J. Berrios v. PA BPP ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jorge Berrios, :
Petitioner :
:
v. :
:
Pennsylvania Board of Probation :
and Parole, : No. 905 C.D. 2016
Respondent : Submitted: November 23, 2016
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: February 14, 2017
Jorge Berrios (Berrios) petitions this Court for review of the
Pennsylvania Board of Probation and Parole’s (Board) May 13, 2016 order denying
his request for administrative relief. Berrios is represented in this matter by Assistant
Public Defender Seth E. Grant, Esquire (Counsel), who has filed a Petition for Leave
of Court to Withdraw as Appellate Counsel (Application). After review, we deny
Counsel’s Application.
Berrios is an inmate at the State Correctional Institution (SCI) at
Graterford. On June 14, 2002, the Board paroled Berrios to Kintock Community
Corrections Center from a 7 to 15-year sentence for third-degree murder (Original
Sentence). At that time, his maximum sentence release date was August 27, 2010.
As a condition of his parole, Berrios agreed:
If you are convicted of a crime committed while on
parole/reparole, the Board has the authority, after an
appropriate hearing, to recommit you to serve the balance of
the sentence or sentences which you were serving when
paroled/reparoled, with no credit for time at liberty on
parole.
Certified Record (C.R.) at 7. Berrios did not object to the above-quoted parole
condition. On May 2, 2009, Berrios was arrested on drug charges. On May 3, 2009,
the trial court set bail in the amount of $8,000.00, which Berrios did not post. On
May 4, 2009, the Board issued a warrant to commit and detain Berrios pending
disposition of the drug charges. On August 20, 2009, the trial court changed Berrios’
bail to release on his own recognizance.
On April 22, 2010, Berrios was convicted of manufacturing, delivering,
or possessing with intent to manufacture or deliver, a controlled substance and
conspiracy to manufacture, deliver, or possess with intent to manufacture or deliver, a
controlled substance, and the trial court revoked his bail. On June 14, 2010, Berrios
was sentenced to 2 consecutive terms of 2 to 4 years incarceration, for an aggregate
sentence of 4 to 8 years incarceration.
On July 2, 2010, the Board served Berrios with a notice of charges and
notice of the Board’s intent to hold a parole revocation hearing. On July 14, 2010,
the Board held the revocation hearing at SCI-Rockview, at which Berrios was
represented by counsel. The Board Examiner voted on July 20, 2010 and, five
additional Board members voted between August 4 and September 20, 2010, to
recommit Berrios as a convicted parole violator (CPV) and reparole him to a state
detainer sentence. On October 2, 2013, Berrios was reparoled to the Philadelphia
Community Corrections Center. Berrios’ new maximum sentence release date was
October 6, 2017. As a condition of his parole, Berrios agreed:
If you are convicted of a crime committed while on
parole/reparole, the Board has the authority, after an
appropriate hearing, to recommit you to serve the balance of
the sentence or sentences which you were serving when
2
paroled/reparoled, with no credit for time at liberty on
parole.
C.R. at 76. Berrios did not raise any objections to the above-quoted parole condition.
On June 20, 2014, Berrios was arrested on new drug charges (New Charges). That
same date, the trial court set bail in the amount of $25,000.00, which Berrios did not
post. Also on June 20, 2014, the Board issued a warrant to commit and detain
Berrios pending disposition of the New Charges. On June 23, 2015, Berrios pled
guilty to manufacturing, delivering, or possessing with intent to manufacture or
deliver, a controlled substance. On September 4, 2015, Berrios was sentenced to 11/2
to 3 years incarceration followed by 5 years probation.
On November 3, 2015, the Board served Berrios with a notice of charges
and notice of the Board’s intent to hold a parole revocation hearing. That day,
Berrios admitted to the parole violation, and waived his right to counsel and a
revocation hearing. On November 19 and December 8, 2015, respectively, Board
members voted to recommit Berrios as a CPV to serve 18 months backtime without
credit for time spent at liberty on parole. By decision recorded on January 29, 2016
(mailed February 10, 2016), the Board formally recommitted Berrios as a CPV to
serve 18 months backtime with a maximum sentence release date of November 29,
2022.
The Board calculated Berrios’ new maximum sentence release date as
follows. When Berrios was released on parole on October 15, 2010, his Original
Sentence maximum release date was October 6, 2017 and, thus, he owed 2,548 days
of backtime on his Original Sentence. The Board chose not to credit Berrios for his
time spent at liberty on parole and, since the Board lodged its detainer on the same
day the trial court set Berrios’ unposted bail, the Board did not give Berrios credit
toward his Original Sentence for his pre-trial incarceration on the New Charges.
Berrios did not become available to serve his Original Sentence until December 8,
3
2015, the date he was recommitted as a CPV. Adding 2,548 days to December 8,
2015 resulted in Berrios’ new November 29, 2022 Original Sentence maximum
release date.
On March 9, 2016, Berrios submitted an Administrative Remedies Form
challenging the Board’s decision recorded on January 29, 2016 (mailed February 10,
2016), which formally recommitted Berrios as a CPV. On May 13, 2016, the Board
denied Berrios’ request for administrative relief. Berrios appealed pro se to this
Court.1 Counsel subsequently filed an Entry of Appearance on Berrios’ behalf.
Thereafter, Counsel filed his Application and an Anders brief.2
This Court has held that in order to withdraw, “counsel . . . must provide
a ‘no-merit’ letter which details ‘the nature and extent of [counsel’s] review and
list[s] each issue the petitioner wished to have raised, with counsel’s explanation of
why those issues are meritless.’” Zerby v. Shanon, 964 A.2d 956, 961 (Pa. Cmwlth.
2009) (quoting Commonwealth v. Turner, 544 A.2d 927, 928 (Pa. 1988)). “[C]ounsel
must fully comply with the procedures outlined in Turner to ensure that each of the
petitioner’s claims has been considered and that counsel has [] substantive reason[s]
for concluding that those claims are meritless.” Hont v. Pa. Bd. of Prob. & Parole,
680 A.2d 47, 48 (Pa. Cmwlth. 1996). Counsel is also required to “notify the parolee
of his request to withdraw, furnish the parolee with either a copy of a[n Anders] brief
. . . or a no-merit letter satisfying the requirements of Turner, and inform the parolee
1
“Our scope of review of the Board’s decision denying administrative relief is limited to
determining whether necessary findings of fact are supported by substantial evidence, an error of
law was committed, or constitutional rights have been violated.” Fisher v. Pa. Bd. of Prob. &
Parole, 62 A.3d 1073, 1075 n.1 (Pa. Cmwlth. 2013).
2
Anders v. State of Cal., 386 U.S. 738, 744 (1967) (“a brief referring to anything in the
record that might arguably support the appeal” to be filed with the Court “if counsel finds his
[client’s] case to be wholly frivolous, after a conscientious examination of it”). Where counsel files
an Anders brief when a no-merit letter would have sufficed, we will accept an Anders brief in lieu
of a no-merit letter if that brief complies with the substantive requirements of a no-merit letter.
Seilhamer v. Pa. Bd. of Prob. & Parole, 996 A.2d 40 (Pa. Cmwlth. 2010).
4
of his right to retain new counsel or submit a brief on his own behalf.” Reavis v. Pa.
Bd. of Prob. & Parole, 909 A.2d 28, 33 (Pa. Cmwlth. 2006). This Court must then
“conduct its own independent review of the petition to withdraw and must concur in
counsel’s assessment before [it] may grant counsel leave to withdraw.” Hont, 680
A.2d at 48.
Here, Counsel served Berrios with his Anders brief and Application, and
notified Berrios that he may either obtain substitute counsel or file a brief on his own
behalf.3 However, Counsel’s Anders brief lacks the requisite substantive content. In
his pro se request for administrative relief, Berrios raised two issues: (1) whether the
Board erred by beginning his backtime on December 8, 2015 (the date he was
recommitted as a CPV), as opposed to September 4, 2015 (the date he was sentenced
on his New Charges); and (2) whether the Board abused its discretion by denying
Berrios credit for his time at liberty on parole. See Administrative Remedies Form,
C.R. at 126-132. In Counsel’s Anders brief, Counsel states that Berrios “takes
exception to the imposition of an 18[-]month sentence and an extension of [Berrios’]
unexpired term to November 29, 2022.” Anders Br. at 11. Counsel further sets forth:
“Central to [Berrios’] argument, is that the [B]oard acted outside of its authority when
[Berrios’] maximum [sentence release date4] was extended to November 29, 2022 at
his revocation hearing . . . .” Id. at 11-12. Counsel did not specifically address either
of Berrios’ issues.5
3
Berrios did not obtain substitute counsel or file a brief.
4
Counsel mischaracterizes this date as Berrios’ “maximum parole date.” Anders Br. at 11.
5
This Court is also disturbed by Counsel’s carelessness in drafting his Application and
Anders brief. While we understand that some applications and briefs are boilerplate, there is no
acceptable reason why Berrios’ name in the Application should be wrong in not one but four places,
using two different incorrect names. Further, the facts presented in the Statement of the Case
section of Counsel’s Anders brief are so scant it is incredulous that Counsel can thereby argue the
merits of Berrios’ claims based thereon.
5
Accordingly, Counsel’s Application is denied without prejudice.
Counsel has 30 days to either file an amended Application and Anders brief that
adequately addresses each of the issues raised in Berrios’ request for administrative
relief, or to submit a brief on the merits.
___________________________
ANNE E. COVEY, Judge
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jorge Berrios, :
Petitioner :
:
v. :
:
Pennsylvania Board of Probation :
and Parole, : No. 905 C.D. 2016
Respondent :
ORDER
AND NOW, this 14th day of February, 2017, the Petition for Leave of
Court to Withdraw as Appellate Counsel filed by Assistant Public Defender Seth E.
Grant, Esquire (Counsel) is DENIED. Counsel is granted 30 days from the date of
this Order to either file a renewed application to withdraw and an amended Anders
brief, or to submit a brief on the merits.
___________________________
ANNE E. COVEY, Judge