M. Gerald v. PBPP ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Montae Gerald, :
Petitioner :
:
v. :
:
Pennsylvania Board of :
Probation and Parole, : No. 765 C.D. 2018
Respondent : Submitted: October 25, 2019
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: April 20, 2020
Montae Gerald (Gerald) petitions for review from the May 11, 2018
order of the Pennsylvania Board of Probation and Parole (Board), which denied
Gerald’s request challenging the recalculation of his parole violation maximum
sentence date. Gerald is represented by James L. Best, Esquire (Counsel), who
asserts that the appeal is without merit and seeks permission for leave to withdraw
as counsel. We vacate the Board’s decision, remand the matter to the Board for the
issuance of a new decision, and dismiss as moot Counsel’s motion for leave to
withdraw as counsel.
On March 13, 2014, the Board released Gerald on parole from a state
correctional institution where he was serving “[o]verlapping [c]oncurrent” 5-year to
10-year sentences resulting from robbery and burglary convictions. Certified
Record (C.R.) at 1-2 & 12. At the time of his release, Gerald’s maximum sentence
date was October 15, 2018. Id. at 2. While on parole, on December 19, 2015, the
Philadelphia Police Department arrested Gerald and, on the same day, the Board
detained him. Id. at 12-15. The next day, on December 20, 2015, the police charged
Gerald with multiple crimes and the Court of Common Pleas of Philadelphia County
(trial court) set bail at $900,000, which Gerald did not post. Id. at 16-17 & 52-61.
The Board issued Gerald a notice of charges and scheduled a detention hearing, but
Gerald waived his right to counsel and the hearing. Id. at 20-22. The Board voted
to detain him pending the disposition of the criminal charges. Id. at 18-19. On May
12, 2017, Gerald pleaded guilty to four felonies, including robbery, burglary,
conspiracy to commit robbery, and possession of a firearm when prohibited. Id. at
39-40 & 55-56. The same day, the trial court sentenced Gerald to serve time in a
state correctional institution as follows: 7 years, 6 months to 20 years for his robbery,
burglary, and conspiracy convictions; and 5 years to 10 years for his possession of a
firearm conviction. Id. at 39-40.
Based on Gerald’s new criminal convictions, the Board issued a notice
of charges and scheduled a revocation hearing. C.R. at 41. Gerald waived his right
to counsel and a revocation hearing and admitted to the new criminal convictions.
Id. at 37. On August 24, 2017, the Board voted to recommit Gerald as a convicted
parole violator, with no credit for time spent at liberty on parole. Id. at 31 & 36. By
decision mailed October 3, 2017, the Board notified Gerald of its decision to
recommit him as a convicted parole violator, for his unexpired term of 4 years, 7
2
months, and 1 day (i.e., 1,676 days). Id. at 63-65. As a result of Gerald’s
recommitment, the Board recalculated his maximum sentence date to March 27,
2022. Id. at 65.
In response to the Board’s October 3, 2017 decision, Gerald filed an
administrative remedies form challenging the Board’s recalculation of his maximum
sentence date. C.R. at 71. On his administrative remedies form,1 Gerald checked
the sentence credit challenge box and order of service of sentences box and provided
the following explanation: “My judge order [sic] for my new sentence to be running
concurrent with my backtime and that[’]s not what my green sheet says [sic] also its
on my sentence transcript.” Id. The Board, in its May 11, 2018 decision, responded
to Gerald’s request for relief as follows: “Upon review of your case, it was
determined there is no indication the Board failed to appropriately recalculate your
maximum date and your request for relief is denied.” Id. at 73.
Gerald, pro se, filed a timely petition for review with this Court
challenging the Board’s decision. By order dated June 12, 2018, this Court
appointed Counsel to represent Gerald and granted Gerald’s application to proceed
in forma pauperis. Cmwlth. Ct. Order dated 6/12/18.2 On January 23, 2019, Counsel
1
The Administrative Remedies Form provided:
Petition for Administrative Review (appeal of a revocation decision
regarding sentence calculations):
Check the Reason(s) for Relief and Explain:
1.Sentence Credit Challenge
2.☐Reparole Eligibility Date
3.Order of Service of Sentences
4.☐Other
Explanation: ______________________________________
C.R. at 71.
2
This Court gave Counsel an opportunity to file an amended petition for review but
Counsel did not do so. Cmwlth. Ct. Order dated 6/12/18.
3
filed a motion for leave to withdraw as counsel. In his motion for leave to withdraw
as counsel, Counsel states that “there is no basis in law or fact for the appeal” and
represents that he sent a copy of his motion and no-merit letter3 to Gerald. Motion
for Leave to Withdraw as Counsel ¶¶ 3-5. We now consider Counsel’s request to
withdraw.
When court-appointed counsel concludes that a petitioner’s appeal is
meritless, counsel may be permitted to withdraw if counsel satisfies the following
requirements: (i) he must notify the petitioner of the request to withdraw; (ii) he
must furnish the petitioner with a copy of a no-merit letter; and (iii) he must advise
the petitioner of his right to retain new counsel and to raise any new points he might
deem worthy of consideration. Miskovitch v. Pa. Bd. of Prob. & Parole, 77 A.3d
66, 69 (Pa. Cmwlth. 2013); Hughes v. Pa. Bd. of Prob. & Parole, 977 A.2d 19, 22
(Pa. Cmwlth. 2009). The no-merit letter must detail: (i) the nature and extent of
counsel’s review; (ii) each issue the petitioner wishes to have raised; and (iii)
counsel’s explanation as to why those issues are meritless. Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988); Zerby v. Shanon, 964 A.2d 956, 961 (Pa. Cmwlth.
2009). A no-merit letter must include “substantial reasons for concluding that” a
petitioner’s arguments are without merit. Zerby, 964 A.2d at 962. Once appointed
counsel fully complies with these requirements to withdraw, the Court
independently reviews the merits of the petitioner’s claims. Id. at 960.
3
Counsel seeking to withdraw may file an “Anders Brief” or a no-merit letter. See Anders
v. California, 386 U.S. 738 (1967). If petitioner has a constitutional right to counsel, then counsel
should file an Anders Brief. Hughes v. Pa. Bd. of Prob. & Parole, 977 A.2d 19, 25 (Pa. Cmwlth.
2009). In cases where there is no constitutional right to counsel, i.e., an appeal from the Board’s
decision to recalculate a parolee’s maximum sentence date, this Court only requires a no-merit
letter explaining why the claim is meritless to support the motion to withdraw. Id. at 25-26. The
standard applied in this case is whether Gerald’s claims are without merit. Id. at 26 n.4.
4
Here, on January 23, 2019, Counsel served Gerald a copy of the motion
for leave to withdraw as counsel and the no-merit letter. See Certificate of Service
attached to the Motion for Leave to Withdraw as Counsel. In his January 23, 2019
letter enclosed with the motion for leave to withdraw as counsel, Counsel advised
Gerald that his appeal is “without merit” and advised him that he is free to file his
own brief with the Court or, alternatively, to hire private counsel. See Motion for
Leave to Withdraw as Counsel ¶ 4, Exhibit A, No-Merit Letter to Gerald dated
1/23/19 (No-Merit Letter). On January 30, 2019, Counsel filed a Certificate of
Service with this Court certifying that he served Gerald with a copy of this Court’s
order dated January 24, 2019 by First-Class Mail. See Certificate of Service dated
1/30/19. This Court’s January 24, 2019 order gave Gerald 30 days to obtain
substitute counsel at his own expense or to file a brief on his own behalf in light of
Counsel’s request to withdraw. See Cmwlth. Ct. Order dated 1/24/19 (1)-(2).
In his no-merit letter, Counsel represents that he reviewed the certified
record and provided the factual and procedural history of the case. No-Merit Letter
at 1-3. Counsel identified the following issue for our consideration: “Did the Board
violate . . . Gerald’s rights by forfeiting his street time and extending his maximum
beyond the judicially set term?” Id. at 3. Counsel provided citations to law and, a
legal analysis, and concluded that the issue he asserts that Gerald raised is without
merit. Id. at 2-5. Because Counsel complied with the requirements to withdraw, we
now independently review Gerald’s claims.
Before this Court,4 Gerald argues that the Board “does not have [the]
power to alter a judicially imposed sentence.” Petition for Review ¶ 1. Gerald
4
Gerald’s petition for review contains eight paragraphs, most of which appears to be facts
or Gerald’s statement of law. Petition for Review ¶¶ 3-7.
5
“asks/requests that all time incarcerated be credited to original sentence as well as
parole time at liberty in good standing towards the maximum of his State sentence
issued by the judicial system.” Id. ¶ 8. We cannot, however, ascertain whether
Gerald’s claims are properly before this Court5 or whether the Board erred by
denying Gerald’s request for relief because the Board did not provide reasons for its
adjudication. Section 507 of the Administrative Agency Law provides that “[a]ll
adjudications of a Commonwealth agency shall be in writing, shall contain findings
and the reasons for the adjudication, and shall be served upon all parties or their
counsel personally, or by mail.” 2 Pa. C.S. § 507 (emphasis added). An agency is
required to explain the reasons for its decision. Id. The Board, in its May 11, 2018
decision, stated, “[u]pon review of your case, it was determined there is no indication
the Board failed to appropriately recalculate your maximum date and your request
for relief is denied.” C.R. at 73. Because the Board failed to explain the reasons for
its decision that it properly calculated Gerald’s maximum sentence date, this Court
is unable to engage in effective appellate review.6
5
We note that the Board’s regulations provide that petitions for administrative review may
be denied if the petition fails to present with “accuracy, brevity, clearness and specificity whatever
is essential to a ready and adequate understanding of the factual and legal points requiring
consideration.” 37 Pa. Code § 73.1(b)(2). Here, in his petition for administrative review filed with
the Board, Gerald checked the sentence credit challenge box and provided a written explanation.
C.R. at 71. We are unable to ascertain whether the issues Gerald raised or attempted to raise in his
petition for review to this Court were considered by the Board or are properly preserved before
this Court.
6
Our analysis is consistent with memorandum opinions issued by this Court where the
Board used the same or similar conclusory language to deny parolees requests for administrative
relief challenging their recalculated maximum sentence date. See, e.g., Lovett v. Pa. Bd. of Prob.
& Parole, (Pa. Cmwlth., No. 1153 C.D. 2018, filed August 21, 2019); Barksdale v. Pa. Bd. of
Prob. & Parole, (Pa. Cmwlth., No. 1402 C.D. 2018, filed August 21, 2019); & Brown v. Pa. Bd.
of Prob. & Parole, (Pa. Cmwlth., No. 710 C.D. 2018, filed January 25, 2019). Pursuant to Section
414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a), unreported panel
decisions issued by this Court after January 15, 2008 may be cited for their persuasive value.
6
Accordingly, we vacate the Board’s decision and remand the matter to
the Board for the issuance of a decision that sets forth the basis for concluding that
the Board properly calculated Gerald’s maximum sentence date, and we dismiss as
moot Counsel’s motion for leave to withdraw as counsel.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Montae Gerald, :
Petitioner :
:
v. :
:
Pennsylvania Board of :
Probation and Parole, : No. 765 C.D. 2018
Respondent :
ORDER
AND NOW, this 20th day of April, 2020, the May 11, 2018 order of
the Pennsylvania Board of Probation and Parole is VACATED, and the matter is
REMANDED to the Board for the issuance of a new decision. The motion for leave
to withdraw as counsel filed by James L. Best, Esquire, is DISMISSED as moot.
Jurisdiction relinquished.
__________________________________
CHRISTINE FIZZANO CANNON, Judge