B. Gibson v. PA BPP ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Billy Gibson, :
:
Petitioner :
:
v. : No. 1456 C.D. 2016
: Submitted: February 3, 2017
Pennsylvania Board of :
Probation and Parole, :
:
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE COLINS FILED: March 30, 2017
Before this Court is the August 22, 2016 petition of Billy Gibson for
review of the August 1, 2016 decision of the Pennsylvania Board of Probation and
Parole (Board) that dismissed as untimely both his March 22, 2016 (postmarked
March 8, 2016) and May 6, 2016 (postmarked May 4, 2016) requests for
administrative review.1 Mr. Gibson’s March 2016 and May 2016 requests sought
review of the Board’s September 24, 2015 determination that recommited him for
1
The Board’s response indicated that: “[t]he record in this matter reveals that the Board decision
that established your parole violation maximum date was mailed to you on September 24, 2015.
The Board’s regulations provide that a petition for administrative review must 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). Your filing was not received within the applicable time period. Accordingly,
the request for administrative relief is DISMISSED as untimely.” (Certified Record at 124,
Board Response.)
18 months of backtime and recalculated his maximum sentence date to February 8,
2019. Also before this Court is the application of Richard C. Shiptoski, Esq.,
Assistant Public Defender of Luzerne County (Counsel), for leave to withdraw as
attorney for Mr. Gibson. For the following reasons, we grant Counsel’s
application for leave to withdraw and affirm the Board’s August 1, 2016
determination to dismiss Mr. Gibson’s requests for administrative relief as
untimely.
Before this Court can consider the merits of Mr. Gibson’s Petition for
Review, we must first address Counsel’s application to withdraw and determine
whether Counsel has satisfied the requirements that appointed counsel must meet
before leave to withdraw may be granted. Seilhamer v. Pennsylvania Board of
Probation and Parole, 996 A.2d 40, 42-44 (Pa. Cmwlth. 2010); Reavis v.
Pennsylvania Board of Probation and Parole, 909 A.2d 28, 33 (Pa. Cmwlth.
2006).
When appointed counsel for an inmate in an appeal from a decision of
the Board seeks to withdraw as counsel on the ground that the appeal is frivolous
or without merit, he or she must satisfy the following procedural requirements: 1)
notify the inmate of his or her request to withdraw; 2) furnish the inmate with a
copy of a sufficient brief in accordance with Anders v. California, 386 U.S. 738(1967), or a no-merit letter; and 3) advise the inmate of his or her right to retain
new counsel or raise any new points deemed worthy of consideration by
submitting a brief on his or her behalf. Encarnacion v. Pennsylvania Board of
Probation and Parole, 990 A.2d 123, 125 (Pa. Cmwlth. 2010); Hughes v.
Pennsylvania Board of Probation and Parole, 977 A.2d 19, 22-25 (Pa. Cmwlth.
2009 (en banc). Where the inmate has a constitutional right to counsel, an Anders
2
brief is required and withdrawal is allowed only if the appeal is wholly frivolous.
Hughes, 977 A.2d 22-26. If there is not a constitutional right to counsel, counsel
may satisfy his or her obligations by filing a no-merit letter, rather than an Anders
brief, and the standard is whether the claims on appeal are without merit.
Seilhamer, 996 A.2d at 42 n.4; Hughes, 977 A.2d at 24-26.
Here, there is no constitutional right to counsel and only a no-merit
letter is required. Seilhamer, 996 A.2d at 42-43 n.4; Hughes, 977 A.2d at 26.
Although Counsel here filed an Anders brief, rather than a no-merit letter, his
obligations will be satisfied provided that his Anders brief contains all the
information that must be included in a no-merit letter. Seilhamer, 996 A.2d at 42-
43; Hughes, 977 A.2d at 26 n.4. A no-merit letter must set forth: (1) the nature and
extent of counsel’s review of the case; (2) each issue that the inmate wishes to raise
on appeal; and (3) counsel’s explanation of why each of those issues is meritless.
Seilhamer, 996 A.2d at 43; Hughes, 977 A.2d at 26.
Upon review of Counsel’s petition and accompanying brief, it is clear
that Counsel has satisfied both the procedural and the substantive requirements
necessary to withdraw as appointed counsel. With regard to the procedural
requirements, Counsel: (1) notified Mr. Gibson of his request to withdraw as
appointed counsel; (2) furnished Mr. Gibson with a copy of Counsel’s petition to
withdraw and the Anders brief filed in support of Counsel’s petition to withdraw;
and (3) advised Mr. Gibson of his right to retain new counsel, to proceed pro se
and to raise any additional issues that Mr. Gibson determines are worthy of review
by this Court. Miskovitch v. Pennsylvania Board of Probation and Parole, 77
A.3d 66, 69 (Pa. Cmwlth. 2013). Further, in his Anders brief, Counsel has set
forth: (1) the nature of his review of the case; (2) the issues that Mr. Gibson sought
3
to raise in his pro se petition for review; and (3) an explanation, citing relevant
statutory and case law, as to why Counsel believes that each issue is without merit.
Accordingly, this Court may grant Counsel’s Petition to Withdraw as Counsel and
proceed to the merits of Mr. Gibson’s Petition for Review.
The circumstances that led to Mr. Gibson’s appeal to this Court are
as follows. He was released on parole on January 20, 2010 with a parole violation
maximum date of April 29, 2015. (Certified Record (C.R.) at 12, Order to Release
on Parole/Reparole.) Following his April 14, 2013 arrest and subsequent charge
with drug and firearms offenses, the Board issued a warrant on the same date to
commit and detain; he was granted Release on Recognizance (ROR) bail on June
27, 2013, but remained confined on the Board’s detainer. (C.R. at 28, Warrant to
Commit and Detain.) Mr. Gibson waived his preliminary hearing on the parole
violation, admitting to having been in a bar without Board staff permission. (C.R.
at 46-47, Waiver of Violation Hearing and Counsel/Admission Form.) He was
subsequently recommitted, by a June 10, 2013 Board decision, as a technical
parole violator for a period of six months, for violation of the parole condition that
he refrain from entering an establishment that sells or dispenses alcohol. (C.R. at
35, Criminal Docket.) Mr. Gibson was found guilty of the new charges on March
11, 2015 and his ROR bail was revoked; on July 17, 2015, he received a sentence
on the new charges of 56 to 120 months plus five years of probation. (Id.) He was
represented by counsel at an August 20, 2015 parole revocation hearing, and by
Board action mailed September 24, 2015, he was recommitted to a State
Correctional Institution as a convicted parole violator for a total of 18 months
backtime, with a parole violation maximum date of February 8, 2019. (C.R. at 102-
103, Notice of Board Decision.)
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Mr. Gibson timely challenged the Board’s decision with the
submission of an Administrative Remedies Form, on October 1, 2015.2 (C.R. at
106, Administrative Remedies Form.) By decision mailed December 16, 2015, the
Board indicated that it found no grounds to grant administrative relief.3 (C.R. at
2
Mr. Gibson appealed the Board’s determination on the grounds that his revocation hearing was
not timely held, that the Board relied on hearsay at his revocation hearing, and that he was not
awarded proper credit on his original sentence. (C.R. at 106, Administrative Remedies Form.)
3
The Board explained its method of calculation of Mr. Gibson’s maximum sentence date as
follows:
The Board paroled you from a state correctional institution [ ] on
January 20, 2010 with a maximum sentence date of April 29, 2015.
This left you with a total of 1925 days remaining on your sentence
(i.e. from 01/20/2010 to 04/29/2015=1925 days). The Board’s
decision to recommit you as a convicted parole violator authorized
the recalculation of your sentence to reflect that you received no
credit for the time you were at liberty on parole. 61 Pa. C.S. §
6138(a)(2). The Board did not grant you credit for liberty on
parole in this instance. This means you still had 1925 days
remaining on your sentence.
On April 14, 2013, the Board detained you for parole violations.
Authorities subsequently detained you for new criminal charges
docketed…on April 15, 2013. The court released you on ROR bail
June 27, 2013, but you remained confined on the board detainer.
On March 11, 2015, the court found you guilty of the new criminal
charges and revoked your ROR bail. The court sentenced you to a
new term of imprisonment to be served in an SCI on July 17, 2015.
Based on these facts, the Board gave you 623 days of credit on
your original sentence for the periods you were incarcerated solely
on the board detainer from April 14, 2013 to April 15, 2013 (1
day) and from June 27, 2013 to March 11, 2015 (622 days). Gaito
v. [Pennsylvania] Board of Probation and Parole, 412 A.2d 568(Pa. 1980). However, the Board did not give you any credit from
April 15, 2013 to June 27, 2013 because you were held on both the
new criminal charges and the board detainer during that period. As
such, credit for that time must apply to your new sentence when it
5
110-111.) The Board’s response included notification that in order to appeal its
decision, Mr. Gibson would be required to file an appellate petition for review with
this Court within thirty days. (C.R. at 111, Board Response.) Mr. Gibson did not
file an appellate petition for review with this Court; instead, he filed with the Board
a Request for Administrative Review postmarked March 8, 2016 and a subsequent
Request for Administrative Review postmarked May 4, 2016. (C.R. at 112-115
and 119-122, Requests for Administrative Review.) In both these requests for
administrative review, Mr. Gibson challenged only his parole violation maximum
date, arguing essentially that the Board had impermissibly altered his judicially
imposed sentence by extending his maximum date. (Id.) In its August 1, 2016
response, the Board dismissed both petitions for administrative relief as untimely.
(C.R. at 124, Board Response.) Mr. Gibson then filed a pro se Petition for Review
with this Court on August 22, 2016. Counsel was appointed to represent Mr.
Gibson on September 1, 2016 and on November 15, 2016, Counsel filed a Petition
for Leave to Withdraw as Counsel and an Anders brief in support thereof.
The only arguments raised by Mr. Gibson in his Petition for Review
to this Court are that his appeal to the Board was not untimely, and that the Board
impermissibly altered his judicially imposed sentence by extending his maximum
date. We conclude that neither of these arguments has merit.
The Board’s decision at issue was mailed on September 24, 2015.
Appeals from revocation decisions and petitions for administrative review must be
is calculated. Id. Subtracting the 623 days of credit you received
from the 1925 days you had remaining left 1302 days to serve on
your sentence.
(C.R. at 110-111, Board Response.)
6
filed within 30 days of the mailing date of the Board’s order, 37 Pa. Code §§
73.1(a)(1) and (b)(1). Second or subsequent petitions for administrative review
and petitions for administrative review which are out of time will not be received.
37 Pa. Code § 73.1(b)(3). Failure to file an administrative appeal from the Board’s
determination within 30 days of the determination’s mailing date will result in a
dismissal for being untimely. McCaskill v. Pennsylvania Board of Probation and
Parole, 631 A.2d 1092, 1095 (Pa. Cmwlth. 1993). We note here that while the
Board’s rule is that appeals and petitions for administrative review must be
received within 30 days, the timeliness of pro se mailings by inmates is governed
by the prisoner mailbox rule, under which the document is considered filed on the
date that the inmate delivered it to prison authorities or placed it in the prison
mailbox, regardless of when it is received by the Board. Sweesy v. Pennsylvania
Board of Probation and Parole, 955 A.2d 501, 502 (Pa. Cmwlth. 2008); Pettibone
v. Pennsylvania Board of Probation and Parole, 782 A.2d 605, 607-608 (Pa.
Cmwlth. 2001). Here, Mr. Gibson’s March and May 2016 administrative appeals
were postmarked more than five months after the Board’s decision and there is no
indication that appeals were delivered to prison authorities within 30 days of the
Board’s determination. Therefore, Mr. Gibson’s administrative appeals were
appropriately barred as untimely.
Moreover, Mr. Gibson’s underlying ground of appeal, that the Board
lacked the authority to extend his maximum parole date beyond that originally set
by the Philadelphia County sentencing court, is equally without merit. This Court
has distinguished backtime imposed by the Board upon parole violators from
sentences imposed by the judiciary upon convicted criminal defendants. In Krantz
7
v. Pennsylvania Board of Probation and Parole, 483 A.2d 1044 (Pa. Cmwlth.
1984), we stated:
A “sentence” has been defined as the judgment formally
pronounced by the court upon a defendant who has been
convicted in a criminal prosecution which awards the
punishment to be inflicted. By comparison, “backtime”
is merely that part of an existing judicially-imposed
sentence which the Board directs a parolee to complete
following a finding after a civil administrative hearing
that the parolee violated the terms and conditions of
parole, which time must be served before the parolee
may again be eligible to be considered for a grant of
parole.
Krantz, 483 A.2d at 1047 (citations omitted.) Our Pennsylvania Supreme Court
has made clear that the Board’s authority to recalculate the sentence of a convicted
parole violator “is not an encroachment upon the judicial sentencing power.”
Young v. Commonwealth Board of Probation and Parole, 409 A.2d 843, 847 (Pa.
1979). Rather, the extension of the maximum date merely required the inmate to
serve his full original sentence. Id. Therefore, the Board did not exceed its
authority when it recalculated Mr. Gibson’s maximum date to February 8, 2019.
For the foregoing reasons, we grant Counsel’s Application to
Withdraw and affirm the Board’s August 1, 2016 decision to dismiss Mr. Gibson’s
administrative appeals as untimely.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Billy Gibson, :
:
Petitioner :
:
v. : No. 1456 C.D. 2016
:
Pennsylvania Board of :
Probation and Parole, :
:
Respondent :
ORDER
AND NOW, this 30th day of March, 2017, the Petition for Leave to
Withdraw as Counsel filed by Richard C. Shiptoski, Esquire, Assistant Public
Defender of Luzerne County, in the above-captioned matter is hereby GRANTED.
The August 1, 2016 decision of the Pennsylvania Board of Probation and Parole,
entered in the above-captioned matter, is hereby AFFIRMED.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge