C. Ford v. PA BPP ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Christopher Ford, :
Petitioner :
:
v. : No. 861 C.D. 2015
: Submitted: October 16, 2015
Pennsylvania Board of :
Probation and Parole, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MARY HANNAH LEAVITT, Judge1
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE LEAVITT FILED: February 5, 2016
Christopher Ford petitions for review of an adjudication of the
Pennsylvania Board of Probation and Parole (Board) denying his administrative
appeal. Ford’s appointed counsel, Luzerne County Assistant Public Defender
Richard C. Shiptoski (Counsel), has filed an application for leave to withdraw as
counsel. For the reasons that follow, we grant Counsel’s request to withdraw and
affirm the Board’s decision.
On July 1, 2012, Ford was released on parole from the State
Correctional Institution (SCI) at Albion. At the time of his parole, his maximum
sentence date was December 3, 2021. On August 12, 2012, Philadelphia police
responded to a call that a black male, wearing red shorts and a white t-shirt, was
1
This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt
became President Judge.
seen carrying a gun at the corner of 8th and Oxford Streets. Responding officers
spotted Ford, who matched the description. The officers identified themselves as
police and ordered Ford to show his hands. Ford immediately fled. The officers
called for backup and pursued Ford on foot. During the pursuit, Ford brandished a
gun and repeatedly pointed it at the pursuing officers. In response, one of the
officers shot at Ford six times. One bullet struck Ford in the neck, another struck
him in the shoulder, and two other bullets grazed his forehead and nose. The
officers arrested Ford and took him to a nearby hospital for treatment.
Ford was charged with aggravated assault and various firearm related
violations. His bail was initially set at $500,000. On August 17, 2012, the Board
issued a warrant to commit and detain Ford. On September 6, 2012, Ford was
released on his own recognizance in lieu of bail on the new criminal charges;
however, he remained incarcerated on the Board’s warrant. On October 5, 2012,
Ford was transferred to SCI-Graterford. On October 10, 2012, the Board issued a
detainer pending disposition of the criminal charges. On December 6, 2012,
Ford’s bail was set at $500,000 on the new charges. Ford did not post bail.
Ford pleaded guilty to one count of aggravated assault and one count
of unlawful possession of firearms. On August 25, 2014, the Court of Common
Pleas of Philadelphia County sentenced Ford to a minimum of 1 year and 6 months
to a maximum of 10 years for each count to be served concurrently.
On October 10, 2014, Ford signed a waiver of his parole revocation
hearing and acknowledged his new felony convictions. On October 27 and
November 14, 2014, the hearing examiner and a panel member signed,
respectively, a Hearing Report accepting Ford’s admissions and recommitting him
as a convicted parole violator. Accordingly, the Board issued a decision on
2
January 21, 2015, recommitting Ford as a convicted parole violator to serve 36
months backtime.2 The Board’s decision recalculated Ford’s maximum sentence
date from December 3, 2021, to January 17, 2024.
On March 1, 2015, Ford, pro se, filed a petition for administrative
review, wherein he argued that the Board used an incorrect “return to custody”
date when computing his maximum sentence date. Ford wrote: “[t]he calculation
on the ORDER TO RECOMMIT is incorrect. I arrived at SCI GRATERFORD,
custody of the D.O.C. on 10-5-2012, which should be the date on the CUSTODY
FOR RETURN, section that appears on the ORDER TO RECOMMIT, NOT 11-
14-2014.” Certified Record (C.R) at 83 (emphasis in original).
By decision mailed April 27, 2015, the Board denied Ford’s appeal.
The Board explained:
The Board recommitted you to serve 36 months. The
commencement of the original sentence for convicted parole
violators is governed by the Prisons and Parole Code. The
statute provides that convicted parole violators who are parolees
from a state correctional institution (“SCI”) and then receive
another sentence to be served in an SCI must serve the new
original sentence first. 61 Pa. C.S. §6138(a)(5). You were
paroled from an SCI on July 1, 2012 and you received a new
sentence to be served in an SCI so you have to serve your
original sentence first. However, the provision governing
sentence order does not take effect until the parolee is
recommitted as a convicted parole violator. Thus, you did not
become available to commence service of your original
sentence until November 14, 2014 because that is when the
Board voted to recommit you as a parole violator. Campbell v.
2
“‘Backtime’ is a penalty imposed by the Board for a violation of parole. By definition,
‘backtime’ is that part of an existing judicially imposed sentence that a parole violator is required
to serve as a result of violating the terms of conditions of parole prior to being eligible to again
apply for parole.” Santiago v. Pennsylvania Board of Probation and Parole, 937 A.2d 610, 616
n.2 (Pa. Cmwlth. 2007) (Cohn-Jubelirer, J., dissenting) (internal citations omitted).
3
Pennsylvania Board of Probation and Parole, 409 A.2d 980
(Pa. Cmwlth. Ct. 1980).
The Board gave you 91 days of credit on your original sentence
for the period you were incarcerated from September 6, 2012
(date you were released on ROR bail) to December 6, 2012
(date bail was set to monetary and not posted) because you
were confined solely on the [B]oard detainer during this period.
Gaito v. Board of Probation and Parole, 412 A.2d 568 (Pa.
1980). Conversely, credit for the periods you were incarcerated
from August 25, 2014 (date of sentencing) must apply to your
new sentence because you were incarcerated on both the new
criminal charges and the [B]oard detainer during this period.
Id. Additionally, credit for the period you were incarcerated
from August 25, 2014 to November 14, 2015 should be applied
to your new sentence when it is calculated. Campbell. Adding
the 36-month recommitment term to the November 14, 2014
availability date, minus the 91 days of credit you received,
yields a reparole eligibility date of August 14, 2017.
Board Decision, April 27, 2015, at 1. Ford then petitioned for this Court’s review.3
In his petition for review, Ford stated that “he should have received
credit from September 6, 2012 when he was released on ROR bail until the date of
conviction on August 25, 2014.” Petition for Review at 3. Essentially, Ford
contends that the 91 days of backtime credit he received for time spent in custody
on the Board’s warrant from September 6 to December 6, 2012, is inadequate.
Furthermore, Ford contends that the Board used the incorrect date for his return to
Board custody, which Ford asserts took place on October 5, 2012, not November
3
In conducting our review we must determine whether an error of law was committed,
constitutional rights were violated, or the Board’s decision is supported by substantial evidence.
Wilson v. Pennsylvania Board of Probation and Parole, 124 A.3d 767, 769 (Pa. Cmwlth. 2015).
4
14, 2014. Counsel has filed an application for leave to withdraw and an Anders
brief4 explaining why there is no legal basis for Ford’s appeal.
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) sets forth the
technical requirements appointed counsel must meet in order to withdraw from
representation. Pursuant to Turner, once appointed counsel has reviewed the case
and determined that the petitioner’s claims are meritless,
counsel must then submit a “no-merit” letter to the trial court,
or brief on appeal to this Court, detailing the nature and extent
of counsel’s diligent review of the case, listing the issues which
the petitioner wants to have reviewed, explaining why and how
those issues lack merit, and requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the “no-
merit” letter/brief; (2) a copy of counsel’s petition to withdraw;
and (3) a statement advising petitioner of the right to proceed
pro se or by new counsel.
Zerby v. Shanon, 964 A.2d 956, 960 (Pa. Cmwlth. 2009). Withdrawing counsel
may submit an Anders brief instead of a “no-merit” letter. Id. If the requirements
of Turner are met, this Court must then consider whether the petitioner’s claim
lacks merit. Id.
In the matter sub judice, Counsel has filed an Anders brief which
outlines his review of Ford’s criminal record and explains his basis for concluding
that Ford’s issues for review lack merit. Furthermore, the record establishes that
Counsel sent Ford a copy of the Anders brief, a copy of his petition to withdraw,
and a letter advising Ford of his right to obtain new counsel or proceed pro se. In
4
The brief Counsel has submitted is known as an Anders brief because the United States
Supreme Court’s seminal decision in Anders v. California, 386 U.S. 738 (1967), outlined the
steps appointed counsel must take in order to withdraw representation of a criminal defendant.
5
short, Counsel has complied with the requirements of Turner. Therefore, we may
consider the merits of Ford’s petition.
Convicted parole violators are entitled to backtime credit for time
spent in custody as a parole violator. 61 Pa. C.S. §6138(a)(4).5 However, Section
6138(a)(5) of the Prisons and Parole Code limits a convicted parole violator’s right
to backtime credit for time he was incarcerated on both the Board’s warrant and
the new conviction:
If a new sentence is imposed on the parolee, the service of the
balance of the term originally imposed by a Pennsylvania court
shall precede the commencement of the new term imposed in
the following cases:
(i) If a person is paroled from a State correctional
institution and the new sentence imposed on the
person is to be served in the State correctional
institution.
(ii) If a person is paroled from a county prison and
the new sentence imposed upon him is to be served
in the same county prison.
(iii) In all other cases, the service of the new term
for the latter crime shall precede commencement
of the balance of the term originally imposed.
61 Pa. C.S. §6138(a)(5). Accordingly, the Board does not award backtime credit
for any pre-sentence confinement that is not solely on the Board’s detainer. Gaito
v. Pennsylvania Board of Probation and Parole, 412 A.2d 568 (Pa. 1980).
5
Section 6138(a)(4) of the Prisons and Parole Code states:
The period of time for which the parole violator is required to serve shall be
computed from and begin on the date that the parole violator is taken into custody
to be returned to the institution as a parole violator.
61 Pa. C.S. §6138(a)(4).
6
Further, “credit for time a convicted parole violator spends in custody between
imposition of a new sentence and revocation of parole must be applied to the new
sentence.” Williams v. Pennsylvania Board of Probation and Parole, 654 A.2d
235, 237 (Pa. Cmwlth. 1995).
Ford contends that the Board erred because it did not give him credit
for the time he was incarcerated from September 6, 2012, to August 25, 2014. We
disagree. The Board awarded Ford credit for the period beginning on September 6,
2012, because that was the date on which he was released on his own recognizance
for his new sentence. Stated otherwise, Ford was incarcerated after September 6,
2012, solely on the Board’s detainer. However, on December 6, 2012, Ford’s bail
on his new charges was reset to $500,000. Because Ford did not post bail, he was
no longer detained solely on the Board’s warrant after December 6, 2012. In short,
the Board correctly limited his credit for incarceration for the period September 6,
2012, to December 6, 2012.
Next, Ford contends that the Board erred in listing the date he
returned to the Board’s custody as November 14, 2014. According to Ford, his
date of return should be October 5, 2012, when he was transferred to SCI-
Graterford. We disagree. A parolee’s “service of backtime on the original
sentence must be computed from the date the Board revokes the prisoner’s parole.”
Hill v. Pennsylvania Board of Probation and Parole, 683 A.2d 699, 702 (Pa.
Cmwlth. 1996). A prisoner’s parole is not officially revoked until the Board
obtains the second signature on the Hearing Report authorizing the Board to
recommit the prisoner as a convicted parole violator. Wilson v. Pennsylvania
Board of Probation and Parole, 124 A.3d 767, 770 (Pa. Cmwlth. 2015). Here, the
second panel member signed the Hearing Report on November 14, 2014, which the
7
Board correctly determined to be the date Ford returned to custody for purposes of
computing Ford’s maximum sentence date.6
For these reasons, we conclude that Counsel has fulfilled the
requirements of Turner and our independent review of the record confirms that
Ford’s appeal lacks merit. Accordingly, we grant Counsel’s application for leave
to withdraw and affirm the Board’s decision.
_______________________________
MARY HANNAH LEAVITT, Judge
6
Because the Board did not err in calculating Ford’s backtime credit or the date he returned to
the Board’s custody, the Board also did not err in calculating Ford’s new maximum sentence
date.
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Christopher Ford, :
Petitioner :
:
v. : No. 861 C.D. 2015
:
Pennsylvania Board of :
Probation and Parole, :
Respondent :
ORDER
AND NOW, this 5th day of February, 2016, the order of the
Pennsylvania Board of Probation and Parole, dated April 27, 2015, is AFFIRMED
and the application for leave to withdraw as counsel filed by Richard C. Shiptoski,
Esquire, is GRANTED.
______________________________
MARY HANNAH LEAVITT, Judge