W. Wise v. PPB ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Wesley Wise, :
Petitioner :
:
v. : No. 249 C.D. 2022
: Submitted: December 30, 2022
Pennsylvania Parole Board, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WALLACE FILED: March 9, 2023
Wesley Wise (Wise), an inmate at the State Correctional Institution (SCI) at
Frackville, petitions for review from an order of the Pennsylvania Parole Board
(Parole Board), which determined Wise’s parole revocation hearing was timely. In
addition, Wise’s appointed counsel, Kent D. Watkins, Esquire (Counsel) filed an
application to withdraw as counsel, asserting that Wise’s appeal is frivolous and
without merit. After review, we grant Counsel’s application to withdraw and affirm
the Parole Board’s decision.
In 1997, the Philadelphia County Court of Common Pleas (Philadelphia
County) sentenced Wise to serve 15 to 30 years in an SCI for convictions of murder
and aggravated assault. Certified Record (C.R.) at 1. Wise’s controlling minimum
sentence date was June 14, 2011, and his maximum sentence date was June 14, 2026.
Id. The Parole Board released Wise on parole to a specialized community
corrections center on May 5, 2014. Id. at 12.
On March 26, 2019, the Philadelphia Police arrested Wise and charged him
with arson, criminal mischief, recklessly endangering another person, and other
related offenses. Id. at 24. The Municipal Court of Philadelphia County set
monetary bail at $75,000, which Wise did not post. Id. at 82. The Parole Board
lodged a detainer against Wise pending disposition of those charges, and he was
confined in the Philadelphia County Prison. Id. at 22-23.
On January 13, 2020, Philadelphia County found Wise guilty of arson and
criminal mischief. Id. at 89. Philadelphia County delayed Wise’s sentencing,
presumably due to the then-recent onset of the COVID-19 pandemic. Id. at 49. In
August 2020, Wise requested a panel parole revocation hearing. Id. at 61. On
February 11, 2021, Philadelphia County sentenced Wise to serve 5 to 12 years in
state prison. Id. at 86. On February 22, 2021, Wise filed a post-sentence motion,
which Philadelphia County denied on May 4, 2021. Id. at 90. Wise remained
confined in the Philadelphia County Prison until May 20, 2021, when he returned to
the Department of Corrections’ custody at SCI-Phoenix. Id. at 80. On July 28, 2021,
Wise signed a request for a panel parole revocation hearing. Id. at 47.
On August 2, 2021, the Parole Board held Wise’s parole revocation hearing.1
C.R. at 56-69. At the hearing, Wise admitted that he was convicted of arson and
criminal mischief in Philadelphia County, but he objected to the timeliness of the
revocation hearing. Id. at 61. In a decision recorded on October 4, 2021, the Parole
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The Criminal Arrest and Disposition Report indicates that revocation hearings were not being
held at the county prisons during this time, presumably due to the COVID-19 pandemic
restrictions, so the Parole Board delayed scheduling Wise’s revocation hearing until Wise returned
to an SCI. C.R. at 49.
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Board recommitted Wise to an SCI as a convicted parole violator to serve 27 months
of backtime for his Philadelphia County convictions. Id. at 96.
Wise administratively appealed the Parole Board’s decision, challenging the
timeliness of his parole revocation hearing. Id. at 98. On March 4, 2022, the Parole
Board mailed its final decision denying Wise’s administrative appeal. Id. at 102-03.
In its decision, the Parole Board explained that Wise’s revocation hearing was timely
because Wise requested a panel revocation hearing in August 2020 while he was still
in Philadelphia County Prison. Id. Thus, according to the Parole Board’s
Regulations, Wise was being held outside the jurisdiction of the Department of
Corrections and the Parole Board had 120 days after the official verification of
Wise’s return to the SCI-Phoenix to hold his panel revocation hearing. Id. (citing
37 Pa. Code § 71.4(1)). Because Wise returned to an SCI on May 20, 2021, and his
hearing was held 74 days later on August 2, 2021, the Parole Board determined that
Wise’s parole revocation hearing was timely. Id.Wise filed a Petition for Review (Petition) with this Court. In his Petition,
Wise asserts the Parole Board failed to hold his parole revocation hearing in a timely
manner. Petition ¶ 5. Counsel filed an application to withdraw as counsel and a
Turner letter2 asserting Wise’s Petition is without merit.
Before we address the validity of Wise’s substantive argument, we must first
address Counsel’s Turner letter and application to withdraw. Counsel will be
permitted to withdraw if this Court concurs with counsel’s determination that the
2
We use the term “Turner letter” to refer to our Supreme Court’s decision in Commonwealth v.
Turner, 544 A.2d 927, 928-29 (Pa. 1988), which sets forth the “appropriate procedures for
withdrawal of court-appointed counsel in collateral attacks on criminal convictions.” In a parole
violation matter where there is no constitutional right to counsel involved, a Turner letter is filed
by an attorney requesting leave of court to withdraw representation if the attorney determines the
violator’s case lacks merit. Commonwealth v. Wrecks, 931 A.2d 717, 722 (Pa. Super. 2007).
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petitioner’s issues raised on appeal are meritless. Com. v. Turner, 544 A.2d 927,
928-29 (Pa. 1988). To properly withdraw, counsel is required to submit a Turner
letter “detailing the nature and extent of his review and listing each issue the
petitioner wished to have raised, with counsel’s explanation of why those issues [are]
meritless.” Id. at 928. After counsel satisfies Turner’s requirements, we then
conduct an independent review of the issues raised. Hont v. Pa. Bd. of Prob. &
Parole, 680 A.2d 47, 48 (Pa. Cmwlth. 1996). If we concur in counsel’s assessment,
we will grant the requested leave to withdraw. Id.Here, Counsel’s Turner letter satisfies Turner’s technical requirements. It
contains a recitation of the relevant factual and procedural history and notes that
after Counsel’s “examination of the certified record, and research of applicable case
law, [Counsel] concluded that [Wise’s] appeal from the revocation of his parole has
no basis in law or in fact and is, therefore, frivolous.” Turner Letter at 4-5. Counsel
outlines the sole issue raised by Wise and concludes that Wise’s appeal has no merit.
Id. at 4. Additionally, Counsel appropriately provided Wise a copy of his Turner
letter, which contains an explanation of Wise’s right to retain substitute counsel or
to “raise any points which he may deem worthy of merit in a pro se brief” with this
Court. Id. at 5. Because Counsel satisfied Turner’s procedural requirements for
withdrawal, we now review the merits of Wise’s Petition.
In reviewing a Parole Board decision, we are limited to determining whether
constitutional rights have been violated, whether an error of law has been committed,
or whether the necessary findings of fact are supported by substantial evidence.
Gibson v. Pa. Bd. of Prob. & Parole, 3 A.3d 754, 755 n.1 (Pa. Cmwlth. 2010) (citing
Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704).
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On appeal, Wise asserts the Parole Board “failed to hold [Wise’s parole
revocation] hearing in a timely manner as set forth in the Pennsylvania Code.”
Petition ¶ 5. Under the Board’s Regulations, a parole revocation hearing “shall be
held within 120 days from the date the [Parole Board] received official verification
of the [parolee’s] plea of guilty or nolo contendere or of the guilty verdict at the
highest trial court level[.]” 37 Pa. Code § 71.4(1). However, if
a parolee is confined outside the jurisdiction of the Department of
Corrections, such as . . . confinement in a county correctional institution
where the parolee has not waived the right to a revocation hearing by a
panel . . . the revocation hearing shall be held within 120 days of the
official verification of the return of the parolee to a State
correctional facility.
37 Pa. Code § 71.4(1)(i) (emphasis added). In contrast, a parolee “who is confined
in a county correctional institution and who has waived the right to a revocation
hearing by a panel . . . shall be deemed to be within the jurisdiction of the Department
of Corrections as of the date of the waiver.” 37 Pa. Code § 71.4(1)(ii). Thus, for
parolees facing a revocation hearing based on a new criminal conviction, “the period
of time that [the parolee] is confined to a Pennsylvania county prison does not count
towards the 120 days that the Parole Board has to provide the offender with a
revocation hearing” if the parolee requests a panel hearing. Koehler v. Pa. Bd. of
Prob. & Parole, 935 A.2d 44, 50 (Pa. Cmwlth. 2007) (citing Copeland v. Pa. Bd. of
Prob. & Parole, 771 A.2d 86, 88 n.9 (Pa. Cmwlth. 2001)).
Here, Wise requested a panel hearing and was confined in the Philadelphia
County Prison from March 26, 2019, the date he was arrested on the arson charges,
until he returned to the Department of Corrections’ custody at SCI-Phoenix on May
20, 2021. Therefore, Wise was outside the Parole Board’s jurisdiction during that
time. See 37 Pa. Code § 71.4(1)(i). Wise returned to SCI-Phoenix, and therefore,
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the jurisdiction of the Department of Corrections, on May 20, 2021. Because Wise
requested a panel hearing, the Parole Board had 120 days from May 20, 2021, to
hold Wise’s panel revocation hearing. The Parole Board held Wise’s revocation
hearing on August 2, 2021. This was only 74 days after his return to the jurisdiction
of the Department of Corrections, which was within the 120 days required by the
Parole Board’s Regulations. Therefore, the Parole Board timely held Wise’s
revocation hearing.
For these reasons, we conclude that Counsel has fulfilled the requirements of
Turner, and our independent review of the record confirms that Wise’s appeal lacks
merit. Accordingly, we grant Counsel’s application to withdraw as counsel and
affirm the Parole Board’s order.
______________________________
STACY WALLACE, Judge
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Wesley Wise, :
Petitioner :
:
v. : No. 249 C.D. 2022
:
Pennsylvania Parole Board, :
Respondent :
ORDER
AND NOW, this 9th day of March 2023, the Application to Withdraw as
Counsel filed by Kent D. Watkins, Esquire, is GRANTED, and the decision of the
Pennsylvania Parole Board, mailed March 4, 2022, is AFFIRMED.
______________________________
STACY WALLACE, Judge