N. Collins v. PA BPP ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Norman Collins, :
Petitioner :
:
v. : No. 1648 C.D. 2015
: Submitted: April 22, 2016
Pennsylvania Board of Probation and :
Parole, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER FILED: July 26, 2016
Emily Merski, Esquire (Counsel) of the Erie County Public Defender’s
Office requests that this Court grant her application for leave to withdraw as court-
appointed counsel (Application to Withdraw) on behalf of Norman Collins.
Collins, through Counsel, petitioned this Court for review of the May 15, 2015,
Determination of the Pennsylvania Board of Probation and Parole (Board)
affirming its April 9, 2015, Decision which: (1) recommitted Collins to serve 30
months backtime as a convicted parole violator (CPV) in a State Correctional
Institution (SCI); (2) recalculated Collins’ reparole eligibility date as September 1,
2017; and (3) recalculated Collins’ maximum date to May 29, 2020. Appended to
Counsel’s Application to Withdraw is a no-merit letter in which Counsel asserts
that Collins’ Petition for Review is without merit and is therefore frivolous.
Because we conclude that Counsel has not sufficiently analyzed the issue Collins
wishes to appeal or adequately reviewed the record, we deny Counsel’s
Application to Withdraw.
While on parole from his original sentence, Collins was charged and
convicted of drug related offenses. (C.R. at 56.) In a decision mailed December
18, 2009, the Board issued an order to recommit Collins to an SCI to serve 24
months of backtime and recalculated his Max Date to February 7, 2017. (Notice of
Board Decision, December 18, 2009, C.R. 37.) After completing his backtime and
serving the sentence for his drug-related offense, Collins was released on parole on
December 27, 2012. (Order to Release on Parole/Reparole, C.R. at 53.) On July 8,
2014, Collins was arrested and charged in Montgomery County with Driving
Under the Influence of Alcohol (DUI).1 (Court of Common Pleas of Montgomery
County Criminal Docket No. CP-46-CR-0004980-2014 at 2, C.R. 64.) Collins
posted bail that same day. (Id.) Two days later, on July 10, 2014, Collins was
arrested and charged in Philadelphia County with robbery, burglary, possession of
an instrument of crime, receiving stolen property, and other lesser offenses
(Philadelphia Charges). (Court of Common Pleas of Philadelphia County Criminal
Docket Nos. CP-51-CR-0009849-9858, C.R. 76-162.) Collins did not post bail on
these charges. (Id.) Also on July 10, 2014, the Board issued a warrant to detain
Collins pending disposition of the Philadelphia Charges. (Warrant to Commit and
1
It appears from the Certified Record that the DUI for which Collins was arrested on July
8, 2014, occurred on March 8, 2014. (Supervision History at 2, C.R. at 57.) Collins’
Supervision History indicates that a “Level Two Conference was held on 4-15-14 and it was
decided to continue [Collins] under supervision, pending [Collins] continuing in outpatient
counseling, weekly reporting schedule, and nightly curfew.” (Id.) The Supervision History then
states that Collins was arrested for this charge on July 8, 2014. (Id.)
2
Detain, July 10, 2014, C.R. at 54.) On October 9, 2014, Collins pled guilty to the
DUI charge and was sentenced to six months of county probation.
(Trial/Plea/Sentence Form, C.R. at 72-73.) On October 22, 2014, Collins pled
guilty to the Philadelphia Charges and was sentenced to an aggregate 12.5-25 years
imprisonment in an SCI. (C.R. at 88-90, 92.)
On January 15, 2015, Collins waived his right to a recommitment hearing
and admitted to having been convicted of the Philadelphia Charges.
(Waiver/Admission Form, C.R. at 167.) In the Decision mailed on April 9, 2015,
the Board recommitted Collins to serve 30 months of backtime (effective March 1,
2015), recalculated his reparole eligibility date to September 1, 2017, and
recalculated his maximum date to May 29, 2020. (Notice of Board Decision, April
9, 2015, C.R. at 187-88.)
In an Administrative Remedies Form filed in response to the April 9, 2015,
Decision, Collins argued, pro se, that he was entitled to credit against his backtime
for the period between October 22, 2014 (when he was sentenced) and March 1,
2015 (when the Board voted to recommit him). (Administrative Remedies Form,
April 29, 2015, C.R. at 203-08.) Although Collins acknowledged that this Court’s
holding in Campbell v. Pennsylvania Board of Probation and Parole, 409 A.2d 980
(Pa. Cmwlth. 1980) was adverse to his position,2 he maintained that Campbell was
no longer applicable based on the enactment of Section 6138 of the Prisons and
Parole Code (Parole Code), 61 Pa. C.S. § 6138, which requires, among other
things, that a CPV, when housed in an SCI, to serve his or her backtime before
2
In Campbell, we held that time served by a parolee in an SCI after the parolee’s
criminal conviction and prior to a decision by the Board to recommit must be credited towards
the new criminal conviction. Campbell, 409 A.2d at 982.
3
serving the sentence for the subsequent offense. Collins argued that since he was
convicted on October 22, 2014, and was imprisoned in an SCI, the Board was
required to retroactively calculate his backtime from that date. (Memorandum in
Support of Petition for Review (Collins’ Memo) at 3-4, C.R. at 206-07.)
In response to Collins’ Administrative Remedies Form, the Board affirmed
its April 9, 2015, Decision. (Board Determination, May 15, 2015, C.R. at 210-11.)
Although the Board acknowledged that Section 6138 of the Parole Code requires
backtime to be served before the sentence for a new criminal conviction, it
maintained that Collins was available to commence serving his backtime only after
the Board voted to recommit him, which was on March 1, 2015. (Id. at 2, C.R. at
211.) Also contained in the Board’s Determination was the following paragraph:
Based on these facts, the Board did not give you any credit for
the period you were incarcerated from December 13, 2013 to July 16,
2014 because you were being held on both the Board detainer and the
new criminal charges during that period. Furthermore, the Board did
not give you credit on your original sentence for the period you were
incarcerated from July 16, 2014 to October 3, 2014 because the Board
had not yet recommitted you as a convicted parole violator. The
credit for this time frame will be calculated and credited by the
Department of Corrections toward your new sentence. This means
you still had 935 days remaining on your sentence.
(Id. at 1, C.R. at 210 (internal citation omitted).) The two incarcerations the Board
references in this paragraph are not referenced elsewhere in the Certified Record.
Moreover, earlier in its Determination, the Board stated that Collins had 1916 days
remaining, not 935.3
3
If Collins had 935 days remaining on March 1, 2015, then his maximum date would be
September 21, 2017. If he had 1916 days remaining on March 1, 2015, his maximum date would
be May 29, 2020. In its April 9, 2015, Decision, the Board states that Collins’ maximum date is
May 29, 2020. (Notice of Board Decision, April 9, 2015, C.R. at 188.)
4
After the Board issued the Determination at issue here, Collins was
convicted and sentenced by the Court of Common Pleas of Montgomery County
on June 9, 2015, to one-to-three years’ imprisonment in an SCI for two counts of
burglary, with credit for time served from July 9, 2014, through June 9, 2015.4
(Trial/Plea/Sentence Order, C.R. at 191-92.) These charges had been pending
since November 13, 2014, when the Norristown Police Department obtained an
arrest warrant for Collins. (C.R. at 197-98.) Based upon these charges, the Board
convened another revocation hearing. (Notice of Charges and Hearing, C.R. at
198.) The Certified Record does not contain information regarding the outcome of
this hearing.
On October 27, 2015, Counsel, on behalf of Collins, submitted in this Court
a Petition for Review challenging the Board’s April 9, 2015, Decision and May 15,
2015, Determination. (Petition for Review at 1.) The Petition for Review
included: (1) a statement of this Court’s jurisdiction; (2) the identity of the parties
to the Petition for Review; (3) the Board’s Determination of which review was
sought; and (4) a request that this Court “review the [Board’s] recalculation of
[Collins’] Max Date . . . and reparole eligibility date . . . .” (Id.) Counsel now
seeks to withdraw.
In order to withdraw an appearance, appointed counsel must submit a letter
which meets the technical requirements of a no-merit or Turner5 letter. Zerby v.
Shanon, 964 A.2d 956, 960 (Pa. Cmwlth. 2009) (citing Com. v. Wrecks, 931 A.2d
717, 720-21 (Pa. Super. 2007)). In Turner, our Supreme Court stated that, in order
to withdraw an appearance, court-appointed counsel must submit to the court and
4
These charges are apparently unrelated to the Philadelphia Charges.
5
Com. v. Turner, 544 A.2d 927, 928 (Pa. 1988).
5
to his or her client a no-merit letter in which counsel: (1) “detail[s] the nature and
extent of [counsel’s] review”; (2) identifies “each issue the [client] wished to have
raised”; and (3) explains why the issues are meritless. Com. v. Turner, 544 A.2d
927, 928 (Pa. 1988). Counsel is required to serve this letter and counsel’s
application to withdraw on his or her client, and is further required to inform his or
her client of the right to proceed pro se or through privately retained counsel.
Zerby, 964 A.2d at 960 (internal quotation omitted). “[A] no-merit letter must
substantively address each of the petitioner’s arguments, rather than baldly stating
that the claims are without merit.” Hughes v. Pa. Bd. of Prob. and Parole, 977
A.2d 19, 25 (Pa. Cmwlth. 2009) (citing Hill v. Pa. Bd. of Prob. and Parole, 707
A.2d 1214, 1215-16 (Pa. Cmwlth. 1998)). The purpose of a Turner letter is to (1)
“ensure that court-appointed counsel has discharged his or her duty to carefully
assess any claims available to an indigent appellant,” and (2) to enable “our
independent examination of the merits of the appeal.” Presley v. Pa. Bd. of Prob.
and Parole, 737 A.2d 858, 861-62 (Pa. Cmwlth. 1999) (emphasis added). Only if
Counsel’s no-merit letter satisfies all the technical requirements of a Turner letter,
will we then conduct an independent review of the merits of the Petition for
Review to determine if it lacks merit. Zerby, 964 A.2d at 960. If Counsel’s no-
merit letter does not satisfy the technical requirements of Turner, we will deny
Counsel’s request and direct Counsel to either file a no-merit letter that complies
with Turner, or submit a brief on the merits of Collins’ Petition for Review. Id.
Initially, we note that Counsel has met the notice requirements of a Turner
letter. Appended to Counsel’s Application to Withdraw is a letter from Counsel to
Collins which states, in pertinent part, “I am obligated to advise you of your right
to find or retain new counsel or to act on your own behalf to raise any points or
6
arguments with the Commonwealth Court that you feel it should consider in your
case.” (Letter from Counsel to Collins, December 30, 2015.) Also included with
Counsel’s Application to Withdraw are two proofs of service which show that
Collins was served with a copy of Counsel’s Application and her no-merit letter.
Accordingly, we conclude that Counsel has satisfied the notice requirements of a
Turner letter.
We turn now to the substance of Counsel’s no-merit letter. In the argument
section of her no-merit letter, Counsel provides a brief statement regarding our
scope of review, and then states:
Petitioner claims that the Board denied him credit from October
22, 2014 until March 1, 2015. . . . .
The Commonwealth Court recognizes:
If a parolee is recommitted, he must serve the
remainder of the term which he would have been
required to serve had he not been paroled, and he
“shall be given no credit for the time at liberty on
parole.”
The phrase “at liberty on parole” is not defined in
the Act. Our Supreme Court has explained that “at
liberty on parole” does not mean that a parolee
must be actually “free” of restraint. To the
contrary, a parolee can be considered “at liberty”
even while in prison, so long as the parolee is not
in prison for the purpose of serving his original
sentence.
By the Hines [v. Pennsylvania Board of Probation
and Parole, 420 A.2d 381, 383 n.2 (Pa. 1980),]
logic, it is not the prison or its rules that
determines “at liberty” but, rather, the status of
being “on parole.” A parolee in prison for an arrest
on a new criminal act is technically still “at
liberty” so long as his parole on the original
sentence is not revoked.
7
Harden v. Pennsylvania Bd. of Probation and Parole, 980 A.2d
691, 696-697 (Pa. Commw. Ct. [sic] 2009) (internal citations
omitted).
This complaint is without merit.
(No-Merit Letter at 3 (emphasis in original).)
Counsel is correct that Collins wishes to raise the issue of whether the period
between October 22, 2014, and March 1, 2015, should be credited against his
backtime as opposed to against his new sentence. However, Counsel does not
explain the pertinence of Harden to that issue. Harden concerned the issue of
credit for time spent in half-way houses with prison-like rules and conditions.
Harden, 980 A.2d at 699. We see no suggestion in this record that Collins was not
imprisoned during the period at issue. Because Harden dealt with whether the
Board was required to give credit in the first instance, not how sentence credit
should be allocated, its relevance to this case is unexplained by Counsel.
Counsel’s statement that “[t]his complaint is without merit” does not substantively
address the issue Collins wishes to raise on appeal. Hughes, 977 A.2d at 25.
Moreover, based upon our reading of Counsel’s letter and our review of the
record, we question whether Counsel has “carefully assess[ed] any claims
available” to Collins, Presley, 737 A.2d at 862, and conducted a detailed review of
the record, Turner, 544 A.2d 928. As noted above, the Board, in its response to
Collins’ Administrative Remedies Form, references two periods of incarceration
which are not elsewhere noted in the certified record, and uses a different number
for how many days remain on Collins’ original sentence. (Board Determination at
1, C.R. at 210.) In addition, Counsel does not reference Collins’ subsequent
criminal conviction, occurring after the Board’s Determination, in Montgomery
County in which the sentencing order suggests that Collins was to receive credit
8
for the period between July 9, 2014, and June 9, 2015. Part of this period is the
period for which Collins claims that he received no credit and, therefore, should be
considered part of his backtime. (Collins’ Memo at 3.)6 Counsel does not mention
these issues in her no-merit letter.
To summarize, Counsel has not adequately analyzed the argument Collins
wishes to raise to this Court or thoroughly reviewed the record, as required by
Turner. Since Counsel has not satisfied two of the technical requirements of
Turner, we do not reach the merits of Collins’ Petition for Review. Therefore, we
must deny Counsel’s Application to Withdraw, without prejudice, and grant
Counsel thirty days from the date of the accompanying Order to either file a
renewed application to withdraw, along with an amended no-merit letter, or a brief
on the merits of Collins’ Petition for Review.
________________________________
RENÉE COHN JUBELIRER, Judge
6
Collins’ Memo states: “the time spent in custody in the instant matter, not credited to
the new offense, must be credited to the original sentence.” (Collins’ Memo at 3.)
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Norman Collins, :
Petitioner :
:
v. : No. 1648 C.D. 2015
:
Pennsylvania Board of Probation and :
Parole, :
Respondent :
ORDER
NOW, July 26, 2016, the application for withdrawal of appearance filed by
Emily Merski, Esquire (Counsel) is hereby DENIED, without prejudice. Counsel
is granted thirty (30) days from the date of this Order to either file a renewed
application to withdraw, along with an amended no-merit letter, or submit a brief
on the merits of Norman Collins’ Petition for Review.
________________________________
RENÉE COHN JUBELIRER, Judge