C. Williams v. PBPP ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Casey Williams, :
Petitioner :
:
v. :
:
Pennsylvania Board :
of Probation and Parole, : No. 337 C.D. 2017
Respondent : Submitted: March 23, 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: June 25, 2018
Casey Williams (Williams), an inmate at State Correctional Institution –
Houtzdale, petitions this Court for review of the Pennsylvania Board of Probation and
Parole’s (Board) February 24, 2017 decision denying his request for administrative
relief. Williams’ counsel, Assistant Public Defender Daniel C. Bell, Esquire
(Counsel) has filed an Amended Petition for Withdrawal of Appearance (Withdrawal
Petition) and submitted a no-merit letter in support thereof. After review, we grant
Counsel’s Withdrawal Petition and affirm the Board’s order.
On August 16, 2005, Williams was paroled from a 4 to 10-year sentence
for the manufacture, sale, delivery or possession with the intent to deliver a controlled
substance, possession of a controlled substance, and possession of drug
paraphernalia. Williams was released to an approved home plan in New York and
was placed under the active compact supervision of the New York parole authorities.
At that time, Williams’ maximum sentence release date was February 2, 2011.
On May 22, 2007, Williams was arrested by the New York Police
Department for criminal possession of marijuana (Possession Charge). On June 24,
2007, the Possession Charge was non-processed because the District Attorney’s
Office declined to prosecute the case. See Certified Record (C.R.) at 55. On June 15,
2008, the Allentown Police Department arrested Williams for simple assault and
harassment. On June 16, 2008, the Board lodged a detainer. On July 22, 2008, the
charges were dismissed. On December 12, 2008, the Allentown Police Department
arrested Williams for carrying a firearm without a license and for being a felon in
possession of a firearm. On December 13, 2008, the Board lodged a detainer. On
December 30, 2008, Williams signed a waiver of his rights to a detention hearing,
counsel and a panel hearing. On January 8, 2009, the second Board member voted to
recommit Williams as a technical parole violator for leaving New York without
permission and being arrested on firearms charges. The Board sentenced Williams to
12 months of backtime.
On February 18, 2009, a federal indictment was issued against Williams
for one count of conspiracy to distribute crack (21 U.S.C. §§ 846, 841(a)(1),
(b)(1)(c)), four counts of crack distribution (21 U.S.C. § 841(a)(1), (b)(1)(c)), one
count of aiding and abetting crack distribution (21 U.S.C. § 841(a)(1), (b)(1)(c), 18
U.S.C. § 2) and one count as a felon in possession of a weapon (18 U.S.C. §
922(g)(1)). On April 4, 2011, Williams pled guilty to all of the federal charges and,
on June 19, 2013, he was sentenced to a concurrent 96-month term of imprisonment
and six years of supervised release for the drug charges, and to a concurrent term of
96 months of imprisonment and three years of supervised release for the firearms
charge. Williams was returned to the Commonwealth of Pennsylvania’s Department
of Corrections’ custody on December 1, 2015. On March 2, 2016, Williams was
recommitted as a convicted parole violator and sentenced to serve 60 months of
backtime concurrently with his January 2009 technical parole violation sentence.
2
On April 28, 2016, Williams filed an Administrative Remedies Form
with the Board seeking reconsideration of his recommitment backtime. See
Administrative Remedies Form Attachment, C.R. at 159. By February 24, 2017
decision, the Board denied his administrative appeal. Williams appealed from the
Board’s decision to this Court.1 On June 19, 2017, Counsel filed a Withdrawal
Petition and no-merit letter. On December 13, 2017, this Court denied Counsel’s
Withdrawal Petition based on Counsel’s failure to properly address Williams’ issues
and directed Counsel to file either an amended Withdrawal Petition and no-merit
letter that adequately addressed Williams’ issues, or to submit a brief on the merits.
On March 16, 2018,2 Counsel filed an Amended Withdrawal Petition and a no-merit
letter. On March 20, 2018, this Court ordered that Counsel’s Amended Withdrawal
Petition be considered along with the merits of Williams’ appeal.
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 copy of . . . [the] no-merit
1
“Our review in a parole revocation action is limited to determining whether the findings
were supported by substantial evidence, whether constitutional rights were violated, or whether the
Board committed an error of law.” Flowers v. Pa. Bd. of Prob. & Parole, 987 A.2d 1269, 1271 n.3
(Pa. Cmwlth. 2010).
2
By January 17, 2018 order, this Court granted Counsel’s request for a 60-day extension of
time to file his brief.
3
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 Williams’ case, as well as Counsel’s review
of the record and relevant statutory and case law. Counsel served Williams with a
copy of the no-merit letter and his Amended Withdrawal Petition, and notified
Williams that he may either obtain substitute counsel or file a brief on his own
behalf.3 Counsel further stated therein that Williams presented one issue in his
Petition for Review: whether the amount of backtime imposed exceeded the
presumptive ranges. In his no-merit letter to this Court, Counsel provides sufficient
reasons why Williams’ issue is without merit. Accordingly, this Court concludes that
Counsel complied with Turner’s technical requirements and will now independently
review the merits of Williams’ appeal to determine whether to grant or deny
Counsel’s Withdrawal Petition.
Williams argues that the Board exceeded the presumptive ranges for his
offenses by imposing 60 months of backtime. Section 75.1 of the Board’s
Regulations addresses presumptive ranges for calculating backtime for convicted
parole violators as follows:
(a) Presumptive ranges of parole backtime to be served will
be utilized if a parolee is convicted of a new criminal
offense while on parole and the Board orders recommitment
as a convicted parole violator after the appropriate
revocation hearing.
3
Williams did not obtain substitute counsel or file a brief.
4
(b) The presumptive ranges of parole backtime are intended
to structure the discretion of the Board while allowing for
individual circumstances in terms of mitigation and
aggravation to be considered in the final decision.
(c) The Board may deviate from the presumptive range or
determine that recommitment should not occur, provided
written justification is given.
(d) The presumptive ranges are intended to directly relate to
the severity of the crime for which the parolee has been
convicted.
(e) The severity ranking of crimes listed in [Section] 75.2
[of the Board’s Regulations] (relating to presumptive ranges
for convicted parole violations) is not intended to be
exhaustive, and the most closely related crime category in
terms of severity and the presumptive range will be
followed if the specific crime which resulted in
conviction is not contained within the listing.
37 Pa. Code § 75.1 (emphasis added). “Our Supreme Court has held that ‘[a]s long
as the period of recommitment is within the presumptive range for the violation, the
Commonwealth Court will not entertain challenges to the propriety of the term of
recommitment.’” Fisher v. Pa. Bd. of Prob. & Parole, 62 A.3d 1073, 1077 (Pa.
Cmwlth. 2013) (quoting Smith v. Pa. Bd. of Prob. & Parole, 574 A.2d 558, 560 (Pa.
1990)).
Here, Williams was convicted of six drug offenses under Section
841(a)(1) of the United States Code, each of which carry a 20-year maximum
sentence. See 21 U.S.C. § 841(b)(C). Pennsylvania’s closest related crime category
in terms of severity and punishment is Section 113(f)(1.1) of The Controlled
Substance, Drug, Device and Cosmetic Act,4 which has a presumptive range of 18 to
24 months. See 37 Pa. Code § 75.2. Williams was also convicted of one firearms
offense under Section 922(g)(1) of the United States Code, 18 U.S.C. § 922(g)(1),
4
Act of April 14, 1972, P.L. 233, as amended, 35 P.S. § 780-113(f)(1.1).
5
(i.e., a felon in possession of a weapon) which is listed in the Board’s Regulation as a
prohibited offensive weapon and has a presumptive range of 12 to 18 months. See 37
Pa. Code § 75.2. Thus, although Williams’ total presumptive range maximum was
162 months, the Board sentenced Williams to only 60 months of backtime, which is
well within the presumptive range. “Accordingly, the Board properly imposed a
period of backtime within the maximum presumptive range.” Fisher, 62 A.3d at
1077.
For all of the above reasons, this Court grants Counsel’s Withdrawal
Petition and affirms the Board’s order.
___________________________
ANNE E. COVEY, Judge
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Casey Williams, :
Petitioner :
:
v. :
:
Pennsylvania Board :
of Probation and Parole, : No. 337 C.D. 2017
Respondent :
ORDER
AND NOW, this 25th day of June, 2018, Assistant Public Defender
Daniel C. Bell, Esquire’s Amended Petition for Withdrawal of Appearance is
GRANTED, and the Pennsylvania Board of Probation and Parole’s February 24,
2017 decision is AFFIRMED.
___________________________
ANNE E. COVEY, Judge