K. Brown v. PBPP ( 2020 )


Menu:
  •            IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Kamil Brown,                                    :
    Petitioner        :
    :
    v.                               :   No. 767 C.D. 2019
    :   Submitted: November 22, 2019
    Pennsylvania Board                              :
    of Probation and Parole,                        :
    Respondent        :
    BEFORE: HONORABLE P. KEVIN BROBSON, Judge
    HONORABLE MICHAEL H. WOJCIK, Judge
    HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION
    BY JUDGE BROBSON                                FILED: September 29, 2020
    Petitioner Kamil Brown (Brown) petitions for review of a final determination
    of the Pennsylvania Board of Probation and Parole1 (Board), mailed May 22, 2019.
    The Board affirmed its prior decision, recorded on April 19, 2019 (mailed
    April 23, 2019), thereby denying Brown’s request for administrative relief, in which
    he sought to challenge the Board’s recalculation of his maximum sentence date.
    Brown’s counsel, David Crowley, Esquire (Counsel), filed an application to
    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 (effective February 18, 2020); see also Sections 6101 and 6111(a)
    of the Prisons and Parole Code (Code), as amended, 61 Pa. C.S. §§ 6101, 6111(a).
    withdraw as counsel. Counsel asserted, as expressed in his no-merit letter,2 that the
    issues Brown raises in his petition for review are without merit. For the reasons set
    forth below, we grant Counsel’s application to withdraw and affirm the final
    determination of the Board.
    By action recorded on March 8, 2016, the Board granted Brown parole.
    (Certified Record (C.R.) at 4.) Brown was officially released from confinement at a
    State Correctional Institution (SCI) on July 5, 2016. (Id. at 83.) At the time of his
    parole, Brown had a maximum sentence date of December 23, 2020. (Id.)
    On December 10, 2017, the Philadelphia Police Department arrested Brown
    on various charges relating to possession of a firearm. (Id. at 79-80.) The next day,
    the Board issued a warrant to commit and detain Brown. (Id. at 82.) Brown did not
    post bail. (Id. at 79.) Brown waived his right to a detention hearing and counsel.
    (Id. at 24.)       By Board action recorded on January 26, 2018, the Board
    detained Brown pending resolution of his criminal charges.                           (Id. at 29.)
    On December 11, 2018, the Court of Common Pleas of Philadelphia County
    (common pleas) convicted Brown of felony possession of a firearm. (Id. at 63.)
    2
    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 his 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 Pennsylvania Supreme Court, 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
    On March 11, 2019, common pleas sentenced Brown to a term of imprisonment of
    two to four years. (Id. at 77.)
    On April 1, 2019, Brown, represented by counsel, participated in a revocation
    hearing before a hearing examiner, during which he acknowledged his new
    conviction. (Id. at 37, 45.) That same day, the hearing examiner prepared a hearing
    report, which she and a Board member signed on April 2, 2019, and April 3, 2019,
    respectively. (Id. at 30-36.) Thereafter, by action recorded on April 19, 2019
    (mailed on April 23, 2019), the Board recommitted Brown as a convicted parole
    violator for a period of 24 months’ backtime. (Id. at 88.) The Board recalculated
    Brown’s maximum sentence date as September 21, 2023, and calculated Brown’s
    parole eligibility date as April 3, 2021. (Id.)
    On April 30, 2019, Brown submitted a pro se administrative remedies form to
    the Board. (Id. at 90.) On May 10, 2019, Brown’s counsel submitted the same form
    on his behalf. (Id. at 95-96.) Brown essentially argued that the Board erred by
    denying him credit for the entirety of his time spent at liberty on parole because he
    did not commit a crime of violence. (Id. at 90, 94.) Brown also argued that the
    Board erred in imposing a recalculated maximum sentence date that will cause him
    to serve more time than the sentence imposed by common pleas, in contravention of
    Pennsylvania statutory and constitutional law. (Id. at 94.) Finally, Brown argued
    that the Board erred in calculating his reparole eligibility date. (Id.)
    In response, the Board issued a final determination, mailed May 22, 2019,
    denying Brown’s challenge. (Id. at 98-99.) In so doing, the Board reasoned:
    The Board denied [Brown] credit for time at liberty on
    parole in this instance . . . .
    The Board properly recalculated . . . Brown’s max
    date. The Board paroled him from [an SCI] on
    July 5, 2016, with a max[imum] date of December 23,
    3
    2020. This left him with 1632 days remaining on his
    sentence . . . .
    On December 11, 2017, the Board lodged its
    detainer . . . . [Brown] did not post bail. [Common pleas]
    sentenced him to a state term of imprisonment on
    March 11, 2019.
    The . . . Code[, 61 Pa. C.S. §§ 101-7123,] provides
    that convicted parole violators who are paroled from a[n
    SCI] and then receive another sentence to be served in a[n
    SCI] must serve the original sentence first. However, that
    provision does not take effect until the parolee is
    recommitted as a convicted parole violator. Thus, . . .
    Brown did not become available to commence service of
    his original sentence until April 3, 2019, when the Board
    made [its] decision. Adding 1632 days to that date yields
    a new maximum sentence date of September 21, 2023.
    . . . Brown is eligible to apply for parole on
    April 19, 2020. The eligibility for reparole date of
    April 3, 2021[,] that is listed on the [B]oard action reflects
    the end of the 24[-]month recommitment period. The
    Board will schedule an interview three months before
    April 3, 2021[,] without an application for parole.
    (Id. (citation omitted).)
    Brown then filed the instant petition for review on June 21, 2019, arguing that
    the Board failed to credit his original sentence with all the time to which he is
    entitled. Before evaluating the merits of Brown’s challenge, we will first address
    Counsel’s application to withdraw from his representation of Brown. When no
    constitutional right to counsel is involved in a parole case, an attorney seeking to
    withdraw from representing a prisoner may file a no-merit letter, as compared to an
    Anders brief. Turner, 544 A.2d at 928-29. In Hughes v. Pennsylvania Board of
    Probation and Parole, 
    977 A.2d 19
     (Pa. Cmwlth. 2009) (en banc), this Court held
    that a constitutional right to counsel in a parole matter arises only when the
    prisoner’s case includes:
    4
    [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 25-26
     (quoting Gagnon v. Scarpelli, 
    411 U.S. 778
    , 790 (1973)).
    The record in this matter contains no suggestion by Brown that he did not commit
    the crimes for which he received a new criminal conviction, nor does Brown suggest
    any reasons to justify or mitigate the parole violation3—i.e., his new criminal
    conviction.        Thus, Brown has only a statutory right to counsel under
    Section 6(a)(10) of the Public Defender Act.4
    In order to satisfy the procedural requirements associated with no-merit
    letters, counsel must: (1) notify the parolee that he has submitted to the Court a
    request to withdraw; (2) provide the parolee with a copy of counsel’s no-merit letter;
    and (3) advise the parolee that he has the right to obtain new counsel and to submit
    to the Court a brief of his own, raising any arguments that he may believe are
    3
    Counsel states in his no-merit letter that Brown “offered mitigation at the dispositional
    portion of the [revocation] hearing” before the Board. (Counsel’s no-merit letter at 3.) A review
    of the hearing transcript reveals, however, that Brown simply discussed some difficulties he had
    faced (including injuries and loss of family members) and his participation in parole-related
    programs for the Board to consider in assessing his “street time.” (C.R. at 49.) Brown
    simultaneously explained that he “take[s] full responsibility for whatever took place during . . .
    [his December 10, 2017] arrest,” and that he is “not shying away from” his conviction. (Id. at 51.)
    Thus, although Counsel may characterize Brown’s testimony as “mitigation” for purposes of the
    Board’s decision to grant or deny credit, Brown did not offer mitigation or justification for—
    indeed, he expressly took full responsibility for—the violation that led to the revocation of his
    parole.
    4
    Act of December 2, 1968, P.L. 1144, as amended, 16 P.S. § 9960.6(a)(10).
    5
    meritorious.5      Reavis v. Pa. Bd. of Prob. & Parole, 
    909 A.2d 28
    , 33
    (Pa. Cmwlth. 2006). In seeking to withdraw, this Court has consistently required an
    attorney to include the following descriptive information in a no-merit letter: (1) the
    nature and extent of counsel’s review of the case; (2) the issues the parolee wants to
    raise; and (3) the analysis counsel used in reaching his conclusion that the issues are
    meritless. Zerby v. Shanon, 
    964 A.2d 956
    , 961 (Pa. Cmwlth. 2009). Consequently,
    before conducting an independent review of the merits of the appeal to determine
    whether Brown’s appeal has no merit, we must first evaluate Counsel’s no-merit
    letter to determine whether it complies with the requirements for withdrawal
    applications.
    In his petition for review, Brown argues that the Board failed to credit his
    original sentence with all the time to which he is entitled. Additionally, before the
    Board, Brown argued that the Board lacks jurisdiction and/or authority to recalculate
    his judicially imposed sentence—an argument Counsel addressed in his no-merit
    letter. Counsel’s no-merit letter contains an adequate summary of Brown’s parole
    and conviction history. Further, Counsel has discussed the issues and provided a
    satisfactory legal analysis.6         Counsel’s no-merit letter, therefore, meets the
    5
    Counsel served Brown with his application to withdraw and no-merit letter. Counsel
    advised Brown of his right to retain counsel and to file a brief on his own behalf. Thus, Counsel
    has complied with these requirements.
    6
    In considering Brown’s potential arguments on appeal, Counsel addressed whether the
    Board: (1) has jurisdiction and/or authority to recalculate Brown’s maximum sentence; (2) abused
    its discretion in denying him credit for time at liberty on parole; (3) erred in recalculating his
    maximum sentence date; or (4) erroneously calculated Brown’s reparole eligibility date as
    April 3, 2021. Regarding the fourth issue, Counsel correctly noted that Brown may reapply for
    parole one year after the Board’s most recent decision with respect to his parole (i.e., on
    April 19, 2020), and that the Board must act on such an application and may not restrict his
    statutory right to apply for parole. See McGinley v. Pa. Bd. of Prob. & Parole, 
    90 A.3d 83
    , 92 (Pa.
    Cmwlth. 2014). Counsel then observed that the Board conceded this point in its decision, stating
    6
    requirements under Zerby, and we may proceed to determine whether Counsel is
    correct that Brown’s petition for review has no merit.
    Our courts have routinely upheld the Board’s authority to recalculate a parole
    violator’s maximum sentence date. As the Pennsylvania Supreme Court wrote, “the
    Parole Board’s power to deny credit for ‘street time’ . . . is not an encroachment
    upon the judicial sentencing power.” Young v. Pa. Bd. of Prob. & Parole, 
    409 A.2d 843
    , 848 (Pa. 1979). This maxim was reiterated in Gaito v. Pennsylvania Board of
    Probation and Parole, 
    412 A.2d 568
     (Pa. 1980), where our Supreme Court opined:
    “[W]hen the Board refuses to credit a convicted parole violator with time spent free
    on parole there is neither a usurpation of the judicial function of sentencing nor a
    denial of the procedural safeguards to which persons are entitled.” Gaito, 412 A.2d
    at 570. Further, this Court, in Davidson v. Pennsylvania Board of Probation and
    Parole, 
    33 A.3d 682
     (Pa. Cmwlth. 2011), determined that “the Board did not violate
    the separation of powers doctrine by acting pursuant to [Section 6138 of the Code,]
    61 Pa. C.S. § 6138[,] and recommitting [the p]etitioner as a convicted parole violator
    without credit for time served at liberty on parole.” Davidson, 
    33 A.3d at 686
    . It
    follows, therefore, that the Board acted within its jurisdiction and authority when it
    recalculated Brown’s maximum sentence date.
    When deciding not to award credit for time served at liberty on parole, the
    Board must “provide a contemporaneous statement explaining its reason for denying
    a [convicted parole violator] credit for time spent at liberty on parole.” Pittman v.
    Pa. Bd. of Prob. & Parole, 
    159 A.3d 466
    , 475 (Pa. 2017). Accordingly, so long as
    the Board provides a reason for denying credit for street time, it has sufficiently
    that Brown could reapply for parole beginning April 19, 2020, but clarifying that the Board would
    automatically schedule a parole interview, even without an application, at the end of his two-year
    backtime (i.e., on April 3, 2021).
    7
    exercised its discretionary power. In this case, the Board explained its reason for
    denying Brown credit for his street time by noting on the hearing report that it would
    deny credit and indicating that it did so due to the fact that Brown was arrested for a
    firearms charge. (C.R. at 32.) The Board, therefore, has exercised its discretionary
    powers pursuant to Section 6138(a) of the Code and satisfied our Supreme Court’s
    decision in Pittman when it provided a contemporaneous written explanation for the
    denial.   We also note that, contrary to what Brown appears to suggest,
    Section 6138(a)(2.1)(i) of the Code does not require the Board to award credit in the
    absence of a crime of violence. Rather, that section preserves the Board’s discretion
    under Section 6138(a)(2.1) to award (or not award) credit, unless the crime
    committed on parole meets the criteria in subsection (i), in which case the Board is
    required to deny credit. Here, subsection (i) does not limit the Board’s discretion
    because Brown’s offense does not meet those criteria. For the foregoing reasons,
    the Board did not abuse its discretion in denying Brown credit for time at liberty on
    parole.
    In addition to the discretionary credit for periods of time spent at liberty on
    parole discussed above, a parolee may be entitled to credit on the sentence from
    which he was paroled for time spent in confinement prior to sentencing on a
    subsequent criminal conviction. When the Board has lodged a detainer and the
    parolee has not posted bail on his new criminal charges, such that the parolee is being
    confined on both the Board’s detainer and as a result of the pending criminal charge,
    presentence confinement credit must be applied to reduce the new sentence of
    incarceration unless the credit would exceed that new sentence of incarceration.
    Martin v. Pa. Bd. of Prob. & Parole, 840 A.2d. 299, 307-09 (Pa. 2003). To the
    contrary, when a parolee has posted bail, such that he is detained solely on the
    8
    Board’s warrant, the Board must apply the presentence confinement credit to reduce
    the unserved balance of the sentence from which the parolee was paroled. Gaito,
    412 A.2d at 571.
    Furthermore, whether time spent in confinement subsequent to sentencing is
    applied to the sentence from which a parolee was paroled or to the sentence for a
    new criminal conviction depends upon whether the Board has recommitted the
    parolee. Section 6138(a)(4) of the Code, 61 Pa. C.S. § 6138(a)(4), provides that
    “[t]he period of time for which the parole violator is required to serve shall be
    computed from and begin on the date that the parole violator is taken into custody
    to be returned to the institution as a parole violator.” (Emphasis added.) The
    provisions of Section 6138(a)(4), therefore, become operative only once the Board
    has revoked parole. See Barnes v. Pa. Bd. of Prob. & Parole, 
    203 A.3d 382
    , 391-92
    (Pa. Cmwlth. 2019). In Barnes, we explained:
    [I]t is well established that the requirement that a
    [convicted parole violator] serve the balance of his
    original sentence is only operative once parole has been
    revoked and the remainder of the original sentence
    becomes due and owing. Therefore, credit for time a
    [convicted parole violator] spends in custody between
    imposition of a new sentence and revocation of parole
    must be applied to the new sentence. Parole revocation
    occurs once a hearing examiner and Board member or two
    Board members sign a hearing report recommitting a
    prisoner as a [convicted parole violator].
    Id. at 392 (citations omitted) (internal quotation marks omitted).
    Here, Brown had 1632 days left on his sentence when he was released on
    parole. (C.R. at 69.) Brown was arrested on the new charges on December 10, 2017,
    and he never posted bail. (Id. at 79-80.) The Board issued its warrant to commit
    and detain Brown on December 11, 2017. (Id. at 82.) Brown remained incarcerated,
    therefore, on both the Board’s warrant and the new criminal charges until common
    9
    pleas sentenced him for the new conviction on March 11, 2019. (See id. at 77.)
    Under Martin and Gaito, the presentence confinement time can be applied only to
    his new sentence because he was not detained solely on the Board’s warrant during
    any period of time. At the time of his sentence, Brown had not yet been recommitted
    by the Board as either a technical or convicted parole violator, because the Board
    did not recommit Brown until April 3, 2019, when the Board member signed the
    hearing report. (Id. at 36.) Thus, following sentencing, Brown did not begin to serve
    time on his original sentence until April 3, 2019, and the time between sentencing
    and April 3, 2019, must be credited to his new sentence under Barnes. As such,
    adding the remaining 1632 days of his original sentence (with no credited days) to
    the start date of April 3, 2019, results in a new maximum sentence date of
    September 21, 2023. The Board, therefore, did not err in its recalculation of Brown’s
    new maximum sentence date, and it did not deny Brown any credit to which he is
    entitled.
    Based on the foregoing discussion, we agree with Counsel that Brown’s
    petition for review lacks merit, and, therefore, we grant Counsel’s application to
    withdraw as counsel. Moreover, because we have concluded that Brown’s appeal
    lacks merit, we affirm the final determination of the Board, denying his
    administrative appeal.
    P. KEVIN BROBSON, Judge
    10
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Kamil Brown,                              :
    Petitioner     :
    :
    v.                            :   No. 767 C.D. 2019
    :
    Pennsylvania Board                        :
    of Probation and Parole,                  :
    Respondent     :
    ORDER
    AND NOW, this 29th day of September, 2020, the application to
    withdraw as counsel filed by David Crowley, Esquire, is GRANTED, and the final
    determination of the Pennsylvania Board of Probation and Parole is AFFIRMED.
    P. KEVIN BROBSON, Judge