B. Johnson v. PBPP ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Bryant Johnson, :
Petitioner :
:
v. :
:
Pennsylvania Board of :
Probation and Parole, : No. 1141 C.D. 2018
Respondent : Submitted: January 18, 2019
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
BY JUDGE FIZZANO CANNON FILED: April 11, 2019
Bryant Johnson (Johnson) petitions for review from the Pennsylvania
Board of Probation and Parole’s (Board) order dated July 18, 2018 denying his
administrative appeal challenging the 30 months of backtime imposed by the Board
when he was recommitted as a convicted parole violator. Johnson is represented by
Jessica A. Fiscus, Esquire (Counsel), who asserts that the appeal is without merit
and seeks permission for leave to withdraw as counsel. For the foregoing reasons,
we grant Counsel’s petition for leave to withdraw as counsel and affirm the order of
the Board.
On October 26, 2015, the Board released Johnson on parole after
serving time in a state correctional institution on his sentence of 9 months to 10
years’ imprisonment for theft by deception, forgery and tampering with public
records. Certified Record (C.R.) at 1 & 8. Johnson’s original maximum sentence
date was January 27, 2024. Id. at 1. On November 9, 2015, the Board issued a
detainer because, on that day, the police filed new criminal charges against Johnson.
Id. at 12-13. Johnson waived his right to a detention hearing, and the Board ordered
him detained pending disposition of the new criminal charges. Id. at 20 & 28.
On December 6, 2016, Johnson was convicted of the new crimes, which
included robbery, a first degree felony, and possessing an instrument of crime. Id.
at 37. Johnson requested a revocation hearing, which occurred on March 22, 2017.
Id. at 41. At the hearing, the Board entered into evidence the certification of
conviction and Johnson testified that he took responsibility for his actions and
explained that he did not injure anyone or threaten anyone with a weapon when he
committed the crimes. Id. at 51-53. The Board rendered its decision on March 31,
2017, mailed April 14, 2017, to recommit Johnson as a convicted parole violator to
serve 30 months’ backtime and recalculated his maximum sentence date to June 22,
2025.1 Id. at 87.
On May 2, 2017, Johnson filed a timely administrative appeal
challenging the Board’s order and asked the Board to reduce the 2½-year “hit,” i.e.,
the 30 months of backtime imposed. Id. at 90. On July 18, 2018, the Board denied
Johnson’s request for relief, explaining that “[b]ecause you are questioning your
parole “hit” time of [30] months, which is within the presumptive range, your request
is not considered a petition for administrative review, as your question does not
1
Johnson was sentenced on his new crimes to a term of 5 to 10 years. C.R. at 37 & 82.
2
relate to anything regarding the boards’[sic] current calculations.” Id. at 92.
Johnson, through court-appointed Counsel, petitioned this Court for review.2
In his petition for review, Johnson raises two issues: (1) he challenges
the imposition of 30 months of backtime for his conviction; and (2) he contends that
the recommitment violates his due process rights under the Pennsylvania and United
States Constitutions. Petition for Review ¶¶ 6-7. After the Board filed the certified
record in this matter, on November 9, 2018, Counsel filed a petition for leave to
withdraw as counsel along with an Anders3 Brief concluding that Johnson’s appeal
is “frivolous.” Petition For Leave To Withdraw ¶¶ 2-3 (Petition to Withdraw).
Though Counsel filed an Anders Brief for this Court’s review, a no-merit letter
would have sufficed as Johnson has a statutory right to counsel;4 hence, we judge
the case by the lack of merit standard. Miskovitch v. Pa. Bd. of Prob. & Parole, 77
2
Our review is limited to determining whether the Board’s findings of fact are supported
by substantial evidence, whether the Board’s decision is in accordance with law, or whether the
parolee’s constitutional rights have been violated. 2 Pa.C.S. §704; Palmer v. Pa. Bd. of Prob. &
Parole, 134 A.3d 160, 164 n.2 (Pa. Cmwlth. 2016).
3
Anders v. California, 386 U.S. 738 (1967).
4
Johnson’s right to counsel arises pursuant to 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) and therefore a no-merit
letter is sufficient. Hughes v. Pa. Bd. of Prob. & Parole, 977 A.2d 19, 25 (Pa. Cmwlth. 2009). An
Anders Brief is required where the petitioner raises a constitutional right to counsel and, to do so,
the petitioner must raise 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. at 26. The principal distinction between a no-merit letter and an Anders Brief is the standard
of review applied to the issues on appeal. Miskovitch v. Pa. Bd. of Prob. & Parole, 77 A.3d 66,
69 (Pa. Cmwlth. 2013). In a no-merit letter, the standard is “lack of merit” and in an Anders Brief
the standard is the “slightly more rigorous frivolousness standard,” which requires “a
determination that the appeal lacks any basis in law or fact.” Id. at 69-70.
3
A.3d 66, 70 (Pa. Cmwlth. 2013) (explaining that we will not deny a request to
withdraw in cases where a no-merit letter is sufficient but counsel has chosen to
submit an Anders Brief); Hughes v. Pa. Bd. of Prob. & Parole, 977 A.2d 19, 26 n.4
(Pa. Cmwlth. 2009). We now consider Counsel’s request.
When court-appointed counsel concludes that a petitioner’s appeal is
meritless, counsel may be permitted to withdraw if counsel: (i) notifies the petitioner
of the request to withdraw; (ii) furnishes the petitioner with a copy of the no-merit
letter; and (iii) advises petitioner of his right to retain new counsel and to raise any
new points he might deem worthy of consideration. Miskovitch, 77 A.3d at 69;
Hughes, 977 A.2d at 22. The no-merit letter must detail: (i) the nature and extent
of counsel’s diligent review of the case; (ii) each issue the petitioner wished to have
raised; and (iii) counsel’s explanation as to why those issues are meritless.
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Zerby v. Shanon, 964 A.2d 956,
961 (Pa. Cmwlth. 2009). A no-merit letter must include “substantial reasons for
concluding that” a petitioner’s arguments are without merit. Zerby, 964 A.2d at 962.
Once appointed counsel fully complies with these requirements to withdraw, the
Court independently reviews the merits of the petitioner’s claims. Id. at 960.
Here, Counsel notified Johnson of her request to withdraw, as she
served a copy of the petition for leave to withdraw as counsel and her Anders Brief
on Johnson as provided in her certificate of service. Petition to Withdraw ¶ 5; Ex.
A. Counsel advised Johnson, in her November 6, 2018 correspondence, that he has
a right to proceed pro se, to retain new counsel and to raise any additional points
with the Commonwealth Court that he may deem worthy of consideration. Id. In
her Anders Brief, Counsel provided: a summary of Johnson’s penal history; a
summary of the issues Johnson raised in his appeal to the Board; and an analysis,
4
with citations to case law, statutes and regulations, to support her conclusion that
this appeal lacks merit. Counsel filed a certificate of service showing that she served
Johnson this Court’s November 13, 2018 order granting him 30 days to obtain new
counsel and have new counsel file a brief or to file his own brief. Certificate of
Service filed 11/20/2018. Because Counsel complied with the requirements to
withdraw, we now independently review the merits of Johnson’s claims.
Before this Court, Johnson first argues that the Board erred when it
imposed 30 months of backtime upon his recommitment as a convicted parole
violator because he presented mitigating circumstances at his revocation hearing.
Anders Brief at 10. Johnson asserts that at the hearing, he apologized, took
responsibility for his actions and testified that he did not have a weapon and did not
injure anyone when he committed his new crimes. Id. As explained by Counsel, the
Board must order backtime based on the presumptive ranges provided in its
regulations. 37 Pa. Code §75.1(a). The presumptive ranges are “intended to
structure the discretion of the Board while allowing for individual circumstances in
terms of mitigation and aggravation,” 37 Pa. Code §75.1(b), and are intended to
“directly relate to the crime for which the parolee has been convicted.” 37 Pa. Code
§75.1(d). The Board may deviate from the presumptive ranges but, when doing so,
must provide written justification. 37 Pa. Code §75.1(c).
Here, the Board did not deviate from the presumptive ranges. The
presumptive range for robbery, as a felony of the first degree, is 30-48 months and
the presumptive range for possessing instruments of crime is 6 to 12 months. 37 Pa.
Code §75.2. The Board recommitted Johnson to serve 30 months’ backtime for both
offenses, which is the lowest amount of backtime provided for a felony robbery
conviction of the first degree. C.R. at 87. The Board in the exercise of its discretion
5
obviously relied on and stayed within the presumptive range of the more severe
crime. Therefore, this Court will not review the Board’s exercise of its discretion.
Smith v. Pa. Bd. of Prob. & Parole, 574 A.2d 558, 560-61 (Pa. Cmwlth. 1990)
(explaining that “[a]s long as the period of recommitment is within the presumptive
range of the violation, the Commonwealth Court will not entertain challenges to the
propriety of the term of recommitment”) (citing Congo v. Pa. Bd. of Prob. & Parole,
522 A.2d 676 (Pa. Cmwlth. 1987)). Though Johnson argues that the Board did not
consider the mitigation evidence he presented, this Court does not consider such
challenges to the recommitment order. See Smith, 574 A.2d at 561 (rejecting
argument that Board did not give adequate consideration to the evidence presented
as a mitigating circumstance because “this aspect of the recommitment order is not
appealable”). Therefore, Johnson’s first argument lacks merit.
Johnson next argues that the Board’s delay of 14 months to decide his
administrative appeal violated his due process rights to seek timely access to the
courts under the Pennsylvania and United States Constitutions. Anders Brief at 12.
Johnson filed his request for administrative relief on May 2, 2017, but the Board did
not respond with its decision until July 18, 2018. Id. However, as explained by
Counsel, the Prisons and Parole Code and the regulations do not provide a deadline
by which the Board must respond to a parolee’s appeal. See 61 Pa.C.S. §§ 6101-
7123; 37 Pa. Code §§61.1-79.87. If the Board fails to decide a case within a
reasonable time, where no time limit is statutorily prescribed, that does not mean
that its decision will be reversed but “would only mean that a mandamus order would
be issued for the Board to issue its decision.” Slotcavage v. Pa. Bd. of Prob. &
Parole, 745 A.2d 89, 91 n.3 (Pa. Cmwlth. 2000). The Board, here, rendered its
decision refusing to grant Johnson relief on the imposition of his backtime, so there
6
is no remedy that this Court could provide Johnson even if he provided an argument
with merit. Further, to show a violation of due process, the parolee must show harm
or prejudice as a result of the delay. Id. at 91-92. Johnson cannot show harm or
prejudice as a result of the Board’s 14-month delay because, regardless of the
outcome, Johnson would have been incarcerated serving time on a sentence. Id.
Therefore, Johnson’s second argument lacks merit.
Accordingly, we grant Counsel’s petition for leave to withdraw as
counsel and affirm the Board’s order.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Bryant Johnson, :
Petitioner :
:
v. :
:
Pennsylvania Board of :
Probation and Parole, : No. 1141 C.D. 2018
Respondent :
ORDER
AND NOW, this 11th day of April, 2019, the petition for leave to
withdraw as counsel filed by Jessica A. Fiscus, Esquire, is GRANTED, and the July
18, 2018 order of the Pennsylvania Board of Probation and Parole is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge