C. Kiesel v. PBPP ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Christopher Kiesel, :
Petitioner :
:
v. :
:
Pennsylvania Board of :
Probation and Parole, : No. 261 C.D. 2017
Respondent : Submitted: January 19, 2018
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: March 26,, 2018
Christopher Kiesel (Kiesel) petitions this Court for review of the
Pennsylvania Board of Probation and Parole’s (Board) January 25, 2017 order
denying his request for administrative relief. Kiesel is represented in this matter by
Wayne R. Maynard, Esquire (Counsel), who has filed a Petition to Withdraw as
Counsel (Application). After review, we grant Counsel’s Application and affirm the
Board’s order.
Kiesel is an inmate at the State Correctional Institution at Graterford
(SCI-Graterford). On April 6, 1995, Kiesel was sentenced to 91/2 to 20 years of
incarceration for 19 counts of burglary to which Kiesel pled guilty (Original
Sentence). At that time, his maximum sentence release date was November 24, 2014.
On June 24, 2004, Kiesel was paroled to Kintock Community Corrections Facility
(CCF) and released thereto on July 12, 2004. As a condition of his parole, Kiesel
agreed:
If you are convicted of a crime committed while on
parole/reparole, the Board has the authority, after an
appropriate hearing, to recommit you to serve the balance of
the sentence or sentences which you were serving when
paroled/reparoled, with no credit for time at liberty on
parole.
Certified Record (C.R.) at 12. Kiesel did not object to the above-quoted parole
condition. On October 15, 2004, Kiesel absconded from Kintock CCF and, on
October 29, 2004, he was arrested for bank robbery. On January 31, 2005, Kiesel
pled guilty to 3 counts of bank robbery and was sentenced to 156 months of
incarceration in a federal institution. On December 22, 2005, the Board issued a
warrant for Kiesel’s arrest.
On March 18, 2016, Kiesel was transferred from federal custody to SCI-
Graterford. On May 4, 2016, the Board held a revocation hearing at which Kiesel
admitted to his bank robbery convictions. By decision recorded May 27, 2016
(mailed June 10, 2016), the Board formally recommitted Kiesel as a convicted parole
violator (CPV) to serve 36 months backtime and recalculated his maximum sentence
release date to July 31, 2026. On June 13, 2016, Kiesel submitted an Administrative
Remedies Form challenging the Board’s decision. On January 25, 2017, the Board
denied Kiesel’s request for administrative relief. Kiesel appealed to this Court.1
Thereafter, Counsel filed his Application and Turner letter.2
1
“Our scope of review of the Board’s decision denying administrative relief is limited to
determining whether necessary findings of fact are supported by substantial evidence, an error of
law was committed, or constitutional rights have been violated.” Fisher v. Pa. Bd. of Prob. &
Parole, 62 A.3d 1073, 1075 n.1 (Pa. Cmwlth. 2013).
On March 6, 2017, Counsel filed a Petition for Permission to file a Petition for Review Nunc
Pro Tunc (Petition). By March 20, 2017 order, this Court granted the unopposed Petition. Counsel
subsequently filed Kiesel’s Petition for Review.
2
[P]er Commonwealth v. Turner, . . . 544 A.2d 927 ([Pa.] 1988), Epps
v. [Pennsylvania Board of Probation and] Parole, . . . 565 A.2d 214
([Pa. Cmwlth.] 1989), and Frankhouser v. [Pennsylvania Board of
Probation and] Parole, . . . 598 A.2d 607 ([Pa. Cmwlth.] 1991),
counsel seeking to withdraw from representation of a petitioner
2
This Court has held that in order to withdraw, “counsel . . . must provide
a ‘no-merit’ letter which details ‘the nature and extent of [counsel’s] review and
list[s] each issue the petitioner wished to have raised, with counsel’s explanation of
why those issues are meritless.’” Zerby v. Shanon, 964 A.2d 956, 961 (Pa. Cmwlth.
2009) (quoting Commonwealth v. Turner, 544 A.2d 927, 928 (Pa. 1988)). “[C]ounsel
must fully comply with the procedures outlined in Turner to ensure that each of the
petitioner’s claims has been considered and that counsel has [] substantive reason[s]
for concluding that those claims are meritless.” Hont v. Pa. Bd. of Prob. & Parole,
680 A.2d 47, 48 (Pa. Cmwlth. 1996). Counsel is also required to “notify the parolee
of his request to withdraw, furnish the parolee with . . . a 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.” Reavis v. Pa. Bd. of Prob. & Parole, 909 A.2d 28,
33 (Pa. Cmwlth. 2006). This Court must then “conduct its own independent review
of the petition to withdraw and must concur in counsel’s assessment before [it] may
grant counsel leave to withdraw.” Hont, 680 A.2d at 48.
In reviewing Counsel’s no-merit letter herein, this Court notes that the
letter contains the procedural history of Kiesel’s case, as well as Counsel’s review of
the record and relevant statutory and case law. Counsel served Kiesel with a copy of
the no-merit letter and his Application, and notified Kiesel that he may either obtain
substitute counsel or file a brief on his own behalf.3 Counsel further stated therein
that Kiesel raises two issues in his Petition for Review: (1) whether the Board has the
authority to extend Kiesel’s maximum sentence release date beyond what was
seeking review of a determination of the Board must provide a ‘no-
merit’ letter which details ‘the nature and extent of [the attorney’s]
review and list[s] each issue the petitioner wished to have raised, with
counsel’s explanation of why those issues are meritless.’ Turner, . . .
544 A.2d at 928.
Zerby v. Shanon, 964 A.2d 956, 961 (Pa. Cmwlth. 2009).
3
Kiesel did not obtain substitute counsel or file a brief.
3
judicially imposed; and (2) whether Kiesel should be given credit for “street time”4
while he was on parole in 2004. In his Turner letter to this Court, Counsel provides
sufficient reasons why Kiesel’s issues are without merit.5 Accordingly, this Court
concludes that Counsel complied with Turner’s technical requirements and we will
now independently review the merits of Kiesel’s arguments to determine whether to
grant or deny Counsel’s Application.
Kiesel contends that the Board does not have the authority to extend his
maximum sentence release date beyond what was judicially imposed. “Although
phrased in various ways, it is clear that this argument rests entirely on [Kiesel’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 parole violation
maximum date.” Hughes v. Pa. Bd. of Prob. & Parole, ___ A.3d ___, ___ (Pa.
Cmwlth. No. 433 C.D. 2017, filed February 14, 2018), slip. op. at 4.
When Kiesel was paroled on July 12, 2004, 10 years, 4 months and 12
days remained on his Original Sentence (November 24, 2014 less July 12, 2004). He
was recommitted as a CPV and returned to the Board’s custody on March 18, 2016.
The Board’s recommitment order properly added the remainder of his Original
Sentence to the date of his return to the Board’s custody. Thus, as the Hughes Court
explained: “[W]hen the Board imposed backtime, the Board did not impose an
additional sentence on [Kiesel] but, rather, directed [Kiesel] to complete the original
judicially-mandated sentence. Accordingly, [Kiesel’s] argument that the Board erred
in extending his new maximum parole date beyond the maximum date of his
[O]riginal [S]entence is meritless.” Hughes, ___ A.3d at ___, slip op. at 5 (citations
omitted).
4
“Time spent at liberty on parole is commonly referred to as ‘street time.’” Staton v. Pa.
Bd. of Prob. & Parole, 171 A.3d 363, 364 n.1 (Pa. Cmwlth. 2017).
5
Although Counsel’s explanation is minimal, it is sufficient to not warrant denial of
Counsel’s Application.
4
Kiesel next asserts that he should be given credit for his “street time”
while he was on parole in 2004. Section 6138(a)(2.1)(i) of the Prisons and Parole
Code provides, in relevant part:
The [B]oard may, in its discretion, award credit to a
parolee recommitted under paragraph (2) for the time
spent at liberty on parole, unless any of the following
apply:
(i) The crime committed during the period of
parole or while delinquent on parole is a
crime of violence as defined in [Section
9714(g) of the Sentencing Code,] 42 Pa.C.S. §
9714(g) (relating to sentences for second and
subsequent offenses) or a crime requiring
registration under 42 Pa.C.S. Ch. 97 Subch. H
(relating to registration of sexual offenders).
61 Pa.C.S. § 6138(a)(2.1)(i) (emphasis added). “As used in [Section 9714(g) of the
Sentencing Code,] the term ‘crime of violence’ means . . . robbery as defined in
[Section 3701(a)(1)(i), (ii) or (iii) of the Crimes Code,6] 18 Pa.C.S. § 3701(a)(1)(i),
(ii) or (iii) (relating to robbery)[.]” 42 Pa.C.S. § 9714(g).
According to the United States District Court Judgment, Kiesel pled
guilty to three counts of bank robbery, Section 2113(a) of the United States Code, “18
6
Section 3701(a)(1) of the Crimes Code provides, in relevant part:
A person is guilty of robbery if, in the course of committing a theft,
he:
(i) inflicts serious bodily injury upon another;
(ii) threatens another with or intentionally puts him in fear of
immediate serious bodily injury;
(iii) commits or threatens immediately to commit any felony of the
first or second degree[.]
18 Pa.C.S. § 3701(a)(1).
5
U.S.C. § 2113(a).” C.R. at 71. Section 2113(a) of the United States Code, referring
to bank robbery, provides in relevant part:
Whoever, by force and violence, or by intimidation, takes,
or attempts to take, from the person or presence of another,
or obtains or attempts to obtain by extortion any property or
money or any other thing of value belonging to, or in the
care, custody, control, management, or possession of, any
bank, credit union, or any savings and loan association[.]
18 U.S.C. § 2113(a) (emphasis added). Because Kiesel was convicted of a crime of
violence while on parole, he is statutorily precluded from receiving credit for his
2004 street time and, thus, his argument has no merit.
For all of the above reasons, we grant Counsel’s Application and affirm
the Board’s order.
___________________________
ANNE E. COVEY, Judge
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Christopher Kiesel, :
Petitioner :
:
v. :
:
Pennsylvania Board of :
Probation and Parole, : No. 261 C.D. 2017
Respondent :
ORDER
AND NOW, this 26th day of March, 2018, Wayne R. Maynard, Esquire’s
Petition to Withdraw as Counsel is GRANTED, and the Pennsylvania Board of
Probation and Parole’s January 25, 2017 order is AFFIRMED.
___________________________
ANNE E. COVEY, Judge