S. Warring v. PBPP ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sean Warring, :
Petitioner :
:
v. : No. 508 C.D. 2019
: SUBMITTED: November 15, 2019
Pennsylvania Board of Probation :
and Parole, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: May 4, 2020
Petitioner Sean Warring (Warring) petitions for review of the Pennsylvania
Board of Probation and Parole’s (Board) March 28, 2019 ruling affirming its
November 6, 2018 decision, through which the Board recommitted Warring as a
convicted parole violator (CPV) to serve 12 months of backtime and recalculated his
maximum parole violation date as April 4, 2024. Warring’s counsel, Christopher E.
Farrell, Esquire (Counsel), has submitted an amended Petition for Leave to
Withdraw as Counsel (Amended Petition to Withdraw) along with a revised no-merit
letter.1 Counsel contends the arguments raised by Warring are frivolous and without
1
Through this type of letter, an attorney seeks to withdraw from representation of a parole
violator because “the [violator’s] case lacks merit, even if it is not so anemic as to be deemed
wholly frivolous.” Com. v. Wrecks, 931 A.2d 717, 722 (Pa. Super. 2007).
Such letters are referred to by various names by courts of this
Commonwealth. See, e.g., Commonwealth v. Porter, [. . .] 728 A.2d
890, 893 & n.2 ([Pa.] 1999) (referring to such a letter as a “‘no merit’
letter” and noting that such a letter is also commonly referred to as
a “Finley letter,” referring to the Superior Court case
merit. After thorough consideration, we grant Counsel’s Amended Petition to
Withdraw and affirm the Board’s March 28, 2019 ruling.
I. Background
On October 11, 2007, Warring pled guilty in the Court of Common Pleas of
Wayne County (Trial Court) to one count of robbery and was sentenced to a carceral
term of 3 to 12 years in state prison. Certified Record (C.R.) at 1. He was
subsequently paroled on January 25, 2010, at which point the maximum date on his
2007 sentence was May 10, 2017. Supplemental Certified Record (S.C.R.) at 4A-
11A.
On January 1, 2012, Warring was arrested in Hawley Borough, Pennsylvania,
and charged with one count each of aggravated assault, simple assault, resisting
arrest, harassment, disorderly conduct, and public drunkenness. Id. at 27A-31A. In
response, the Board issued a detainer for Warring on January 3, 2012. Id. at 35A. On
July 9, 2012, Warring pled guilty in the Trial Court, to two charges stemming from
this incident: simple assault and resisting arrest. Id. at 38A-39A. The Board then
held a parole revocation hearing and, on October 15, 2012, ordered Warring to serve
nine months of backtime as a CPV, “when available pending sentencing on”
Warring’s July 2012 guilty plea. Id. at 40A-53A. On November 29, 2012, the Trial
Court sentenced Warring to an aggregate carceral term of 18 to 48 months in state
prison, to be served consecutively to his 2007 sentence. Id. at 67A, 81A. On March
Commonwealth v. Finley,[. . .] 479 A.2d 568 ([Pa. Super.] 1984));
Zerby v. Shanon, 964 A.2d 956, 960 (Pa. Cmwlth. 2009) (“Turner
letter”)[, referring to the Pennsylvania Supreme Court case
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988)];
Commonwealth v. Blackwell, 936 A.2d 497, 499 (Pa. Super. 2007)
(“Turner/Finley letter”).
Hughes v. Pa. Bd. of Prob. & Parole, 977 A.2d 19, 25 n.2 (Pa. Cmwlth. 2009).
2
28, 2013, the Board modified its October 15, 2012 decision by recalculating the
maximum date on Warring’s 2007 sentence as January 23, 2020. Id. at 90A. Warring
was paroled from his 2007 sentence on November 25, 2013 and subsequently
paroled from his 2012 sentence on August 27, 2015. C.R. at 7, 18.
On November 7, 2017, Warring was arrested by the Pennsylvania State Police
in Honesdale, Pennsylvania, and charged with one count each of simple assault and
harassment. Id. at 34. The Board issued a detainer for Warring that same day. Id. at
55. On December 29, 2017, Warring posted bond regarding the charges stemming
from the Honesdale arrest. Id. at 83. On August 22, 2018, Warring pled nolo
contendere in the Trial Court to one count of simple assault and was sentenced to
three to six months in county prison on August 30, 2018, to be served concurrently
with his 2012 sentence. Id. at 85-86.
Warring waived his right to counsel, as well as to a parole revocation hearing,
and admitted to the veracity of his 2018 conviction on September 13, 2018. Id. at
63-64. He was then paroled from his 2018, county-level sentence on October 7,
2018. Id. at 75. On November 6, 2018, the Board issued a decision in which it
ordered Warring to serve 12 months of backtime as a CPV and recalculated the
maximum date on his 2007 sentence as April 4, 2024. Id. at 94-95. The Board also
stated that it declined to award Warring credit for street time because his “new
conviction [was] assaultive in nature.” Id. at 94.
On December 3, 2018, Thomas J. Killino, Esquire, faxed an administrative
remedies form to the Board on behalf of Warring. Id. at 99. Therein, Warring
claimed that the Board had improperly calculated both his street time and his
maximum date. Id. at 100. Warring argued that he had been incarcerated between
November 25, 2013, and August 27, 2015, and, thus, he was not at liberty on parole
3
during that time window. Id. As a result, Warring believed the maximum date on his
2007 sentence should actually be set as an unspecified date in 2021, rather than April
4, 2024. Id. In addition, Warring stated that “both sides [had] anticipated . . . that
any sentence would be concurrent to anything else being served” and, therefore, he
“should have [received] time credit from 11/7/17 to 11/1/18 and be eligible for
immediate parole.” Id. at 100-01. It is not clear exactly what Warring means by “both
sides” or the specific sentence to which he refers. Id.
The Board responded on March 28, 2019, via a letter in which it affirmed its
November 6, 2018 decision. Therein, the Board explained that Warring’s 2007
sentence had 2250 remaining days when he was paroled on November 25, 2013. Id.
at 112. The Board stated it had acted within its discretion by denying him credit for
time served at liberty on parole but had awarded him 244 days of credit for the time
he was held solely on the Board’s detainer prior to the disposition of his 2017
charges. Id. Accordingly, Warring now had 2006 days left on his 2007 sentence. Id.
Given that Warring was statutorily required to serve the county-level sentence
imposed in August 2018 prior to his Board-imposed backtime, the Board concluded
that Warring was not available to start serving this backtime until October 7, 2018
(i.e., the date upon which he was paroled from this county-level sentence). Id. at 113.
The Board then concluded that it had properly calculated Warring’s maximum date
as April 4, 2024. Id.
On April 28, 2019, Counsel, who by then had been appointed to represent
Warring, filed a Petition for Review with our Court on behalf of Warring.2 Therein,
Warring argued that the Board had abused its discretion by failing to properly credit
2
Warring’s Petition for Review was timely, as the final day of the appeal window fell on
a weekend and the Petition for Review was filed on the first business day thereafter. See Pa. R.A.P.
108(a) and Note.
4
him for the time period in which he was detained, recalculating his maximum date,
and not providing a sufficient explanation for its decision not to award him credit
for street time. Petition for Review, ¶¶3-4.
On September 9, 2019, Counsel filed a Petition for Leave to Withdraw as
Counsel and a no-merit letter. On December 9, 2019, we ordered the Board to file a
supplemental certified record, as there were a number of items missing from the
original Certified Record. Commonwealth Ct. Order, 12/9/19, at 1. We also directed
Counsel to submit either an amended petition for leave to withdraw as counsel and
a revised no-merit letter, or a substantive brief, within 20 days of the Board’s filing
of this supplemental certified record. Id. The Board complied with our order on
December 17, 2019.
Counsel then filed his Amended Petition to Withdraw and revised no-merit
letter on January 21, 2020. In his Amended Petition to Withdraw, Counsel stated
that he had reviewed all of the relevant records and had concluded “that there is no
merit to [Warring’s] Petition for Review.” Amended Petition to Withdraw, ¶6. In
addition, Counsel identified four issues as having been raised by Warring, regarding
“his street time credit, his new maximum date, credit for his incarceration[,] and his
request for immediate parole.” Id., ¶5. In his revised no-merit letter, Counsel
provided a thorough recapitulation of Warring’s criminal record and the resultant
Board actions. No-Merit Letter at 1-4. Counsel also explained, in some detail, why
each of the arguments made by Warring was without merit. Id. at 4-7.
On January 28, 2020, we granted Counsel’s Application for Extension of
Time to File Brief, which he had filed concurrently with the Amended Petition to
Withdraw and revised no-merit letter, thereby giving Warring until February 27,
5
2020, to obtain new counsel and/or file a pro se brief, if he so chose. Commonwealth
Ct. Order, 1/28/20, at 1. Warring did not avail himself of this opportunity.
II. Technical Sufficiency of Counsel’s No-Merit Letter
Before addressing the validity of Warring’s substantive arguments, we must
assess the adequacy of Counsel’s revised no-merit letter. Throughout this process,
Warring has only sought to challenge the Board’s calculation of his maximum date,
its imposition of backtime, and its determinations regarding credit for various
periods during which Warring was either on the street or in carceral detention. For
this reason, Counsel appropriately elected to file a no-merit letter. See Seilhamer v.
Pa. Bd. of Prob. & Parole, 996 A.2d 40, 43 n.4 (Pa. Cmwlth. 2010). “A no-merit
letter must include an explanation of ‘the nature and extent of counsel’s review and
list each issue the petitioner wished to have raised, with counsel’s explanation of
why those issues are meritless.’” Id. at 43 (quoting Turner, 544 A.2d at 928)
(brackets omitted). As long as a no-merit letter satisfies these basic requirements,
we may then review the soundness of a petitioner’s request for relief. Zerby, 964
A.2d at 960. However, in the event the letter fails on technical grounds, we must
deny the request for leave to withdraw, without delving into the substance of the
underlying petition for review, and may direct counsel to file either an amended
request for leave to withdraw or a brief on behalf of their client. Id.
Counsel’s revised no-merit letter satisfies these technical requirements. It
contains a recitation of the relevant factual and procedural history, discussions of
each argument raised by Warring, and a thorough explanation, backed by case and
statutory law, regarding Counsel’s conclusion that none of these arguments afford
Warring a valid basis for relief. Further, Counsel has appropriately provided Warring
with copies of these documents, notified Warring about Counsel’s intentions, and
6
informed Warring of his right to hire another lawyer to represent him in this matter
or to proceed in a pro se fashion. Consequently, we will conduct an independent
examination of Warring’s Petition for Review, in order to determine whether any of
his claims are meritorious.3
III. Discussion and Analysis
The arguments put forth by Warring do not stand up to scrutiny and, therefore,
he is not entitled to relief. As already noted, the Board paroled Warring from his
2007 sentence on November 25, 2013. At that point, the maximum date on this
sentence was January 23, 2020. The remaining unserved time on Warring’s 2007
sentence when he was paroled in November 2013 was thus 2250 days. This parole
was constructive in nature, as Warring immediately began serving his 2012 sentence
that was consecutive to his 2007 sentence. See Spruill v. Pa. Bd. of Prob. & Parole,
158 A.3d 727, 730 (Pa. Cmwlth. 2017). As a result, Warring was not entitled to any
credit towards his 2007 sentence for the time between November 25, 2013, and
August 27, 2015, i.e., the dates upon which he was respectively paroled from his
2007 and 2012 sentences. Merritt v. Pa. Bd. of Prob. & Parole, 574 A.2d 597, 598
(Pa. 1990); Spruill, 158 A.3d at 730-31.
Moving on, when an individual is held in custody on both the Board’s detainer
and new criminal charges, all credit for this time will be applied towards a carceral
sentence stemming from the new charges.4 Gaito v. Pa. Bd. of Prob. & Parole, 412
3
Under Section 704 of the Administrative Agency Law, our standard of review in this
matter is limited to determining whether the Board violated Warring’s constitutional rights,
committed an error of law, or made findings of fact that were not supported by substantial
evidence. 2 Pa. C.S. § 704.
4
If the time spent by the individual in presentence detainment exceeds the length of his
new sentence, the remaining balance must then be applied to the older sentence. Martin v. Pa. Bd.
of Prob. & Parole, 840 A.2d 299, 309 (Pa. 2003).
7
A.2d 568, 571 (Pa. 1980). However, if an individual is held only due to the Board’s
detainer, then that period of detainment must be applied to the older sentence from
which the Board’s detainer springs. Id. When Warring was arrested in Honesdale,
Pennsylvania, on November 7, 2017, he was immediately held on both the charges
stemming from that arrest and on the Board’s detainer. This changed on December
29, 2017, when he made bail on the November 2017 charges. Warring was thus held
solely on the Board’s detainer between that date and his sentencing on August 30,
2018. The Board properly credited Warring for that 244-day time period and, as
such, correctly calculated the balance of his 2007 sentence as being 2006 days.
Finally, it is well-settled that Board-imposed backtime must be served
consecutively with any other carceral sentences. Palmer v. Pa. Bd. of Prob. &
Parole, 134 A.3d 160, 165 (Pa. Cmwlth. 2016); 61 Pa. C.S. § 6138(a)(5).
Furthermore, the Trial Court ordered Warring to serve his 2018, county-level
sentence concurrently with his 2012 sentence, but did not direct that this 2018
sentence also be served concurrently with Warring’s 2007 sentence. Accordingly,
the Board appropriately deemed October 7, 2018, the date upon which Warring was
paroled from his 2018 sentence, as being when Warring was available to start serving
his backtime and the point from which the maximum date for his 2007 sentence
should be recalculated. Adding 2006 days to October 7, 2018, results in a new
maximum date of April 4, 2024, confirming the Board’s identical conclusion.
As for Warring’s remaining argument, regarding the Board’s alleged failure
to offer a sufficient explanation for its decision to deny him credit for street time, we
note that he failed to raise it at the administrative level before the Board. Therefore,
Warring cannot challenge the Board’s March 28, 2019 ruling before our Court on
this basis, as he has waived this argument. 2 Pa. C.S. § 703(a); Pa. R.A.P. 1551;
8
McCaskill v. Pa. Bd. of Prob. & Parole, 631 A.2d 1092, 1094-95 (Pa. Cmwlth.
1993).5
IV. Conclusion
Because Counsel’s revised no-merit letter is technically sufficient and
Warring failed to preserve or raise any meritorious issues, we grant Counsel’s
Amended Petition to Withdraw and affirm the Board’s March 28, 2019 ruling.
__________________________________
ELLEN CEISLER, Judge
5
This argument is also substantively baseless, as the Board explained in its November 6,
2018 decision that it had declined to award Warring credit for street time because his “new
conviction [(i.e., simple assault) was] assaultive in nature.” C.R. at 94. This explanation, though
brief, satisfied the Board’s statutory obligation to explain the reasoning behind this discretionary
denial. Pittman v. Pa. Bd. of Prob. & Parole, 159 A.3d 466, 474 (Pa. 2017); 61 Pa. C.S. §
6138(a)(2.1). As our Supreme Court has explained, “the reason the Board gives does not have to
be extensive and a single sentence explanation is likely sufficient in most instances.” Pittman, 159
A.3d at 475 n.12.
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sean Warring, :
Petitioner :
:
v. : No. 508 C.D. 2019
:
Pennsylvania Board of Probation :
and Parole, :
Respondent :
ORDER
AND NOW, this 4th day of May, 2020, Christopher E. Farrell, Esquire’s
amended Petition for Leave to Withdraw as Counsel is GRANTED, and the
Pennsylvania Board of Probation and Parole’s March 28, 2019 ruling is
AFFIRMED.
__________________________________
ELLEN CEISLER, Judge