T.A. Norris v. PPB ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Taariq Alfond Norris, :
Petitioner :
:
v. : No. 896 C.D. 2022
:
Pennsylvania Parole Board, :
Respondent : Submitted: April 28, 2023
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE CEISLER FILED: July 18, 2023
Taariq Alfond Norris (Norris) petitions for review of the Pennsylvania Parole
Board’s (Board) July 21, 2022 order, through which the Board affirmed its March 1,
2022 decision.1 In that decision, the Board modified a decision it had issued on
December 27, 2021,2 by reiterating its determination that Norris was to be
recommitted as a convicted parole violator (CPV), and then imposing upon him 3
years, 2 months, and 25 days of CPV backtime, while also awarding him no credit
for time spent at liberty on parole and recalculating his maximum parole violation
date as February 7, 2025. Norris’ counsel, Kent D. Watkins, Esquire (Counsel), has
submitted an Application to Withdraw as Counsel (Application to Withdraw), along
1
This decision is dated February 22, 2022, but was not mailed until seven days later. See
Certified Record (C.R.) at 71-72.
2
This decision is dated December 21, 2021, but was not mailed until six days later. See
C.R. at 65-66.
with a Turner letter,3 in which Counsel contends the arguments raised by Norris in
his Petition for Review are frivolous and without merit. After thorough
consideration, we grant Counsel’s Application to Withdraw and dismiss Norris’
Petition for Review.
I. Background
On May 21, 2014, Norris pled guilty to a single count of robbery and was
sentenced by the Court of Common Pleas of Bucks County (Common Pleas) to serve
between 42 and 84 months in state prison (2014 Sentence). C.R. at 1. Norris was
subsequently paroled on July 22, 2017, at which point the maximum date on his
2014 Sentence was October 17, 2020. Id. at 4-10.
Thereafter, on October 17, 2019, Norris was arrested in Bristol Township,
Pennsylvania, after he and another individual shot and wounded a third person. See
id. at 15, 17-18. The Board reacted immediately by issuing a detainer warrant for
Norris that same day. Id. at 11. On August 11, 2021, Norris pled guilty in Common
3
The term “Turner letter” refers to the seminal case Commonwealth v. Turner, in which
our Supreme Court “set forth the appropriate procedures for the withdrawal of court-appointed
counsel in collateral attacks on criminal convictions.” 544 A.2d 927, 927-29 (Pa. 1988). In a
Turner letter pertaining to a parole violation matter, an attorney seeks leave of court to withdraw
representation 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., Com[.] 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 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)]; Com[.] 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
Pleas to one count each of aggravated assault; attempted first-degree murder;
carrying a firearm without a license; conspiracy to commit aggravated assault;
possession of an instrument of crime; and unlawful possession of a firearm. Id. at
25. Norris subsequently waived his rights to a parole revocation hearing and to
counsel, and admitted that he had been convicted of these crimes. See id. at 36-38.
On November 12, 2021, Common Pleas sentenced him to an aggregate carceral term
of 17 to 34 years in state prison (2021 Sentence). Id. at 51-52.
The Board then responded to Norris’ 2021 Sentence by issuing two,
interrelated decisions. On December 27, 2021, the Board issued its first decision,
through which it recommitted Norris as a CPV to serve backtime in the amount of
60 months or the balance of his unexpired 2014 Sentence, whichever was shorter.
Id. at 65-66. Then, on March 1, 2022, the Board issued its second decision, in which
it referred back to the December 27, 2021 decision, while also reiterating that Norris
was to be recommitted as a CPV and clarifying that he was to serve 3 years, 2
months, and 25 days, i.e., the remaining balance left on his 2014 Sentence, as
backtime. Id. at 71. In addition, the Board awarded Norris no credit for time served
at liberty on parole, due to the nature of the crimes for which he had been convicted
in 2021, and recalculated the maximum date on his 2014 Sentence as February 7,
2025. Id. at 71-72.
On March 15, 2022, Norris mailed an administrative remedies form to the
Board. Id. at 73-74. Therein, Norris expressly stated that he was challenging the
decision the Board had issued on December 27, 2021, but provided no explanation
for his challenge; instead, Norris merely checked a box on the form to indicate that
it constituted a petition for administrative review. See id. at 73. The Board responded
on July 21, 2022, via an order in which it both construed Norris’ administrative
3
remedies form as a challenge to its March 1, 2022 decision and affirmed that
decision. Id. at 77-78.
On August 22, 2022, Norris, acting through Counsel, appealed the Board’s
July 21, 2022 order to our Court. Thereafter, on November 10, 2022, Counsel filed
his Application to Withdraw and Turner letter. Counsel seeks leave to withdraw
from representing Norris because, in his view, this appeal is frivolous and without
merit, due to the fact that the Board properly recalculated the maximum date on
Norris’ 2014 Sentence and because the nature of Norris’ 2021 conviction rendered
him ineligible for street time4 credit. App. to Withdraw, ¶¶5-6; Turner Letter at 6-7.
II. Discussion
Our first task is to assess the adequacy of Counsel’s Turner letter. Throughout
this process, Norris has not raised any claims that implicate his constitutional right
to counsel. For this reason, Counsel appropriately elected to file a Turner letter in
this matter. See Seilhamer v. Pa. Bd. of Prob. & Parole, 996 A.2d 40, 43 n.4 (Pa.
Cmwlth. 2010). “A [Turner] 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.’” Seilhamer, 996 A.2d
at 43 (quoting Turner, 544 A.2d at 928) (some alterations omitted).5 As long as a
Turner 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, if the letter fails
4
“’Street time” is a term for the period of time a parolee spends at liberty on parole.”
Dorsey v. Pa. Bd. of Prob. & Parole, 854 A.2d 994, 996 n.3 (Pa. Cmwlth. 2004) (citing Timothy
Wile, Pennsylvania Law of Probation and Parole § 16.15 (2003)).
5
Counsel must also “notify the parolee of his request to withdraw, furnish the parolee with
a copy of the [Turner] letter . . . , and inform the parolee of his right to retain new counsel or submit
a brief on his own behalf.” Stroud v. Pa. Bd. of Prob. & Parole, 196 A.3d 667, 670 (Pa. Cmwlth.
2018).
4
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 Turner letter satisfies the aforementioned technical requirements.
It contains a recitation of the relevant factual and procedural history, a discussion of
the arguments raised by Norris, and a thorough explanation regarding Counsel’s
conclusion that none of Norris’ arguments establish a legally valid basis for relief.
Turner Letter at 1-7. Furthermore, Counsel has appropriately provided Norris with
copies of the Application to Withdraw and Turner letter, notified Norris of his
intention to withdraw from this matter, and informed Norris of the right to hire
another lawyer to represent him in this matter or to represent himself pro se. Id. at
6-7, Cert. of Service; App. to Withdraw ¶6, Certificate of Service.
Under normal circumstances, we would now move on and consider the
substantive merits of Norris’ Petition for Review. However, we need not do so here,
due to the jurisdictional problem created by the untimeliness of Norris’ March 15,
2022 administrative remedies form. By law, a prisoner who wishes to challenge a
parole revocation decision must do so by filing their administrative remedies form
with the Board no later than 30 days after that decision’s mailing date. See 61 Pa.
C.S. § 6113(d); 37 Pa. Code § 73.1(a)(1), (b)(1). “This time period is jurisdictional
and cannot be extended absent a showing of fraud or a breakdown of the
administrative process.” Smith v. Pa. Bd. of Prob. & Parole, 81 A.3d 1091, 1094
(Pa. Cmwlth. 2013). “Where a prisoner fails to meet this deadline, this [C]ourt has
held that the Board has no jurisdiction to entertain the appeal and should dismiss it
as untimely.” McCaskill v. Pa. Bd. of Prob. & Parole, 631 A.2d 1092, 1095 (Pa.
5
Cmwlth. 1993). Here, Norris expressly sought to administratively challenge the
Board’s December 27, 2021 decision. See C.R. at 73. However, without explanation,
he waited to submit the aforementioned administrative remedies form until roughly
2½ months after the issuance of that decision. Accordingly, the Board should have
dismissed the form outright, because it lacked jurisdiction to entertain this untimely
challenge, instead of misconstruing the form as an attack upon its March 1, 2022
decision.
Moreover, even if Norris had lodged a timely challenge to either of the
aforementioned Board decisions, it would not alter the outcome here. This is because
a litigant may not assert an issue on appeal unless they first raised it at the
administrative level.6 2 Pa. C.S. § 703(a); Pa. R.A.P. 1551; McCaskill, 631 A.2d at
1094-95. As recognized by the Board in its July 21, 2022 order, “Norris checked the
box [on his administrative remedies form] marked ‘This is a PAR’ and relayed to
the Board nothing else to consider.” C.R. at 77. In other words, Norris did not present
the Board with any substantive explanation regarding why he disagreed with the
legal or factual reasoning underpinning its decisions. Thus, even if the untimeliness
of Norris’ administrative remedies form was not dispositive, it would remain that
Norris failed to preserve any issues for appellate consideration.
III. Conclusion
In light of the foregoing, we grant Counsel’s Application to Withdraw and
dismiss Norris’ Petition for Review.
____________________________
ELLEN CEISLER, Judge
6
There are several exceptions to this rule, none of which are applicable to this matter.
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Taariq Alfond Norris, :
Petitioner :
:
v. : No. 896 C.D. 2022
:
Pennsylvania Parole Board, :
Respondent :
ORDER
AND NOW, this 18th day of July, 2023, it is hereby ORDERED that Kent D.
Watkins, Esquire’s Application to Withdraw as Counsel is GRANTED. It is
FURTHER ORDERED that Petitioner Taariq Alfond Norris’ Petition for Review is
DISMISSED.
____________________________
ELLEN CEISLER, Judge