P. DeSabetino v. PBPP ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Paul DeSabetino, :
:
Petitioner :
:
v. : No. 323 C.D. 2017
: Submitted: November 22, 2017
Pennsylvania Board :
of Probation and Parole, :
:
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE J. WESLEY OLER, Jr., Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: April 5, 2018
Paul DeSabetino petitions for review of the February 16, 2017 order of
the Pennsylvania Board of Probation and Parole (Board) denying his request for
administrative relief and affirming the Board’s parole revocation decision of
February 8, 2016. Appointed counsel, Lowell T. Williams, Esquire (Counsel), has
filed an application to withdraw as counsel, asserting that DeSabetino’s petition for
review is meritless. We grant Counsel’s application and affirm the Board’s decision.
On July 23, 1985, DeSabetino was sentenced to an aggregate term of
15 to 30 years confinement. Certified Record (C.R.) at 8. His original minimum
release date was August 10, 1999, and his original maximum release date was
August 10, 2014. Id. On March 23, 2000, the Board granted DeSabetino parole and
he was released on May 8, 2000, with 14 years, 3 months, and 2 days remaining on
his sentence. C.R. at 5-10, 12.
On August 6, 2001, the Board declared DeSabetino delinquent for
violating conditions of his parole and he was arrested on the Board’s detainer on
January 15, 2002. C.R. at 13-15, 21. On February 6, 2002, the Board voted to
revoke DeSabetino’s parole and determined that he should be recommitted to a state
correctional institution as a technical parole violator (TPV) to serve 10 months of
backtime1 for multiple technical violations. C.R. at 25-26. In recalculating
DeSabetino’s maximum release date, the Board credited the time that he complied
with the terms of his parole while at liberty, but denied credit for the five months
and nine days that he was at liberty but in delinquency. C.R. at 27. Consequently,
the Board determined that the total time remaining on his sentence was 13 years and
4 days. Id. The Board recalculated his maximum release date as July 2, 2015.2 C.R.
at 32.
The Board granted DeSabetino reparole on March 21, 2003, and he was
released on May 1, 2003, with 12 years and 2 months remaining on his original
1
This Court has previously defined the term backtime as:
[T]hat part of an existing judicially-imposed sentence which the
Board directs a parolee to complete following a finding after a civil
administrative hearing that the parolee violated the terms and
conditions of parole, which time must be served before the parolee
may again be eligible to be considered for a grant of parole.
Krantz v. Pennsylvania Board of Probation and Parole, 483 A.2d 1044, 1047 (Pa. Cmwlth. 1984)
(emphasis in original).
2
The Board originally recalculated DeSabetino’s maximum date as January 19, 2015;
however, the Board rescinded its decision on September 25, 2002, and recalculated his maximum
date as July 2, 2015. C.R. at 27-32.
2
sentence. C.R. at 29-32. On July 18, 2005, DeSabetino was arrested on new charges
but released on his own recognizance. C.R. at 35. DeSabetino was arrested again
for new charges on August 26, 2005. C.R. at 37-39. The Board issued a warrant to
commit and detain DeSabetino on August 27, 2005. C.R. at 40-41.
On January 12, 2006, DeSabetino pled guilty to the August 26, 2005
charges and was sentenced to an aggregate term of two years of probation. C.R. at
52-55. DeSabetino was found guilty of the July 18, 2005 charges on February 17,
2006, for which he received a sentence of three to six years confinement. C.R. at
35, 61. The Board subsequently voted to revoke DeSabetino’s parole and recommit
him as a convicted parole violator (CPV) to serve 18 months backtime. C.R. at 65-
69. The Board credited DeSabetino for the 233 days he was incarcerated on the
Board’s detainer from August 27, 2005, until his conviction on February 17, 2006.
C.R. at 104. He was transferred into the custody of the Pennsylvania Department of
Corrections (DOC) and became available to serve his backtime on August 9, 2006,
and the Board therefore recalculated DeSabetino’s maximum release date as
February 19, 2018.3 C.R. at 95, 104.
The Board granted DeSabetino reparole on September 21, 2007, and he
was released on October 22, 2007, to serve the sentence for his February 17, 2006
conviction. C.R. 107-17. The Board granted him parole from his February 17, 2006
conviction on April 16, 2010, and DeSabetino was actually released on July 22,
2010. C.R. at 113-17. He was arrested for new charges on March 12, 2015. C.R.
at 120-25.
3
The Board originally recalculated DeSabetino’s maximum release date as May 29, 2018,
however, it modified its order, deleting all reference to the August 26, 2005 charges because the
hearing was untimely as to those convictions, and recalculated his maximum release date
accordingly. C.R. at 87, 94.
3
The Board issued a warrant to commit and detain DeSabetino on March
13, 2015. C.R. at 136. On April 16, 2015, the Board detained him pending
disposition of his new criminal charges. C.R. at 147. On August 18, 2015,
DeSabetino was convicted on one of the charges from March 12, 2015, and received
a sentence of 9 to 18 months confinement. C.R. at 152-55, 181.
DeSabetino was returned to the custody of the DOC on January 7, 2016.
C.R. at 259. He received notification that the Board would hold a violation and
revocation hearing and requested a panel hearing on January 8, 2016. C.R. at 165-
67. A panel of the Board held the hearing on February 2, 2016. C.R. 173-80.
DeSabetino was present and represented by counsel. C.R. at 186.
On February 8, 2016, the Board voted to revoke DeSabetino’s parole
and recommit him as a TPV to serve 6 months backtime, and as a CPV to serve 24
months backtime, concurrently. C.R. at 227-28, 265. The Board awarded
DeSabetino credit for the time he spent at liberty from October 22, 2007, until the
Board issued its detainer on March 13, 2015. C.R. at 261. At the time of his detainer,
DeSabetino had 2 years, 11 months, and 6 days remaining on his sentence and the
Board recalculated his maximum release date as November 18, 2018. Id.In March 2016, DeSabetino filed a request for administrative relief of
the Board’s revocation decision, arguing that he was not provided a timely parole
revocation hearing and that the Board exceeded its authority in recalculating his
maximum release date.4 C.R. at 235, 255. In a decision mailed February 16, 2017,
the Board denied DeSabetino’s request for administrative relief and affirmed its
decision. DeSabetino then filed a petition seeking this Court’s review. Thereafter,
Counsel filed an application to withdraw and a no-merit letter under Commonwealth
4
DeSabetino originally filed his administrative appeal pro se on March 8, 2016, but a
counseled appeal was filed on March 21, 2016, raising the same issues.
4
v. Turner, 544 A.2d 927 (Pa. 1988), contending that the appeal is meritless. On
September 19, 2017, DeSabetino filed a brief, pro se, in support of his petition for
review and the Board filed a brief in opposition.
When a court-appointed counsel concludes that a petitioner’s appeal is
meritless, 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 a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), or a no-merit letter satisfying the
requirements of Turner;5 and (3) advises the petitioner of his right to retain new
counsel or submit a brief on his own behalf. Miskovitch v. Pennsylvania Board of
Probation and Parole, 77 A.3d 66, 69 (Pa. Cmwlth. 2013). Once appointed counsel
has fully complied with the technical requirements for withdrawal, the Court will
independently review the merits of the petitioner’s claims. Id. at 70.
In this appeal, DeSabetino had a statutory right to counsel, and Counsel
was only required to submit a no-merit letter in support of the petition to withdraw.
A no-merit letter must set forth: (1) the nature and extent of counsel’s review of the
5
In cases where there is a constitutional right to counsel, court-appointed counsel seeking
to withdraw must submit an Anders brief that
(1) provide[s] a summary of the procedural history and facts, with
citations to the record; (2) refer[s] to anything in the record that
counsel believes arguably supports the appeal; (3) set[s] forth
counsel’s conclusion that the appeal is frivolous; and (4) states
counsel’s reasons for concluding that the appeal is frivolous.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Where, as here, the right to counsel is
statutory and does not derive from the United States Constitution, counsel may provide a “no-merit
letter,” which details the nature and extent of the attorney’s review, identifies each issue the
petitioner wishes to raise, and explains why counsel concludes those issues are meritless. Turner,
544 A.2d at 928.
5
case; (2) each issue that the inmate wishes to raise on appeal; and (3) counsel’s
explanation of why each of those issues is meritless. Miskovitch, 77 A.3d at 69-70.
The record reflects that Counsel informed DeSabetino of Counsel’s
request to withdraw; provided DeSabetino with a no-merit letter that details
Counsel’s review of the issues and the reasons why Counsel concluded those issues
are meritless; and advised DeSabetino of his right to retain new counsel or raise any
new points he might deem worthy of consideration. Because Counsel has satisfied
the procedural requirements for withdrawal, the Court will independently review the
merits of DeSabetino’s appeal.
On appeal,6 DeSabetino argues that the Board exceeded its authority
and improperly modified his judicially-imposed maximum sentence when it
recalculated his maximum release date to November 18, 2018. However, this
argument is wholly without merit because it rests entirely on DeSabetino’s mistaken
belief that the maximum date of his sentence, rather than the maximum length of his
sentence, is controlling for purposes of recalculating his maximum release date.
Section 6138(a)(1) of the Prisons and Parole Code (Parole Code)
provides that any parolee who, during the period of parole, commits a crime
punishable by imprisonment and is convicted or found guilty of that crime may be
recommitted as a CPV. 61 Pa. C.S. §6138(a)(1). Section 6138(a)(2), (2.1) of the
Parole Code requires that a parolee recommitted as a CPV must serve the remainder
of the term that he would have been compelled to serve had parole not been granted,
with no credit for the time at liberty on parole, unless the Board exercises its
6
Our scope of review is limited to determining whether necessary findings of fact are
supported by substantial evidence, whether an error of law was committed, or whether
constitutional rights were violated. McNally v. Pennsylvania Board of Probation and Parole, 940
A.2d 1289, 1292 (Pa. Cmwlth. 2008).
6
discretion to award credit. 61 Pa. C.S. §6138(a)(2), (2.1). Additionally, Section
6138(c)(2) of the Parole Code provides that a parolee recommitted as a TPV shall
be given credit for the time served on parole in good standing, but no credit for
delinquent time, and may be reentered to serve the remainder of the original sentence
or sentences. 61 Pa. C.S. §6138(c)(2).
When DeSabetino was paroled to serve his new sentence on October
22, 2007, he had 10 years, 3 months, and 28 days remaining on his original sentence.
In its February 8, 2016 recommitment order, the Board credited the 7 years, 4
months, and 19 days that DeSabetino complied with the terms of his parole. The
Board’s recommitment order properly added the remainder of his original sentence,
2 years, 11 months, and 6 days, to the date of his return to the Board’s custody7 in
calculating his new maximum release date. Consequently, when the Board imposed
backtime, the Board did not impose an additional sentence on DeSabetino but,
rather, directed DeSabetino to complete the remainder of his original judicially-
mandated sentence. Epps v. Pennsylvania Board of Probation and Parole, 565 A.2d
214, 217 (Pa. Cmwlth. 1989); see also Gundy v. Pennsylvania Board of Probation
and Parole, 478 A.2d 139, 141 (Pa. Cmwlth. 1984) (noting that the Board’s action
in recommitting a parolee “had no effect” upon the parolee’s judicially-imposed
sentence).
Accordingly, the order of the Board is affirmed.
MICHAEL H. WOJCIK, Judge
7
A parolee is considered returned to the Board’s custody once the Board lodges its detainer.
Martin v. Pennsylvania Board of Probation and Parole, 840 A.2d 299, 305-06 (Pa. 2003).
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Paul DeSabetino, :
:
Petitioner :
:
v. : No. 323 C.D. 2017
:
Pennsylvania Board :
of Probation and Parole, :
:
Respondent :
ORDER
AND NOW, this 5th day of April, 2018, the Application to Withdraw
as Counsel filed by Lowell T. Williams, Esquire, is GRANTED, and the order of the
Pennsylvania Board of Probation and Parole, dated February 16, 2017, is
AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge