R. Lee v. PBPP ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Rayetta Lee, :
Petitioner :
:
v. : No. 926 C.D. 2017
: SUBMITTED: November 9, 2017
Pennsylvania Board of Probation :
and Parole, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: January 30, 2018
Petitioner, Rayetta Lee, petitions for review of an order of the
Pennsylvania Board of Probation and Parole (Board) dismissing as untimely her
request for administrative review of her parole violation maximum sentence date. In
addition, Petitioner’s counsel, Allison J. Rice, Esquire, petitions for leave to
withdraw her representation, asserting that Petitioner’s request is both untimely and
without merit. After review, we grant counsel’s petition and affirm the Board’s
determination to dismiss Petitioner’s request as untimely.
By way of pertinent background, we note the following. After her May
2011 parole from a May 2005 five-to-ten year concurrent sentence for aggravated
assault with serious bodily injury, criminal attempt, and criminal homicide,
Petitioner, once again, was sentenced to five-to-ten years of imprisonment for
aggravated assault in July 2015. (Certified Record (C.R.), Item No. 1 at 1-3, Item
No. 10 at 63-65, and Item No. 17 at 156.) As a result of her new conviction and
prior parole failure, the Board recommitted Petitioner to a state correctional
institution as a convicted parole violator to serve two years and five months of
backtime and recalculated her parole violation maximum date as December 11,
2017. (Id., Item No. 17 at 151 and 153.)
As an initial matter, before this Court can consider the merits of
Petitioner’s petition for review, we must first address counsel’s petition for leave to
withdraw and determine whether she has satisfied the requirements that appointed
counsel must meet before leave to withdraw may be granted. Seilhamer v. Pa. Bd.
of Prob. & Parole, 996 A.2d 40, 42-44 (Pa. Cmwlth. 2010). In that regard, the
following is well established:
A court-appointed counsel who seeks to withdraw
representation because issues raised by the petitioner are
frivolous must fulfill the following technical
requirements: (1) he must notify parolee of [the] request
to withdraw; (2) he must furnish parolee with a copy of an
Anders [v. California, 386 U.S. 738 (1967)] brief or no-
merit letter; and (3) he must advise parolee of his right to
retain new counsel or raise any new points that he might
deem worthy of consideration.
Banks v. Pa. Bd. of Prob. & Parole, 827 A.2d 1245, 1248 (Pa. Cmwlth. 2003)
(footnote omitted). Further, “[c]ounsel’s brief or no-merit letter must set forth: (1)
the nature and extent of his review of the case; (2) the issues the parolee wishes to
raise on appeal; and (3) counsel’s analysis concluding that the appeal has no merit
and is frivolous.” Encarnacion v. Pa. Bd. of Prob. & Parole, 990 A.2d 123, 126
(Pa. Cmwlth. 2010) (citations omitted). Where, as here, there is no constitutional
right to counsel, counsel may satisfy his or her obligations by filing a no-merit letter
2
and the standard is whether the claims on appeal are without merit.1 Seilhamer, 996
A.2d at 42 n. 4.
Upon review of counsel’s petition and accompanying no-merit letter, it
is clear that she satisfied both the procedural and substantive requirements necessary
to withdraw as appointed counsel. With regard to the procedural requirements,
counsel: (1) notified Petitioner of her request to withdraw as appointed counsel; (2)
furnished Petitioner with a copy of counsel’s petition to withdraw and no-merit letter
in support of that petition; and (3) advised Petitioner of the right to retain new
counsel, to proceed pro se, and to raise any additional issues that Petitioner deems
worthy of review by this Court. Miskovitch v. Pa. Bd. of Prob. & Parole, 77 A.3d
66, 69 (Pa. Cmwlth. 2013). Further, in her no-merit letter, counsel set forth: (1) the
nature of her review of the case; (2) the issues that Petitioner sought to raise in her
pro se petition for review; and (3) an explanation as to why counsel believed that
each issue was without merit, specifically addressing Petitioner’s reliance on our
distinguishable memorandum decision in Boyd v. Pa. Bd. of Prob. & Parole, (Pa.
Cmwlth., No. 912 C.D. 2015, filed March 9, 2016).2 In addition, counsel explained
why the Board determined that Petitioner’s appeal was untimely. Accordingly, we
grant counsel’s petition for leave to withdraw as counsel and proceed to the merits
of Petitioner’s petition for review.
1
Pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), counsel aiming to withdraw
from the representation of a petitioner who seeks review of a Board determination must proffer a
“no-merit” letter detailing the nature and extent of counsel’s review and listing the discrete issues
that the petitioner wishes to raise, with counsel’s reasons why those issues lack merit.
2
Contrary to Petitioner’s assertions, Boyd does not support her position. In Boyd, we rejected
the same constitutional arguments raised herein, i.e., that the Board’s extension of a parole
violation maximum sentence date infringed upon an inmate’s constitutional protections. In
addition, we only remanded in Boyd for issuance of a new recommitment term within the correct
presumptive range because his Ohio convictions were comparable to the offense of possession of
a controlled substance in Pennsylvania and carried a shorter presumptive range.
3
Turning first to the timeliness issue, we note that the regulation
governing the administrative appeal period, in pertinent part, provides: “Petitions
for administrative review shall be received at the Board’s Central Office within 30
days of the mailing date of the Board’s determination.” 37 Pa. Code § 73.1(b)(1).
Here, the Board mailed its determination on September 21, 2015, and Petitioner did
not file an administrative remedies form challenging her parole violation maximum
date until January 2016.3 (C.R., Item No. 17 at 153-54 and Item No. 18 at 158-60.)
Accordingly, Petitioner’s failure to file a timely appeal warrants dismissal.
McCaskill v. Pa. Bd. of Prob. & Parole, 631 A.2d 1092, 1095 (Pa. Cmwlth. 1993).
Moreover, Petitioner’s underlying grounds for appeal, primarily that
the Board’s extension of her parole violation maximum sentence date violated her
constitutional protections against cruel and unusual punishment, double jeopardy,
and due process, are without merit. As counsel observed, both the Pennsylvania
Supreme Court and this Court have consistently rejected these arguments. See, e.g.,
Gaito v. Pa. Bd. of Prob. & Parole, 412 A.2d 568, 570 (Pa. 1980); Young v. Pa. Bd.
of Prob. & Parole, 409 A.2d 843 (Pa. 1979); Santo v. Pa. Bd. of Prob. & Parole,
568 A.2d 296 (Pa. Cmwlth. 1990); McClure v. Pa. Bd. of Prob. & Parole, 461 A.2d
645, 647 (Pa. Cmwlth. 1983). Accordingly, consistent with Section 6138(a)(2) of
the Prisons and Parole Code (Code), as amended, 61 Pa. C.S. § 6138(a)(2), providing
that the convicted parole violator “shall be given no credit for the time at liberty on
parole[,]” the Board did not err in recalculating Petitioner’s parole violation
maximum sentence date.4
3
Subsequently, Petitioner also challenged her parole maximum date in administrative appeals
dated April 7, 2017, and May 3, 2017. (C.R., Item No. 18 at 162-64 and 166-67.)
4
The Board has discretion to award a convicted parole violator credit for the time served at
liberty on parole, except where he or she is recommitted for the reasons stated in Section
4
For the foregoing reasons, we agree that Petitioner’s appeal is both
untimely and without merit. Accordingly, we grant Attorney Rice’s petition to
withdraw as counsel and affirm the Board’s order denying Petitioner’s request for
administrative relief as untimely.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge
6138(a)(2.1)(i) of the Code. Further, it must articulate the basis for its decision to grant or deny
credit for that time. Pittman v. Pa. Bd. of Prob. & Parole, 159 A.3d 466, 474 (Pa. 2017). Here,
the Board cited Petitioner’s prior parole failure and new conviction in support of its decision to
recommit her for the unexpired term of her sentence. (C.R., Item No. 16 at 146.) In any event, it
remains true that requiring convicted parole violators to forego credit for street time “does not
offend the constitutional guarantees to the citizens of the state and this nation[,]” but instead,
“represents a reasonable exercise of the [state’s] penological responsibility . . . .” Young, 409 A.2d
at 847.
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Rayetta Lee, :
Petitioner :
:
v. : No. 926 C.D. 2017
:
Pennsylvania Board of Probation :
and Parole, :
Respondent :
ORDER
AND NOW, this 30th day of January, 2018, Allison J. Rice, Esquire’s
petition to withdraw as counsel is hereby GRANTED and the order of the
Pennsylvania Board of Probation and Parole is AFFIRMED.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge