A. Boyd v. PBPP ( 2018 )


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  •          IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Abdul Boyd,                          :
    Petitioner         :
    :
    v.                       : No. 1791 C.D. 2017
    : Submitted: June 15, 2018
    Pennsylvania Board of Probation      :
    and Parole,                          :
    Respondent          :
    BEFORE:     HONORABLE PATRICIA A. McCULLOUGH, Judge
    HONORABLE CHRISTINE FIZZANO CANNON, Judge
    HONORABLE DAN PELLEGRINI, Senior Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION BY
    SENIOR JUDGE PELLEGRINI                                 FILED: July 17, 2018
    James L. Best, Esquire (Counsel) has filed this Motion for Leave to
    Withdraw as Counsel for Abdul Boyd (Boyd) in his petition for review of the
    Pennsylvania Board of Probation and Parole’s (Board) decision involving Boyd’s
    recommitment as a convicted parole violator (CPV) and the recalculation of his
    parole violation maximum date. Counsel requests permission to withdraw from
    further representation because he has determined that the appeal is frivolous. For
    the following reasons, we deny Counsel’s motion for leave to withdraw.
    I.
    Boyd was paroled by the Board on March 13, 2014, from a sentence
    with a maximum release date of April 13, 2018. On October 22, 2014, Boyd was
    arrested on new federal drug-related charges, and the same day the Board issued a
    detainer warrant. Boyd waived his right to counsel and waived a detention hearing
    before the Board. On October 23, 2014, Boyd remained in federal custody for
    failure to make bail.
    On October 15, 2015, Boyd entered a guilty plea to the charge of
    conspiracy to commit possession with intent to distribute in the United States
    District Court for the Western District of Pennsylvania and was sentenced to serve
    37 months in federal custody. On June 30, 2017, he was released by the federal
    prison authorities to the Board’s detainer warrant and was given a timely
    revocation proceeding.
    On July 5, 2017, the Board recommitted Boyd to a state correctional
    institution as a CPV to serve 24 months’ backtime and forfeited Boyd’s 1,134 days
    of street time. In accordance, his maximum release date was recalculated to
    August 7, 2020. Boyd, acting pro se, filed an administrative appeal from the
    Board’s decision, arguing that pursuant to 61 Pa.C.S. § 6138(a)(5.1), 1 state parole
    1
    61 Pa.C.S. § 6138(a)(5.1) provides:
    If the parolee is sentenced to serve a new term of total confinement
    by a Federal court or by a court of another jurisdiction because of a
    verdict or plea under paragraph (1), the parolee shall serve the
    balance of the original term before serving the new term.
    2
    backtime following a recommitment as a CPV must be served prior to the new
    federal sentence underlying that commitment, thereby entitling him to 34 months’
    credit on his original state sentence for the period served pursuant to the Board’s
    detainer and federal charges.
    The Board denied Boyd’s administrative appeal, determining there
    was no error in requiring Boyd to serve the new federal sentence before the
    original state sentence, because the sentencing order is conditional upon federal
    authorities returning a prisoner to state custody, which they did not do in this case.
    The Board also found that there was no error in determining that Boyd had 1,492
    days remaining on his sentence at the time of parole, as he was not entitled to
    credit for his 1,134 days spent at liberty on parole since he forfeited that time as a
    CPV. However, the Board did find that Boyd was entitled to credit for the 358
    days he served on the Board’s detainer between October 22, 2014, to October 15,
    2015, before he was sentenced on the new federal charges.
    Boyd, acting pro se, then filed a petition for review in this Court
    raising the same substantive issues that he raised in his administrative appeal to the
    Board, and we assigned Counsel to represent Boyd in his appeal. Counsel now
    seeks to withdraw representation, contending that after reviewing the matter, the
    appeal is frivolous and there is no basis in law or fact for it. Along with his
    motion, Counsel filed a no-merit letter.
    3
    II.
    Before we can reach the merits of Boyd’s petition for review,2 we
    must first inquire whether Counsel complied with the technical requirements
    governing the withdrawal of counsel appointed to represent a petitioner seeking
    review of Board determinations. These requirements differ depending on whether
    a petitioner’s right to counsel is constitutional in nature. Appeals that allege that
    the Board erred by improperly calculating a petitioner’s maximum release date do
    not implicate a constitutional right to counsel. Hughes v. Pennsylvania Board of
    Probation and Parole, 
    977 A.2d 19
    , 25-26 (Pa. Cmwlth. 2009). If that is the case,
    counsel seeking to withdraw only needs to file a “no-merit” letter detailing the
    nature and extent of counsel’s review and listing each issue the petitioner wished to
    raise, with counsel’s explanation of why he or she believes these issues are
    meritless. Zerby v. Shanon, 
    964 A.2d 956
    , 961 (Pa. Cmwlth. 2009). In addition,
    counsel must provide to the petitioner (1) a copy of the no-merit letter, (2) a copy
    of the petition to withdraw, and (3) a statement advising the petitioner of his or her
    right to proceed pro se or via new counsel. 
    Id. at 960
    . If all these requirements
    have been met, we will then evaluate the proceedings before the Board to
    determine whether the petitioner’s appeal is truly without merit before we will
    allow counsel to withdraw. Banks v. Pennsylvania Board of Probation and Parole,
    
    827 A.2d 1245
    , 1248 (Pa. Cmwlth. 2003).                 If counsel does not fulfill the
    aforementioned technical requirements, we have no choice but to deny the motion
    for leave to withdraw. Zerby, 
    964 A.2d at 960
    .
    2
    Our scope of review is limited to determining whether the Board’s adjudication is
    supported by substantial evidence, whether an error of law has been committed, or whether
    constitutional rights have been violated. Moroz v. Pennsylvania Board of Probation and Parole,
    
    660 A.2d 131
    , 132 (Pa. Cmwlth. 1995).
    4
    Counsel states in his motion that he sent Boyd a copy of the no-merit
    letter and, by certificate of service, certified that he served a copy of the motion for
    leave to withdraw on Boyd. However, Counsel failed to comply with the final
    requirement that he notify the petitioner of his right to proceed pro se or with new
    counsel. Because Counsel failed to provide this statement, we deny Counsel’s
    motion for leave to withdraw and instruct Counsel to refile his motion after having
    complied with all appropriate requirements.
    _________________________________
    DAN PELLEGRINI, Senior Judge
    5
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Abdul Boyd,                           :
    Petitioner         :
    :
    v.                        : No. 1791 C.D. 2017
    :
    Pennsylvania Board of Probation       :
    and Parole,                           :
    Respondent           :
    ORDER
    AND NOW, this 17th day of July, 2018, James L. Best, Esquire’s
    (Counsel) motion for leave to withdraw is denied without prejudice. Counsel is
    granted thirty (30) days from the date of this Order to file a renewed motion for
    leave to withdraw consistent with this opinion.
    _________________________________
    DAN PELLEGRINI, Senior Judge