S. Schieber v. PBPP ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sean Schieber, :
Petitioner :
:
v. : No. 1357 C.D. 2019
: Submitted: October 9, 2020
Pennsylvania Board of Probation :
and Parole, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: February 4, 2021
Sean Schieber petitions for review of an adjudication of the
Pennsylvania Board of Probation and Parole (Board)2 denying his administrative
appeal. Schieber’s appointed counsel, Allison D. Hartle, Esquire (Counsel), on
behalf of the Forest County Public Defender’s Office, has filed a motion to withdraw
as counsel, along with a no-merit letter. For the reasons that follow, we deny
Counsel’s request to withdraw.
In 2009, Schieber pled guilty to two counts of unlawful sale or transfer
of a firearm; possession with intent to manufacture, sell, or deliver a controlled
substance; and criminal conspiracy. He was sentenced to a term of incarceration of
1
This case was assigned to the opinion writer before January 4, 2021, when Judge Leavitt
completed her term as President Judge.
2
Following 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 (Parole Code), as amended, 61 Pa. C.S. §§6101, 6111(a).
5 to 10 years. On September 8, 2014, Schieber was paroled from the State
Correctional Institution (SCI) at Frackville. At the time of his parole, Schieber’s
maximum sentence date was December 18, 2018.
On September 11, 2017, the Upper Darby Police Department arrested
Schieber and charged him with various firearms-related offenses, possession of
marijuana, possession of drug paraphernalia, driving under the influence of a
controlled substance (DUI), and careless driving. On that same day, the Board
issued a warrant to commit and detain Schieber for violating the conditions of his
parole. Schieber did not post bail and remained confined in the Delaware County
Prison.
On August 22, 2018, Schieber pled guilty to possession of a prohibited
firearm, possession of a small amount of marijuana, and DUI in the Delaware County
Court of Common Pleas. He was sentenced to 30 to 60 months of confinement in
an SCI. On November 20, 2018, Schieber waived his right to be represented by
counsel and to a panel hearing. On November 28, 2018, based on the new criminal
convictions, the Board conducted a parole revocation hearing.3 On December 20,
2018, the Board recommitted Schieber as a convicted parole violator to serve his
unexpired term of one year, three months, and six days. The Board awarded
Schieber credit for the time he spent at liberty on parole from September 8, 2014, to
September 11, 2017, and from September 11, 2017, to September 12, 2017. The
Board recalculated Schieber’s maximum sentence date to March 26, 2020.4
3
Because Schieber waived his right to a panel hearing, the revocation hearing was held before a
hearing examiner.
4
Although this maximum date of sentence has passed, this matter is not rendered moot. If the
Court was to grant Schieber’s appeal, time served on his original sentence could be applied to his
new sentence. Further, records from the Department of Corrections indicate that Schieber is
2
Schieber filed an administrative appeal with the Board, challenging the
calculation of his maximum sentence date. By decision mailed August 22, 2019, the
Board denied his request for administrative relief. The Board explained that
Schieber received credit for the time he spent at liberty on parole and that it awarded
an additional day of backtime credit.5 It also explained that any other time Schieber
questioned would be credited to his new sentence, not his original sentence. The
Board further explained that Schieber did not become available to begin serving his
backtime on his original sentence until December 20, 2018, when the Board made
its recommitment decision.
Schieber, pro se, petitioned this Court for review. He raises seven
issues, which we combine into three for clarity. First, he argues that the Board erred
by not allowing him to serve his new sentence concurrently with the remaining
balance of his original sentence. Second, he contends that the Board lacked authority
to extend his maximum sentence date beyond that imposed by the sentencing court,
and that Section 6138(a) of the Parole Code, 61 Pa. C.S. §6138(a),6 which authorizes
currently incarcerated at SCI-Forest. See http://inmatelocator.cor.pa.gov/#/ (last visited February
4, 2021).
5
As discussed above, the record establishes that Schieber was arrested on September 11, 2017,
not September 12, 2017, as the Board stated. Regardless, the Board’s erroneous statement of
Schieber’s arrest date and subsequent award of one day of backtime credit are in Schieber’s favor
and, therefore, are not at issue on appeal.
6
Section 6138(a) of the Parole Code states, in relevant part:
(a) Convicted Violators.--
(1) A parolee under the jurisdiction of the board 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 by a judge or jury or to which the parolee pleads
guilty or nolo contendere at any time thereafter in a court of record, may at
the discretion of the board be recommitted as a parole violator.
***
3
such a recalculation by the Board, is unconstitutional. Third, Schieber argues that
by increasing his original sentence due to his new criminal convictions, the Board
placed him in double jeopardy.
Counsel has filed a motion to withdraw as counsel and a no-merit letter,
asserting that Schieber’s appeal lacks merit.7
In Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), our Supreme
Court set forth the technical requirements appointed counsel must meet in order to
withdraw from representation of a parolee. This Court has summarized the
requirements as follows:
[C]ounsel seeking to withdraw from representation of a
petitioner seeking review of a determination of the Board must
provide a “no-merit” letter[,] which details “the nature and extent
(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 board 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 42
Pa. C.S. §9714(g) (relating to sentences for second and
subsequent offenses) or a crime requiring registration under
42 Pa. C.S. Ch. 97 Subch. H (relating to registration of
sexual offenders).
(ii) The parolee was recommitted under section 6143
(relating to early parole of inmates subject to Federal
removal order).
61 Pa. C.S. §6138(a).
7
Counsel later served on Schieber and filed with this Court a second motion to withdraw as
counsel. This second filing, which is similar to the first, does not affect the analysis or disposition
of this matter. Therefore, we do not consider it.
4
of [the attorney’s] review and list[s] each issue the petitioner
wished to have raised, with counsel’s explanation of why those
issues are meritless.”
Zerby v. Shanon, 964 A.2d 956, 961 (Pa. Cmwlth. 2009). Counsel must also send
the parolee a copy of the “no-merit” letter that satisfies the Turner requirements,
furnish him with a copy of counsel’s motion to withdraw, and inform the parolee of
his right to retain new counsel or submit a brief on his own behalf. Reavis v.
Pennsylvania Board of Probation and Parole, 909 A.2d 28, 33 (Pa. Cmwlth. 2006).
If counsel fails to satisfy the foregoing requirements, we will not reach the merits of
the underlying claims but will merely deny counsel’s request to withdraw. Zerby,
964 A.2d at 960.
Counsel’s no-merit letter does not meet the Turner requirements
because it fails to explain why two of Schieber’s three issues lack merit. In her no-
merit letter, Counsel recites in detail each of the three issues Schieber raises, but then
discusses another issue not raised in Schieber’s petition for review, i.e., whether the
Board “abuse[d its] discretion by not applying [Schieber’s] street time/liberty time
as credit towards [the] incarceration portion of [Schieber’s] sentence.” No-Merit
Letter at 2.8 Counsel then concludes:
The [] Parole Code provides that a convicted parole violator who
is paroled from a[n SCI] and is then convicted of another
criminal offense and is sentenced to another sentence in a[n SCI]
must serve the original (or first) sentence prior to the second
sentence. 61 Pa. C.S. [§]6138(a)(5). You[r] other issues that
you have brought up have no merit and do not meet the burden
8
We note, however, that the Board did award Schieber credit for the time he spent at liberty on
parole, and Counsel’s suggestion to the contrary and discussion of this issue appear to have been
in error. See Certified Record at 82-83.
5
needed to have your parole denial appeal and other requests
granted.
After carefully reviewing your parole appeal and researching the
issue you have raised, I have determined that your main issue is
without merit and is frivolous….
Id.
Counsel’s no-merit letter addresses Schieber’s first issue, i.e., that his
original and new sentences should be served concurrently. In so doing, Counsel
explains that because Schieber’s original and new sentences are both to be served in
an SCI, they must be served consecutively and in that order. See 61 Pa. C.S.
§6138(a)(5)(i).9 No further explanation is required for this issue.
Counsel does not, however, cite facts of record or offer analysis to
support her nonspecific conclusion that Schieber’s “other issues” lack merit. No-
Merit Letter at 2. Counsel identified, but failed to address, Schieber’s second
argument that the Board lacked authority to recalculate his maximum sentence date,
and his third argument that the Board unconstitutionally imposed a second sentence
upon him for the same crime. She additionally identifies an issue that was not raised
in either Schieber’s administrative appeal to the Board or his petition for review to
this Court. A no-merit letter must explain why and how the issues raised by the
petitioner lack merit. See Jefferson v. Pennsylvania Board of Probation and Parole,
9
Section 6138(a)(5)(i) of the Parole Code states:
(5) If a new sentence is imposed on the parolee, the service of the balance of the
term originally imposed by a Pennsylvania court shall precede the commencement
of the new term imposed in the following cases:
(i) If a person is paroled from a[n SCI] and the new sentence
imposed on the person is to be served in the [SCI].
....
61 Pa. C.S. §6138(a)(5)(i).
6
705 A.2d 513, 514 (Pa. Cmwlth. 1998) (counsel’s no-merit letter must analyze the
petitioner’s legal claims and give “substantial reasons for concluding that the claims
are frivolous”).
Because Counsel failed to analyze the second and third issues Schieber
raised in his petition for review, her no-merit letter does not comply with the Turner
requirements. Accordingly, we deny Counsel’s motion to withdraw as counsel,
without prejudice, and direct Counsel to file and serve, within 30 days, a new
application for leave to withdraw and a no-merit letter that complies with Turner.
Alternatively, if Counsel concludes that Schieber’s petition for review has merit,
Counsel shall file a brief to support Schieber’s claims.
_____________________________________
MARY HANNAH LEAVITT, President Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sean Schieber, :
Petitioner :
:
v. : No. 1357 C.D. 2019
:
Pennsylvania Board of Probation :
and Parole, :
Respondent :
ORDER
AND NOW, this 4th day of February, 2021, the motion to withdraw as
counsel filed by Allison D. Hartle, Esquire (Counsel), is DENIED, without
prejudice. Counsel is ORDERED to file and serve, within 30 days from the date of
this Order, either an application for leave to withdraw her appearance and a no-merit
letter that complies with Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), or a
brief addressing the merits of Petitioner Sean Schieber’s petition for review.
_____________________________________
MARY HANNAH LEAVITT, President Judge