled to
backtime credit for the periods he spent in the Gaudenzia-Sienna House and
Harrisburg CCC – lacked merit.4 Instead, the no-merit letter contains only one
sentence stating that “undersigned counsel can find no error in the Board’s
determination to challenge on appeal on behalf of Mr. Durham.” (March 13, 2017
Letter at 2.) The letter also cites our decision in Medina v. Pennsylvania Board of
Probation and Parole, 120 A.3d 1116 (Pa. Cmwlth. 2015) (en banc), which sets
forth the burden of proof that a parolee must satisfy to show that he was entitled to
backtime credit for time spent in a community corrections center or community
corrections facility, but does not contain any explanation by Counsel as to why he
believes Durham failed to satisfy this standard. Without any such explanation,
Counsel has failed to discharge his duties pursuant to Turner. Compare Seilhamer,
996 A.2d at 44 (holding that appointed counsel had not satisfied the technical
requirements of a no-merit letter because there was no explanation or analysis
supporting counsel’s conclusion that the issue that the petitioner sought to raise on
appeal was without merit); Banks v. Pennsylvania Board of Probation and Parole,
827 A.2d 1245, 1249 (Pa. Cmwlth. 2003) (holding that counsel’s failure to provide
sufficient legal analysis to support the conclusion in his Anders brief that the Board
properly denied the petitioner credit for time at liberty on parole precluded the Court
4
Despite the fact that Durham’s parole violation maximum date lapsed on October 5, 2014 and he
appears to have served the remainder of his backtime, the issues Durham raised in his petition for
review related to his entitlement to backtime credit do not appear to be moot because Durham was
required to serve the backtime on his original 2004 sentence prior to serving the 4-to-10 year
sentence imposed in 2013, see 61 Pa. C.S. § 6138(a)(5)(i), and any decision that would reduce the
amount of backtime he was required to serve would reduce the amount of time he would be
required to serve on his new sentence.
7
from undertaking “our own independent evaluation, no matter that even with cursory
research, we could find that the appeal was frivolous”); Jefferson, 705 A.2d at 514(holding that counsel’s “cursory explanation, with no analysis to support his
conclusions nor any citation to the record[,]” of counsel’s conclusion that the
petitioner’s parole violation maximum date was calculated correctly did not “meet
the requirement that the ‘no merit letter’ provide ‘analysis’ of [the petitioner]’s
allegedly frivolous claims”).
Counsel therefore has failed to meet the requirements for withdrawal
and this Court will not address the merits of Durham’s appeal. Accordingly, we
deny Counsel’s petition for leave to withdraw, with leave to refile.
______________________________________
JAMES GARDNER COLINS, Senior Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Juban L. Durham, :
Petitioner :
:
v. : No. 1338 C.D. 2016
:
Pennsylvania Board of Probation :
and Parole, :
Respondent :
ORDER
AND NOW, this 11th day of October, 2017, the petition for leave to
withdraw as counsel filed by Joshua M. Yohe, Esq., in the above-captioned matter
is hereby DENIED without prejudice. Counsel is granted leave to refile the petition
for leave to withdraw as counsel within thirty (30) days from the date of this Order
with a supporting brief in accordance with Anders v. California, 386 U.S. 738(1967), or a no-merit letter. Counsel is further directed to file a certificate of service
demonstrating service of a copy of such re-filed petition for leave to withdraw and
Anders brief or no-merit letter on Petitioner Juban L. Durham. If Counsel concludes,
upon reconsideration, that the above-captioned appeal is not frivolous, Counsel shall
submit a brief on the merits of the appeal within thirty (30) days of the date of this
Order. Consideration of the merits of the petition for review is deferred until
Counsel files a new petition for leave to withdraw or a brief on the merits of the
appeal.
______________________________________
JAMES GARDNER COLINS, Senior Judge