G. Long-Parham v. PBPP ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Garnett Long-Parham, :
Petitioner :
:
v. : No. 151 C.D. 2020
: Submitted: August 28, 2020
Pennsylvania Board of :
Probation and Parole, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CROMPTON FILED: December 18, 2020
Garnett Long-Parham (Long-Parham) petitions for review of an order
from the Pennsylvania Board of Probation and Parole1 (Board) affirming the Board’s
denial of his Request for Administrative Relief that challenged the revocation of his
parole. Specifically, Long-Parham asserts that the Board did not have the authority
to forfeit his time at liberty on parole, i.e., “street time,” when he was recommitted
as a convicted parole violator (CPV) since it did not do so previously when he was
determined to be a technical parole violator (TPV). Long-Parham is represented in
1
Subsequent to the filing of the petition for review, the Pennsylvania Board of Probation
and Parole was renamed the Pennsylvania Parole Board. See Sections 15, 16, and 16.1 of the Act
of December 18, 2019, P.L. 776, No. 115 (effective February 18, 2020); see also Sections 6101
and 6111(a) of the Prisons and Parole Code, as amended, 61 Pa. C.S. §§6101, 6111(a).
this matter by Autumn Johnson, Esq. (Counsel),2 but Counsel now petitions this
Court to withdraw her appearance on behalf of Long-Parham. Counsel also submits
a no-merit letter3 to this Court asserting that Long-Parham’s Petition for Review
(Petition) lacks merit. Upon review, we grant Counsel’s request to withdraw her
appearance, and we affirm the Board’s order.
I. Background
Long-Parham was convicted in the Court of Common Pleas of
Westmoreland County for a felony drug offense and was sentenced to one year, six
months, to three years in a State Correctional Institution (SCI) with a minimum
sentence date of June 30, 2011, and a maximum date of December 30, 2012.
Certified Record (C.R.) at 1. Long-Parham was released on parole on December 28,
2010. C.R. at 4. He then violated his parole on September 10, 2012, and was
subsequently recommitted as a TPV with a new maximum date of March 24, 2013.
Counsel is an Assistant Public Defender for the Mercer County Public Defender’s Office.
2
See Counsel’s No-Merit Letter, 06/17/2020.
3
In Anders v. California, 386 U.S. 738 (1967), the Supreme Court of the United States
held that in order for a criminal defendant’s counsel to withdraw from representing her client in
an appeal, counsel must assert that the case is completely frivolous, as compared to presenting an
absence of merit. Anders, 386 U.S. at 744. An appeal is completely or “wholly” frivolous when
there are no factual or legal justifications that support the appeal. Craig v. Pa. Bd. of Prob. &
Parole, 502 A.2d 758, 761 (Pa. Cmwlth. 1985). In seeking to withdraw, counsel must submit a
petition to withdraw and a brief “referring to anything in the record that might arguably support
the appeal.” Cmwlth. v. Baker, 239 A.2d 201, 202 (Pa. 1968) (quoting Anders, 386 U.S. at 744).
The Supreme Court of Pennsylvania, however, has held that in matters that are collateral to an
underlying criminal proceeding, such as parole matters, counsel seeking to withdraw from
representation of a client may file a “no-merit” letter that includes information describing the
extent and nature of the counsel’s review, listing the issues the client wants to raise, and informing
the court of the reasons why counsel believes the issues have no merit. Cmwlth. v. Turner, 544
A.2d 927, 928-29 (Pa. 1988).
2
C.R. at 27. At that point, Long-Parham’s street time was not forfeited. Id. However,
Long-Parham lost time as a result of being delinquent from September 10, 2012, to
December 3, 2012.4 Id.
On January 20, 2015, Long-Parham was convicted in the Court of
Common Pleas of Allegheny County for “Corrupt Organizations - Employee,”5 a
felony of the first degree, and was sentenced to 9 to 18 months in the Allegheny
County Jail, followed by 4 years of probation. C.R. at 99. Long-Parham admitted
to the new conviction and admitted that the corresponding criminal activity occurred
while he was delinquent on parole during the same time period associated with the
technical parole violation, referenced above, and accordingly, Long-Parham was
recommitted as a CPV. C.R. at 187. In an action recorded on September 5, 2019,
the Board recommitted Long-Parham to serve 12 months’ backtime and did not
award him credit for his street time because he “absconded while on supervision.”
C.R. at 213.
Long-Parham, pro se, filed an Administrative Remedies Form, which
was marked as received by the Board on November 6, 2019,6 alleging that the Board
failed to award him credit for his street time that it had awarded him previously when
he was a TPV and that the Board owed him credit for time served from December
3, 2012 to March 24, 2013. C.R. at 230-34. In a response mailed to Long-Parham
4
Long-Parham had been instructed to report to his parole office on September 10, 2012.
He did so, but then absconded. He was instructed to return to the office immediately or a warrant
would be issued for his arrest. He failed to do so, and his whereabouts remained unknown until
his arrest on December 3, 2012. C.R. at 21.
5
18 Pa.C.S. §911(b)(3).
6
He subsequently filed an “Amendment to Original Filing Petition or Brief,” which was
received by the Board on December 3, 2019. C.R. at 233-35.
3
on January 27, 2020, the Board issued an order correcting his maximum sentence
date to March 15, 2021. C.R. at 237-38. In its response, the Board denied Long-
Parham’s request for administrative relief to the extent Long-Parham contended the
Board did not have the authority to forfeit his time at liberty as a CPV when it did
not forfeit such time during its previous decision relative to his technical parole
violation. Id. However, the Board granted Long-Parham’s request for relief to the
extent he sought credit for previous periods of incarceration, including the December
2012, to March 2013 time period noted above.7 Long-Parham filed a Petition for
Review8 with this Court in February 2020. Counsel filed an application to withdraw
from Long-Parham’s representation and an Anders brief, as addressed in the
narrative below, which explains why Long-Parham’s appeal lacks merit.
II. Counsel’s Application to Withdraw Appearance
In order to withdraw from court-appointed representation, counsel must
provide the court with an Anders brief, so called for the United States Supreme
Court’s decision in Anders v. California, 386 U.S. 738 (1967). The Pennsylvania
Supreme Court has since clarified the Anders requirements as relevant to
Pennsylvania procedure. See Cmwlth. v. Santiago, 978 A.2d 349 (Pa. 2009). In
Santiago, the Pennsylvania Supreme Court held:
7
The Board referenced the specific dates as December 2, 2012, to March 23, 2013, rather
than December 3, 2012, to March 24, 2013, as referenced by Long-Parham. C.R. at 238.
8
This Court’s review is limited to a determination of whether necessary findings are
supported by substantial evidence, an error of law was committed, or whether constitutional rights
of the parolee were violated. Shaffer v. Pa. Bd. of Prob. & Parole, 675 A.2d 784 (Pa. Cmwlth.
1996).
4
[I]n the Anders brief that accompanies court-appointed counsel’s
petition to withdraw, counsel must: (1) provide a summary of the
procedural history and facts, with citations to the record; (2) refer to
anything in the record that counsel believes arguably supports the
appeal; (3) set forth counsel’s conclusion that the appeal is frivolous;
and (4) state counsel’s reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of record,
controlling case law, and/or statutes on point that have led to the
conclusion that the appeal is frivolous.
Id. at 361. Our Supreme Court has further held that in matters involving underlying
criminal proceedings, counsel may submit a “no-merit” letter detailing the nature
and extent of her review and listing each issue the petitioner wished to have raised,
with counsel’s explanation of why those issues are meritless. Cmwlth. v. Turner,
544 A.2d 927 (Pa. 1988).
On June 17, 2020, Counsel filed a no-merit letter with this Court.
Counsel’s Application to Withdraw Appearance accompanied the no-merit letter.
We will now evaluate Counsel’s no-merit letter under the standard set forth by the
Pennsylvania Supreme Court.9
A. Analysis of No-Merit Letter
Upon inspection of Counsel’s filings, pages one through four of her no-
merit letter outline the procedural history and facts with appropriate citation to the
Certified Record. See Counsel’s No-Merit Letter, 06/17/2020, at 1-4. Our
“Background” section above reflects that Counsel provides a competent account of
9
In Craig v. Pennsylvania Board of Probation and Parole, 502 A.2d 758 (Pa. Cmwlth.
1985), this Court enunciated technical requirements that must be satisfied in order to successfully
withdraw as counsel. Counsel must notify the parolee of her request to withdraw, furnish the
parolee a copy of a no-merit letter, and advise the parolee of his right to retain new counsel, or
raise any points he may deem worthy of consideration. Id. See Appl. to Withdraw Appearance
and Request for Extension of Briefing Schedule, 06/17/2020, at Ex. A.
5
the history of this case as this Court chooses to rely, in substantial part, on Counsel’s
no-merit letter for factual purposes, supported by her accurate references to the
Certified Record.
B. Counsel Met All Requirements
In her no-merit letter and Application to Withdraw Appearance,
Counsel met all requirements set forth and clarified by the Pennsylvania Supreme
Court, and by this Court in Craig. The record reflects that Counsel notified Long-
Parham of the Application to Withdraw Appearance, provided Long-Parham with a
copy of the Anders brief that details Counsel’s review of the issues, with citation,
and the reasons why she concluded those issues lack merit, any points that might
support Long-Parham’s appeal (of which there were none), and advised Long-
Parham of his right to retain new counsel or raise any new points he might deem
worthy of consideration. In her no-merit letter, Counsel states that “Long-Parham’s
commitment as a CPV was due to criminal activity committed during the period of
time that he was delinquent on parole[10] for the time he previously was found to be
a TPV and his time [at] liberty was forfeited,” concluding that “Long-Parham’s
appeal has no basis in law or in fact and is, therefore, without merit.” Counsel’s
No-Merit Letter, 06/17/2020, at 3-4. Because Counsel satisfied the requirements for
withdrawal, we grant her Application to Withdraw Appearance. Accordingly, we
turn to the merits of Long-Parham’s Petition for Review.
10
The Pennsylvania Office of Attorney General executed an “Information,” on December
2, 2013, which stated that Long-Parham’s criminal activity which led to his January 20, 2015
conviction occurred “on or about January 1, 2012 through December 12, 2012.” C.R. at 91.
6
III. Petition for Review
In sum, Long-Parham was released on parole on December 28, 2010.
C.R. at 4. He was arrested on new charges on December 3, 2012, while he was
simultaneously under an active arrest warrant for parole violations which had begun
on September 10, 2012. C.R. at 21, 46. Long-Parham was convicted in the Court
of Common Pleas of Allegheny County for “Corrupt Organizations - Employee,” on
January 20, 2015, and sentenced accordingly. C.R. at 99.
Relevant to our determination herein, we note that Section 6138 of the
Prisons and Parole Code provides as follows:
(a) Convicted violators.--
(1) A parolee under the jurisdiction of the [B]oard released from a
correctional facility who, during the period of parole or while
delinquent on parole, commits a crime punishable by imprisonment, for
which the parolee is convicted or found guilty . . . at any time thereafter
in a court of record, may at the discretion of the [B]oard be recommitted
as a parole violator.
(2) If the parolee’s recommitment is so ordered, the parolee shall be
reentered to serve the remainder of the term which the parolee would
have been compelled to serve had the parole not been granted and,
except as provided under paragraph (2.1), shall be given no credit for
the time at liberty on parole.
(2.1) 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
[Sentencing Code] Subch. H (relating to registration of sexual
offenders).
....
(c) Technical violators.--
(1) A parolee under the jurisdiction of the [B]oard who violates the
terms and conditions of his parole, . . . may be detained pending a
7
hearing before the [B]oard or waiver of the hearing or recommitted after
a hearing before the [B]oard or a waiver of the hearing.
....
(2) If the parolee is recommitted under this subsection, the parolee shall
be given credit for the time served on parole in good standing but with
no credit for delinquent time and may be reentered to serve the
remainder of the original sentence or sentences.
(3) The remainder shall be computed by the [B]oard from the time the
parolee’s delinquent conduct occurred for the unexpired period of the
maximum sentence imposed by the court without credit for the period
the parolee was delinquent on parole. The parolee shall serve the
remainder so computed from the date the parolee is taken into custody
on the warrant of the [B]oard.
61 Pa.C.S. §6138(a), (1), (2), (2.1), (i), (c).
Citing Penjuke v. Pennsylvania Board of Probation and Parole, 203
A.3d 401 (Pa. Cmwlth. 2019) (holding that when the Board recommits a CPV, it
cannot revoke credit that a parolee was granted in a previous parole that resulted in
recommitment as a TPV), Long-Parham argues that
[t]he only time that remains eligible for forfeiture for a parolee
recommitted as a CPV is the limited period of time that falls between
the parolee’s most recent re-parole and his recommitment. The [B]oard
erred when it revoked the 563 days of good standing street time that
[he] had required in the parole period leading to his recommitment as a
TPV on 01/30/2013.
Petition for Review, ⁋7.
Here, and as noted by Counsel in her no-merit letter, the controlling law
is Kazickas v. Pennsylvania Board of Probation and Parole, 226 A.3d 109 (Pa.
Cmwlth. 2020), rather than Penjuke, as asserted by Long-Parham. In Kazickas, this
Court found that Penjuke and Kazickas were distinguishable from one another. The
issues raised in the present matter are the same as those in Kazickas.
In Kazickas, we acknowledged that Penjuke stands for the proposition
that “when the Board recommits a CPV, it cannot revoke the credit that a parolee
8
has been granted in a previous parole that resulted in recommitment as a TPV.”
Kazickas, 226 A.3d at 116 (citing Penjuke, 203 A.3d at 420). However, “because
the criminal conduct that led to Kazickas’ CPV recommitment occurred during the
same parole period as the violation that led to his TPV recommitment,” we
determined that Penjuke did not control. Kazickas, 226 A.3d at 116.
Although Long-Parham asserts that the Board erred by forfeiting his
street time when he was recommitted as a CPV for a violation that occurred during
the same parole period as the violation that led to the determination he was a TPV,
the Board’s action is supported by relevant case law, as cited above. Long-Parham
was paroled by the Board and subsequently violated the terms of his parole and was
convicted of an additional criminal offense. The Board had no obligation to credit
Long-Parham for his street time where his commitment as a CPV was due to criminal
activity committed during the same period he was delinquent on parole and for which
he was previously determined to be a TPV. See Kazickas, 226 A.3d 109.
IV. Conclusion
For the aforementioned reasons, we grant Counsel’s Application to
Withdraw Appearance, and we affirm the Board’s order.
______________________________
J. ANDREW CROMPTON, Judge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Garnett Long-Parham, :
Petitioner :
:
v. : No. 151 C.D. 2020
:
Pennsylvania Board of :
Probation and Parole, :
Respondent :
ORDER
AND NOW, this 18th day of December 2020, we GRANT Autumn
Johnson, Esq.’s Application to Withdraw Appearance as counsel and AFFIRM the
order of the Pennsylvania Board of Probation and Parole.
______________________________
J. ANDREW CROMPTON, Judge