N.T. Michael v. PA BPP ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Nicholas Thomas Michael, :
Petitioner :
:
v. : No. 727 C.D. 2016
: Submitted: November 4, 2016
Pennsylvania Board of Probation and :
Parole, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER FILED: February 1, 2017
Nicholas Thomas Michael (Michael) petitions for review of an April 21,
2016 Order of the Pennsylvania Board of Probation and Parole (Board) that denied
Michael’s Administrative Appeal and affirmed its Decision, mailed February 22,
2016, which recalculated his parole violation maximum date as January 25, 2017.
Michael is represented in this matter by David Crowley, Esquire (Counsel).
Presently before this Court for disposition is Counsel’s Application to Withdraw
Appearance (Application to Withdraw) and Counsel’s “Ander’s Brief,”1 which is
1
In probation and parole cases where no constitutional right to counsel is involved, an
attorney wishing to withdraw from representing a prisoner is permitted to file a no-merit letter
instead of a brief in accordance with Anders v. State of California, 386 U.S. 738 (1967).
(Continued…)
based on his conclusion that Michael’s Petition for Review is without merit. For
the reasons that follow, we grant Counsel’s Application to Withdraw and affirm
the Board’s Order.
On August 23, 2012, Michael was sentenced to serve one to three years in a
state correctional institution on retail theft charges. (C.R. at 1-2.) His original
minimum release date was August 23, 2013, and his original maximum release
date was August 23, 2015. (Id.) On October 15, 2013, the Board granted parole to
Michael, and he was released on November 25, 2013. (C.R. at 4, 8.)
On September 23, 2014, a criminal complaint was filed against Michael
accusing him of retail theft in Philadelphia County. (C.R. at 13.) On September
25, 2014, the Board issued Warrant to Commit and Detain Michael for violating
his parole. (C.R. at 20.) At his preliminary hearing on October 24, 2014, the new
retail theft charge was withdrawn. (C.R. at 17, 19.) The detainer was lifted, but
Michael remained incarcerated in the county jail on an unrelated county probation
violation until his release on November 7, 2014. (C.R. at 46.)
Seilhamer v. Pa. Bd. of Prob. and Parole, 996 A.2d 40, 42 n.4 (Pa. Cmwlth. 2010). A
constitutional right to counsel exists where a parolee presents:
[a] colorable claim (i) that he has not committed the alleged violation of the
conditions upon which he is at liberty; or (ii) that, even if the violation is a matter
of public record or is uncontested, there are substantial reasons which justified or
mitigated the violation and make revocation inappropriate, and that the reasons
are complex or otherwise difficult to develop or present.
Id. (quoting Hughes v. Pa. Bd. of Prob. and Parole, 977 A.2d 19, 26 (Pa. Cmwlth. 2009)). Here,
Michael has no constitutional right to counsel, but does have a statutory right to counsel under
Section 6(a)(10) of the Public Defender Act, Act of December 2, 1968, P.L. 1144, as amended,
16 P.S. § 9960.6(a)(10). Therefore, Counsel could have filed a no-merit letter instead of an
Anders brief. Thus, we will treat Counsel’s Anders Brief as if it were filed as a no-merit letter
and will refer to it as such.
2
On December 22, 2014, Michael was once again arrested for retail theft, this
time in Lancaster County. (C.R. at 30, 35.) He was confined to the Lancaster
County Prison, unable to post bond. (C.R. at 35.) The Board issued another
Warrant to Commit and Detain on December 23, 2014. (C.R. at 44.) Michael
waived his right to counsel and to a detention hearing on December 30, 2014,
(C.R. at 50), and originally the Board issued a decision that he was to continue on
parole because of a lack of probable cause due to the criminal complaint not being
properly signed. (C.R. at 57-58, 67). After his retail theft charge was held over to
court, though, the Board issued another detainer and rendered a decision detaining
Michael pending disposition of the criminal charges. (C.R. at 54, 59, 67.)
Michael pled guilty to retail theft in Lancaster County on June 1, 2015 and
was sentenced to 6 months to 23 months confinement, followed by 3 years’
probation. (C.R. at 61.) Six months after Michael was sentenced, the trial court
issued an Order stating Michael was “immediately eligible to be paroled without
petition on a time-served basis from the Lancaster County sentence directly to a
state detainer . . . effective May 24, 2015.” (C.R. at 104.)
On August 14, 2015, a revocation hearing was held at the State Correctional
Institution at Graterford. (C.R. at 81.) At the hearing, Michael admitted to the
Lancaster County conviction. (C.R. at 86-87, 89-90.) By Board decision mailed
on October 30, 2015, the Board recommitted Michael as a convicted parole
violator (CPV) to serve nine months, “when available,” pending parole from (or
completion of) his Lancaster County sentence. (C.R. at 96-97.) His parole
violation maximum date was now March 11, 2017.2 (Id.)
2
This date was adjusted to March 10, 2017, by a Board decision mailed December 16,
2015. (C.R. at 107.)
3
Michael filed a number of administrative review petitions and sent various
letters to the Board wherein he asserted he was available to begin serving his
backtime either on June 1, 2015, the date he was sentenced in Lancaster, or May
24, 2015, the date the trial court made its order effective. (C.R. at 99, 101, 103,
106, 111, 113, 116, 118.) In a letter mailed February 25, 2016,3 the Board
acknowledged a calculation error. (C.R. at 123.) The error was corrected in a
Decision mailed on February 22, 2016, that changed Michael’s maximum date
from March 10, 2017 to January 25, 2017, and his parole re-eligibility date from
April 15, 2016 to March 1, 2016. (C.R. at 123-24.) The dates were recalculated
using June 1, 2015, as the date of release from the Lancaster County sentence.
(C.R. at 126.)
Still dissatisfied, Michael filed another pro se administrative appeal,
asserting for the first time that he should also be given credit for the period of
December 22, 2014 to June 1, 2015, the time served in Lancaster County Prison.
(C.R. at 131, 133.) By Order mailed April 21, 2016, the Board rejected Michael’s
claim and affirmed its prior determination. (C.R. at 137-38.) Specifically, the
Board found Michael had 636 days remaining on his sentence at the time he was
paroled. (C.R. at 137.) The Board did not credit his original sentence for
Michael’s period of confinement from December 23, 2014 to June 1, 2015,
because he was being held either on new charges from which he did not post bail
and on the Board detainer or solely on the new charges. (Id.) Citing Gaito v.
Pennsylvania Board of Probation and Parole, 412 A.2d 568 (Pa. 1980), the Board
determined that time must be applied to Michael’s new sentence, not his original
3
The date stamp on the letter actually states it was mailed February 25, 2015, instead of
2016. This is an obvious error as the letter discusses events that post-date 2015.
4
one. (Id.) The Board noted it did give Michael credit for 32 days he spent
confined on the Philadelphia County charges, which were ultimately withdrawn.
(C.R. at 137-38.) After subtracting the 32-day credit from the 636 days owed, the
Board found 604 days remaining on his sentence. (C.R. at 138.) Because Michael
was required to serve his new sentence first, according to the Board, he did not
become available to serve his original sentence until June 1, 2015. (Id.) The
addition of 604 days to that date yields a new maximum sentence date of January
25, 2017. (Id.)
On May 9, 2016, Michael, through Counsel, filed a Petition for Review in
this Court seeking review of the Board’s April 21, 2016 Order.4 Specifically,
Michael claimed the Board incorrectly calculated his new parole violation
maximum date by failing to credit his original sentence with all the confinement
time to which he was entitled. (Petition for Review, ¶ 6.) On July 26, 2016,
Counsel filed an Application for Enlargement of Time for Filing Brief, averring
that upon subsequent review of the Certified Record, it became apparent that
Michael’s Petition for Review lacked merit. (Application for Enlargement of
Time, ¶ 3.) As a result, Counsel requested additional time to file an application to
withdraw. (Id., ¶ 8; Order, July 27, 2016.) Counsel subsequently filed the instant
Application to Withdraw, along with his no merit letter,5 on August 24, 2016.
4
Our review in parole revocation cases “is limited to a determination of whether
necessary findings are supported by substantial evidence, an error of law was committed, or
whether constitutional rights of the parolee were violated.” Johnson v. Pa. Bd. of Prob. and
Parole, 706 A.2d 903, 904 (Pa. Cmwlth. 1998).
5
See note 1, supra.
5
This Court has held that in order to withdraw, “counsel . . . must provide a
‘no-merit’ letter[6] 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. and Parole, 680 A.2d 47, 48 (Pa. Cmwlth. 1996) (citations omitted).
Counsel is also required to “notify the parolee of his request to withdraw, furnish
the parolee with [] a copy of . . . [the] no-merit letter satisfying the requirements of
Turner, and inform the parolee of his right to retain new counsel or submit a brief
on his own behalf.” Reavis v. Pa. Bd. of Prob. and Parole, 909 A.2d 28, 33 (Pa.
Cmwlth. 2006) (internal citations omitted). If these requirements are satisfied, 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 (citation omitted).
Before considering the merits of Michael’s appeal, we must first determine
whether Counsel’s no-merit letter satisfies the technical requirements of Turner.
We find it does. First, Counsel complied with the notice requirements by serving
Michael with a copy of the Application to Withdraw, supporting brief, certified
record, and a copy of this Court’s August 25, 2016 Order, advising Michael that he
6
A no-merit letter is also frequently referred to as a Turner letter, based upon the
Pennsylvania Supreme Court’s decision in Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).
6
may either obtain substitute counsel or file a brief on his own behalf.7 (Application
to Withdraw, ¶¶ 4-5; Certificate of Service filed August 26, 2016). Next, the letter
sets forth in detail the procedural and factual history of the case, thus, satisfying
Counsel’s obligation to thoroughly review the record. Zerby, 964 A.2d at 960. In
addition, the letter contains discussion of relevant statutory and case law that
supports Counsel’s conclusion that Michael’s lone claim8 is without merit. (No-
merit letter at 15-20.)
Having concluded that Counsel complied with Turner’s technical
requirements, we will now conduct an independent review of the merits of
Michael’s argument to determine whether to grant or deny Counsel’s Application
to Withdraw. Turner, 544 A.2d at 928. The Application to Withdraw will be
granted only if we determine Michael’s Petition for Review lacks any basis in
either law or fact. Commonwealth v. Santiago, 978 A.2d 349, 356 (Pa. 2009)
(citing McCoy v. Court of Appeals of Wisconsin, District 1, 486 U.S. 429, 438
n.10 (1988)).
In his Petition for Review, Michael raises one issue: whether the Board
incorrectly calculated his new parole violation maximum date by failing to credit
his original sentence with all the confinement time to which he was entitled.
7
Michael has not obtained substitute counsel or filed a brief on his own behalf.
8
In the no-merit letter, Counsel identified another potential issue during his review of the
record – whether Michael was credited for 11 days he remained incarcerated after the
Philadelphia County charges were withdrawn and the detainer was lifted. (No-merit letter at 19.)
During that time, Michael was purportedly being held on an unrelated probation violation. (Id. at
20.) However, he was subsequently sentenced to two years’ probation for that violation. (Id.)
Since no jail time was ordered, Counsel asserted the 11 days were “dead time” which should be
credited since Michael was not at liberty on parole. (Id.) However, as Counsel indicated,
Michael has not raised this issue at any time for appellate review. (Id. at 19.) Therefore, it has
not been preserved and is not properly before us.
7
(Petition for Review, ¶ 6.) In his pro se administrative appeal, Michael argued he
was denied credit for the period of confinement between December 22, 2014 and
June 1, 2015. (C.R. at 131.) The Board found this period of time was served on
his new sentence, not the original one. (C.R. at 137.) We agree with the Board.
Our Supreme Court has held that a new sentence for a new conviction cannot run
concurrently with the time remaining on a CPV’s original sentence.
Commonwealth v. Dorian, 468 A.2d 1091, 1092 (Pa. 1983). Further, Section 6138
of the Prisons and Parole Code (Code), 61 Pa. C.S. § 6138, as amended, “specifies
the order in which a parolee who is sentenced on new criminal charges and is
recommitted to serve backtime on his original sentence must be served.” Serrano
v. Pa. Bd. of Prob. and Parole, 672 A.2d 425, 427-28 (Pa. Cmwlth. 1996)
(discussing the 1941 parole act9).
Here, Michael pleaded guilty to retail theft and received a 6 to 23 month
sentence. Because he did not make bail, the time he spent incarcerated between his
arrest on December 22, 2014, and his sentencing on June 1, 2015, was applied
towards his new sentence, allowing him to be immediately paroled based upon
time served. Gaito, 412 A.2d at 571. He cannot count the time served on the new
conviction towards both the new sentence and his original sentence. For these
reasons, we discern no error in the Board’s decision to not credit him with this time
towards his original sentence.
9
Act of August 6, 1941, P.L. 861, as amended, formerly 61 P.S. § 331.21a(a), repealed
by Section 11(b) of the Act of August 11, 2009, P.L. 147, No. 33. A similar provision is found
at Section 6138 of the Code.
8
Accordingly, we grant Counsel’s Application to Withdraw and affirm the
Board’s April 21, 2016 Order.
________________________________
RENÉE COHN JUBELIRER, Judge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Nicholas Thomas Michael, :
Petitioner :
:
v. : No. 727 C.D. 2016
:
Pennsylvania Board of Probation and :
Parole, :
Respondent :
ORDER
NOW, February 1, 2017, the Application for Leave to Withdraw as Counsel
filed by David Crowley, Esquire, is hereby GRANTED, and the Order of the
Pennsylvania Board of Probation and Parole, entered in the above-captioned
matter, is hereby AFFIRMED.
________________________________
RENÉE COHN JUBELIRER, Judge