J. Jay v. PBPP ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joseph Jay, :
Petitioner :
: No. 1272 C.D. 2019
v. :
: Submitted: May 1, 2020
Pennsylvania Board of :
Probation and Parole, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: January 12, 2021
Victoria H. Vidt, Esquire (Counsel), Assistant Public Defender of the
Allegheny County Public Defender’s Office, petitions this Court to withdraw as
counsel on behalf of Petitioner, Joseph Jay (Jay). Jay petitions for review of the order
of the Pennsylvania Board of Probation and Parole (Board),1 mailed on August 30,
2019, which determined that Jay knowingly and voluntarily waived his rights and
admitted to violating two conditions of his parole, resulting in his maximum date being
recalculated to add three days. Upon review, we deny, without prejudice, Counsel’s
petition to withdraw.
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).
On April 19, 1994, Jay was found guilty, in the Allegheny County Court
of Common Pleas, of murder in the third degree2 and carrying a firearm without a
license,3 which resulted in a sentence range of 12½ to 25 years’ incarceration.
(Certified Record (C.R.) at 1-3.) Following his original sentence, Jay was first paroled
on March 12, 2007. (C.R. at 17.) However, the relevant period of parole for the
purpose of this decision began on July 20, 2015, with Jay being released officially on
September 8, 2015. (C.R. at 4-7.) Jay was given conditions governing his parole,
which he signed. (C.R. at 8-11.) According to Jay’s lengthy supervision history, he
was transferred to Kintock-Erie, a community corrections center, on November 11,
2017, to be supervised. (C.R. at 19.) On April 11, 2018, Jay was released from
Kintock-Erie to an approved home plan; however, on June 13, 2018, he was arrested
by the Philadelphia Police Department on new criminal charges and was transferred to
a State Correctional Institution (SCI) on June 18, 2018. (C.R. at 20.) On November
28, 2018, Jay negotiated a plea to a summary offense and reported back to Kintock-
Erie on December 14, 2018. Id. Most relevantly, Jay absconded from Kintock-Erie on
April 26, 2019. Id. On April 29, 2019, the Board executed a wanted notice request
against Jay, issued a warrant to commit and detain him, and on April 30, 2019, declared
him delinquent as of April 26, 2019. (C.R. at 12-14.) That same day, Jay was arrested
in Allegheny County by the Whitehall Police Department. (C.R. at 20.)
On May 1, 2019, the Board executed a Technical Violation Arrest Report,
which indicated that Jay committed three technical violations of his parole. (C.R. at
16.) The report also suggested that Jay be detained and recommitted as a technical
2
18 Pa.C.S. §2502(c).
3
18 Pa.C.S. §6106.
2
parole violator (TPV). Id. On May 2, 2019, Jay was notified of the charges against
him in regard to his technical parole violations and was notified that a preliminary
hearing was to take place on May 10, 2019. (C.R. at 24.) The notice reflects that first,
Jay was charged with violating the first condition of his parole which required him to
“report in person or in writing within 48 hours to the district office or sub-office and
not [to] leave that district without prior written permission of the parole supervision
staff.” (C.R. at 23.) In support, the Board explained that “[Jay] was arrested on April
29, 2019, by Whitehall Police in Allegheny County and did not have permission to
leave the Philadelphia District.” Id.
Second, Jay was charged with violating the second condition of his parole
which states that his “approved residence is listed as [Kintock-Erie, 301 East Erie
Avenue, Philadelphia, Pennsylvania 19134,] and may not be changed without the
written permission of the parole supervision staff.” Id. In support of the charge, the
Board stated that “on April 26, 2019, [Jay] changed [his] approved residence and did
not have permission from parole supervision staff to change this residence.” Id.
Third, Jay was charged with violating the seventh condition of his parole
which states, in relevant part, that “effective [December 14, 2018], [Jay] will enter
Kintock-Erie [and] will abide by all conditions imposed by the center staff and all
conditions imposed by the parole supervision staff. Anything other than successful
discharge is a violation of your parole.” Id. In support, the Board maintained that “on
[April 26, 2019, Jay was] unsuccessfully discharged from Kintock-Erie for not
returning that day or any day thereafter.” Id. That same day, Jay executed an
acknowledgement of his rights at Board hearings. (C.R. at 24.)
3
On May 13, 2019, another notice of charges and Hearing was executed.4
That same day, Jay signed another acknowledgement of his rights at Board hearings,
which indicated that the Board had established probable cause as to the alleged
technical parole violations. (C.R. at 28.) The record also reflects that on May 13, 2019,
Jay executed a “waiver of violation hearing and counsel/admission form.” (C.R. at 27.)
This waiver form indicated that Jay was advised of his right to have a preliminary
hearing, a violation hearing, and counsel at those hearings, and that there is no penalty
for requesting counsel, and that counsel is available for free if he cannot afford counsel.
Id. The waiver form also demonstrated that Jay, with “full knowledge and
understanding of these rights . . . waive[d his] right to a preliminary hearing, a violation
hearing, and counsel at those hearings [and did so of his] own free will, without any
promise, threat or coercion;” and he “knowingly, voluntarily, and willingly admit[ted]
to the violation(s) listed above, [and understood and agreed] that this admission is
binding and may only be withdrawn if [he submitted] a written withdrawal to [his]
supervising agent within ten (10) calendar days of the date written above.” Id.
The Board’s violation hearing report reflects that Jay waived the hearing,
waived counsel, and admitted/acknowledged all information contained within the
notice of charges. (C.R. at 29-31.) The hearing report states that the evidence, as
reflected in the waiver forms, supported the conclusion that Jay violated the second and
seventh conditions of his parole, and as a result he was to be placed, as a TPV, in an
SCI or county jail due to the fact that he had absconded two times in the past, is
considered a threat to public safety, and has demonstrated unmanageable behavior.
(C.R. at 31-33.) With regard to the violation portion of the decision, the hearing report
reflects that Jay was to be recommitted as a TPV to serve six months in an SCI or
4
This notice appears to have the same information as the May 2, 2019 notice. (C.R. at 25.)
4
county jail. (C.R. at 33.) The hearing report states that the reason for this decision was
due to Jay’s poor adjustment under supervision, his failure to comply with sanctions,
his declaration of delinquency by the Board, his prior parole failures, and his lack of
amenability to parole supervision. (C.R. at 34.) The hearing examiner signed and
approved the report on May 24, 2019, and a Board member signed and approved the
decision on June 1, 2019.5 (C.R. at 40.)
By Board action, recorded on June 4, 2019, Jay was recommitted as a TPV
to serve six months’ backtime for violating the second condition of his parole by
changing his residence without permission, and the seventh condition of his parole by
failing to successfully complete the program he was enrolled in at Kintock-Erie. (C.R.
at 41.) As such, the Board’s order to recommit reflects that Jay was recommitted to
SCI-Somerset, as a TPV, and that his original maximum date of April 26, 2020, was to
be recalculated to April 29, 2020, as a result of the three days he was delinquent from
April 26, 2019, to April 29, 2019, i.e., the date he absconded to the date of his arrest.
(C.R. at 44.)
Jay appealed the decision, raising numerous issues, via an administrative
remedies form. (C.R. at 47.) On July 15, 2019, the Board reaffirmed its June 4, 2019
decision. (C.R. at 46.) The Board also issued a decision mailed on August 30, 2019.
(C.R. at 59.) The Board asserted that Jay waived his hearing rights and admitted to
violating two conditions of his parole in writing on May 13, 2019. Id. The Board
maintained that the waiver form signed by Jay clearly indicated that he knowingly
waived his rights of his own free will and accord, without promise, threat, or coercion,
and could withdraw his waiver within 10 calendar days. Id. Accordingly, the Board
stated that it had sufficient evidence to revoke Jay’s parole. Id. Furthermore, the Board
5
A Board action is not valid until at least two Board members sign the hearing report. See
Section 6113 of the Prisons and Parole Code, 61 Pa.C.S. §6113.
5
explained that the Prisons and Parole Code, specifically, section 6138(c)(2), 61 Pa. C.S.
§6138(c)(2), authorizes it to forfeit his credit as a TPV for the period that he was
delinquent. (C.R. at 59.) Accordingly, because the Board found that Jay was
delinquent from April 26 to April 29, 2019, the Board added three days to Jay’s prior
maximum date. Id. Jay subsequently appealed to this Court.
Jay filed the instant pro se petition for review (PFR) on September 12,
2019. In his PFR, Jay raises issues concerning his right to counsel, his waiver of a
violation hearing and counsel, a misconduct report issued against him, his departure
from Kintock-Erie, and potential due process violations. In terms of relief, Jay asks
this Court to immediately reinstate his parole, give him permission to reside at a place
of residence with family, a friend, or his own home, and to issue an order directing the
Board to explain its reasoning behind the extension of Jay’s maximum date.
Following the filing of Jay’s PFR, Jay filed a petition for an expedited
response, and subsequently, a petition to proceed in forma pauperis. By order dated
September 19, 2019, this Court appointed counsel to represent Jay, granted his motion
to proceed in forma pauperis, and denied his motion for expedited response.
Subsequently, counsel from the Office of the Public Defender of Lawrence County
entered an appearance on behalf of Jay. Eventually, Jay was transferred to Allegheny
County, and the public defender from Lawrence County sought to withdraw. By order
dated November 18, 2019, we permitted the Lawrence County Public Defender to
withdraw and directed the Public Defender of Allegheny County to enter an appearance
on behalf of Jay. Accordingly, Counsel entered her appearance.
Before examining the merits of Jay’s PFR, we must first address
Counsel’s petition to withdraw. Seilhamer v. Pennsylvania Board of Probation and
Parole, 996 A.2d 40, 42-44 (Pa. Cmwlth. 2010). In order to withdraw, Counsel must
6
fulfill the procedural requirements set forth in Craig v. Pennsylvania Board of
Probation and Parole, 502 A.2d 758 (Pa. Cmwlth. 1985). Under Craig, counsel must
notify the petitioner of her request to withdraw, furnish the petitioner with either a copy
of a brief complying with Anders v. California, 386 U.S. 738 (1967),6 or a no-merit
letter satisfying the requirements of Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), and inform the petitioner of his right to retain new counsel or to submit a brief
on his own behalf. Craig, 502 A.2d at 760-61. Additionally, for counsel to withdraw
pursuant to Anders,
[t]he brief or letter must set forth (1) the nature and extent of
counsel’s review of the case; (2) the issues the [parolee]
wishes to raise; and (3) counsel’s analysis concluding that
the appeal is frivolous.
Banks v. Pennsylvania Board of Probation and Parole, 827 A.2d 1245, 1248 (Pa.
Cmwlth. 2003). If counsel satisfies these requirements, the Court will conduct its own
review of the merits of the case, and, if the court agrees with counsel, the Court will
permit counsel to withdraw. Zerby v. Shanon, 964 A.2d 956, 960 (Pa. Cmwlth. 2009).
Where an inmate has a constitutional right to counsel, an Anders brief is
required and withdrawal is allowed only where the appeal is wholly frivolous. Hughes
v. Pennsylvania Board of Probation and Parole, 977 A.2d 19, 22-26 (Pa. Cmwlth.
2009) (en banc). If there is not a constitutional right to counsel, counsel may satisfy
her obligations by filing a no-merit letter, rather than an Anders brief, and the standard
is whether the claims on appeal are without merit. Seilhamer, 996 A.2d 42 n.4.
Because Jay does not have a constitutional right to counsel, but Counsel filed an Anders
6
The brief that accompanies court-appointed appellate counsel’s petition to withdraw from
representation is commonly referred to as an Anders brief. Commonwealth v. Santiago, 978 A.2d
349, 351 (Pa. 2009).
7
brief on his behalf, we apply the lack of merit standard.7 Hughes, 977 A.2d at 26 n.4
(“As in the past, we will not deny an application to withdraw simply because an
attorney has filed an Anders brief where a no-merit letter would suffice. In cases where
there is no constitutional right to counsel, however, we shall still apply the standard of
whether the petitioner’s claims are without merit, rather than whether they are
frivolous.”).
Counsel filed a petition to withdraw in this Court alleging that she
reviewed the certified record in this case, and has spoken and written to Jay, but has
not heard from him since their initial discussions. Counsel avers that after a complete
review of the record, there are no non-frivolous issues to be raised on appeal. Counsel
also explained that, in conjunction with her filing of her petition to withdraw, she filed
an Anders brief on behalf of Jay, and sent a letter to him regarding his rights in
7
A constitutional right to counsel exists in a parole revocation matter where a parolee raises
[a] colorable claim (i) that he has not committed the alleged violation
of the conditions upon which he is at liberty; or (ii) that, even if the
violation is a matter of public record or is uncontested, there are
substantial reasons which justified or mitigated the violation and make
revocation inappropriate, and that the reasons are complex or otherwise
difficult to develop or present.
Hughes, 977 A.2d at 26 (quoting Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973)). In other words,
Jay has a right to counsel if he asserts that he did not commit the parole violations found by the Board,
and if there are substantial reasons which justified or mitigated the violation which would make
revocation inappropriate, and the reasons are complex or otherwise difficult to develop or present.
Jay does not assert that he did not commit the parole violations as found by the Board. Significantly,
in his PFR, Jay concedes that he absconded from Kintock-Erie and failed to return. Moreover,
Counsel points out that he did not return to Kintock-Erie and that “he would do ‘whatever was
recommended other than returning to Kintock-Erie.’” (Counsel’s Br. at 22 (citing Jay’s
Administrative Appeal ¶22.)) Accordingly, Jay does not raise a colorable claim that he did not
commit the violations. Moreover, it does not appear that Jay has alleged or given evidence as to any
substantial reason or mitigating evidence as to the reason for his violation, and it does not appear that
any issue raised is complex or difficult to develop.
8
connection with the Anders brief. Counsel’s conduct facially appears to meet the
requirements of Craig. Specifically, Counsel maintains that she notified Jay of her
intention to withdraw, and furnished Jay with a copy of the Anders brief she filed on
his behalf. Furthermore, Counsel notified Jay that he had the right to raise additional
issues in a supplemental brief, the right to retain new counsel, and the right to file his
documents with this Court, pro se. Counsel’s petition to withdraw, with the letter
attached, contains a proof of service indicating that Jay was served with the petition to
withdraw and the letter on February 3, 2020. Although Counsel’s petition alleges that
she sent Jay a copy of the Anders brief, the attached proof of service only references a
petition to withdraw, and Counsel’s letter appears to be the only attachment to the
petition. This is particularly concerning in light of Counsel’s contention that she has
spoken and written to Jay, but has not heard from him since their initial conversations.
(Petition to Withdraw ¶7.) Accordingly, there is no evidence other than Counsel’s
contention that indicates that Jay was ever given a copy of the Anders brief. See
Durham v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No. 1338 C.D.
2016, filed October 11, 2017) (unreported)8 (requiring counsel to file a certificate of
service demonstrating that a copy of the petition for leave to withdraw and a copy of
the Anders brief or no-merit letter be served upon petitioner); Riede v. Pennsylvania
Board of Probation and Parole (Pa. Cmwlth., No. 337 C.D. 2015, filed August 8, 2016)
(unreported) (same).
Moreover, it does not appear that Counsel has satisfied her duties under
Anders with regard to the brief that she filed. Counsel, on behalf of Jay, identifies 10
issues for our consideration. However, Jay, in his PFR, clearly alleged that he “was
8
Durham is an unreported opinion. Under section 414(a) of this Court’s Internal Operating
Procedures, an unreported opinion may be cited for its persuasive value. 210 Pa. Code §69.414(a).
9
not provided legal aid at the preliminary hearing even though assistance was
requested.” (PFR ¶9.) Jay again raises the issue later in the PFR, specifically asking,
“[whether] [he was] deprive[d of] legal assistance at the aforesaid preliminary hearing
held on [May 10, 2019], for the aforesaid violations?” (PFR ¶26.) Although Counsel
identified 10 separate issues, she failed to address an issue clearly raised in Jay’s PFR.
“Although counsel should not be forced to pursue a frivolous contention, the
petitioner’s right to representation on appeal must be protected,” therefore, counsel
must “ensure that each of the petitioner’s claims has been considered and that counsel
has a substantive reason for concluding that those claims are meritless.” Hont v.
Pennsylvania Board of Probation and Parole, 680 A.2d 47, 48 (Pa. Cmwlth. 1996).
Whether the issue is meritless or not, Counsel failed to address this issue in her Anders
brief, and thus, she is not permitted to withdraw.
In Wesley v. Pennsylvania Board of Probation and Parole, 614 A.2d 355(Pa. Cmwlth. 1992), counsel filed an Anders brief on behalf of a recommitted parolee.
We explained that we will not reach the merits of an appeal until we are satisfied that
counsel has “discharged [her] responsibility in complying with the technical
requirements of an Anders brief or a no-merit letter.” Id. at 356. We explained that
Counsel must present “each issue the petitioner wished to have raised, with counsel’s
explanation of why those issues were meritless . . . .” Id. (citing Turner, 544 A.2d at
928-29). We further explained that “an Anders brief must contain at a minimum, the
list of issues raised by petitioner and [an] explanation of why those issues are meritless
. . . .” Id. Based on these precepts, we determined that because the parolee’s petition
for review raised four issues, and the Anders brief only addressed two of the four issues
raised, Counsel failed to satisfy her obligation under Anders. Id. at 357. We have
consistently reached this conclusion. See Hill v. Pennsylvania Board of Probation and
10
Parole, 707 A.2d 1214 (Pa. Cmwlth. 1998) (concluding that where counsel failed to
address issues in an Anders brief/no merit letter that were raised in the petition for
review, counsel was precluded from withdrawing); Hont, 680 A.2d at 48 (same); Riede
v. Pennsylvania Board of Probation and Parole (Pa. Cmwlth., No. 337 C.D. 2015, filed
August 8, 2016) (unreported) (same).
Accordingly, Counsel’s petition to withdraw is denied without prejudice,
and this Court will refrain from proceeding upon an independent examination of the
merits of Jay’s appeal until these obligations are satisfied.
________________________________
PATRICIA A. McCULLOUGH, Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Joseph Jay, :
Petitioner :
: No. 1272 C.D. 2019
v. :
:
Pennsylvania Board of :
Probation and Parole, :
Respondent :
ORDER
AND NOW, this 12th day of January, 2021, Victoria H. Vidt, Esquire’s
(Counsel) petition to withdraw as counsel is DENIED without prejudice. Counsel
is granted 30 days from the date of this Order to either file a renewed petition to
withdraw and an amended Anders v. State of California, 386 U.S. 738 (1967), brief,
or a no-merit letter consistent with Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), or, alternatively, to submit a brief on the merits. Counsel is further directed
to file proof of service demonstrating service of a copy of her filing on Petitioner
Joseph Jay.
________________________________
PATRICIA A. McCULLOUGH, Judge