O. Cannon v. PPB ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Odell Cannon, :
Petitioner :
:
v. : No. 62 C.D. 2021
: SUBMITTED: August 6, 2021
Pennsylvania Parole Board, :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: November 30, 2021
Odell Cannon (Petitioner) petitions for review of the Pennsylvania Parole
Board’s (Board) December 30, 2020 order, which affirmed in part and reversed in
part its June 6, 2019 decision. Through that order, the Board affirmed that
Petitioner’s April 26, 2019 parole revocation hearing was timely and declined to
apply credit for time served beyond the maximum date on Petitioner’s federal
sentence towards Petitioner’s newer state sentence, but modified the decision by
awarding such credit towards Petitioner’s original state sentence. Petitioner’s
counsel, Dana E. Greenspan, Esq. (Counsel), has submitted a Motion for Leave to
Withdraw as Counsel (Motion to Withdraw) along with a no-merit letter explaining
that the petition for review (Petition) lacks merit.1 In addition, the Board has filed an
1
Through this type of letter, an attorney seeks to withdraw from representation of a parole
violator because “the [violator’s] case lacks merit, even if it is not so anemic as to be deemed
wholly frivolous.” Com. v. Wrecks, 931 A.2d 717, 722 (Pa. Super. 2007).
Such letters are referred to by various names by courts of this
Commonwealth. See, e.g., Com[.] v. Porter, . . . 728 A.2d 890, 893
(Footnote continued on next page…)
amended application to suppress a pro se brief submitted by Cannon (Amended
Application). After thorough consideration, we grant Counsel’s Motion to
Withdraw, deny the Amended Application, and affirm the Board’s order.
I. Background
On October 13, 2004, the Board paroled Petitioner from a 7-to-14-year state
sentence (original sentence) for aggravated assault and possession of drugs with
intent to distribute; at that point, the time left on this sentence was 2,537 days,
resulting in a maximum date of September 24, 2011. Certified Record (C.R.) at 7.
Thereafter, on April 1, 2006, Petitioner engaged in a drug-related shootout with
another individual in Coatesville, Pennsylvania, which resulted in Petitioner killing
that person and getting shot six times himself. Id. at 13-14; 16-17. On May 22, 2006,
the Board issued a 48-hour detainer due to Petitioner’s involvement in this incident.2
Id. at 11. Federal authorities subsequently indicted Petitioner on May 24, 2006, in
connection with the April 1, 2006 incident, and issued a warrant for his arrest, after
which he was taken into federal custody. Id. at 239-40. The Board then issued a
warrant for Petitioner’s arrest on June 13, 2006. Id. at 12. On July 27, 2006,
Petitioner was charged in the Court of Common Pleas of Chester County (state court)
& n.2 ([Pa.] 1999) (referring to such a letter as a “‘no[-]merit’ letter”
and noting that such a letter is also commonly referred to as a
“Finley letter,” referring to the Superior Court case Commonwealth
v. Finley, . . . 479 A.2d 568 ([Pa. Super.] 1984)); Zerby v. Shanon,
964 A.2d 956, 960 (Pa. Cmwlth. 2009) (“Turner letter”)[, referring
to the Pennsylvania Supreme Court case Commonwealth v. Turner,
544 A.2d 927 (Pa. 1988)]; Com[.] v. Blackwell, 936 A.2d 497, 499
(Pa. Super. 2007) (“Turner/Finley letter”).
Hughes v. Pa. Bd. of Prob. & Parole, 977 A.2d 19, 25 n.2 (Pa. Cmwlth. 2009).
2
Thereafter, the Board extended the detainer pending disposition of the subsequent
criminal charges against Petitioner. C.R. at 20, 23-30.
2
with numerous state crimes in connection with the April 1, 2006 shootout. Id. at 15-
16.
On March 21, 2007, Petitioner was found guilty in the United States District
Court for the Eastern District of Pennsylvania (federal district court) of felon in
possession of a firearm and violent felon in possession of body armor, and was
sentenced to 180 months of imprisonment, as well as 5 years of supervised release.
Id. at 45-46. The federal district court awarded Petitioner credit towards his federal
sentence for time served in pretrial detention from May 22, 2006, through March 20,
2007. Id. at 284.3
On April 5, 2010, Petitioner was ordered to be transported from the federal
penitentiary in White Deer, Pennsylvania, to the Chester County Prison (county
prison), so that he could be tried on the state charges that had also been lodged
against him. Id. at 177. On July 7, 2010, Petitioner was convicted in state court of
third-degree murder and criminal conspiracy to commit aggravated assault. Id. at 56.
As a result, Petitioner was sentenced to consecutive terms in state prison of 20 to 40
years for murder and 5 to 10 years for conspiracy. Id.
On January 15, 2019, the federal district court amended its judgment by
dismissing the charge of violent felon in possession of body armor and resentencing
Petitioner to 57 months of imprisonment and 3 years of supervised release, a marked
decrease from the original 180-month carceral term and 5 years of supervision. Id.
at 48-50.4 Accordingly, Petitioner’s statutory release date for his federal sentence
3
This included credit for time served between May 22, 2006, when the Board issued its
48-hour detainer, and May 24, 2006, when the federal government indicted Petitioner.
4
This was due to decisions by the United States Supreme Court and the United States Court
of Appeals for the Third Circuit that affected the sentencing guidelines that had been applicable to
(Footnote continued on next page…)
3
was recalculated as August 4, 2010, which reflected 303 days of credit for time
served in pretrial detention and 200 days of good time conduct credit; as such, he
had served more than eight years of extra time in federal prison.5 Id. at 284. On
January 30, 2019, Petitioner was released from federal custody to the Board’s
detainer and transferred into the state correctional system. Id. at 55, 257.
The Board then held a parole revocation hearing on April 26, 2019. Of
particular relevance to this appeal, Petitioner argued during this revocation hearing
that it should have been held while he was confined in county prison during his state
trial in 20106 and, in addition, sought credit towards his state sentences for the excess
time he had served while in federal custody. Id. at 116-18. On June 6, 2019, the
Board issued its decision, through which it ordered that Petitioner serve 36 months
of backtime on his original sentence as a convicted parole violator, concluded that it
was prohibited by law from awarding him street time credit, due to the nature of his
more recent offenses, and recalculated the maximum date on his original sentence
as April 30, 2026. Id. at 260. However, the Board did not address Petitioner’s
argument about the timeliness of his parole revocation hearing or his claim regarding
credit for the excess time he had served on his federal sentence.
Petitioner’s federal criminal case, which led to Petitioner’s original federal sentence being vacated
in 2018. See C.R. at 117-18.
5
According to the Federal Bureau of Prisons Credit Sheet dated December 10, 2020,
Petitioner served a total 152 months in federal prison on the federal district court’s sentence. C.R.
at 284. Petitioner therefore served 2,537 days in excess of his recalculated 57-month federal
sentence. Id.
6
The record is unclear as to precisely when Petitioner was in county prison during the 2010
state trial and the subsequent sentencing. The state court docket indicates that his trial was
scheduled for the May 10, 2010 session and a transportation order was issued on April 5, 2010.
C.R. at 176-77. The docket shows that he was sentenced on July 7, 2010, but there is no indication
as to when he was returned to federal custody. Id. at 183.
4
Petitioner then filed an administrative appeal of this decision on June 19,
2019, in which he reiterated his arguments that his parole revocation hearing had not
been held in a timely fashion, as well as that the Board had erroneously failed to give
him credit towards his state sentences for the excess time he served on his federal
sentence. Id. at 274-78. The Board responded on December 30, 2020, by affirming
its June 6, 2019 decision in part and modifying it in part. Therein, the Board
concluded that its parole revocation hearing in 2019 had been timely, since Petitioner
had not been available for such a hearing in 2010, despite his physical presence in
county prison, because he was still serving his federal sentence at that point in time.
Id. at 291. The Board explained that Petitioner only became available upon his return
to the state prison system on January 30, 2019, and thus, his April 26, 2019 hearing
was timely. Id. In addition, the Board modified its prior order by taking 2,537 days
of the excess time he had served in federal custody, crediting those days towards his
original sentence, and recalculating the maximum date on his original sentence as
July 16, 2017. Id. at 292. In other words, the Board credited Petitioner with the full
amount of time left on his original sentence. The Board also explained to Petitioner
that “[a]ny [excess] time spent incarcerated [on your federal sentence] that was not
allocated toward [your] original sentence will be calculated by the Department of
Corrections and credited toward [your new state sentence].” Id.
Counsel then filed the Petition with our Court on behalf of Petitioner. Therein,
she asserted that the Board violated Petitioner’s due process rights by failing to hold
a parole revocation hearing within 120 days, as required by the Board’s regulations.
Pet. ¶¶ 9-10. Counsel further argued that the Board abused its discretion by not
properly giving Petitioner credit for the excess time he served in federal custody. Id.
¶¶ 6-7. Finally, Counsel asserted that the Board abused its discretion by failing to
5
credit the remainder of that excess time towards Petitioner’s new sentence. Id. ¶¶ 11-
13.
On April 16, 2021, Counsel filed her Motion to Withdraw along with a no-
merit letter. In these filings, Counsel expresses her opinion that Petitioner’s legal
arguments are without merit and, consequently, that she should be allowed to
withdraw from representing him in this matter, as there is no viable basis for
continuing to pursue this matter. No-merit Letter at 1-8. Thereafter, on May 17,
2021, Cannon filed his pro se brief, in which he repeats the claim that he was not
properly given all the time credit towards his state sentences to which he was entitled
as a result of the excess time he spent in federal prison. Cannon’s Br. at 5-8. The
Board responded to Cannon’s pro se brief by filing its Amended Application,
through which it requested that we suppress the brief, due to Cannon’s failure to
comply with the Pennsylvania Rules of Appellate Procedure’s requirements
regarding the brief’s form and substance. Amended Application at 2-3.
II. Discussion
A. No-merit Letter
Before we can address the validity of Petitioner’s arguments, we must assess
the adequacy of Counsel’s no-merit letter. Throughout this process, Petitioner has
only sought to challenge the Board’s calculations of time credited towards his state
sentences, as well as the timeliness of his revocation hearing. For this reason,
Counsel appropriately elected to file a no-merit letter. See Seilhamer v. Pa. Bd. of
Prob. & Parole, 996 A.2d 40, 43 n.4 (Pa. Cmwlth. 2010). “A no-merit letter must
include an explanation of ‘the nature and extent of counsel’s review and list each
issue the petitioner wished to have raised, with counsel’s explanation of why those
issues are meritless.’” Id. at 43 (quoting Turner, 544 A.2d at 928) (brackets
6
omitted).7 As long as a no-merit letter satisfies these basic requirements, we may
then review the soundness of a petitioner’s request for relief. Zerby, 964 A.2d at 960.
However, in the event the letter fails on technical grounds, we must deny the request
for leave to withdraw, without delving into the substance of the underlying petition
for review, and may direct counsel to file either an amended request for leave to
withdraw or a brief on behalf of their client. Id.Counsel’s no-merit letter satisfies these technical requirements. It contains a
recitation of the relevant factual and procedural history, a discussion of the
arguments raised by Petitioner, and a thorough explanation, backed by case and
statutory law, regarding Counsel’s conclusion that none of these arguments afford
Petitioner a valid basis for relief. No-merit Letter at 1-8. Further, Counsel has
appropriately provided Petitioner with copies of these documents, notified Petitioner
about Counsel’s intentions, and informed Petitioner of his right to hire another
lawyer to represent him in this matter or to represent himself pro se. Motion to
Withdraw, ¶¶8-9; id., Certificate of Service.
B. Petition
Consequently, we will proceed to an independent examination of the Petition,
in order to determine whether either of Petitioner’s claims are meritorious.8 With
7
Counsel must also “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.” Stroud v. Pa. Bd. of Prob. &
Parole, 196 A.3d 667, 670 (Pa. Cmwlth. 2018).
8
“Our scope of review over actions of the Board is limited to determining whether the
decision was supported by substantial evidence, whether an error of law occurred or whether
constitutional rights were violated.” Ramos v. Pa. Bd. of Prob. & Parole, 954 A.2d 107, 109 n.1
(Pa. Cmwlth. 2008).
7
regard to Petitioner’s timeliness argument, we agree with Counsel that it lacks merit.
The Board’s regulations state, in relevant part, that
[i]f a parolee is confined outside the jurisdiction of the
Department of Corrections, such as confinement out-of-
State, confinement in a Federal correctional institution or
confinement in a county correctional institution . . . the
[parolee’s parole] 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). In addition, these regulations state that “[i]f the parolee is
in custody in another state, or in Federal custody, the Board may lodge its detainer,
but other matters may be deferred until the parolee has been returned to a State
correctional facility in this Commonwealth.” Id. § 71.5(a). The regulations further
provide that “[t]he unavailability of a parolee or counsel” tolls the period for
conducting hearings. Id. § 71.5(c)(1). This Court has routinely held that a parolee
is unavailable for a revocation hearing before the Board while in federal custody.
See, e.g., Stroud, 196 A.3d at 673 (“[W]hen a parolee is in federal custody, confined
in a federal facility, or is otherwise unavailable, the Board’s duty to take other action
beyond issuing a detainer, is deferred until the parolee is returned to [a state
correctional institution].”); Dill v. Pa. Bd. of Prob. & Parole, 186 A.3d 1040, 1046
(Pa. Cmwlth. 2018) (“[T]he Board does not have the power to pluck a Pennsylvania
parolee from a federal prison for the purpose of recommitting him as a parole
violator.”); Brown v. Pa. Bd. of Prob. & Parole, 184 A.3d 1021, 1025-28 (Pa.
Cmwlth. 2017) (a parolee held in federal custody is not available to the Board for
purposes of holding a parole revocation hearing).
Petitioner argues that he became available to the Board when he was
transferred to county prison during his trial on state charges in 2010. However, this
8
transfer did not cause the federal government to relinquish control over Petitioner,
so as to make him available to the Board for a revocation hearing.
When a prisoner is detained pursuant to a writ for the
purposes of presenting him to the court on new criminal
charges, the prisoner is considered to remain in the
primary custody of the first jurisdiction unless and until
the first sovereign relinquishes jurisdiction over the
person. The receiving sovereign is, therefore, considered
simply to be “borrowing” the prisoner from the sending
sovereign for the purposes of indicting, arraigning, trying,
and sentencing him.
Morgan v. Pa. Bd. of Prob. & Parole, 814 A.2d 300, 303 (Pa. Cmwlth. 2003).
Furthermore, the Board’s regulations provide that a parolee is outside its jurisdiction
if they are “confin[ed] in a county correctional institution.” 37 Pa. Code § 71.4(1)(i).
Thus, Petitioner was not available to the Board throughout his time in county prison
in 2010, both because he was merely being “borrowed” from federal prison during
that period and because he was in a county facility. Therefore, contrary to
Petitioner’s assertions, he became available to the Board on January 30, 2019 when
he was released from federal custody and transferred to state custody. The revocation
hearing was held on April 26, 2019, which was within the 120 days required by
Section 71.4(1)(i). Thus, Petitioner’s revocation hearing was timely.
We also agree with Counsel that Petitioner’s sentence credit arguments are
baseless. Petitioner served a total of 152 months in federal prison, before his federal
sentence was recalculated to 57 months with a completion date of August 4, 2010.
See C.R. at 284-86. Between that determination and the credit he received towards
his federal sentence for time spent in pretrial detention and for good time conduct,
Petitioner has already received credit towards his federal sentence for all time from
May 22, 2006, up through and including August 4, 2010; thus, to give him additional
9
credit towards his original sentence for that time he spent in custody prior to his
federal trial would impermissibly grant him “double credit.” Burno v. Pa. Bd. of
Prob. & Parole, 67 A.3d 1280, 1285-86 (Pa. Cmwlth. 2013); see Gaito v. Pa. Bd. of
Prob. & Parole, 412 A.2d 568, 571 (Pa. 1980) (“If a defendant . . . remains
incarcerated prior to trial because he has failed to satisfy bail requirements on the
new criminal charges, then the time spent in custody shall be credited to his new
sentence.”). Given this, as well as the Board’s crediting of 2,537 days’ worth of
excess federal time towards Petitioner’s original sentence, i.e., the full amount of
time left on that sentence, the Board did not err or abuse its discretion with regard to
its treatment of Petitioner’s original sentence. Additionally, “[t]he Department [of
Corrections], not the Board, is responsible for calculating the minimum and
maximum terms of prisoners committed to its jurisdiction[.]” Gillespie v. Dep’t of
Corr., 527 A.2d 1061, 1065 (Pa. Cmwlth. 1987). Thus, the Board only had authority
to grant credit towards Petitioner’s original sentence and could not apply any
remaining, uncredited excess federal time towards his new sentence; instead, that
responsibility falls upon the Department of Corrections. Consequently, we conclude
that the Board did not err or abuse its discretion by declining to award Petitioner any
credit towards his new sentence.
C. Amended Application
With regard to Cannon’s pro se brief, we agree with the Board that it fails to
comply with the requirements of the Pennsylvania Rules of Appellate Procedure. In
his brief, Cannon does not include a summary of his argument, as required by Rule
of Appellate Procedure 2111(a)(6), and neglects to include a verbatim recitation of
the order he seeks to challenge, as required by Rule of Appellate Procedure 2115(a).
This, plus Cannon’s jumbling of constitutional and statutory theories and extremely
10
cursory legal analysis, prevents us from conducting meaningful appellate review of
the arguments he attempts to put forth. Accordingly, we conclude that the proper
response is to strike Cannon’s pro se brief. See Pa. R.A.P. 2101; Means v. Hous.
Auth. of City of Pittsburgh, 747 A.2d 1286, 1289 (Pa. Cmwlth. 2000); Robinson v.
Schellenberg, 729 A.2d 122, 124 (Pa. Cmwlth. 1999).
III. Conclusion
In light of the foregoing analysis, we grant Counsel’s Motion to Withdraw,
grant the Board’s Amended Application, and affirm the Board’s December 30, 2020
order.
__________________________________
ELLEN CEISLER, Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Odell Cannon, :
Petitioner :
:
v. : No. 62 C.D. 2021
:
Pennsylvania Parole Board, :
Respondent :
ORDER
AND NOW, this 30th day of November, 2021, Dana E. Greenspan, Esquire’s
Motion for Leave to Withdraw as Counsel is GRANTED, Respondent Pennsylvania
Parole Board’s (Board) Amended Application to Suppress Nonconforming Brief is
GRANTED, and the Board’s December 30, 2020 order is AFFIRMED.
__________________________________
ELLEN CEISLER, Judge