J.O. Orsini v. PA BPP ( 2015 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jason O. Orsini, :
: No. 338 C.D. 2015
Petitioner : Submitted: September 4, 2015
:
v. :
:
Pennsylvania Board of :
Probation and Parole, :
:
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE FRIEDMAN FILED: October 14, 2015
Jason O. Orsini petitions for review of the February 13, 2015,
determination of the Pennsylvania Board of Probation and Parole (Board) denying
Orsini’s request for administrative relief from a Board recommitment order and
recalculation of Orsini’s parole violation maximum date. Appointed counsel, Tina
M. Fryling, Esquire (Counsel), has filed a petition for leave to withdraw as counsel,
asserting that Orsini’s petition for review is frivolous. We grant Counsel’s petition
for leave to withdraw as counsel and affirm the Board’s determination.
On June 21, 2010, the Court of Common Pleas of Dauphin County (trial
court) sentenced Orsini to one year and ten months to five years of incarceration.
(C.R. at 1.) On December 5, 2011, the Board paroled Orsini to an approved plan.
(Id. at 6.) Orsini successfully completed the plan and was discharged from the plan
on February 9, 2012. (Id. at 24.)
On January 24, 2014, Harrisburg police arrested Orsini on drug charges.
(Id. at 14-15.) On that same day, the Board lodged a warrant to commit and detain.
(Id. at 13.) On October 1, 2014, the trial court convicted Orsini of the new criminal
charges. (Id. at 34.)
In a decision mailed January 7, 2015, the Board recommitted Orsini as a
convicted parole violator (CPV) to serve 24 months of backtime. (Id. at 70-71.)
Orsini filed a petition for administrative relief, arguing that the Board did not have
the authority to extend his parole violation maximum date. (Id. at 72-74.) The Board
denied Orsini’s request for relief, and Orsini petitioned this court for review.1
Thereafter, Counsel filed an application for leave to withdraw and a no-merit letter,
contending that Orsini’s appeal is frivolous.
When court-appointed counsel concludes that a petitioner’s appeal is
frivolous, counsel may be permitted to withdraw if counsel: (1) notifies the petitioner
of the request to withdraw; (2) furnishes the petitioner with a copy of an Anders2 brief
1
This court’s review is limited to determining whether constitutional rights were violated,
whether an error of law was committed, or whether the findings of fact are supported by substantial
evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
2
Anders v. State of California, 386 U.S. 738 (1967).
2
or a no-merit letter satisfying the requirements of Turner;3 and (3) advises the
petitioner of his right to retain new counsel or submit a brief on his own behalf.
Encarnacion v. Pennsylvania Board of Probation and Parole, 990 A.2d 123, 125 (Pa.
Cmwlth. 2010). A no-merit letter must set forth: (1) the nature and extent of
counsel’s review of the case; (2) the issues the petitioner wishes to raise on appeal;
and (3) counsel’s analysis as to why the appeal has no merit. Id. at 126. Once these
requirements are met, this court will independently review Orsini’s appeal to
determine whether it is meritless. Id.
Here, Counsel mailed Orsini a letter informing Orsini of Counsel’s
request to withdraw. Counsel included a no-merit letter, which detailed the nature
and extent of Counsel’s review of Orsini’s case, set forth the issues raised, and
explained why Counsel concluded that Orsini’s appeal is meritless. The no-merit
letter also advised Orsini of his right to retain substitute counsel or file a pro se brief.
Because Counsel has satisfied the technical requirements of Turner, this court will
now independently review the merits of Orsini’s appeal.
Orsini argues that the Board lacked the authority to recalculate his parole
violation maximum date. We disagree.
Section 6138 of the Prisons and Parole Code (Code), 61 Pa. C.S. §6138,
provides:
(a) Convicted violators.—
3
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).
3
(1) A parolee under the jurisdiction of the [B]oard
released from a correctional facility who, during the period
of parole or while delinquent on parole, commits a crime
punishable by imprisonment, for which the parolee is
convicted or found guilty by a judge or jury or to which the
parolee pleads guilty or nolo contendere at any time
thereafter in a court of record, may at the discretion of the
board be recommitted as a parole violator.
(2) If the parolee’s recommitment is so ordered, the
parolee shall be reentered to serve the remainder of the term
which the parolee would have been compelled to serve had
the parole not been granted and . . . shall be given no credit
for the time at liberty on parole [unless the Board, in its
discretion, decides to award such credit].
(Emphasis added.) Thus, upon recommitment as a CPV, a parolee forfeits all credit
for time spent while on parole. Richards v. Pennsylvania Board of Probation and
Parole, 20 A.3d 596, 599 (Pa. Cmwlth. 2011) (en banc). The Board recalculates a
new parole violation maximum date by adding the forfeited time to the original
parole violation maximum date. Armbruster v. Pennsylvania Board of Probation and
Parole, 919 A.2d 348, 351 (Pa. Cmwlth. 2007). Here, under the authority of section
6138 of the Code, the Board properly recalculated Orsini’s parole violation maximum
date.
Orsini further argues that the Board’s recalculation of his parole
violation maximum date violated his due process rights and the prohibition against
double jeopardy and amounts to cruel and unusual punishment. However, the
Pennsylvania Supreme Court has determined that the statutory provision denying
credit for time spent on parole does not violate due process or the prohibition against
4
double jeopardy, nor does it amount to cruel and unusual punishment. Young v.
Pennsylvania Board of Probation and Parole, 409 A.2d 843, 847 & n.8 (Pa. 1979).
Finally, Orsini argues that the Board cannot alter his judicially-imposed
sentence. The Pennsylvania Supreme Court addressed this issue as well, stating that
it is the legislature, not the Board, which has extended the maximum date of the
original sentence. Id. at 846 n.5. Further, the ‘“Board has not . . . unlawfully
extended the term of his maximum sentence, but has merely withdrawn from the
petitioner credit for the time he was at liberty on parole.”’ Id. (citation omitted).
After a full examination of the record, we conclude that Orsini’s appeal
is frivolous. Accordingly, we grant Counsel’s petition for leave to withdraw as
counsel and affirm the Board’s determination.
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jason O. Orsini, :
: No. 338 C.D. 2015
Petitioner :
:
v. :
:
Pennsylvania Board of :
Probation and Parole, :
:
Respondent :
ORDER
AND NOW, this 14th day of October, 2015, we hereby grant the petition
for leave to withdraw as counsel filed by Tina M. Fryling, Esquire, and affirm the
February 13, 2015, determination of the Pennsylvania Board of Probation and Parole.
___________________________________
ROCHELLE S. FRIEDMAN, Senior Judge