E. Cavanaugh v. PA BPP ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Edward Cavanaugh, :
: No. 728 C.D. 2016
Petitioner : Submitted: October 7, 2016
:
v. :
:
Pennsylvania Board of :
Probation and Parole, :
:
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: December 28, 2016
Edward Cavanaugh petitions for review of the Pennsylvania Board of
Probation and Parole’s (Board) decision denying his request for administrative
review and affirming the Board’s modified decision recommitting him as a
convicted parole violator to concurrently serve an unexpired term of 10 months, 4
days, and changing his parole violation max date to July 25, 2015. Appointed
counsel, Kent D. Watkins, Esq. (Counsel), has filed an application to withdraw as
counsel, asserting that Cavanaugh’s petition for review is meritless. We grant
Counsel’s application and affirm the Board’s decision.
On December 12, 2011, the Bradford County Court of Common Pleas
sentenced Cavanaugh to a 1- to 4-year term of imprisonment based on his
conviction for driving under the influence (DUI) at the highest blood alcohol
content (BAC) level. The sentence had a minimum expiration date of June 29,
2012, and a maximum expiration date of June 29, 2015. Certified Record (C.R.) at
7. On October 18, 2012, Cavanaugh was released on parole. Id.
On June 27, 2013, the Pennsylvania State Police arrested Cavanaugh
for DUI; DUI at the highest BAC level; public drunkenness; driving while his
registration and license were suspended; and possessing an alcoholic beverage in a
motor vehicle. On February 7, 2014, bail was set on the new charges; however, on
March 5, 2014, Cavanaugh’s bail was changed and he was released on unsecured
bond. C.R. at 37, 97. On September 23, 2014, Cavanaugh pleaded guilty in the
Luzerne County Court of Common Pleas to the DUI, DUI at the highest BAC
level, and driving while his license was suspended charges; he was sentenced to a
1- to 2-year concurrent term of imprisonment for the DUI conviction and a
concurrent 90-day sentence for his driving under suspension conviction. Id. at 109.
The Board issued a detainer when the new charges were filed on June
27, 2013. C.R. at 11. On September 29, 2013, a revocation hearing was conducted
on Cavanaugh’s purported violation of the technical conditions of his parole. Id. at
60-90. By decision mailed on November 20, 2013, the Board revoked
Cavanaugh’s parole and ordered his recommitment based on the admitted technical
violations. Id. at 91-93. By decision mailed on February 6, 2015, the Board
modified its November 2013 decision, and recommitted him as a convicted parole
violator to serve his unexpired term of 11 months, 28 days, granting him credit for
the time that he was on parole.1 Id. at 122-123. By decision mailed December 15,
1
Section 6138(a)(2.1) of the Prisons and Parole Code states, in relevant part, that “[t]he
board may, in its discretion, award credit to a parolee recommitted under paragraph (2) for the
time spent at liberty on parole . . . .” 61 Pa. C.S. §6138(a)(2.1).
2
2015, the Board amended its February 2015 decision by changing his unexpired
term to 10 months, 4 days, and by changing his parole violation max date to July
25, 2015. Id. at 12.
On January 18, 2016, Cavanaugh mailed to the Board an
administrative appeal and a petition for administrative review challenging the
Board’s credit to his sentence because it did not comply with the judge’s date of
release. C.R. at 128. By decision mailed April 18, 2016, the Board denied the
petition and affirmed its decision stating, in relevant part:
Despite Mr. Cavanaugh’s recommitment as a
convicted parole violator, the Board chose to award him
credit for time spent at liberty on parole. 61 Pa. C.S.
§6138(a)(2.1). However, the decision to grant your client
credit for time at liberty on parole does not mean that he
is entitled to all credit on his original sentence. The
Board gave Mr. Cavanaugh credit on his original
sentence for the period he was at liberty on parole from
October 18, 2012 to June 27, 2013, when the Board
detained him for parole violations. Your client had 732
days remaining on his sentence at the time the Board
detained him (from 06/27/2013 to 06/29/2015 = 732
days).
The Board gave your client 427 days of credit on
his original sentence for the periods he was held solely
on the Board detainer from June 27, 2013 to February 7,
2014 (225 days) and from March 5, 2014 to September
23, 2014 (202 days). Gaito v. Pennsylvania Board of
Probation and Parole, 412 A.2d 568 (Pa. 1980).
Conversely, the Board did not give Mr. Cavanaugh credit
for the time he was incarcerated from February 7, 2014 to
March 5, 2014 because he was held on both the Board
detainer and the new criminal charges during that time.
As such, credit for that time must apply to his new
sentence. Id. Subtracting the 427 days of credit he
received from the 732 days he had remaining left 305
days to serve.
3
The Prisons and Parole Code provides that
convicted parole violators who are paroled from an SCI
and then receive a new sentence to be served in an SCI
must serve the original sentence first. 61 Pa. C.S.
§6138(a)(5). Because the Board had already
recommitted your client as a technical parole violator, he
became available to re-start his original sentence when
the court sentenced him for the new convictions on
September 23, 2014. Adding the 305 days he had
remaining to this availability date yielded a new max date
of July 25, 201[5].
Id. at 133-134.2
Cavanaugh then filed the instant petition for review of the Board’s
decision alleging that the Board failed to give him credit for all of the time served
exclusively under its detainer.3 Thereafter, Counsel filed an application to
withdraw and a no-merit letter contending that the appeal is meritless.
When 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 an
Anders4 brief or a no-merit letter satisfying the requirements of Turner;5 and (3)
2
By decision dated April 12, 2016, the Board granted Cavanaugh parole from his new
DUI sentence on or after June 21, 2016, and calculated the maximum parole date for that
sentence to be June 21, 2017. C.R. at 135-137. That Board decision regarding the service of
Cavanaugh’s new sentence is not at issue in the instant appeal. Nevertheless, the fact that
Cavanaugh has completed serving his original sentence, or that the Board issued a subsequent
decision paroling him on his new sentence and setting a new maximum date for that sentence,
does not render the instant appeal moot because the Board’s credit on his original sentence could
affect the service of his new sentence.
3
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. McCloud v. Pennsylvania Board of Probation and Parole,
834 A.2d 1210, 1212 n.6 (Pa. Cmwlth. 2003).
4
Anders v. California, 386 U.S. 738 (1967).
4
advises the petitioner of his right to retain new counsel or submit a brief on his
own behalf. Encarnacion v. Pennsylvania Board of Probation and Parole, 990
A.2d 123, 125 (Pa. Cmwlth. 2010). A no-merit letter must set forth: (1) the nature
and extent of counsel’s review of the case; (2) the issues the petitioner wishes to
raise on appeal; and (3) counsel’s analysis as to why the appeal has no merit. Id. at
126. Once these requirements are met, this Court will independently review the
petitioner’s appeal to determine whether it is meritless. Id.
Here, Counsel mailed Cavanaugh a letter informing him of Counsel’s
request to withdraw. Counsel included a no-merit letter, which detailed the nature
and extent of Counsel’s review of Cavanaugh’s case, set forth the issue raised in
the petition for review, and explained why Counsel concluded that Cavanaugh’s
appeal is meritless. The no-merit letter also advised Cavanaugh of his right to
retain substitute counsel or file a pro se brief. Because Counsel has satisfied the
technical requirements of Turner, this Court will now independently review the
merits of Cavanaugh’s appeal.
Cavanaugh argues that the Board’s decision should be reversed
because the Board failed to give him credit for all of the time that he served due to
its detainer. We disagree.
The Prisons and 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 convicted parole violator.
61 Pa. C.S. §6138(a)(1). A parolee recommitted as a convicted parole violator
(continued…)
5
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).
5
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 discretion to award credit. 61 Pa. C.S. §6138(a)(2), (2.1).
If a new sentence is imposed, the parolee must serve the balance of the original
sentence prior to commencement of the new sentence. 61 Pa. C.S. §6138(a)(5)(i).
When a parole violator satisfies bail requirements prior to sentencing
on new charges and is incarcerated solely by reason of the Board’s detainer, the
period of incarceration prior to sentencing is credited to the convicted parole
violator’s original sentence. Gaito, 412 A.2d at 571. However, when bail is not
posted, time incarcerated on both the new criminal charges and the Board’s
detainer must apply to the new sentence. Id.
As outlined above, the Board gave Cavanaugh credit on his original
sentence for the periods that he was held solely on the Board’s detainer from June
27, 2013, the date the detainer was filed, to February 7, 2014, the day that bail was
set on the new charges, and from March 5, 2014, the date that he was released on
unsecured bond on the new charges, to September 23, 2014, the date of sentencing
on the new charges. Contrary to his claim in the petition for review, the Board did
not err in granting credit for all of the time that Cavanaugh served solely as a result
of the Board’s detainer. Gaito, 412 A.2d at 571.
Accordingly, we grant Counsel’s application to withdraw and affirm
the Board’s decision.
MICHAEL H. WOJCIK, Judge
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Edward Cavanaugh, :
: No. 728 C.D. 2016
Petitioner :
:
v. :
:
Pennsylvania Board of :
Probation and Parole, :
:
Respondent :
ORDER
AND NOW, this 28th day of December, 2016, the Application to
Withdraw as Counsel filed by Kent D. Watkins, Esq. is GRANTED, and the
decision of the Pennsylvania Board of Probation and Parole dated April 18, 2016,
is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge